The Legal Intelligencer Blog

Recent Amendments to Rules 121, 903, 1113 and 1512

By Mandi L. Scott
Special to the Legal

On April 9, 2012, the Pennsylvania Supreme Court amended the Official Note to Pa. R.A.P. 121 and Rules 903, 1113, 1512 to clarify that subdivision (e) of Rule 121 applies to calculating the deadline for filing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review.

Rule 121(e) (“Additional time after service by mail and commercial carrier”) provides that:

“Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party (other than an order of a court or other government unit) and the paper is served by United States mail or by commercial carrier, three days shall be added to the prescribed period.”

The official comment to Rule 121(e) expressly explains that this subdivision does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for reconsideration or reargument because the deadlines for filing such documents run from the entry and service of an order, not a filing by another party.

However, confusion had arisen with respect to whether 121(e) applied to the filing of a cross-appeal, cross-petition for allowance of appeal and additional petitions for review because the rules governing such submissions (Rules 903, 1113 and 1512) calculated the deadline within so many days of the “filing” (rather than service) of the initiating appeal or petition. (Compare Coney Island II Inc. v. Pottsville Area School District, 497 Pa. 373, 441 A.2d 747 (1982) and Malt Beverages Distribution Association v. PLCB, No. 54 MM 2009, 2009 Pa. Lexis 1613 (Pa. Aug. 6, 2009).)

The amendments to Rules 903, 1113, 1512 simply substitute “served” for “filed” in determining the filing deadline, bringing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review clearly within the application of Rule 121(e). The Official Note to Rule 121 was amended to expressly include such documents.

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].

Recent Amendments to Pa. R.A.P. 311 & 342

By Mandi L. Scott
Special to the Legal

On Dec. 29, 2011, the Pennsylvania Supreme Court amended Rules 311 and 342 of the Pennsylvania Rules of Appellate Procedure. The amendments apply to Orphans’ Court orders entered on or after Feb. 13, 2012.

According to new Rule 342(a), an immediate appeal may be taken as of right from the following orders of the Orphans’ Court:

(1) An order confirming an account, or authorizing or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or terminating a trust;

(5) An order determining the status of fiduciaries, beneficiaries or creditors in an estate, trust or guardianship;

(6) An order determining an interest in real or personal property;

(7) An order issued after an inheritance tax appeal has been taken to the Orphans’ Court pursuant to either 72 Pa.C.S. §9186(a)(3) or 72 Pa.C.S. §9188, or after the Orphans’ Court has made a determination of the issue protested after the record has been removed from the Department of Revenue pursuant to 72 Pa.C.S. §9188(a); or

(8) An order otherwise appealable as provided by Chapter 3 of these rules.

Prior to the amendment to Rule 342, in order to file an immediate appeal from an order of the Orphans’ Court making a distribution, or determining an interest in realty or personalty or the status of individuals or entities, the Orphans’ Court had to make a determination of finality when entering the order. According to the official note accompanying amended Rule 342, the prior rule was not working and was not being applied consistently. Thus, orders falling within subdivisions (a)(1) through (7) listed above no longer require the Orphans’ Court to make a determination of finality and are instead immediately appealable as of right.

With respect to Rule 311, following a 2005 amendment, orders determining the validity of a will or trust were appealable as of right under Rule 311(a)(8). The December 2011 amendment makes such orders immediately appealable under Rule 342(a)(2).

Of particular importance, it should be noted that pursuant to subdivision (a)(1) of amended Rule 342, an order entered with respect to any account, even an interim or partial account, is now immediately appealable as of right.

In addition, subdivision (a)(5), which applies to estates, trusts and guardianships, was intended to clarify that an appealable Orphans’ Court order concerning the status of “individual or entities” (as used in prior Rule 342) means an order determining if an individual or entity is a fiduciary, beneficiary or creditor. Further, it has now been confirmed that an order removing or refusing to remove a fiduciary is immediately appealable under this subdivision.

