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 [email protected].
Thanks for responding to my question. We actually had a "Stay of the Proceedings" in hand that was issued by another judge at the same Courthouse. The trial Judge simply ignored the stay by stating in open court that the Judge who issued the "Stay", "really didn't mean it". The trial judge then threatened to find my attorney in contempt if we left the proceedings as my attorney told the court we were about to do. If by a "Petition for Review" you mean a "Motion for Reconsideration" we did that also (I am not an Attorney). I did file a formal complaint with the JCB for this issue and several serious conflicts of interest between the Judge and opposing counsel (former law partners together, Godparents to each others children, etc). Turns out the Judge was a sitting board member of the JCB. What else should we have done?
Posted by: Larry Hohol | Tuesday, November 01, 2011 at 05:47 AM
Larry, you could have filed a Petition for Review as outlined in the article, and then requested a stay of the trial (first with the lower court, and if that was ultimately denied, with the appellate court).
Nice overview, Mandi. Just to add onto your section on timing, the Petition to Amend (to include statutory language) doesn't toll the time you have to file the appeal either, so a good practitioner should be ready to roll with a Petition for Review prior to the expiration of the timeframe for the certified interlocutory appeal.
Posted by: Joshua Auriemma | Friday, October 28, 2011 at 06:32 AM
I had a Common Pleas Judge issue an Interlocutory Order concerning a very detailed Motion for Recusal. It was very transparent that the judge did not want the details of the motion to ever see the light of day due to the substantial conflicts of interest that were exposed between the judge and opposing counsel. What exactly would have been the correct course of action in this type of case? Keep in mind the judge would never grant permission to appeal.
Posted by: Larry Hohol | Friday, October 21, 2011 at 01:53 PM