*1 (Pа.Commw.2007) (Colins, concurring and J. dissenting). on much of its conclusion rests majority opinion campaign Assembly regard with of the General
silence
Nevertheless,
in this
I
that silence
conclude
contributions.
out,
Legis-
Judge
pointed
As
Colins
volumes.
speaks
case
com-
campaign
contributions
the field
lature has addressed
Code,
§§
3241-3260b.
Election
P.S.
prehensively
addressing limits
Nutter,
By not
George J. Diamantis, Ann Peter S. Schnader Greenberg, Jennifer L.L.P., Lewis, & Philadelphia, & for Brown Segal Harrison Corporation. Williamson Tobacco Lewis, Diamantis, Harrison Segal Jennifer Ann Schnader & Klein, L.L.P., Conrad, O’Brien, & Michael Howard Gellman Rohn, P.C., Philadelphia, for The Tobacco Institute. SAYLOR, EAKIN, CAPPY, C.J., CASTILLE,
Before BALDWIN, FITZGERALD, BAER, JJ.
371 THE OPINION ANNOUNCING JUDGMENT THE COURT OF Justice BALDWIN.
I. in the It has been said there is “much consternation courts this the outer limit of Commonwealth” related where lies an appellant the number of issues raise with concision may Pa.R.A.P.1925(b).1 case, the In this pursuant insisted, and the the sheer agreed, Court volume issues effectively precluded raised court from granted We preparing opinion.2 allocatur resolve wheth- er Appellants right by raising waived their review quantity meaningful to impair issues sufficient case, that in review. We conclude this the number of issues 1925(b) raised in no basis to provided find waiver. outset, case,
At the
note that beyond
this
there are
myriad recent decisions
issue
touching upon the
before this
Court,
1925(b)
varying
which reached
conclusions.3
Rule
process has turned into a
years,
maelstrom in recent
Kern,
1,
(Pa.Super.Ct.2006).
1. Kern v.
892 A.2d
6
issues,
twenty-four separately
identified
lettered
some of
sub-issues,
fifteen-page
contained one
more
in their
Rule
1925(b)
1925,
25, 2007,
July
statement. Rule
revised effective
elimi-
subsidiary
nates the need to include
issues that were raised in the trial
Pa.R.A.P.1925(b)(4)(v).
court.
denied,
Epstein,
See
(Pa.Super.Ct.2004),
Kanter v.
5. The version of in effect when the instant Pa.R.A.P.1925 provided part noticed in relevant as follows: Opinion Support Rule 1925. of Order. (b) complained Direction of matters of. The lower to file statement may directing file of court forthwith enter an order judge on the trial a concise record lower and serve complained no of the matters of on the later than statement comply days entry A after of such order. failure to with such judice the matter sub below, in number find that while the subject may of issues raised in the strategy, been the of a poorly have result reasoned court did not acted because the trial find faith, Appellate there was no of a Rule of bad violation Procedure.6
II.
matter,
In
both
this
the trial
and the
in Kanter v.
relied
heavily upon
Court’s decision
may
direction
be considered
waiver of all
court as a
order,
objections
ruling
complained
of.
or other matter
July
As of
revisions to Rule
became effective. While
govern
the Rule
continues
the form
must be followed
order to
appealed,
inform
the lower court
that will be
revised
very
version includes instruction on the
issue now
before
Court:
non-redundant,
appro-
"Where
non-frivolous issues are set forth in
manner,
priately concise
the number of errors
will not alone be
grounds
finding
1925(b)(4)(iv).
waiver."
Pa.R.A.P
In
case at
*7
bar,
subsidiary
the number of
issues raised in the instant matter was a
point
Corp.,
of
Eiser v.
friction.
Brown & Williamson Tobacco
No.
(Ct.
slip op.
March
Term
at
The complaint alleged including numerous causes fraud, negligent under misrepresentation, liability strict (Second) ..., Section 402B of the Restatement of Torts implied warranty, breach of express warranty, breach of defect, design failure to warn under Section 402A of the (Second) Torts, Restatement conspiracy, civil concert action, laws, protection violation consumer and [various] loss of consortium.
