McKeeman v. Corestates Bank, N.A.

BROSKY, J.,

concurring.

¶ 1 I join in the majority’s disposition of the arguments relating to the trial court’s grant of a demurrer in favor of Security Abstract.

¶ 2 However, I write separately to also address the majority’s disposition of Appellants’ first issue: whether the trial court abused its discretion in refusing to grant Appellants leave to amend the complaint. The majority has concluded that the principles set forth by our Supreme Court in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), a criminal case, “are equally applicable in civil cases.” Memorandum at 4-5. Therefore, the majority concludes, this issue has been waived by Appellants’ failure to include it in their 1925(b) statement.

¶ 3 Lord, however, specifically addressed the issue of “whether Pa.R.Crim.P. 1410 precludes an appellate court from deeming an issue waived when an Appellant fails to raise that issue in his Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1025(b).” 719 A.2d at 307. The issue thus presented to our Supreme Court involved construction and interpretation of both Pa.R.Crim.P. 1410 and Pa. *662R.A.P. 1925(b) to determine whether questions raised following a criminal conviction had been preserved for appellate review.

¶ 4 My concern is with an unwavering, blanket application of Lord to all cases on appeal. I do not read the decision in Lord to automatically preclude consideration of all issues in every civil and criminal case, where an appellant has failed to include a specific question in his 1925(b) statement. Absent such an interpretation by our Supreme Court or this Court en banc, I would decline to so hold. See Commonwealth v. Steadley, 748 A.2d 707, 2000 PA Super 62 (2000) (Popovich, J., concurring and dissenting) (questioning such blanket application of the language in Lord, and concluding that Superior Court has discretion to consider an issue raised by an appellant as provided by Pa.R.A.P. 1925).

¶ 5 Moreover, I would decline to so extend Lord to the situation presented in the instant appeal. I would, instead, focus on the longstanding analysis of whether effective appellate review has been foreclosed. See, e.g., Taylor v. Owens-Coming Fiberglas Corp., 446 Pa.Super. 174, 666 A.2d 681 (1995), appeal denied, 544 Pa. 661, 676 A.2d 1201 (1996)(failure to raise a particular issue in concise statement of matters complained of on appeal may result in waiver of that issue, where that failure hinders effective appellate review); Pa. R.A.P. 1925 (same). Cf. Giles v. Douglass, 747 A.2d 1236, 2000 PA Super 55 (2000) (ruling that failure of appellant to file 1925(b) statement waived all issues for appellate review).

¶ 6 A determination of whether amendment to pleadings should be permitted rests within the sound discretion of the trial court. Borough of Mifflinburg v. Heim, 705 A.2d 456 (Pa.Super.1997). As Appellants failed to raise this issue in their 1925(b) statement, the trial court did not address amendment of Appellants’ complaint. Without the benefit of the trial court’s reasons for failing to permit such amendment, effective appellate review of its exercise of discretion has been foreclosed. I would, under this analysis, conclude that Appellant’s argument has therefore been waived pursuant to Taylor, supra. Accordingly, I concur only in the result of the majority’s disposition of the issue of amendment of the complaint.