By order dated December 7, 2021, the Supreme Court has adopted amendments to Pennsylvania Rules of Appellate Procedure 1115 and 1116, which require petitions for allowance of appeal to contain a statement identifying where in the record issues were raised or preserved, and further encourages parties to raise waiver issues in opposition to a petition for allowance of appeal or through an application pursuant to Pa.R.A.P. 1972. The changes become effective April 1, 2022.
These amendments arise from the Supreme Court’s decision in Commonwealth v. Bishop, 217 A.3d 833 (Pa. 2019). In that case, Appellant Bishop filed a petition for allowance of appeal of a Superior Court decision, which identified the following issue for review:
Should not this Court conduct an independent analysis of whether the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence recovered as a result of or during the course of an unwarned statement?
The Commonwealth did not file an answer to Bishop’s petition for allowance of appeal and the Supreme Court granted allocatur as to the issue as framed by Bishop. Thereafter, in its initial brief to the Supreme Court, the Commonwealth argued that the Court should not conduct an independent analysis, because the issue was waived based on Bishop’s failure to ask the common pleas court or the Superior Court to conduct an independent analysis in the first instance. Bishop challenged the Commonwealth’s waiver argument positing that the Supreme Court should consider the defect waived based on the Commonwealth’s failure to submit an answer to Bishop’s petition for allowance of appeal advancing its waiver argument. In support, Bishop relied to the procedure before the Supreme Court of the United States: when a party fails to raise a waiver claim in a response to a petition for a writ of certiorari, the Court proceeds to decide the merits of the question presented. Bishop, 217 A.3d at 838 (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (“Nonjurisdictional defects [such as waiver] should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived.”).
The Pennsylvania Supreme Court rejected Bishop’s argument that the Commonwealth should be precluded from arguing waiver because it did not answer Bishop’s petition for allowance of appeal. The Court emphasized that no such rule exists under the Pennsylvania Rules of Appellate Procedure, “[a]nd certainly we would not apply such a precept to the detriment of a litigant who has had no previous notice of it, particularly since the filing of a brief in opposition to a petition for allowance of appeal is optional.” Bishop, 217 A.3d at 838 (citing Pa.R.A.P. 1116(a)). In an associated footnote, the Court went on to observe:
This Court entertains thousands of petitions for allowance of appeal in any given year, and only a small percentage of discretionary appeals are permitted. So far, we have maintained a system that does not burden putative appellees with responding, at the allocatur stage, to the wide range of petitions that are unlikely to be granted.
That said, it should be noted that the Court could certainly benefit from the filing of a brief in opposition at the allocatur stage, where pervading waiver concerns are present.
Bishop, 217 A.3d at n. 3. In her concurring opinion, Justice Donohue suggested that “the matter of proper notification of potential claims of waiver should be directed to our appellate rules committee for study” and that amending the rule to require an appellee to assert waiver in response to a petition for allowance of appeal would conserve judicial resources, opining that:
Any appellee that intends to assert a waiver defense with respect to any issue presented for review in a petition for allowance of appeal, see Rule 1115(3), should be required to file an answer to said petition notifying this Court of its intention to assert such a defense. An appellee failing to comply with this requirement would then be precluded from asserting the defense in any subsequent filings with this Court in the case then at bar. Where an appellee provides the notice as required, it would remain within this Court’s discretion to grant allocatur and decide the issue on its substantive merits. It is a tremendous waste of our judicial resources and those of the parties, for this Court to grant allowance of appeal, require briefing, and prepare for and participate in oral argument, only then to resort to waiver thereby precluding the decision of an issue we deemed worthy of our review on its substantive merit.
Id. at 844.
Based, in part, on Justice Donohue’s suggestion in Bishop, the Appellate Court Procedural Rules Committee undertook review of Pa.R.A.P. 1116 “to encourage the early identification of waiver in discretionary appeals before the Supreme Court.” 50 Pa.B. 4383 (Aug. 29, 2020). Following its review, the Committee concluded that requiring an answer to a petition for allowance of appeal would be unnecessarily burdensome given the relatively small percentages of allocaturs actually approved for review, explaining that:
To lend perspective, in 2018, there were 1,973 petitions for allowance of appeal filed with the Supreme Court, but appeals were allowed in only 96 cases. This represents a 95.1% attrition rate based entirely on the merits. The additional workload of raising waiver by answer in every matter did not appear to be warranted given this rate of denial on the merits. Instead, it seemed more efficient that efforts be focused on identifying waiver in the appeals granted review.
Id. Likewise, the Committee determined that a requirement that a respondent raise waiver after a petition for allowance of appeal has been granted, but before argument, was also not favorable, reasoning that:
Requiring an application may have the unintended consequence of foreclosing earlier identification of patent waiver in an answer to a petition for allowance of appeal. Further, a party may wish to defer raising waiver until merits briefing if a finding of waiver would result in only one of several issues being dismissed on appeal, i.e., incomplete relief.