Id. subject
The complicated lawsuit was all accounts one. counsel, To challenge contextualize the facing Appellants’ note here that originally this case two plaintiffs involved and defendants, eleven and stretched four years over from the date the was the jury suit filed to At four verdict. least judges pre-trial made rulings and this matter. Moreover, record voluminous. argued have very nature of the causes of alleged, action included conduct the tobacco as far industry back as 1950s, unavoidably a complicated led to rec- voluminous ord. Appellees filed a series of for summary judg- motions ment and a dozen over motions in limine. Some thou- four trial, sand exhibits were marked for place which took filed, nearly four and half after the years complaint over one hundred and written fifty orders docketed A variety instant matter. of pre-trial rulings, including *9 non-suits, Fol- against Appellants. entered
compulsory trial, post-trial the defense and jury the was for lowing verdict motions were denied.
IV. 1925(a) it found opinion, the trial court When issued large number issues that the raised such a Appellants аny to preserve be have failed to Appellants “should deemed the on account of number issues review appellate issue 1925(b) statement,” Kanter citing the deci- contained in [the] Trial 4. The trial court slip op explained: sion. Ct. to view, should be deemed [Appellants] In this [c]ourt’s on any appellate to issue for review preserve have failed 1925(b) in her account of the number issues contained recently filing held that the statement. 1925(b) statement violates of voluminous multi-issue preserving rule has the effect of spirit letter and no issue on appeal. Kanter). Indeed, the trial (citing
Trial Ct. at 4-5 op. slip from Kanter illustrate quoted following passage prolix invited waiver with why instant statement: they to set forth issues that The Defendants’ failure impeded in concise manner sought appeal raise ability opinion addressing court’s Court, this sought to raise before issues that Defendants in a frustrating ability engage mean thereby Court’s process. Seе Common ingful and effective review A.2d see Steadley, (Pa.Super.2000); wealth (Pa.Su Kimble, 78, 80 also Commonwealth v. issues, the number of per.2000). By raising outrageous deliberately meaning Defendants have circumvented thereby effectively pre of Rule and have purpose they cluded of the now seek raise. appellate review case, In this the Defendants’ voluminous Rule State actu identify ments did not Defendants before the Court. The ally intended raise Defendants’ Rule identify significantly Statements more issues than the Defendants could raise on possibly due requiring limitations briefing of the question Statement involved not exceed lines, event, fifteen and in any one See Pa.R.A.P. page. *10 2116(a). case, In this the trial court presented with fifty more issues that each defendant for identified This appeal. forced trial court to issue the guess which Defendants actually would raise on This Court has appeal. previously explained that a court to guess has what “[w]hen аn appellant appealing, enough is not McCree, meaningful review.” Commonwealth v. 857 A.2d 188, 192 (Pa.Super.Ct.2004).
Furthermore, note that despite the fact that the trial court authored an eighty-five page Opinion, was, through own, no fault of its unable to provide comprehensive analysis of the issues it did address due the preposterous number of issues by identified Defen- dants. This too has impeded our ability [sic] undertake a meaningful review of the issues raised on by Defendants appeal. Accordingly, we must conclude that Defendants preserve have failed to any of their issues for review.
Trial slip Ranter, Ct. at 5-6 op. (quoting (2004)).8 Kanter, Relying upon the trial court then deter mined the sheer number of issues raised instant Appellants “greatly impeded its on ability prepare [sic] Opinion that fully and cogently discusses the issues [Appel intend to lants] raise on appeal due to the number of is ” sues .... Id. at 6. While the trial court suggested that the waived, Court find all issues the trial court attempt ed to address the issues raised.
As a part her brief Court, filed the Superior Appellant requisite included the Pa.R.A.P. 2116 Statement of Questions quoted passage 8. The expression includes the trial court's of concern regarding Appellants how ultimately comply would or would not sake, briefing requirements. court's clarity's For we note germane that this consideration was not duty to the trial court’s 1925(a) prepare opinion. its Rule statement, set forth Appellants In the Rule
Involved.9 statement. issues that were eight of the orig- all other issues Thus, intentionally abandoned addressing Before in the statement.10 included inally the trial court’s issues, explained these following of issues raised the number frustration with way: a concise to file Appellants] court directed [trial] appeal. Appellants] of on complained of matters thirty sepa- setting forth close concise statement
filed a The trial issues, containing sub-issues. some rate Appellants’] plethora suggesting an opinion then filed opinion ability the court’s impeded claims and, thus, should issues; Appellants’] addressing Nevertheless, prepared the court appeal. be waived Appellants’] extent each of to some discussing numerous issues. at 5.
