Choe v. Philadelphia Board of License & Inspection

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent from the majority’s opinion that Sung E. Choe (Choe) waived all the issues on appeal by not filing a statement in response to the request by the trial court to file a statement pursuant to Pa. R.A.P.1925(b).

While I recognize the importance of a 1925(b) statement to aid the trial court and the appellate courts in identifying the issues, there was no need for the trial court to have issued one in this case to identify or narrow the issues. The case was heard before the trial court based on the record before the Board, and both parties filed briefs in support of their respective positions. In her brief, Choe identified the issues as follows:

The first issue is whether there was sufficient evidence adduced before the Board of License & Inspection Review on February 4, 2003 to support the Board’s determination to affirm the City. The second issue is whether under the Commonwealth Court Decision of Philadelphia License Board v. 2600 Lewis, Inc., 661 A.2d [20] (Pa.Cmwlth. 1995), there was adequate pre-revocation notice before the license was ceased.

*219After oral argument, the trial court dismissed the appeal without issuing an opinion. After Choe appealed to this Court, Choe was ordered to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P.1925(b)1 by October 2, 2003, but failed to do so. Subsequently, the trial court issued an opinion in which, after addressing the merits, opined that Choe’s failure to file a 1925(b) statement resulted in automatic waiver of any issues that she could raise on appeal and stating that her appeal should be quashed.

Choe’s failure, in this case, to file the statement did not frustrate appellate review because those issues were identified as the issues in her brief and at oral argument. Because no purpose was served by the issuance of a 1925(b) statement to winnow the issues even further, and although I do not countenance Choe’s failure to file a 1925(b) statement as ordered, in such circumstances, to not address the merits of the appeal is an abuse of discretion.

Accordingly, I dissent.2

. Pa. R.A.P.1925(b) provides:

The lower court forthwith may enter an order directing the appellant to file of record in the íower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

. Although it has not addressed this exact issue, I recognize that the Superior Court has been strict in its finding of waiver. In his concurring opinion in Commonwealth v. Alsop, 799 A.2d 129, 136 (Pa. Superior Ct.2002), President Judge Del Sole asked for a reappraisal of its position, stating:

I would not find Appellant’s issues waived and write separately to suggest we re-examine our application of Pa. R.A.P.1925 and Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
I would revisit those previous decisions of this court that, applying Lord, have held issues waived even where the trial court has addressed those issues in an opinion. These include those cases where a 1925(b) statement was either not filed or filed after the trial court opinion.
In Lord, Mr. Justice Nigro, in explaining why there can be waiver for failing to list issues in a 1925(b) statement, wrote:
The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues while the parties plan to raise an appeal. 719 A.2d at 308.
There is no functional difference when the issues are addressed in a trial court opinion written in response to a 1925 statement, or when anticipated issues are addressed by the trial court absent such a statement. In either case, the existence of the trial court opinion allows for "meaningful and effective” appellate review.
I believe that sound policy reasons exist not to find waiver. The public is better served when disputes are resolved on their merits rather than by default.