James M. Beck of Reed Smith.

Three recent Pennsylvania appellate cases decided procedural issues of interest to appellate practitioners. First, most observers expected the Pennsylvania Supreme Court's recent Trigg v. Children's Hospital of Pittsburgh of UPMC, ___ A.3d ___, 2020 Pa. Lexis 2240 (Pa. April 22, 2020), decision to settle the ongoing issue of how voir dire must be conducted in Allegheny County and by extension throughout the state. Trigg did not reach that issue, because of that bugaboo of appellate practitioners—the waiver.

The waiver issue in Trigg, arose due to discontinuity between issues preserved and questions presented. The critical issue was whether a trial judge must witness first-hand a prospective juror's demeanor to rule on a litigant's challenge for cause. Nonetheless, the side disadvantaged by having to expend peremptory challenges "made no objection in pretrial motions to the trial judge's absence from the Jury Assignment Room during voir dire." While that party objected to the judge's ruling on the for-cause challenge, it "did not contemporaneously object to the trial judge's absence from the room." The critical lesson is that counsel should keep the fundamental purpose of the waiver rule in mind at all times, which is to ensure that the trial court has a contemporaneous opportunity to correct whatever error counsel is objecting to.

Although the appellate question presented in Trigg concerned the absent trial judge's inability to observe a challenged venireman's demeanor, the trial objection was limited to the outcome of the challenge. The latter did not encompass the former because it did not extend to the practice of voir dire, only to the end result. The "record does not support appellees' claim that, as part of their challenge for-cause, they implicitly raised issues concerning the inability of the trial judge to assess … demeanor." That flaw could not later be corrected by post-trial motions, because under Pa. R. Civ. P. 227.1 any "error which could have been corrected … by timely objection" is waived. Absent either an objection to the existing procedure or an alternative request for the judge to interview the juror personally, that litigant "deprived the trial judge of any opportunity to address and resolve this issue before the jury was finally empaneled."

Thus, the Superior Court's refusal to find waiver, or even to address waiver as an issue, was error. The court below "did not analyze this waiver claim in accordance with the well-established requirements for issue preservation," meaning it did not analyze preservation at the time a possible cure was possible. Rather, "it essentially addressed the merits of the claim" when it "deemed follow-up in-person questioning by a trial judge of a prospective juror …  to be an insufficient means of discerning a juror's potential bias."

The substantive question that the Supreme Court in Trigg had accepted for review was an important one, so important that the court issued what amounted to an advisory opinion—a "concurrence" joined by five of the seven justices—strongly recommending that Allegheny County change its practice, and that a civil rule similar to Pa. R. Crim. P. 631A (requiring the judge to preside at voir dire) be promulgated.

Practitioners are also well advised to review the waiver syllogism in Justice David Wecht's concurring opinion: "Counsel's waiver results in the relinquishment of the client's rights," thus "an attorney representing a client is obligated to invest some thought into the future progression of the case." "To succeed on appeal, counsel is obligated to take affirmative steps to build a record." Preservation is required "even where counsel does not believe that a timely objection will remedy the challenged conduct." "Even if counsel is certain that the court will overrule the objection, the objection is not futile," because "an overruled objection becomes the basis of an appeal."

As my prior article from last year, "Waiver, Waiver, Everywhere?" discussed, the current Pennsylvania Supreme Court has already shown itself to be very waiver-oriented. Trigg only underscores this point. Expect waiver to continue looming large in Pennsylvania appellate practice.

The second recent case of note is CLL Academy v. Academy House Council, ___ A.3d ___, 2020 Pa. Super. Lexis 291 (April 6, 2020), concerning attorney-client privilege. The trial court in CLL, seeking to resolve a privilege dispute involving two separate, but related, lawsuits, ordered that the disputed documents be produced on an "attorney eyes only" basis. This privilege issue was a "collateral issue" that provided the basis for an interlocutory appeal. The Superior Court reversed.

