Howard J. Bashman's appellate columns, etc.

Don't Raise Too Many Issues on Appeal in Bad Faith

By Howard J. Bashman
Monday, January 14, 2008
As anticipated, the Supreme Court of Pennsylvania ended 2007 by issuing a plethora of opinions. This occurred because three of that court's justices were leaving, to be replaced by two newly elected justices and one vacancy that Pennsylvania's governor and General Assembly must combine to fill until the next judicial election occurs nearly two years from now.

Among the very many Supreme Court opinions that issued in the final days of 2007 was the much-anticipated decision in Eiser v. Brown & Williamson Tobacco Corp. In order to understand why that decision is of consequence to the practice of appellate litigation in Pennsylvania, some background is required.

When a decision is appealed from a Pennsylvania state trial court to one of Pennsylvania's intermediate state appellate courts, Pennsylvania Rule of Appellate Procedure 1925 requires the trial judge to issue an opinion explaining the basis for his or her ruling if no such explanation yet exists in the record. Rule 1925 permits the trial judge to direct counsel for the party taking the appeal to identify for the trial judge's benefit, in drafting a post-appeal opinion, the issues that the appellant intends to raise on appeal.

The rule, unfortunately, often places counsel for the appellant in a conundrum. Counsel for appellant is required to tell the trial judge in which respects the trial judge's ruling is erroneous and subject to challenge on appeal, often without any indication of the grounds or rationale on which the trial court judge has relied in issuing his thus far unexplained ruling.

As a result, prudence dictates that the attorney for the appellant will identify various alternative grounds for appeal in order to cover all of the possible bases on which the trial court may have ruled against the party that is taking the appeal. This protective overspecification of the grounds for appeal is necessary, because if a party fails to list in its Rule 1925 statement of errors to be complained of on appeal the actual basis for the trial court's ruling, the appellate court could conclude that the party taking the appeal has waived its right to appellate review.

Nevertheless, it is possible to raise a ridiculous number of errors to be complained of on appeal in an appellant's Rule 1925 statement, because in a 70-page appellate brief it is impossible to raise and argue an overabundance of separate issues. Thus, if the lawyer for a litigant that is taking an appeal provides a trial judge with a Rule 1925 statement containing 30, 40, 50 or even 100 errors, it might be reasonable to conclude that the attorney is not simply attempting to protect his ability to raise all viable issues on appeal, but rather is attempting to punish the trial judge, who must write an opinion addressing these alleged errors to facilitate appellate review.

If an appellate brief can at most address in an adequate fashion three, four, five, or perhaps even 10 issues, why should a trial judge be forced to address 30, 50 or 100 potential issues listed in the appellant's lawyer's statement of errors to be complained of on appeal? This was essentially the question facing the Supreme Court of Pennsylvania in the Eiser appeal.

In Eiser, counsel for appellant presented the trial judge with a Rule 1925 statement of matters to be complained of on appeal that listed nearly 30 grounds for appeal. The trial court's post-appeal opinion urged the Superior Court to hold that appellant had waived the right to appellate review by filing a Rule 1925 statement that raised an excessive number of issues for appeal. The Superior Court agreed in large measure, refusing to address on the merits any of the eight issues the appellant actually raised in its briefs on appeal beyond the two issues that the trial court's post-appeal opinion had addressed in a non-cursory fashion.

In a decision issued on Dec. 28, the Supreme Court vacated the Superior Court's decision and remanded with instructions for the Superior Court to address the remaining six issues that appellant raised and argued in its Superior Court briefs. Regrettably, the Supreme Court's ruling failed to produce a majority opinion in the case. Three justices joined in the opinion announcing the judgment of the court. Two other justices concurred in the result, one with opinion and one without. The remaining two justices dissented. Thus, there were five votes in favor of the result, but only three of the court's seven justices joined in the lead opinion.

According to the opinion announcing the judgment of the court, "the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice." The lead opinion also recognized that there was no evidence that the attorney for appellant acted in bad faith in raising nearly 30 issues in his Rule 1925 statement, nor had the trial court expressly found that counsel for appellant acted in bad faith in doing so.

The decision in Eiser involved the version of Rule 1925 that was in existence before amendments to that rule took effect in July. The old rule did not address how many issues were too many to include in a Rule 1925 statement. The newly amended rule, by contrast, directly addresses that question: "Where nonredundant, nonfrivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver."

Thus, the Supreme Court's ruling in Eiser is in accord with newly amended Rule 1925. The number of issues asserted in a Rule 1925 statement, without more, will not give rise to waiver. Eiser, however, demonstrates that one thing that could supply a basis for finding waiver is if too many issues have been raised in bad faith, such as to make the trial judge's life difficult as punishment for having ruled against the party taking the appeal.

With Eiser's newfound focus on "bad faith," one may expect to see trial judges invoke the mantra of "bad faith" more frequently when faced with excessively lengthy Rule 1925 statements. It also remains to be seen whether the bad faith inquiry will focus on objective or subjective bad faith. Subjective bad faith involves whether the lawyer actually had an improper purpose in raising so many issues, while objective bad faith involves the number of issues that a reasonable lawyer would have raised under the circumstances. In any event, the question of bad faith is one that the trial judge may be best situated to evaluate, and thus I would not expect to see appellate reversals frequently in cases where a trial court rules that the raising of too many issues occurred in bad faith.

One very important fact that advocates should keep in mind is that Eiser was an atypically complex case. A federal district judge in Washington, D.C., not too long ago issued an opinion in a tobacco liability case that exceeded 1,000 pages in length. Just because preserving 30 issues for appeal in one of the most complex cases imaginable was not excessive does not give the green light to preserve 30 issues for appeal in a far less complex case.

It is unfortunate that the thoughtful opinion announcing the judgment of the court in Eiser lacked the support necessary to become a majority opinion, because the recent personnel changes on Pennsylvania's highest court now make it impossible to predict the future course of that court's Rule 1925 jurisprudence. Of the four justices who took part in the Eiser ruling and now remain on the court, two dissented. Only one joined in the opinion announcing the judgment of the court, while the other wrote a separate, one-paragraph opinion concurring in the judgment.

The court's two new justices will thus have the ability to control the outcome of any Rule 1925 cases that come before the court in the near future. The opinion announcing the judgment of the court in Eiser will not bind them as stare decisis because that opinion lacked the support of a majority when it issued.

One possible solution, hinted at in Justice Thomas G. Saylor's opinion concurring in the judgment, is for trial courts to ask attorneys to winnow down their Rule 1925 statements when they raise too many issues. If that approach is employed, instead of jumping immediately to the conclusion that a waiver has occurred, common sense may finally prevail.

This article is reprinted with permission from the January 14, 2008 issue of The Legal Intelligencer © 2008 ALM Properties, Inc.