Super. slip op. Ct. *11 Kanter, that Court, found relying upon also Superior The the sheer number resulted from opinion cursory 1925(b) statement. in their Rule by Appellants raised of issues for the except Thus, that all issues were waived it was held namely, whether depth, trial court addressed issues the two nonsuits, and the compulsory to refuse to remove it error testi- expert exclusion of witnesses’ related to the rulings part: provides, in relevant which 9. See Pa.R.A.P. question or questions involved must state of the statement names, terms, general and without questions in the briefest most ordinarily dates, any It particulars of kind. should .amounts lines, always be on page, and must never exceed one exceed 15 must any appearing thereon. This page, other matter separate without admitting degree mandatory, highest rule is to be considered point which is not set exception: ordinarily no will be considered no thereby. suggested questions involved or forth in statement herein, Appel- notwithstanding the issues addressed that
10. We note design facially with the of the consistent lants' actions were protect was filed to system. The voluminous record, then, and opportunity to review the record and after actually pursued on eight were carefully, only of those issues it consider Superior appeal to the Court. at the trial Super. op. Ct. 8. “Given court’s mony.11 slip discussion, Ap- necessarily cursory meaningful our review of ... pellant[s’] hampered. is has circumvent- Appellant meaning thereby ed the of Rule and has purpose Id. all but two claims on appeal.” waived first [the] concluding After that had all but those two Appellants waived non-cursory issues the trial court addressed fashion, Superior analyze only went on to Court expert testimony rulings. granted nonsuits and witness We of appeal. allowance
V. matter, a general argue As Appellants the deci sion should be because it relies on the Kanter below reversed decision, uncertainty” has “cast a cloud of over appellate practice. Appellants contend that face a litigants “minefield” on vagueness waiver under the grounds, Commonwealth Lord, (1998) cases, Pa. for line issues, raising many too the Kanter following decision.12 Appellant Brief of at Appellants’ mirrored argument, Association, amicus curiae Trial Pennsylvania Lawyers dueling requirements these force appellants undertake a daunting “tightrope” any guidance walk without from this Court on how to safely. cross to merits Id. review
Appellants’ specific are arguments straightfor- reversal First, ward and have three essential components.
insist duty failed in its opinion in timely complies fashion and that rulings 11. The Court reviewed the merits of the trial court's they sufficiently on these two issues it deemed because addressed herein, opinion. explained propriety in the trial court As rulings by presently affirmance those is not issue in this Court. *12 Lord, however, any aspect "In this Court eliminated of discretion 12. bright-line and established a rule for Rule waiver under 1925." Com- Butler, 441, 445, 631, (2002). "[I]n monwealth 571 Pa. 633 review, preserve [alppellants order their for claims must comply whenever the court to file a trial orders them Statement Lord, Complained Appeal pursuant Matters of on to Rule 1925.” 553 420, Lord, non-compliance Pa. at A.2d at Under 309. waiver Butler, 445, with Rule 1925 is “automatic.” at 633. Pa. A.2d at 1925(a). Second, rely contend it was error to Appellants legal Kanter subject after because Kanter was decided the on Superior analysis filed. The statement was Court’s flawed, contend, it relied upon also because Appellants was Kanter, usurpa- upon improper which was decisiоn based rule-making authority. Finally, assuming this tion of Court’s that this Court finds Kanter prece- been of arguendo have that the value, posit Supe- the nevertheless Appellants dential in that decision because it was relying upon rior Court erred factually distinguishable. vastly case is insist the nature of the instant
Appellants of contract simple the breach comparatively different from Kanter, Kanter if the in holding in dispute issue even review, applied it should not have been survives this Court’s analysis in much because the complicated this more case Kanter was findings to the Court’s inexorably Superior tied on chicanery part appellants.13 and misconduct those Kanter According Appellants, simplicity relative here. No such motives improperly analogized was litigation Thus, these against been and found Appellants. have levied contend, to take into failing Court erred they it ac- nature of this matter when complex consideration сursory for its explanation analyses. trial court’s cepted trial failed in its regard to the position With timely opinion, Appellants point duty adequate, 18, August filed post-trial out motions matter were The motions eventually post-trial 2003. denied against 2003. Judgment Appel on December was entered January lants on 2004. next day, January Appellants noticed the
was 1925(b) statement, and filed it on timely to file a Rule ordered 24, 2004. February point at no in time
Appellants explain length 1925(b) statement, raised, number of issues to the subject any complaint by prior By way example, suggest the one hundred fifty plus instant matter evidence the written orders docketed only litigation, contrast the Kanter which had ten. *13 the trial being “Surely, during lengthy delay, issued. that court ... ‘more could have ordered a concise’ statement. Instead, warning, appellate the ... taken rights without away.” of Appellants Appellants Brief While the expected complicated a trial lengthy opinion given case, no opinion nature of the filed even a after the year was 10, 2005, appeal was noticed.14 On filed January Appellants Application for Relief in the order seeking Court court to directing opinion the trial file its and transmit record. granted The this The request. its opinion completed and transmitted the record next day.
