James M. Beck of Reed Smith.

Sept. 26 was waiver day at the Pennsylvania Supreme Court. Both appellate practitioners and trial attorneys should pay heed in order to avoid unfortunate and unexpected results.

In Shiflett v. Lehigh Valley Health Network,___ A.3d ___, 2019 Pa. Lexis 5420 (Pa. Sept. 26, 2019), the Pennsylvania Superior Court had reversed a plaintiff's verdict because one of the claims sent to the jury was both barred by the statute of limitations (the legal error) and could have affected the award of damages (error not harmless). See Shiflett v. Lehigh Valley Health Network, 174 A.3d 1066, 1086-87 (Pa. Super. 2017). On further appeal, the Supreme Court held that trial counsel's failure to request special jury interrogatories resulted in waiver of the error.

Waiver in Shiflett was based on the so-called "general-verdict rule" created in Halper v. Jewish Family & Children's Services, 963 A.2d 1282 (Pa. 2009). Halper involved the effect of a general verdict where one of two liability theories was invalid. As long as one valid theory of liability supported a general verdict, the verdict stands. In the decade between Halper and Shiflett, however, this rule had never been employed with respect to damages. In Shiflett, not only had the defendant objected repeatedly to the time-barred nature of the claim in question, but the verdict form "contained special interrogatories as to each theory of liability."

Shiflett held that these steps by the defendant were insufficient to prevent waiver under the general verdict rule. Not only must a defendant seek special jury interrogatories as to each theory of liability to avoid waiver under the general verdict rule, but the special interrogatories must also "break down damages by claim." Since, in Shiflett "a special interrogatory on the verdict sheet allocating damages by claim would have eliminated the quandary," the defendant's "failure to request a special interrogatory allocating damages by claim, despite multiple opportunities to do so, results in a waiver of any right to a new trial." The Shiflett court refused to distinguish between liability and damages for purposes of finding waiver. Such a distinction "reads [the general verdict rule] too narrowly."

"In both cases a special interrogatory would have provided the necessary clarification, and because the defendant failed to request that a clarifying special interrogatory be added to the verdict sheet that would have obviated the need for a new trial, the verdict will stand. … We will not shift to a plaintiff the burden of a new trial based upon a defendant's failure to request a clarifying special interrogatory."

As Chief Justice Thomas Saylor pointed out in his dissent in Shiflett, the law will now be placing a great deal of weight on the drafting of "intricate" special jury interrogatories "that anticipate partial reversals on appeal." Going forward, parties crafting jury interrogatories will have to weigh the possible consequences of waiver by not including special damages interrogatories for each submitted claim against the possibility that multiple damages interrogatories might confuse the jury and lead to conflicting results.

On the same day as Shiflett, the Supreme Court also decided a criminal case, Commonwealth v. Bishop, ___ A.3d ___, 2019 Pa. Lexis 5446 (Pa. Sept. 26, 2019), that adopted another extension of waiver doctrine. The waiver issue in Bishop involved the steps necessary to preserve a legal argument based upon a parallel provision of the Pennsylvania state constitution when the primary argument being advanced concerned a federal constitutional issue. Specifically, the underlying question in Bishop was "whether the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination." However, the same considerations potentially apply in any litigation, civil or criminal, where the Pennsylvania Constitution contains a parallel provision potentially relevant to a party's principal federal constitutional argument.

The defendant/appellant in Bishop had "never asked the common pleas court or the Superior Court" to conduct an "independent analysis" of the impact of the Pennsylvania Constitution—as opposed to the Fifth Amendment to the U.S. Constitution—on the appellant's Miranda warnings argument. The commonwealth argued that the appellant's failure in Bishop to develop a separate Pennsylvania constitutional argument constituted waiver of any such argument, while the appellant responded with a waiver argument of his own: That the commonwealth had failed to raise waiver in its response that the petition for allowance of appeal, thus waiving the waiver.

Bishop first rejected the appellant's waive-the-waiver argument. Since the Pennsylvania Rules of Appellate Procedure do not require any response at all to a petition for allowance of appeal, failure to include an argument in an optional response cannot be considered waiver. Further, as appellee, the commonwealth could seek to have the judgment sustained "for any reason appearing as of record." "Certainly such reasons may include waiver concerns." It is unlikely, after Bishop, that appellants, as opposed to appellees, can successfully raise waive-the-waiver arguments.

Turning to the parallel Pennsylvania constitutional issue itself, Bishop held that general allusions to the state constitution in an argument, such as the reference to "both federal and state laws" made below, was insufficient to preserve an issue for appeal. Requiring opponents to tease out an actual argument from such vague references did not "afford fair notice to opposing parties of what may be to come at later stages," (quoting Schmidt v. Boardman, 11 A.3d 924, 941 (Pa. 2011)). Where a party claims that the Pennsylvania constitution provides divergent, and greater, protections than the federal constitution, "some analysis explaining the grounds for departure is required."

Thus, as in Shiflett, the court in Bishop likewise found waiver, and not just at the Supreme Court level: "Because the appellant did not distinguish between the federal constitution and the state constitution before the suppression court, his claim favoring departure is waived. Furthermore, the appellant also waived the claim for additional protection under the state constitution in the Superior Court, since he did not develop any supportive reasoning before that court either."

To preserve an argument, "mere citation to a provision of the state constitution is insufficient. At a minimum, however, the defendant must offer some reasonably developed, colorable analysis."

While Bishop discussed waiver in the context of a constitutional "departure claim," waiver occurred as a consequence of the general "principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court." As for the "range of particular arguments must be made," in order to preserve constitutional divergence as an issue, the court offered as a "safe haven" the factors in Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991), for an advocate to address: text, history, including Pennsylvania caselaw; caselaw from other states, and policy considerations. In other words, the only "safe haven" under Bishop is a fully developed argument. Beyond that, counsel act at their client's peril if they do not develop arguments. "Whereas the court has sometimes found conclusory, single-sentence arguments to be inadequate to preserve issues, a single sentence presenting a citation to directly controlling legal authority can reflect the most effective advocacy in other scenarios."

Ever since Dilliplaine v. Lehigh Valley Trust, 322 A.2d 114 (1974), the Pennsylvania Supreme Court has taken a hard line on waiver issues. Shiflett and Bishop demonstrate that this trend remains alive and well on both the civil and criminal sides of the law. These recent decisions once again remind the bench and bar that, in Pennsylvania legal practice, less is definitely not more—and may well not even be enough.