The goal of the amendment is to facilitate orderly and efficient administration of estates, trusts and guardianships in the Orphans’ Court Division.

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].

Appeals of Interlocutory Orders, Part 2: Interlocutory Appeals by Permission

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].

Appeals of Interlocutory Orders – Part 1, Pa. R.A.P. 341(c)

By Mandi L. Scott
Special to the Legal

In general, appeals are only permitted from final orders, as defined by Pa. R.A.P. 341. In an action involving more than one claim, an order disposing of less than all of the claims is considered an interlocutory order (not final) and therefore not immediately appealable. However, pursuant to Pa. R.A.P. 341(c), a party seeking to immediately appeal an interlocutory order disposing of less than all claims may apply to the trial court for a determination of finality which would permit an immediate appeal.

In order for an interlocutory order disposing of less than all claims to be immediately appealable, the trial court must make an express determination that “an immediate appeal would facilitate resolution of the entire case.” Such an order becomes appealable when entered.

If the trial court does not initially make such an express determination, the party seeking to file an immediate appeal must file an application for a determination of finality with the trial court, asking the trial court to amend its interlocutory order to make the express determination that an immediate appeal would facilitate resolution of the entire case.

The Official Note to Rule 341 lists the factors to be considered by the trial court when making a determination of finality. Those factors include: (1) whether there is a significant relationship between adjudicated and unadjudicated claims; (2) whether there is a possibility that an appeal would be mooted by further developments; (3) whether there is a possibility that the trial court will consider issues a second time; and (4) whether an immediate appeal will enhance prospects of settlement. Other factors include whether failure to entertain an immediate appeal will result in an injustice which a later appeal would not correct. See Pullman Power Prods. of Can. v. Basic Eng'rs, 713 A.2d 1169, 1173 (Pa. Super. 1998).

While the rules provide that an application for determination of finality must be filed within 30 days of entry of the trial court’s interlocutory order, Rule 341(c)(3) further provides that the trial court must act on the application within 30 days of entry of the interlocutory order so any application for a determination of finality should be filed earlier in order to give the opposing party and the trial court sufficient time to consider the application. During the time an application for a determination of finality is pending, the action is stayed.

If the trial court grants the application for a determination of finality, a notice of appeal must be filed within 30 days after entry of the trial court’s amended order (unless a shorter time period is provided in Pa. R.A.P. 903(c)).

Further, if the trial court denies the application for a determination of finality, or the application is deemed denied because it is not decided within 30 days of the entry of the trial court’s interlocutory order, the party seeking an immediate appeal may seek review of the trial court’s denial by filing a petition for review with the appellate court pursuant to Chapter 15 of the Pennsylvania Rules of Appellate Procedure.

Finally, it should be noted that the appellate courts may review the merits of a trial court’s determination of finality even if the parties do not challenge that decision. See Pullman Power Prods. of Can., 713 A.2d at 1173-1174; Wisniski v. Brown & Brown Ins. Co., 852 A.2d 1206, 1209-1210 (Pa. Super. 2004), citing F.D.P. ex rel. S.M.P. v. Ferrara, 804 A.2d 1221, 1227 n. 6 (Pa. Super. 2002).

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].

Appeals of Interlocutory Orders by Permission

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].

Checking in on Pa.R.A.P. 1925(b)

By Mandi L. Scott
Special to the Legal

Pennsylvania Rule of Appellate Procedure 1925(b) has caused problems for numerous appellants over the years. The most common problems relate to service of the Statement of Errors Complained of on Appeal and waiver of issues on appeal due to defective statements. 

If a trial court judge wants a statement to be filed, an order will be entered directing the appellant to do so. Appellants are typically given 21 days for the filing and service of the statement. In order to properly file and serve the statement, the appellant must not only timely file the statement of record with the trial court, but also serve it on the trial judge and all parties. Service is considered complete upon mailing only if the appellant obtains a U.S. Postal Service Form 3817, certificate of mailing, or other similar form from which the date of deposit can be verified.

