Drafting Statement of Matters Complained of on Appeal When the Trial Court has Offered no Reason for its Decision

By Jeffrey P. Lewis

Pa.R.A.P. 1925(b) requires that when ordered by the trial court, an appellant must file a statement of matters complained of on appeal. Failure to comply with this order in a timely manner results in a waiver of all appellate issues. Under case law, waiver also occurs where the statements are so vague and so broad that they fail to identify the specific questions raised. To determine the statement’s sufficiency, the appellate court must examine the entire record to determine whether the trial court has provided the basis for its ruling. Moreover, any matter not raised will also be deemed waived.

All that sounds simple enough, but what happens when the trial court has not explained the reasoning for its holding? Must the appellant guess at the court’s reasoning and submit a statement of matters that are expressly conditioned upon the premise that the trial court had engaged in “wrongful” reasoning? This becomes particularly troublesome when the court could have embraced one or more of many arguments that each justifies the result independently. A Superior Court panel has recently revisited this issue and created concern because the majority and minority of the panel could not agree on what the appellant should have done under the circumstances of that case.

In Hess v. Fox Rothschild, L.L.P., 925 A.2d 798, (Pa. Super. Ct. 2007), the trial court had sustained preliminary objections with respect to all three counts of the amended complaint. As a result, it dismissed the amended complaint with prejudice. The defendant had asserted two entirely independent bases for the relief sought: 1. that the plaintiffs lacked standing to raise their claims and 2. that the facts pled fail to support the elements of any cause of action. The trial court issued no opinion, nor did it make any statement from the bench. As a result, plaintiffs, in their view, could not determine the court’s reasoning. Upon appeal, the trial court ordered plaintiffs (now the appellants) to file a Rule 1925(b) statement. Appellants timely filed a statement wherein they allege merely that the trial court “erred in sustaining preliminary objections to [Appellants’] complaint ... [and] in dismissing [Appellants’] Complaint.” Appellees moved the appellate court to quash the appeal on the basis of waiver, contending that appellants’ statement was equivalent to no statement at all because it was “so vague and uninformative.” The trial court filed an opinion in which it echoed appellants’ view.

In a 2-1 decision, the majority finds no waiver and as a consequence refuses to quash the appeal. In an opinion written by Judge McCaffery, and joined by Judge Stevens, the court greatly relies upon Ryan v. Johnson, 522 Pa. 555, 564 A.2d 1237 (1989). There, the Supreme Court holds that a waiver does not occur if “the reasons for a trial court’s ruling are vague or not discernable from the record” and the appellant so correctly states in her Rule 1925(b) statement. In the Supreme Court’s view, the trial court cannot expect the appellant to file a Rule 1925(b) statement that is not vague when the trial court has “given absolutely no indication of the reasons for its decision.” According to the majority in Hess, the trial court’s failure to explain its reasoning excuses appellants for their failure to provide a more precise Rule 1925(b) statement. The court did not consider the two additional statements that appellants filed without leave of the trial court, because they were untimely.

The dissent written by Judge Stevens, however, finds that the Rule 1925(b) statement filed by the appellants in a timely manner was inadequate, and therefore appellants have waived all their issues. He notes that appellants had failed to use the magic words in their first Rule 1925(b) statement that had been used by appellant in Ryan, to wit, that “the reasons for a trial court’s ruling are vague or not discernable from the record.” Also, he finds that appellants adequately identify the issues in the “Statement of Questions Involved” section of its appellate brief, notwithstanding that the trial court had offered no additional information as to its reasoning. In this author’s view, appellant’s “Statement of Questions Involved” constitutes only an educated guess as to the trial court’s reasoning based upon the issues presented.

The dissent further distinguishes this case from Ryan on the basis that the trial court there had provided even less detail on the basis for its decision than did the court here. In Ryan, the court had merely dismissed plaintiff’s motion to strike/open judgment. In contrast, the trial court here specifically had sustained the preliminary objections to the first three counts of the amended complaint and dismissed the remaining preliminary objections as moot. By this means, the trial court had informed that it had focused its analysis on the first three preliminary objections. But in the majority’s view, such little additional information than what had been provided by the trial court in Ryan still does not sufficiently inform the appellant of the basis for the ruling.

What lesson does Hess teach? If one cannot discern the trial court’s reasoning, handle the issues as suggested by both Ryan and Hess. Say so in the statement, as was done in Ryan, and then state educated guesses as did appellants in Hess in their brief, but in a timely manner. If the appellate court agrees that the trial court has not sufficiently stated its basis, as did the Ryan court and the majority in Hess, waiver is avoided by use of the “magic” language suggested by Ryan. If not, waiver might at least be avoided if educated guesses as to the reasoning of the trial court are stated in the statement of matters complained of on appeal.

Jeffrey P. Lewis is a partner in the West Chester office of the Pittsburgh-based law firm of Eckert Seamans Cherin & Mellott L.L.C. He serves on the PBA Professional Liability Committee and is a PBA Zone 9 delegate.