Introduction to PA Appellate Procedure
The Pennsylvania Rules of Appellate Procedure ("Pa.R.App.P.") are a set of rules specifically governing appellate practice in the Commonwealth of Pennsylvania. They apply to the appellate courts of the Commonwealth of Pennsylvania, consisting of the Commonwealth Court and the Superior and Supreme Courts of the Commonwealth. The Rules govern all appeals from trial courts and administrative bodies throughout Pennsylvania.
The Rules explain such things as the necessary contents of an appellate brief, how to properly file documents with the appellate court, the timeframes for fulfilling various requirements, and much more . Purposefully, the Rules leave little room for an attorney to be creative or to present his or her own interpretation of the Rules. Instead, Rule 120 states:
These rules shall be construed to secure the just, speedy, and inexpensive determination of every action to conform to the Rules of Civil Procedure and shall be construed consistently with the Rules of Civil Procedure so far as practicable.
Pa.R.App.P. 120 (emphasis added).
In short, the Rules should be followed exactly as they are written. Unless there is very good reason for doing so, it is almost always unwise to deviate or stray from the Rules.
Commencing an Appeal in Pennsylvania
This post addresses the filing of an appeal following a case management order entered in the Pennsylvania Court of Common Pleas. While the rules of appellate procedure are straightforward, they can trip up the unwary. A consideration of how the appeal process works will help to ensure your appeal is properly and timely filed. Generally, litigants have the right to appeal a final order of the Court of Common Pleas. A final order disposes of all claims against all parties, or alternatively, the trial court, on the record, designates the order as final. Thus, if you are dissatisfied with a final order, you have the right to appeal. If the order is not final, you cannot appeal until all claims have been disposed of, but you may be able to file an interlocutory appeal. In this section, we will focus on an appeal following the issuance of a case management order. For example, perhaps the Court issued a case management order entailing a bifurcated liability issue when presented with complex corporate litigation. The Court then conducted a trial on the liability/breach issue. Following its trial order, the Court then issued a final order entering judgment in favor of the Plaintiff and against all Defendants. When can the Defendant appeal the case management order? To answer that question, we once again refer to the Rules of Appellate Procedure. Generally, a party has thirty (30) days following the entry of any order to file an appeal therefrom. If, however, the underlying order resulted in a substantial interference with a party’s rights or duties, then it would be a collateral order that is immediately appealable. Accordingly, in the above example, the Order of the case management bifurcating the liability/breach issue can be immediately appealed because the Defendant was substantially deprived of presenting a full defense on the issue of liability at trial. Moreover, the collateral order rule is construed generously, giving litigants the ability to appeal any order that substantially interferes with their preparation for trial. Of course, the losing party may also appeal a final order of the Court following trial. Such a party will have thirty (30) days from the entry of the final order of the Court to file a Notice of Appeal. The Notice of Appeal should be filed as soon as practicable, and Obermayer recommends following the rules for the sake of certainty. While the rule does not accommodate a grace period, the Court may find an appeal is timely filed even if the actual Notice of Appeal is filed a day late. However, this type of exception should only be relied upon if the filing delay is due to circumstances beyond the control of the litigant. The Notice of Appeal must contain the date of the entry of the order being appealed, whether the case involves an attorney-managed case and whether the appeal relates to a judgment of sentence following a trial or a case involving a graded misdemeanor. This rule is an explicit requirement; failure to adhere to it is an express basis for dismissal. To avoid problems arising from this, always check the appellate rules and ensure a proper Notice of Appeal is filed. While relatively straightforward, the appellate rules can be complicated. It is wise to consult with an experienced appellate attorney before attempting to file an appeal; a missed deadline or improper Notice of Appeal can result in a costly and unnecessary loss of your right to have an appellate court review your case.
What are the Major Rules and Guidelines
In Pennsylvania, the Rules of Appellate Procedure (Pa.R.A.P.) govern most of your appellate journey. Following these guidelines is crucial for a successful appeal.
The Pennsylvania Rules of Appellate Procedure outlines each phase of an appeal, from the notice of appeal through to the final decision by the Superior Court of Pennsylvania or Supreme Court of Pennsylvania. For any attorney appealing in Pennsylvania, the rules are a must-read, and are the first place anyone should turn when trying to strategize their appeal. From the timing of the notice of appeal, to what must be in the reproduced record, to pages limits, the rules cannot be ignored. As with the other procedures in the Pennsylvania Code, the Appellate Rules are generally similar to the Federal Rules, but differ in a few key respects.
