PA Supreme Court Eliminates Agency Appeal Waiver Trap

Last week on our list of waiver traps for Pennsylvania appellate practitioners (“Taking an Appeal in PA? 10 Waiver Traps to Avoid,” 24 Nov. 2014), we included the warning “be specific enough in your petition for review.”  Fortunately, effective January 1, 2015, that trap has largely disappeared, as the result of yesterday’s amendment to Pa. R.A.P. 1513(d).  That rule, which requires the petitioner from an agency order to include in an appellate petition for review a “general statement of the objections to the order or other determination,” has too often been the basis for a finding of waiver of issues not specifically mentioned, sometimes resulting in the outright quashing of an entire appeal on essentially technical “gotcha” grounds.  The rule as amended retains the requirement for a “general statement of objections,” but adds the important qualification that “the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record.”  The Official Note explains that the purpose of the amendment is to “preclude a finding of waiver” if an issue that is briefed but omitted from the petition for review can be addressed by the court on the basis of the certified record.  In other words, if an issue is otherwise preserved, but overlooked in the petition for review, that fact will no longer be a basis for a finding of waiver.  One less thing to worry about for administrative law practitioners!

A copy of the amendment to Rule 1513 can be found here.