Preservation of key issues and its flip side—waiver—are major items on all appellate counsel’s checklist. In Pennsylvania, ever since Dilliplaine v. Lehigh Valley Trust, 457 Pa. 255, 322 A.2d 114 (1974), abolished the “plain error” doctrine in civil litigation, appellate courts have increased the importance of waiver as an appellate issue. The Pennsylvania rules not only demand preservation but require express identification of the means of preservation in post-trial motions. More waiver potential exists in Pa. R.A.P. 1925(4), providing that issues not listed in a “concise statement of errors complained of” are waived.
Sometimes, however, a party may wish to raise issues that are foreclosed by prior appellate precedent. The appeal would argue for overruling such precedent, but in the trial court, and often in Pennsylvania’s intermediate appellate courts, the prior precedent would be controlling.
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