Appellate Waiver in Pennsylvania and its Effect on Litigants’ Rights to Appeal

This Comment will analyze how Pennsylvania courts are applying appellate waiver doctrine, and how excessive application of this doctrine is detrimentally impacting litigants’ exercise of 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 complicated morass of procedural and technical requirements legally necessary to preserve their arguments. While scholarly articles have engaged with the doctrine of appellate waiver, there is important empirical work that has not yet been done regarding the seemingly disproportionate use of the doctrine in Pennsylvania specifically. Ultimately, this Comment will use empirical findings to put forth three main arguments: (1) Pennsylvania appellate court judges are concluding that litigants have waived their appellate claims too frequently (and far more frequently than are the judges in other Third Circuit states); (2) the rigorous and overly formalistic rules of appellate procedure in Pennsylvania are contributing to the excessive number of cases finding that litigants have lost their rights to appeal; and (3) productive reform can be achieved through: arguing that Pennsylvania is infringing on the constitutional right to appeal, increased judicial restraint regarding the application of waiver doctrine, amendments to Pennsylvania’s formal waiver doctrine, and/or clearer instructions to Pennsylvania litigants regarding the steps they must take to preserve their claims.