Clarification Needed of Amendments to Rule 1925

Last year, the Pennsylvania Supreme Court adopted major amendments to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, the rule requiring an appellant to list alleged errors by the trial court after a notice of appeal is filed.  While the purpose of the rule is to identify alleged errors so that the trial court can write an opinion for use in the appeal, the rule had morphed into a major waiver trap for practitioners in light of recent Supreme Court and Superior Court rulings. The 2007 amendments, the first to be adopted in almost 20 years, arose from a movement among appellate practitioners to address what was seen as an overzealous waiver regime under these rulings.

More recently, in March of this year, the Appellate Court Procedural Rules Committee proposed amendments to Rule 2116, the rule governing the statement of the questions involved in appellate briefs. Among other things, the proposed rule expands the page limit for questions involved to two pages, from one, and clarifies that the questions must be “expressed in the terms and circumstances of the case but without unnecessary detail.”

Both the significant amendments to Rule 1925 and the proposed changes to Rule 2116 are welcome revisions to rules that had become outdated and problematic.  Now that the Appellate Court Procedural Rules Committee has tackled these important rules, it should turn its attention to other troublesome appellate rules that are in need of repair.  What follows is one appellate practitioner’s wish list.

First, Rule 2118 provides that the required summary of the argument “should not exceed one page and should never exceed two pages.”  Huh?  Is the page limit for the summary one page or two? Clarification is plainly in order.

Second, Rule 2117(c) requires an appellant to set forth in the statement of the case the place in the trial record reflecting the raising or preserving of issues raised on appeal.  This is a salutary rule that allows the appellate court to quickly confirm that issues it is being asked to address were properly preserved below.  But then Rule 2119(e) requires the appellant to include the same information in the argument section of the brief (or to include a cross-reference to the page in the statement of the case where this information can be found). What can be the point of requiring this information in two places in the same brief? Particularly given the repeated request from appellate judges that practitioners shorten their briefs and cut down on redundant discussions and arguments, it makes no sense to require the appellant to twice cite to the portion of the trial record where every issue has been preserved.

In a similar vein, Rule 2117(a)(4) requires that the statement of the case include a statement of all facts “necessary to be known in order to determine the points in controversy,” along with citation to the place in the record where evidence supporting those facts can be found.  Again, this is standard practice for appellate practitioners. One would never write an appellate brief without setting forth the facts relevant to the legal arguments, along with supporting citations to the record.  Yet, Rule 2119(c) provides that, if reference is made in the argument section to any factual matter in the record, the argument must “set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears.”  Again, in an era of burgeoning appellate dockets and longwinded briefs, is it really necessary to repeat record citations in both the fact and argument sections of a brief?

Other rules also could use minor tweaking or major overhauls, to clarify and modernize practice in the Pennsylvania appellate courts.  But following on the heels of the important amendments to Rule 1925 and the proposed modifications to Rule 2116, the changes suggested above would constitute a modest effort at clarifying and modernizing appellate procedure in Pennsylvania.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP


Explore posts in the same categories: Appellate Law, Bruce Merenstein

One Comment on “Clarification Needed of Amendments to Rule 1925”

  1. Excellent site, keep up the good work

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