An appellant's statement must concisely identify each ruling or error that the appellant intends to challenge, with sufficient detail to identify all pertinent issues for the judge. In 2007, Rule 1925(b) was amended to help attorneys and parties comply with the requirement that Statements be concise yet sufficiently detailed to avoid waiver under Linebarger v. Wyeth or Kanter v. Epstein.

According to Rule 1925(b)(4)(iv), the "Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be ground for finding waiver."

More general statements are permitted in civil cases where the appellant cannot readily discern the basis for the judge's decision. In such cases, the appellant must preface the statement with an explanation why the errors complained of on appeal are only stated in general terms. In such cases, the generality of the statement will not be grounds for finding waiver.

Given the 2007 amendments, I was curious to see what, if any, waiver cases have issued since the amendments became effective. Appellants continue to file defective statements, resulting in waiver of issues on appeal. However, if the trial court can discern any issues within a defective statement, those issues are being addressed in the trial court's opinion, as in In re Appeal of Moyer. There, the trial court received vague statements that lacked specificity and were of little help in the court’s attempt to identify the appellants’ specific contentions of error. Despite this, the court went on to address those issues that it could clearly discern from the statements.

Similarly, in Balliet v. Shivone, the appellant filed a nine-page statement containing five pages of factual averments and a five-page brief, with no numbered paragraphs or specific statements summarizing issues for appeal. Despite this clear violation of the requirements of Rule 1925(b)(4), the trial court ascertained three issues it believed the appellant was raising on appeal and addressed those issues in its opinion.

In contrast to these cases, where an apparent good faith effort was made to comply with Rule 1925(b), in Dorazio v. Equip. Corp. of Am., the trial court recommended that an appeal be dismissed in its entirety because the appellant failed to comply with either the letter or the spirit of Rule 1925(b), and he did so in bad faith. The statement filed was 39 pages, with 130 paragraphs and 125 pages of exhibits, even though the trial only took less then four days. According to the trial court, the statement was rambling, incoherent and redundant and would not comply with Pa. R.A.P. 2116.

While this last case presents an extreme example of a blatant disregard for Rule 1925(b), attorneys and pro se parties drafting Rule 1925(b) statements of errors complained of on appeal should continue to pay close attention to concisely yet specifically identifying their errors on appeal in order to avoid any possible waiver determination.

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].

Court Clarifies Procedure to Challenge Frivolousness in Double Jeopardy

By Mandi L. Scott
Special to the Legal

Recently, in the case of Commonwealth v. Orie, the Pennsylvania Supreme Court had the opportunity to clarify the procedure required for a defendant in a criminal case to seek limited appellate review of a trial court's written finding that the defendant's double jeopardy challenge is frivolous. The court's recent decision is, in its own words, "a modest adaptation" of the process it previously suggested in the 1986 case of Commonwealth v. Brady.

Procedurally, this matter came before the Supreme Court on defendant Jane C. Orie's petition for review, which the court treated as a petition for allowance of appeal. After her trial ended in a mistrial, Orie moved to dismiss the charges against her on the basis of double jeopardy, but the trial court denied her motion as frivolous. Orie then filed a petition for review to the Superior Court, which was denied. Another petition for review/petition for allowance of appeal was then filed with and granted by the Supreme Court. 

Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination under Commonwealth v. Bolden. In Brady, however, the court held that no such right to appeal exists when the trial court makes a finding of frivolousness with respect to the defendant's double jeopardy challenge. While the Brady court explained that a defendant could challenge the finding of frivolousness "in the context of a request for a stay from an appellate court," the mechanism for doing so was not thoroughly explained. 

The Supreme Court has now outlined for litigants exactly how a defendant may seek further review of a trial court's finding of frivolousness. 

According to the court's decision in Orie, a defendant seeking review of a trial court's finding of frivolousness must file a petition for review in the Pennsylvania Superior Court pursuant to Chapter 15 of the Rules of Appellate Procedure. 