Appellants also address Lord this Court’s insistence that is to be applied prospectively. By analogizing prospective Lord, holding of which required its expressly interpretation 1925(b) forward,” Rule “from apply Appellants posit date that even if Kanter was decided and otherwise properly applicable to matter sub it should not have been judice, applied it was not because decided until after nearly year Appellants filed statement.
Appellees Appellants’ refute contention that Kanter should First, not have been retroactively applied. they insist Kanter words, did not announce rule. In any new other 1925(b), according Appellees’ interpretation prospective holding Lord has no on bearing Kanter because Kanter, Kanter no announced new rule. With or without Appellees suggest further prolix statement filed here should have same suffered the fate. had “clear notice that non-compliant [their] would result in waiver of appeal, issues on and the Kanter decision represent did not rule of Brief of new law.” Appellees at 12. matter,
As a practical Appellees suggest requiring counsel to make decisions actually about be will provides 14. Pa.R.A.P.1931 that a trial court is to record of transmit the forty days matter on to the court within the notice to, alia, appeal, duty and has further inter pursuant to Rule limiting the matters purposes argued appeal, statement, requires onerous not an task suggest are careful Appellees common sense. only Rather, here. problem of issues itself is the number intent each of genuine argue to the lack of Appellees point litany raised before the court. of issues *14 sums, Appellees argue, these what difference between two the trial statement abusive towards makes Appellant’s Appellees and with the intent the Rule. noncompliant to discern a violation simple way that the clear suggest like this is to whether in situations assess that he included issues in the has actually pursue appeal. not intend to or she does if in that even Finally, contend the alternative Appellees the waiver agree Appellants this Court with that were error, nevertheless fails because finding was merits of non-suit and on the disposition Court’s evidentiary has rendered consideration of “waived” issues moot.