Id. The Committee concluded by acknowledging the issue expressed by the Court in Bishop – that “delaying the issue of waiver until consideration of the merits can cause the unnecessary expenditure of time and resources if waiver would operate to dismiss an entire appeal” and therefore recommended “to amend the Official Note to Pa.R.A.P. 1116 to suggest raising waiver in opposition to a petition for allowance of appeal and through an application pursuant to Pa.R.A.P. 1972.” Id. This amendment, the Committee explained, would seek “to alleviate the inefficiencies discussed in the concurring opinion in Bishop without altering longstanding principles of petition for allowance of appeal practice.” Id.
Thereafter, in response to its request for comment as to the amendment of Pa.R.A.P. 1116, the Committee received a suggestion “for an additional measure to facilitate the early identification of waiver issues whereby petitioners would designate within the petition for allowance of appeal the place in the record where an issue has been preserved.” 51 Pa.B. 4055 (July 31, 2021). The Committee agreed that such a measure “would assist in the earlier identification of unpreserved issues and it did not represent an undue burden on petitioners because preservation would likely have already been identified in the intermediate appellate court brief pursuant to Pa.R.A.P. 2117(c)” and that “placing this requirement in petitions for allowance of appeal merely shifts an existing burden to an earlier stage in the appellate process.” Id. Accordingly, the Committee recommended the amendment of Pa.R.A.P. 1115 to add a requirement that a petition for allowance of appeal contain a statement indicating where the issue was previously raised or preserved, if the issue is required to be raised or preserved for appellate review.
Pa. R.A.P. 1115 and 1116 – As Amended
Pursuant to the Supreme Court’s December 7, 2021 order, Pa.R.A.P. 1115(a) has been amended to add subsection (3) to require Petitions for Allowance of Appeal contain a statement of place of raising or preservation of issues as required in briefing under Pa.R.A.P. 2117(c):
Rule 1115. Content of the Petition for Allowance of Appeal.
(a) General rule.—The petition for allowance of appeal need not be set forth in numbered paragraphs in the manner of a pleading, and shall contain the following (which shall, insofar as practicable, be set forth in the order stated):
(3) Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the petition shall contain a statement of place of raising or preservation of issues, as required in Pa.R.A.P. 2117(c).
While the Rules Committee declined to amend Pa.R.A.P. 1116 to require parties to file an answer to a petition for allowance of appeal raising waiver-based issues as Justice Donohue proffered in Bishop, the following official note was added, which encourages parties to raise any waiver-based or procedural objections to a petition for allowance of appeal in an answer to the petition and reminds parties of the availability of dispositive motions to address such issues prior to merits briefing:
Parties are strongly encouraged to raise any waiver-based or procedural objection to a petition for allowance of appeal in an answer to the petition. In addition, parties are reminded that they may raise waiver-based, procedural, and jurisdictional objections after the grant of a petition for allowance of appeal, but before merits briefing, through a dispositive motion filed under Pa.R.A.P. 1972. []
 Pa. R.A.P. 1116(a) provides:
Rule 1116. Answer to the Petition for Allowance of Appeal.
(a) General rule.—Except as otherwise prescribed by this rule, within 14 days after service of a petition for allowance of appeal an adverse party may file an answer. The answer shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized. The answer need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the order involved should not be reviewed by the Supreme Court, and shall comply with Pa.R.A.P. 1115(a)(7). No separate motion to dismiss a petition for allowance of appeal will be received. A party entitled to file an answer under this rule who does not intend to do so shall, within the time fixed by these rules for filing an answer, file a letter stating that an answer to the petition for allowance of appeal will not be filed. The failure to file an answer will not be construed as concurrence in the request for allowance of appeal.
(c) Statement of place of raising or preservation of issues.—Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the statement of the case shall also specify:
(1) The stage of the proceedings in the court of first instance, and in any appellate court below, at which, and the manner in which, the questions sought to be reviewed were raised.
(2) The method of raising them (e.g. by a pleading, by a request to charge and exceptions, etc.).
(3) The way in which they were passed upon by the court.
(4) Such pertinent quotations of specific portions of the record, or summary thereof, with specific reference to the places in the record where the matter appears (e.g. ruling or exception thereto, etc.) as will show that the question was timely and properly raised below so as to preserve the question on appeal.
Where the portions of the record relied upon under this subdivision are voluminous, they shall be included in an appendix to the brief, which may, if more convenient, be separately presented.
Rule 1972. Dispositions on Motion.
(a) Except as otherwise prescribed by this rule, subject to Pa.R.A.P. 123, any party may move:
(5) To dismiss for failure to preserve the question below, or because the right to an appeal has been otherwise waived. See Pa.R.A.P. 302 and Pa.R.A.P. 1551(a).