In a comment published in the Journal of Constitutional Law, Sarah Reeves L’23 analyzes how Pennsylvania courts apply the appellate waiver doctrine, arguing that its excessive use constricts litigants’ right to appeal.
Pennsylvania’s Constitution explicitly guarantees litigants the right to appeal, yet Sarah Reeves L’23 argues that this right is being substantially constricted.
In “Appellate Waiver in Pennsylvania and Its Effect on Litigants’ Rights to Appeal,” published in the University of Pennsylvania Journal of Constitutional Law, Reeves argues that Pennsylvania courts are disproportionately applying the appellate waiver doctrine and restricting litigants’ ability to exercise their state constitutional right to appeal.
Appellate courts have discretion to determine that litigants have waived their arguments if litigants do not strictly comply with a quagmire of procedural and technical requirements legally necessary to preserve their arguments.
Reeves writes that “Pennsylvania appellate courts are finding litigants’ claims to be waived on appeal far more frequently than are courts in other states across the United States.” In a comparison of cases in Pennsylvania (215), New Jersey (50), and Delaware (22) where the courts discussed waiver, Reeves found that Pennsylvania courts determined the litigant had waived their claim in 55.6% of cases, compared to 16.6% and 18.2% in New Jersey and Delaware courts, respectively.
“Sarah’s excellent comment sheds light on an arcane but important aspect of practice in the Pennsylvania courts,” said Jean Galbraith, Professor of Law and Deputy Dean. “Sarah’s close reading of hundreds of cases reveals how heavily the appellate courts of Pennsylvania—especially the Superior Court—use waiver doctrines in their jurisprudence. I hope her comment will serve as a wake-up call to Pennsylvania practitioners and judges. Pennsylvania practice in this area is an outlier that throws up roadblocks and prevents litigants from having adequate access to justice.”
The overuse of the appellate waiver doctrine, Reeves notes, “seriously puts into question Pennsylvania’s constitutional promise that litigants will be afforded a right to a meaningful appeal.”
The high frequency of waivers combined with the large number of separate grounds on which courts are determining claims waived “suggests that, in the aggregate, Pennsylvania litigants are not enjoying a meaningful right to appeal, at least not to the same extent as litigants in other states.”
Reeves also calls attention to the overly technical nature of Pennsylvania courts application of the doctrine. In the comment, Reeves details multiple egregious uses of Rule 1925(b)—the so-called “waiver trap”—and notes this Rule is especially unjust for pro se defendants.
“Pro se defendants, by their nature, are typically not well-versed in the finer procedural points that relate to most legal proceedings. Rule 1925(b) is a classic example of the type of procedure that is simply not on the radar of most non-lawyers.”
Reeves also proposes strategies for reform in Pennsylvania, including: arguing that Pennsylvania is infringing on the constitutional right to appeal, increasing judicial restraint, reforming Rule 1925, and developing clearer instructions to litigants regarding the necessary steps to preserve their claims.
Reeves’ “Appellate Waiver” earned the Dolores K. Sloviter Prize, an award recognizing exceptional work on a paper or research project in the field of judicial administration. The Honorable Dolores K. Sloviter L’56 was the first woman judge on the U.S. Court of Appeals for the Third Circuit.