VI. that Kanter should not agree Appellants We in this the basis for the Court decision provided have above, compli is a matter. described the instant As lawsuit Thus, and, comparison, one Kanter was not. cated determination in Kanter is so predicate factual for the waiver that it presented inappos facts here find different than the we ite.15 wrong argued Appellants the lower
15. have also courts specifically instructed look to Kanter decision because this applied argument proves prospectively. Lord to be This rule-making unavailing. usurpation not of this Kanter was Court's not, authority, suggested. have Kanter and in fact Appellants as did not, change operated as a to Rule This Court has could have authority promulgate Appellate exclusive the Rules Procedure. interpretation way, the merely an of such a In this Kanter was Rule. Lord; any aspect of discre- Kanter is unlike Lord "eliminated decision in address claims not included in the Rule tion” whether Butler, Thus, reject Pa. A.2d at we statement. See suggests portion Appellant’s argument not Kanter should retroactively. applied have been Although we have concluded that Kanter should not here, have been applied yet larger we must determine question Appellants whether right waived by raising many review so issues that appellate review was matter, As a impaired. practical encourage the we lower courts to recognize that on rare in party may, good occasions faith, large believe that a number of worthy issues are pursuing on appeal.16
Appellants brought have forth a complicated multi-count lawsuit with numerous defendants resulting many trial Kanter, rulings. Unlike the trial court in the instant matter did not find that faith, Appellants acted bad intending deliberately circumvent the meaning purpose 1925(b). Rather, find, of Rule counsel for took his marching orders from the case that all requiring law not raised are waived. Given the timeframe in he had to file his Rule statement and the of rulings number trial, made both before and during it eminently seems reason- able, and certainly outrageous, that counsel included a large number of issues. We also conclude that the finding *15 Kanter that the trial court had no fault in the matter to be Here, distinguishable. the trial court took over a to year prepare its opinion, and issued it only upon order of the Court.17,18 that, matter, recognize 16. We practical as a the courts will never be that, completely able to rule possibility out the as Justice Castille suggests dissenting opinion, in disgruntled his appellant might a raise appeal punish issues on judge a against party. trial who ruled that Thus, good inquiry suggest the faith requires is not one that a fact, Rather, finding per today's holding se. simply requires that lower courts undertake consideration of whether the circumstance of suggest the lawsuit at issue there good is a lack of Only faith involved. litigant then should a appellate suffer the loss of review due to the volume of issues raised. 1925(b) statement, permitted 17. Trial courts are to order a Rule but requiremеnt there they is no do so. We note that a Rule large may that contains a impede appellate number of issues review in a manner that is different from that addressed in Lord. The explained ordered, Lord line of cases that where such a statement is vagueness in it results in impossibility the preparing of the trial court its opinion. Impossibility very is of difficulty. course different from construct, Viewed in this analytical instant opposite case is the sum, in a Rule In the number issues raised not, more, a basis provide statement does without other deny which to review where upon In a practice. with the mandates of complies wise Kanter, case, rare a trial court concludes there was like where by including an appellate process to thwart attempt in a Rule state large number of issues exceptionally ment, sheer number of issues may result.19 While the waiver a burden on posed here considerable 1925(a) remains the trial its Rule the fact prepare opinion, years court’s to this matter for attention directed several itself, trial, during for some two weeks prior Thus, approximately per for and a half afterward. year than usual haps, opinion required longer period prepare.
There is a that an licensed presumption attorney Commonwealth, in this acts as an officer of practice who law upon signing faith system, good has acted court.20,21 these document filed The decision to raise of the Rules of Proce Appellate issues the mandates within sure, could dure is one to counsel. To be counsel entrusted most to focus the few he decided have elected issues Here, impediment would Lord. to review was the amount of work it thoroughly subject have to address each issue raised taken difficult, number of raised made it statement. The impossible, opinion. for the trial Pa.R.A.P.1925(b) expands the to file 18. The version window revised prior from under version to “at least" the statement fourteen 1925(b)(2). twenty-one days. Pa.R.A.P. holding with the this case is consistent revised explains frivolous or redundant continue now waiver, provide grounds lengthy explanation of and clarifies that a error(s) provided Pa.R.A.P. claimed should not be statement. 1925(b)(4)(iv). 1023.1(c) explains significance We note that Pa.R.C.P. further *16 signature upon our attorney of an a document filed in afforded to the courts. Castillo, In we much. incumbent Commonwealth v. noted as “It is 21. upon lawyers judicial oversight.” court rules without 585 all follow 775, 5, (2005) (reaffirming Pa. n. n. this cases, untimely-filed applying precedent line of Court's Lord and that 1925(b) statements). likely to in reversal matter of Other strategy.22 result as a attorneys more issues to may judiciously have narrowed the in they those felt most to result a favorable result likely were But, Lord, for the in the it for clients. wake of was reasonable Appellants’ attorney Although to err on the side caution. 1925(b) may shorter Rule statement have more effec proved tive, not, itself, not provide counsel’s decision to file one did waiver.23,24 basis find
VII.
today’s
fact
in
Despite
holding, the
remains that
Appellants
case
in
pursued only eight
appeal
issues
their
Court, Therefore,
law,
Superior
existing
only
under
case
See,
eight
preserved.