An "attorney eyes only" approach to confidential documents has been used before, but solely in trade secrets disputes where "confidential commercial information" that would give an attorney's client a competitive advantage lacks such value from counsel's perspective. That duality of interest, however, does not exist with respect to attorney confidences, which relate to case strategy and related information that would always be of interest to opposing counsel. "The disclosure of confidential commercial information to attorneys who are not in a position to use it to achieve a competitive edge is quite different from the disclosure of an attorney's mental impressions and strategies to opposing counsel in ongoing litigation." The sanctity of the attorney/client privilege was thus preserved, and the trial court ordered to employ more traditional means, such as redaction, of preserving confidentiality.

The third recent case of note—literally, a footnote—concerns the long-standing appellate practice issue of the citability of unpublished Pennsylvania Superior Court memorandum opinions. See Wenk v. State Farm Fire & Casualty, 2020 Pa. Super. Lexis 86, at *25 & n.11 (Pa. Super. Feb. 7, 2020). As discussed at greater length in prior articles, the recent adoption of Pa. R.A.P. 126, put an end to citational gamesmanship with respect to unpublished Superior Court issued "after May 1, 2019." However, an appellate practitioner in Wenk did not get the message. Hence, the Wenk's footnote cautioning counsel against "improper" citation of earlier Superior Court memoranda:

Although Pa. R.A.P. 126 recently was amended to allow parties to rely on nonprecedential unpublished decisions of this court as persuasive authority, this amendment applies only to decisions filed after May 1, 2019. As [this memorandum] was filed four years earlier, on April 1, 2015, this unpublished memorandum cannot serve as persuasive authority.

Counsel in Wenk is hardly alone in disregarding Rule 126's cut-off date. These kinds of judicial rebukes for Rule 126 violations have unfortunately been rather common. Most distressing is that courts sometimes fail to follow the rule. See Commonwealth v. Loomis, 2020 Pa. Super. Unpub. Lexis 1062, at *5 (Pa. Super. March. 27, 2020) ("the PCRA court cited only an unpublished case from this court that was filed prior to May 2, 2019").

But realistically, trial courts largely must work with what counsel cite to them, and too many appellate counsel have been disregarding the limits of Rule 126  See Commonwealth v. Greshan, 2020 Pa. Super. Unpub. Lexis 1209, at *10 (Pa. Super. April 8, 2020); C.L. v. Lewis, 2020 Pa. Super. Unpub. Lexis 884, at *13 (Pa. Super. March 12, 2020); A.Y. v. T.S., 2020 Pa. Super. Unpub. Lexis 274, at *8 n.2 (Pa. Super. Jan. 24, 2020); Commonwealth v. Rockamore, 2020 Pa. Super. Unpub. Lexis 11, at *7 n.5 (Pa. Super. Jan. 2, 2020); Evans v. Travelers Insurance, 2019 Pa. Super. Lexis 1195, at *11 n.5 (Pa. Super. Dec. 4, 2019); M.E.K. v. J.E.K., 2019 Pa. Super. Unpub. Lexis 4248, at *18 n.13 (Pa. Super. Nov. 13, 2019); Commonwealth v. Braswell, 2019 Pa. Super. Unpub. Lexis 3457, at *3 n.2 (Pa. Super. Sept. 11, 2019); Kushner v. Conex Freight, 2019 Pa. Super. Unpub. Lexis 3175, at *16 n.13 (Pa. Super. Aug. 19, 2019). All of those opinions, however, were themselves unpublished memoranda, not having any precedential authority.

Indeed, in Toneatto v. Sheth, 2019 Pa. Super. Unpub. Lexis 4059, at *7-8 (Pa. Super. Oct. 28, 2019), citation to pre-Rule 126 unpublished memorandum opinions was one of the missteps in a "woefully inadequate brief" that resulted in a waiver of the entire appeal. Wenk has now placed its Rule 126 admonition in a published opinion. So the bar has been warned, and this article ends by passing along that warning to all readers.