When is the best time in litigation to start thinking about an appeal? The optimal point is when you are drafting the very first filing. The complaint for a plaintiff or the answer or preliminary objections of a defendant. Why so early? Many appeals are sabotaged at this early stage due to waiver. The trial court is not only the first, but often the only, opportunity to raise and argue many issues. Being conversant with the law regarding which issues can be waived for failure to raise them at the start of litigation could be critical to ultimate success on appeal.
Lawyers, of course, recognize the importance of pleading all claims and naming all parties in a complaint. Federal court is simple. Rule 8 of the Federal Rules of Civil Procedure requires only that a complaint provide notice of the claims to be advanced. Pennsylvania, however, has greater requirements.
Pennsylvania is a fact-pleading jurisdiction, with Rule 1019 of the Pennsylvania Rules of Civil Procedure mandating that a complaint must provide notice of the nature of the plaintiff’s claims and also summarize the facts upon which the claims are based. Claims not raised with sufficient specificity risk being waived in a later appeal. It is key to be thorough in drafting a complaint to include all available claims and to provide the factual support for those claims. If a claim is based on a written agreement, that document must be attached. In other words, provide the court (and defendant) with all information necessary to allow a ready understanding of the claims raised. This is the time to lay the foundation for the litigation to follow. Be cognizant of potential waiver of unraised claims.
The pitfall for a defendant lies in the failure to provide sufficiently specific responses to the averments of a complaint, in which case, under Rule 1029, a court can consider those allegations admitted. In addition, Rule 1030 requires that a defendant asserting an affirmative defense other than assumption of the risk, comparative negligence of contributory negligence must raise the defense in new matter. Rule 1032, specifically governing the waiver of defenses, states that all defenses not presented in the defendant’s answer or in preliminary objections are deemed waived, with some exceptions for non-waivable defenses outlined in subsection (a). Pay close attention to those exceptions, as failure to raise defenses not specifically excepted will result in waiver.
At times, a trial court may address a waived claim, either because the court itself fails to recognize the waiver, or because no party argued that the claim was waived. The trial court’s consideration of the claim does not, however, insulate the claim from a finding of waiver in an appellate court. The Superior Court will often note in an opinion that a claim has been waived but nevertheless address the merits. This practice appears to be based on judicial economy – if the Supreme Court should ultimately determine that the issue was not, in fact, waived, the Superior Court has already ruled on the merits, negating any need to remand to that court.
Waiver is, in most cases, deadly to a petition for allowance of appeal. The Pennsylvania Supreme Court generally does not entertain jurisdiction over waived claims. If the Superior Court notes that a claim has been waived, the Supreme Court will verify waiver and then deny the petition for allowance of appeal as it relates to the waived claim. There will naturally be the occasional instance where a litigant raises such a compelling issue that the Supreme Court would agree to hear a waived claim, but a prudent practitioner should not rely on that remote possibility.
The best course of action is to thoroughly research the plaintiff’s or defendant’s claims and defenses and present them at the earliest possible opportunity. Short of that, waiver is an ever-present and fatal risk.
Patricia Starner, Esq.
Patricia Starner has more than 20 years of appellate experience, having served as a staff attorney to Chief Justice Emeritus Ronald Castille of the Supreme Court of Pennsylvania from 1996 to 2014, and current Chief Justice Saylor from 2014 to 2016. She concentrates her practice in the areas of Appellate Practice and Complex Dispute Resolution & Litigation.