those
Philadel
e.g., City
issues
(Pa.2004) (conclud
Schweiker,
579 Pa.
phia
For these would to the trial court with instructions to this Court remand in the addressing all statement, Superior our in this case remand must be to Superior this matter We therefore remand Court. pre only eight Court instructions address the Pa.R.A.P. 2116 statement. Should served 1925(a) opinion on require comprehensive a more issues, may it remand tо the court. those relinquished. Jurisdiction is join opinion. BAER and FITZGERALD
Justice a concurring opinion. files Justice SAYLOR Chief CAPPY concurs result. Justice dissenting opinion. files Justice CASTILLE a dissenting opinion. EAKIN files Justice argue We are that all their issues are mindful rejection the two claims it inter-related and that Court’s consequence the court's consider considered was a failure to however, argument, other it. Consideration of issues before grant limited of allocatur and is not for us to decide. outside our Rather, remand, any the lower would have address bar courts judice, relitigating Superior Court sub tire two issues the decided including law of the case considerations. SAYLOR, Concurring. Justice decisis, I by application
Other than the doctrine of stare supported have not waiver from approach deriving strict Lord, do and I of that In support expansion doctrine. case, I believe that the trial and intermediate appellate court had reasonablе alternatives short of drastic sanction dismissal outright apparent to address lack of concise- *18 ness in the statement of matters of on complained appeal. I Accordingly, support ultimate plurality’s disposition. EAKIN, Dissenting. Justice dissent,
I as I by believe appellant waived review R.A.P.1925(b) of in her raising quantity issues Pa. statement meaningful sufficient to impair review. 1925(b) provided:1
Rule The may directing lower forthwith enter an order appellant file of record lower court and serve on judge the trial a concise statement of the matters com- on plained of no later than 14 of appeal days entry after such A comply order. failure to bomay with such direction by objec- considered as a waiver all order, ruling tions to the or other matter of. complained Pa.R.A.P.1925(b). This required Rule appellant, when direct- ed, to file a concise statement of on complained matters appeal.
“Rule 1925 is component а crucial the appellate pro [] Lord, 415, 306, cess.” Commonwealth v. 553 Pa. 719 308 A.2d (1998). is aid “[It] intended to trial and judges identifying focusing those upon issues which the on parties plan to raise appeal.” Id. This Rule guarantees judge’s ability a trial raised, focus on the and to for meaningful allow effective appellate review. 585 Schofield, Commonwealth (2005). Pa. The is there meaningful purpose, purpose which is defeated scattershot prolixity such as this. amended,
1. Rule has been and the text of those amendments was July effective concise, “to file a appellant The ordered self- trial court complained of the matters intelligible contained and Pa.R.A.P. on Trial Pursuant [][a]ppeal____” Court Order 1925(b), “non-compli- order informed 2/10/04. objections be deemed waiver all may ance with this Order Id. or of on complained Appeal.” other matters Order not however, comply that did filed a statement Appellant, 15- language purpose Appellant’s either sub-issues, nearly statement consists of issues and page Such a statement did not argument. each of includes identifying appellant planned the issues aid rather, the trial court found it been appeal; “ha[d] to raise on ability Opinion in its on greatly impeded [sic] [appellant] fully cogently intended] discusses [appellant] on due to the number of issues raise Opinion, in her statement.” Trial Court ha[d] 2/1/05, at 6. much simply comes a too much. point
There when too was not concise and did aid Appellant’s statement on planned appeal. court in issues she raise focusing *19 1925(b) by comply failed to with Since statement of the issues she providing court with concise uphold ruling I appeal, intended to raise on would Superior Court. CASTILLE,
Justice Dissenting. join I Dissenting Opinion. I Mr. Justice Eakin’s write I respectfully in dissent because take issue with separately and because certain of the broad plurality’s pronouncements to response on the situations like one my appropriate view by the judice from the taken greatly approach sub differs plurality.
Preliminarily, I note that the
the issue
plurality poses
to
right
waived “their
appeal
being
appellants
as
whether
quantity
of issues
appellate
by raising
significant
review”
371,
385-86,
383,
meaningful
Op. at
impair
appellate review.
