By Mandi L. Scott
Special to The Legal
Chapter 17 of the Pennsylvania Rules of Appellate Procedure governs the effect of filing an appeal. Rule 1701(a) states the general rule that "[e]xcept as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter."
However, I find this general rule a bit misleading because an appeal actually acts as an automatic supersedeas (not requiring any more action on the part of the appellant) in very few cases. In fact, according to Rule 1701(b)(2), after an appeal is taken, the lower court may "[e]nforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter."
Even Pa. R.A.P. 1731 ("Automatic Supersedeas for Order for the Payment of Money") requires the filing of appropriate security (120 percent of the amount due) with the lower court before the appeal operates as a supersedeas.
In cases involving more than an order for the payment of money, the appellant must seek and obtain a stay or injunction pending appeal, including in most cases the filing of "appropriate security" with the lower court, before the effect of the order being appealed will be stayed, according to Rule 1733(a).
Appropriate security is to be determined by the trial court, pursuant to Pa. R.A.P. 1733(a). In addition, it is inappropriate for a court to grant a supersedeas without the filing of appropriate security, as seen in Cruse v. Cruse. In cases involving the disposition of real property, appropriate security is that sum which will protect the parties from any damages that may be incurred while the appeal is pending, including potential damages to the subject property, interest, the costs of the matter and costs on appeal.
An application for stay or injunction pending appeal must ordinarily first be made to the lower court, except where the appellate court has already entered an order pursuant to Chapter 17 or when the applicant can show that application to the lower court is not practicable or the lower court has already denied the relief requested.
The standard for granting a stay or injunction pending appeal is similar to the traditional injunction test. Pursuant to Tri-State Asphalt Corp. v. Commonwealth, the applicant must establish:
- A likelihood of success on the merits of the appeal;
- Irreparable injury if a stay is denied;
- Issuance of a stay will not substantially harm other interested parties; and
- Issuance of a stay will not adversely affect the public interest.
According to Pa. R.A.P. 1736, the following appellants are exempt from security and are entitled to a true automatic supersedeas upon filing an appeal:
- The commonwealth or any officer thereof, acting in his official capacity;
- Any political subdivision or any officer thereof, acting in his official capacity, except in any case in which a common pleas court has affirmed an arbitration award in a grievance or similar personal matter;
- A party acting in a representative capacity;
- A taxpayer appealing from a judgment entered in favor of the commonwealth upon an account duly settled when security has already been given as required by law; and
- An appellant who has already filed security in a lower court, conditioned as prescribed by these rules for the final outcome of the appeal.
However, the lower or appellate court may, at any time upon application of a party and after notice and an opportunity for hearing, require security of a party otherwise exempt, or increase, decrease or eliminate the amount of any security that has been or will be filed.
The above is a summary of just a few of the Rules of Appellate Procedure governing the effect of the filing of an appeal, and it quickly becomes apparent that the general rule (that the filing of an appeal prevents the lower court from proceeding further in the matter) is much more complicated than many practitioners might think. If you are involved in an appeal, Chapter 17 of the Pennsylvania Rules of Appellate Procedure should be reviewed very carefully.
Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail [email protected].