Rule 1925 Remains a Waiver Trap

The Supreme Court’s recent decision in Berg v. Nationwide Mutual Insurance Co., __Pa. __, 6 A.3d 1002 (2010) (plurality opinion) serves notice that a majority of the Court continues to expect strict compliance with all of the very technical requirements of Pa. R.A.P. 1925(b)’s “concise statement of errors complained of on appeal” procedures.  Although the upshot of the Court’s five opinions was that under the egregious facts presented no waiver was found, the broader message is that, even after 2007 amendments intended to reduce the number of appeals dismissed on waiver grounds for Pa. R.A.P. 1925 technical violations, counsel needs to adhere to all of Rule 1925’s technical requirements, use extreme caution, and essentially treat compliance with the letter of Pa. R.A.P. 1925 in the same way that jurisdictional deadlines are treated.

The controversy in Berg implicated the Rule’s requirement that the concise statement must not only be filed with the prothonotary but also served on the trial judge. The Rule places that duty on the appellant, and places on the trial judge the duty to expressly state the filing/service requirement in the body of the order directing the filing of a concise statement.  In Berg, the trial judge’s order confusingly directed appellants to “file with the Court and a copy with the trial judge.”  Nevertheless, at the time appellants’ counsel timely filed the concise statement with the prothonotary, appellants’ counsel also attempted to personally serve the trial judge.  The prothonotary, however, declined to specify a location where the trial judge could be found, volunteered to deliver the concise statement to the trial judge within 10 minutes, and refused to accept for filing a duplicate copy for the trial judge, insisting that the judge “always wants the original.”  Although the trial judge did indeed receive the concise statement that was filed with the prothonotary, he nonetheless deemed all issues waived because Appellants’ counsel never served him with his own personal copy as required by the Rule.  The Superior Court agreed in an unpublished memorandum that all issues had been waived.  The Supreme Court accepted allocatur, but only on the narrow question of whether waiver was appropriate in light of the trial judge’s arguably deficient order that did not expressly state that the concise statement be served on the trial judge.

The lead opinion, written by Justice Todd and joined by Justice McCaffery, holds that, in light of the trial judge’s own failure to state that the concise statement had to be served on the trial judge (suggesting instead that appellant need only “file” the trial judge’s copy), appellants’ counsel’s effort to file a second copy for the trial judge that was foiled by the prothonotary constituted “substantial compliance” with the Rule within the meaning of Pa. R..A.P. 126.  Three of the other four participating justices concurred in the result.  On one side, Chief Justice Castille rejected the notion that appellant had “substantially complied,” but reasoned that on the unique facts presented, where the location of the trial judge’s chambers was not readily apparent, the prothonotary could serve as the trial judge’s designee for personal service.  Justice Eakin, in contrast, believed that appellant had done all that was required by filing with the prothonotary, because Pa. R.A.P. 1925 requires that service on the trial judge be pursuant to Pa. R.A.P. 121 (a), which states that papers to be filed in an appellate court be filed with the prothonotary.  Justice Saylor accepted the lead opinion’s “substantial compliance” rationale, but went on to state that invoking the substantial compliance rule in these circumstances “comports with the less rigid application of Rule 1925” reflected in the 2007 amendments.  Justice Baer dissented, reasoning that a trial judge’s deficient order and counsel’s “substantial compliance” with that deficient order should not trump the actual requirements of Pa. R.A.P. 1925.  Justice Baer called for continued adherence to the “bright line” waiver rule adopted in his opinions in Commonwealth v. Castillo, 888 A. 2d 775 (Pa. 2005) and Commonwealth v. Schofield, 888 A. 2d 771 (Pa. 2005), to prevent “returning to where we started five years ago when Castillo and Schofield were decided,” countenancing “inconsistent application of Rule 1925’s waiver provisions by the trial and intermediate appellate courts.”

While it may be  difficult to understand the Supreme Court’s willingness to find waiver of substantive appeal rights in (the many) cases in which noncompliance with Rule 1925’s highly technical provisions would have no adverse impact on the appellate court’s substantive review of the issues, the practical take-away from Berg is not difficult to understand.  Counsel must treat compliance with Rule 1925 procedures as the equivalent of a jurisdictional filing deadline and take whatever steps are necessary to assure that all of the Rule’s numerous technical requirements are met.  The appellants in Berg succeeded in avoiding waiver, but the Court struggled mightily to reach that result.  No lawyer wants to be in the position of seeking forgiveness for procedural noncompliance where the stakes are so high.

Suggested further reading:  Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2010-2011(West) §§1925: 15-20.