420, 427,
Although
this Court framed
938 A.2d
allocatur,
grant
issue in that manner in our limited
Superior Court did not determine that
appellants waived
review;
instead,
right
was
panel’s ruling
Thus,
issue-specific.
panel
reviewed the
claims it
two
found were
susceptible
meaningful review and deemed
waived the six claims
impaired by
where review was
helpful
absence of a
explanation
opinion.
the trial court’s
(The
deficiency
consequence
was
Pa.R.A.P.1925(b)
the prolix
Complained
Statement Matters
of on Appeal
short,
filed
In
appellants.)
appellants were
review,
afforded
but
that review was restricted.
casе, therefore,
This
is not like Kanter v.
Epstein,
denied,
394 (Pa.Super.2004),
alloc.
584 Pa.
Turning
merits of the procedural issue
I
posed, have
difficulty with the following broad statements and “findings”
(1)
in the plurality opinion:
its
finding
appellants’ counsel
“took his marching
law;
orders” from the Rule
case
(2) its finding that it
“eminently
was
reasonable” for counsel to
(3)
file the prolix
case;
statement
in this
its suggesting that
the trial court
dilatory
in responding to the lengthy
(4)
statement;
its
holding
broad
that “the number of issues
raised in
not,
a Rule
more,
statement does
without
provide a
upon
basis
to deny appellate
review where
complies
otherwise
mandates of appellate
(5)
practice”; and
that the
stating
ultimate test for waiver
under Rule
depends upon the appellant’s good faith.
379-82,
atOp.
Court,
capacity
in this case filed
why
record
counsel
from the
gleaned
do not
that it was
I also
know
Rule
statement.
prolix
scores
judge
burden the trial
with
reasonable” to
“eminently
1925(b) statement,
in a Rule
when
and subclaims
of claims
in their
laundry
list
pursue
not
obviously could
appellants
(and
pursued “only” eight
in
appellants
brief
fact
appellate
claims).
much of the
Further,
share
appellants
I believe
court’s
delay
preparation
in the trial
responsibility
facing
duties
many
is but one of
writing
opinion. Opinion
a trial court with
courts,
a
who burdens
litigant
trial
time
take
that the
will
expect
of claims should
scores
liti-
waiting
other
priority
a
over
and cannot be
general
observa-
ways
plurality’s
part
I also
with
gants.
language
that the plain
clear to me
because it seems
tions
case,
in
appropriate
holding,
permits
Rule
trial
as to
a
is so abusive
warrant
number of issues raised
waived, and the
claims to be
appellate
аll
judge
deeming
And
finding.
respect
court to
permits
appellate
Rule
I fail to see how
fact-finding capacity,
lack
finally, since we
Indeed,
made
points
the five
standard is workable.
faith
good
I take issue are matters which
by
plurality
with
I
instance.
address in the first
is best suited to
judge
might disagree
plurality’s
judge
that the trial
suspect
faith.2
good
assessment
i.e.,
good
only
it infers
plurality
faith
via the back-door:
finds
trial court did not find that
good
from the fact that "the
faith
Op.
judge after ruled decision, indulgence state- require the which would claims, judges encourages trial raising unlimited numbers ments cases, addressing any but instead claims such to waste their time court —once the determination of await briefing concerning which responsibly limits his issues — very efficiency for which regime This subverts claims to address. more time- Perhaps we return to the designed. should the Rule was *21 Ultimately, I dissent because the issue here a waiver 1925(b) conduct, natural result of own appellants’ Rule and took to appellants protect no action their interests. Rule A permits flexibility. trial faced a “con- judge with sixty-plus cise” statement fact encompasses (with by and sub-issues more issues a reference to implicated appellant’s eighty-three the post-verdict page motions and brief support), knowing appellant and the cannot claims on possibility pursue majority the vast of those court, without leave of the a appellate supplemen- could issue cause, order, tal rule to show correct the token, prolixity. By the same an faced appellant with such an order —or faced a trial court opinion finding prolixity- with based waiver—could seek justify reconsideration to the laun- or, list dry more responsibly, amend its just the whittle claims as whittled appellants away down— here in Or, claims preparing Superior Court brief. the the appellant request appellate could court remand the for an matter opinion addressing the select issues the appel- ultimately pursue.3 lant An decided court faced claims in a brief that were not in the addressed lower because of rather than prolixity, finding waived, bulk of power the clams has the to remand the case for supplemental opinion to the limited few claims appellant actually pursue appeal. decided In this consuming, regime and issue-winnowing, but substantive that existed stage opinions post-verdict when trial court filed were as the final of the process. judge manage easily motion A trial can more types these of abusive,
pleadings, likely and an is less when be the case squarely judge's jurisdiction. remains trial within the plurality impressed by appellants’ complaint 3. The seems to be sponte appellants trial court did not sua direct file a "more concise” finding Although statement before waiver. has this Moreover, power, nothing obliges why the Rules it to so act. is significant trial court’s failure to direct amendment more than appellants’ request prolix failure to leave to cure the statement? In this regard, sight significance should not lose that the Irial court's waiver, opinion, finding very day appellants was filed the after secured order directing from the trial court to file its opinion and the Perhaps appellants record forthwith. should have vigilant concerning they as lapses been their own concerning as perceived lapse by the trial court.
