By Mandi L. Scott
Special to the Legal
This month, I thought I would focus on a few Rules of Appellate Procedure relating to the record -- both original and reproduced. The most important thing to note about the reproduced record is that even if something is included in the reproduced record, if it is not part of the original certified record received by the appellate court from the lower court, it cannot be considered on appeal.
Rule 1926: Correction or Modification of the Record
Generally, the original record is certified by the lower court and sent to the appellate court within 60 days after the filing of a notice of appeal, according to Pa. R.A.P. 1931. It is good practice to review the record in the lower court before it is certified and sent to the appellate court so that you may ensure that all required documents, including exhibits, have become part of the original record.
Rule 1926 allows corrections or modification to the record "if any differences arise as to whether the record truly discloses what occurred in the lower court" or "if anything material to either party is omitted from the record by error or accident or is misstated therein."
If a difference of opinion exists as to whether the record truly discloses what occurred in the lower court, the differences are submitted to and settled by the lower court. If something was omitted from the record by accident or mistake, the parties may supplement the record by stipulation or the lower court may supplement the record before the record is transmitted. The appellate court may also correct the record "on proper suggestion or of its own initiative."
Rule 2154: Designation of the Content of the Reproduced Record
Generally, no later than 30 days before the brief of the appellant is due, the appellant must serve and file a designation of the parts of the record that he or she intends to include in the reproduced record, along with a brief statement of the issues being presented for review.
It has been this author's experience that in most cases the appellate court issues its briefing schedule approximately 40 days before the appellant's brief is due. Therefore, the appellant's Designation of the Contents of the Reproduced Record should be filed and served within 10 days of receiving the court's briefing schedule.
If the appellee believes certain necessary parts of the record were not included in the appellant's designation, the appellee may file his or her own designation with the appellate court within 10 days of receiving the appellant's designation. The appellant must then include those parts of the record designated by the appellee in the reproduced record filed with the appellant's brief.
If the appellant does not file and serve a designation of the contents of the reproduced record prior to filing his or her brief, or because of exceptional circumstances the parties cannot agree on the contents of the reproduced record, the appellee may prepare, serve and file a supplemental reproduced record pursuant to Pa. R.A.P. 2156.
Please note that different rules may apply to large records and children's fast track appeals, as per Pa. R.A.P. 1931(a)(2) and 2154(b) and (c).
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].
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