Perhaps the most frustrating aspect of practicing before the Pennsylvania Superior Court is its application of the doctrine of waiver. Or should I say “over-application.” The federal courts have frequently held that they will not consider issues not passed on by the trial court.
Except when they do. In fact, whether or not to consider untimely-raised issues is left to the court’s discretion. Singleton v. Wulff, 428 U.S. 106, 120 (1976). This discretion is exercised on a case-by-case basis; courts determine whether it is appropriate to consider new issues “under all the circumstances.” Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) The Supreme Court has also distinguished between bringing a new “claim” before the court, which is not allowed absent an exception, and raising a new “argument,” which often is. See, e.g., Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 382-83 (1995) It has held that if a claim is timely raised, “the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Financial Services, 500 U.S. 90, 99 (1991) If a “claim” is properly before it, the court may consider any number of new arguments or theories underlying it. Lebron, 513 U.S. at 382-83 (quoting Yee v. Escondido, 503 U.S. 519 (1992)). See also Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993). Not surprisingly, where a “claim” ends and an “argument” begins may be difficult to understand or predict. Courts have not consistently drawn this line. But the general impulse of the federal appellate courts is to consider new arguments raised in favor of positions made below.
Not so here in Pennsylvania. An article published over a year ago quoted several Pennsylvania appellate attorneys to the effect that the Superior Court invokes waiver “whenever it seems available” and that it is the “exit of choice for appellate judges.” Ben Present, Is Waiver Being Fairly Applied to Pennsylvania Appeals, Pennsylvania Law Weekly, Vol. XXXVI No. 17, April 23, 2013.
Judge Strassburger of the Superior Court quoted the article in a dissent in an unpublished opinion in Wos v. Select Specialty Hospital, 284 WDA 2013 (Pa. Super. March 7, 2014). In a dissent, Judge Lazarus faulted her colleagues for holding that an appellant had not identified his argument with sufficient specificity below and had, therefore, waived it. Gabiga v. Marshall, 2032 EDA 2013 (May 27, 2014). Copies of both are attached.
The problem is that the Superior Court seems at times to require that an appellate brief advance the issue in the precise manner it was framed before the trial court. It is, however, frequently impossible to do so. Assume for a moment that at a trial for sexual abuse, a social worker takes the stand and, after testifying about his investigation, is asked to give testimony that at least arguably invites him to comment on the credibility of the witnesses. The defense attorney makes an objection of this variety:
COUNSEL: Objection. The question asks that the witness comment upon the credibility of the persons who were interviewed and therefore invades the province of the jury.
After a bit more discussion, the judge overrules the objection and gives counsel a “standing” objection so that he need not object to each ensuing question. Assume further that appellate counsel spends five or six pages explaining the evidentiary issues at length, discussing the Child Protective Services Law and how the judge misunderstood the difference between an “indicated” report and a “founded report” under that statute.
The trial attorney preserved the objection, didn’t he? Even though appellate counsel elaborated upon the arguments made at trial and added more substance to them, the objection was nevertheless preserved. Right?
Wrong. The Superior Court held that trial counsel waived the issue. And, even if he didn’t, the issue lacked merit, though the court provided no real analysis. By failing to hand the trial judge the equivalent of an appellate brief supporting the objection, trial counsel waived the issues on appeal.
I would like to say that this is a rare event or that I am alone. But I am not. This is a peculiarity of Pennsylvania appellate practice. At times, the federal and New Jersey appeals courts go to great lengths to reach issues that the Pennsylvania Superior Court would toss into the “waived” pile. I once defended an appeal in Maryland in which a litigant raised a brand new issue not even hinted at below. Despite my screams of “waiver,” the Maryland appeals court reversed and sent the matter back.
What to do? The answer is simple: keep the issue alive. Talk it up. Write more articles about it. At some point, someone might actually care enough to consider it and change the current practice.