case, no remedial action face appellants took finding that the number claims perfectly court’s reasonable ability timely comprehensive to file impaired 1925, a of Rule language Based opinion. upon plain in such circumstances finding waiver not an abuse discretion. plurality lapses. Ultimately, overlooks appellants’ (1) filing prolix state- permit decision would plurality *22 (2) or explanation; would right, ments as of without leave to seek to any duty modify absolve appellants any remedial action once faced with take pleadings (3) waiver; require appellate would suggestion of listed, if pursued appellate claims so entertain all This trial did not address them. briefing, even when the not text of the Rule. suggested by “solution” is have themselves litigants primarily solution who rewards for their dilemmas. And the solution overlooks blame busy prolix our trial face judges dilemma when filed, ignore leave to requesting statements are without a trial requirement. Why judge “concise” should have pursue in fact sixty claims when the will write only eight claims on appeal? 1925(b), the power issue-specific
Under Rule find waiver of the in a case such as this vested discretion I agree appellees discrepancy court. in their Rule appellants the number of issues listed between 1925(b) statement, actually of claims pursued and the number brief, panel’s findings in their supports Moreover, took appellants, certain claims were who waived. being even after protect appeal rights no action to judge prolix announced state- apprised ability comprehensive opinion, ment write impaired in the panel’s an abuse discretion decision. have shown respectfully I dissent. ...The Notes that the "2007 amendments address by the bar concerns of the raised in which waiver ... cases court found [1925(b)] repetitive because the Statement was so voluminous judge likely it did not the enable the focus on raised on be appeal.” Although place the of Rule version in at the relevant time for effect, purposes judice longer of the matter sub no in decision is the by change. herein the is unaffected Rule Both the and former current the 1925(b) require although version of Rule version concision current does, explains, as this decision number of issues raised provide by finding statement cannot itself a basis waiver. grant The in of Allocatur this does not a review of matter extend to any Appellants’ merits of the issues in only propriety statement. This is with Court concerned of the waiver determinations. However, has Epstein. today, yet prior Court matter, a prefatory address Ranter.7 As brief discussion Ranter necessary. therefore Ranter action. A straightforward breach contract was from attorneys, stemming arose dispute referral fee between approximately to the client of million. underlying award $4 attorney the matter rеferred paid The fee to the to whom attorney The then referring almost million. amounted to $1.3 $431,000 only for the referral but was sought awarded (one-half However, $215,500 sought) by jury. the amount trial to reflect post-trial court revised the award $645,000 $431,000 in as well as punitive damages and added refer- delays. for sanctions and The defendant other awards defendant, firm, ral and his new which was also attorney in raised some their appealed. Together, they both 104 issues 1925(b) statements. Ranter The of issues was troubled number to the of Appellate raised and felt that addition Rules Procedure, faith duty good the court had dealing with agreed, finding The been breached. conduct is only underlying such to overwhelm “motive system an extent that the are forced to to such courts Ranter, up proverbial throw hands frustration.” tactics,” A.2d Rather than succumb “such appeals comport Court found did raised, given quashed Rules the number them. Id. at 402-03. This Court denied allowance of appeal. III. all facts case Appellants’ too common of this reveal that decedent, Eiser, cigarettes M. as a