Further, if the defendant believes a stay of the underlying trial proceedings is necessary while the petition for review is being considered by the Superior Court, a stay should be sought pursuant to the ordinary stay procedures set forth in Pa. R.A.P. 1781 and seen in Pennsylvania Pub. Utility Comm'n v. Process Gas Consumers Group.

The court noted, however, that there will be instances in which judicial review of a trial court's finding of frivolousness is required but a stay is not. In the Orie case itself, the trial court had continued the retrial proceedings pending resolution of the defendant's petition for review.  Thus, applying for a stay was not necessary.

The court further explained that any stay must first be sought in the court where the appeal would lie had there been had been no finding of frivolousness, that is, the Superior Court in most non-capital cases. The alternative interpretation previously set forth by the Superior Court in Commonwealth v. Learn was disapproved.

Based on the court's holding, the case was remanded to the Superior Court for disposition of the petition for review seeking review of the trial court's finding of frivolousness.

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].

Rules Regarding Records

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].

Effect of Appeals: Supersedeas and Stays

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].

Do I Need to File a Post-Trial Motion?

By Mandi L. Scott
Special to the Legal

Pennsylvania Rule of Civil Procedure 227.1 governs the filing and content of motions for post-trial relief, and states, "Post-trial motions shall be filed within 10 days after (1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of nonsuit or the filing of the decision in the case of a trial without jury."

Post-trial motions are meant to give the trial court an opportunity to correct errors prior to appeal. If a motion for post-trial relief is required and not filed, all issues will be waived on appeal. 

A recent Pennsylvania Superior Court case illustrates just how important it is to understand when a motion for post-trial relief is required. In Newman Development Group of Pottstown, LLC v. Genuardi's Family Market Inc., the court vacated a damages award and remanded the case to the trial court. On remand, the trial court received legal memoranda from the parties and conducted oral argument, but no additional evidence was received.

The trial court then issued an opinion awarding the prevailing party damages in the amount of $10,525,298, plus interest and counsel fees and expenses. A motion for reconsideration was filed but denied. At the same time it denied the motion for reconsideration, the trial court entered a separate "verdict" in favor of the prevailing party in the amount of $18,489,221.60, plus post-judgment interest. A direct appeal was filed from the trial court's verdict.

The Superior Court subsequently quashed the appeal because no post-trial motion had been filed in the trial court. The appellant argued that the proceedings on remand did not constitute a "trial" and therefore no motion for post-trial relief was necessary. The Superior Court disagreed, looking at the case as a whole, both before and after remand, and concluded that subsequent post-trial motions are required in matters tried before a trial court then later remanded on the issue of damages. In support of its position, the Superior Court relied on its 2004 case, Cerniga v. Mon Valley Speed Boat Club.

The Superior Court's decision in the Genuardi's case seems to create even more confusion about when a motion for post-trial relief must be filed and has the potential to greatly impact both pending and future litigation in Pennsylvania. The appellant filed an application for reargument April 1, which is pending before the Superior Court. 

Not only is it extremely important that a motion for post-trial relief be filed when necessary, but also it must be timely filed (within 10 days of the verdict or decision at issue) and must contain specific information in order to be treated as a proper motion for post-trial relief.  While some courts, under some circumstances, may be willing to treat a motion that is not titled as a motion for post-trial relief but that otherwise meets the requirements of Rule 227.1 as a proper post-trial motion (for example, Gemini Equipment Co. v. Pennsy Supply Inc.), additional litigation would likely be necessary in order to reach such a conclusion, and the outcome would heavily depend on the facts of each case and the substance of the motion filed.

Finally, if in doubt about whether a motion for post-trial relief is required, the best practice would be to file one. However, that will not toll the appeal deadline if the motion was in fact unnecessary. The Rules of Civil and Appellate Procedure must be carefully reviewed to ensure issues are properly preserved for appeal.  

  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].