In Pennsylvania appellate courts, winning or losing a case can oftentimes hinge less on the strength of a legal argument than on whether that argument was properly preserved throughout trial and post-trial proceedings.
Robert M. Palumbos, chair of Duane Morris' appellate division, agreed with Rodriguez's assessment of Pennsylvania's having a history of applying waiver more strictly, and said the repeated high, nuclear verdicts Philadelphia saw in recent years, have "made defendants much more careful, more aware of the potential for waiver, and frankly, more likely to bring in appellate counsel to help ensure that waiver doesn’t happen."
Palumbos noted that Pennsylvania appellate courts historically have applied waiver more aggressively than their federal counterparts, particularly through Rule 1925, which requires appellants to identify the issues they intend to challenge on appeal so trial judges can address them in a targeted opinion.
As to why Pennsylvania courts have evolved to more prominently feature waiver as a deciding factor, Palumbos said others have suggested that one factor could be because the caseload in state court is so much greater than in federal court, and that sometimes Pennsylvania appellate courts turn to waiver to resolve cases quickly.
"[T]here’s just a practice in Pennsylvania where issues need to be preserved with a particularity," which "sort of flows from the 1925 practice," he said, noting there is no federal court equivalent.
Palumbos said his impression was that Pennsylvania courts had taken a more practical approach in recent years, applying waiver less frequently. He attributed that shift in part to amendments to Rule 1925 in 2007, 2014 and 2019, which clarified preservation requirements and reduced the likelihood of inadvertent waiver.
But, he said, some recent rulings in 2026 have made him rethink whether that trend will continue.
"My impression is that the Superior Court in particular has not applied waiver quite so strictly as it did in the past to 1925 statements. That’s part due to amendments to Rule 1925 and in part due to, I think, how the Superior Court looks at practice under that rule. I think that carried over to some extent into other forms of waiver and issue preservation as well. But there have certainly been some big cases in 2026 where waiver featured prominently and I’m not sure at this point if that suggests a trend back in that direction or not."
Overall, practitioners agreed they prefer it when appellate decisions hinge on the merits of a case, rather than procedure.
"I think that’s been good because it creates a situation where the courts are deciding issues on the merits rather than on waiver grounds, and as a general matter, I think that’s preferable," Palumbos said. "We’d rather have our courts reaching the merits than looking for and finding waiver and deciding cases that way."
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