For example, under Pa.R.A.P. 311, the types of orders that can be immediately appealed to the Superior Court under the "collateral order" doctrine have been expanded in Pennsylvania to include non-final family law orders. A majority of jurisdictions do not allow for an immediate appeal of non-final family law orders. However, the most significant difference is that Pa.R.A.P. 341 permits any party to file an appeal as of right from a final decision, whereas the corresponding Federal Rule only allows an appeal of right in limited circumstances. In federal court, the parties must jump through various hoops to have a final order certified for interlocutory review. But in Pennsylvania, as long as there is an appealable final order and timely notice of appeal, the Superior Court will address the merits of the case.
Common Obstructions to Appeal Success
The appeals process, while similar to trial litigation, tends to have its own set of rules and complexities. Some of the common issues litigants face on appeal include:
1. Failing to preserve the issue for appeal.
Often, this occurs because the attorney is bifurcating the issues in the case and fails to treat the issue as one within the judge’s discretion. For instance, attorney could seek a protection from abuse (PFA) order and request that the Court grant the PFA for one year. The Court grants the PFA for three months. In preparing for an appeal, the attorney may focus on the standard of review in such a situation and neglect to address the fact the issue of whether to grant the PFA for one full year or three months was not preserved for appeal because it was never presented to the Court during the hearing.
2. Respond to the Pre-Argument Statement.
The appellate court will send out a pre-argument statement as a mechanism to determine whether the case is ready to be placed on the docket for argument. Sometimes, when I receive this notice from the court, I am surprised to see that the other party has already filed their brief and statement of issues for appeal. If a litigant fails to respond to the pre-argument statement, the Court will consider the case submitted on the merits and will move it to the argument list. The appellate lawyer usually will not know that this happened until the time has passed to file an answer brief. At that point, the appellate lawyer has one shot to respond to the appellate court to be allowed to file the answer brief. This is a very short and precise window on appeal that must be monitored to protect your appellate rights .
3. File the correct copies of the briefs.
The appellate court rules indicate the number of copies of briefs required to be filed. Sometimes, attorneys forget to go back and file the necessary number of copies after the electronic filing is confirmed. This is critical. The appellate court will not consider the case until the proper number of copies is filed.
4. Filing incorrect forms and briefs.
The parties MUST file the correct form or the appellate court will issue an order compelling them to do so within a particular time period and then the merits of the case is reconsidered only after the additional filing is made. Sometimes the time for appeal is running or the case is reaching the end of its procedural aspects and the litigants really wanted to wait, but the court forced them to file so it will hold jurisdiction of the matter. On appeal, there is sometimes room to fix these procedural issues, but sometimes it’s not even worth the appeal because the appellant wasn’t successful on the issue and waited too long to appeal, but they don’t know that until the honorarium is entered.
5. Missing the appeal deadline.
Heard this one before? Of course, but what does that actually mean? An appeal in Pennsylvania is timely in most instances if filed within 30 days after the order is entered by the lower court. The question becomes which order is the appeal from. This isn’t always clear to the litigant, especially in cases where there are related appeals. Careful attention must be paid to ensure that the appeal is from the proper order or, again, the matter is compromised.
Role of the Appellate Attorney
Section 2 – Role of the Appellate Lawyer
When the trial lawyer is ready to file an appeal, he or she must consider the impact that many procedural issues can have on final appellate disposition of the case. Examples include: The trial lawyer may not be familiar with some of the more technical appellates procedures that will be involved. The trial lawyer may be unfamiliar with the legal standard of review used for the particular issue raised on appeal. The appellate lawyer will have extensive experience in both deciding which issues should or can be raised on appeal and in preparing the client for what is coming. The appellate lawyer will know the strict deadlines involved, will know whether the lower court opinion needs to be included or whether it is available on Westlaw, who should get the notice of appeal, the importance of the docket entries, etc. The most important role the appellate lawyer plays is in ensuring that the client is maximally prepared for a successful appeal.
Conclusion
By now you should have a good understanding of the purpose and importance of the Pennsylvania Rules of Appellate Procedure. As stated before, the Rules of Appellate Procedure are to be taken seriously, and even minor violations can result in significant consequences in your appeal. Of course , the rules of appellate procedure must be considered within the context of procedural and jurisdictional rules precedent. Practitioners and appellate counsel must coordinate their efforts with trial counsel, and most importantly client communications must be clear, concise, and accurate. In sum, the Tools of the Trade of the Appellate Council provide great and valuable assistance to the appellate lawyer.