By Mandi Scott
Special to the Legal
The procedures for securing appellate review of an interlocutory order appealable only by permission are set forth in Pa. R.A.P. 1311, et seq. The procedures implement 42 Pa.C.S. §702(b) of the Judicial Code, which authorizes interlocutory appeals by permission.
The general rule is that a party may seek interlocutory appellate review by permission only if: 1) the lower court includes in its order a statement that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate termination of the matter; and 2) the party seeking appellate review files a petition for permission to appeal with the appellate court.
Inclusion of the necessary §702(b) statement in the lower court's order is a condition precedent to the filing of a petition for permission to appeal. Hoover v. Welsh, 615 A.2d 45 (Pa. Super. 1992) (court quashed appeal from interlocutory order where appellant failed to obtain trial court certification of the order). Therefore, a party seeking permission to appeal an interlocutory order must first request that the lower court amend its order to include the required § 702(b) language. The Rules of Appellate Procedure do not specify any particular procedure for applying to the lower court for amendment of the order.
Timing Application for amendment of an interlocutory order must be filed with the lower court within 30 days after the entry of the order. A request for reconsideration does not toll the 30-day period so, if a party is also seeking reconsideration, both requests should be made at the same time so that if reconsideration is denied, the trial court can timely certify its order.
Denial of a Request for an Amended Order Where the lower court refuses to amend its order to include the language prescribed by § 702(b), a party seeking appellate review may not file a petition for permission to appeal, but may obtain review of the lower court's refusal to amend the order by filing a petition for review in accordance with the Official Note to Rule 1311 and Chapter 15 of the Rules of Appellate Procedure. The standard for review on such a petition is whether the case is "so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower tribunal." Pa. R.A.P. 1311 (Official Note).
No Automatic Stay of the Proceedings A petition for permission to appeal does not automatically stay the proceedings before the lower court. Pa. R.A.P. 1313. In addition, the appellate court is not required to act upon a petition for permission to appeal within any prescribed time. For these reasons, if a party seeking interlocutory review wishes to prevent the case from going forward pending the filing of a petition for permission to appeal, that party should file a "Petition for Stay of Proceedings Pending the Filing of a Petition for Permission to Appeal" pursuant to Rules 1313 and 1702(b). The Petition should first be filed with the trial court, and if denied, application may be made to the appellate court. See Pa. R.A.P. 1702(b).
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 firstname.lastname@example.org.