By Mandi L. Scott
Special to the Legal
This is the second part in a series on appeals of interlocutory orders. Here is Part 1.
Sometimes a court or government unit entering an interlocutory (non-final) order is of the opinion that the order in question involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the matter. 42 Pa. C.S. §702(b) permits the court or government unit to state the same in its interlocutory order, thus giving a party the right to attempt to file an interlocutory appeal by permission pursuant to Pa. R.A.P. 312 and Chapter 13 of the Pennsylvania Rules of Appellate Procedure.
The most important thing to know about Chapter 13 is that, even if the trial court includes the “magic” language required by 42 Pa. C.S. §702(b), an immediate appeal from an interlocutory order is not permissible. Instead, the party seeking to file an appeal must file a Petition for Permission to Appeal with the prothonotary of the appropriate appellate court within 30 days after the entry of the interlocutory order containing the statement required by Section 702(b). See Pa. R.A.P. 1311.
One other note of caution to those filing a Petition for Permission to Appeal an interlocutory order, the filing of such a petition does not stay the proceedings before the lower court or other government unit, unless the lower court or other government unit, or the appellate court, orders a stay.
That statement, again, is: “[this] order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter[.]”
Rule 1311 further requires that any petition be served on all other parties to the matter and on the government unit or lower court issuing the interlocutory order so that the petition may be docketed of record before the lower tribunal.
As for the contents of a Petition for Permission to Appeal an interlocutory order, the petition must contain the following:
1. A jurisdictional statement.
2. The text of the interlocutory order in question.
3. A concise statement of the case.
4. The controlling question(s) of law presented to the appellate court for review and a concise statement of why a substantial ground exists for a difference of opinion on the question and why an immediate appeal may materially advance termination of the case.
The failure of a petitioner to present its position with accuracy, brevity and clarity is a sufficient reason for the appellate court to deny the petition.
Finally, if a Petition for Permission to Appeal is filed asking the appellate court to exercise its discretion and accept the subject order for review, but the order is actually a final order which was immediately appealable as of right, the appellate court may treat the petition as an appeal from a final order pursuant to Pa. R.A.P. 1316.
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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