A Lawyers' Guide to Appealing to the Superior Court of Pennsylvania

This is an introduction to the process of taking an appeal to the Superior Court of Pennsylvania. The focus is initially on procedure, and particularly on avoiding procedural oversights that can, at best, make the process more expensive and, at worst, end the appeal.

This is a simple primer with an even simpler message: read the rules and follow the rules. I will not restate the rules at length, but will try to call attention to some of the less obvious aspects and applications of them. If these initial, procedural cautions seem mundane and mechanical, they are surely not as unpleasant as calling the client to explain how a critical deadline was missed or a critical issue was waived. To maintain focus, I will assume that this is a fairly standard appeal, in a civil case, from an immediately appealable order of a court of common pleas, and that any post-trial motion requirements have been met.

Superior Court of Pennsylvania and the Pennsylvania Rules of Appellate Procedure

The Superior Court is one of Pennsylvania’s intermediate appellate courts.1 For many cases, appeal to the Superior Court is a matter of right.2 For the vast majority of those cases, appeal to the Superior Court is the final appeal as a matter of right.3 Intermediate appellate courts are sometimes characterized as error correction tribunals,4 and this function influences many aspects of an appeal to the Superior Court.

Taking an appeal to the Superior Court is straightforward, at least in part, because the Pennsylvania Rules of Appellate Procedure (the “Rules”) can be viewed as a practice guide to a far greater extent than is the case with the Pennsylvania Rules of Civil Procedure.

Noticing Appeal

A litigant aggrieved by the order of a trial court has thirty days in which to notice the appeal.5 Thirty days is a long time in the scheme of litigation and there is little excuse for missing it. It is a date that can and should be given to the client during that potentially uncomfortable conversation reporting defeat in the trial court. This begs a question: 30 days from exactly what?

Appeal Notice Due Date

Pa. R.A.P. 903 requires a Notice of Appeal to be filed “within 30 days after entry of the order from which the appeal is taken.”6

Case law interprets Pa. R.A.P. 108 and Pa. R.C.P. No. 236 to establish a deadline of 30 days from the date the trial court Prothonotary enters on the docket that notice of the trial court’s order was given.7

This being said, try not to rely upon it. Consider it a potential salvation if you really need it. If you notice the appeal within 30 days of the date of the order from which you are taking appeal, you cannot go too far wrong. You probably do not want to start your appeal being forced to oppose a challenge to its timeliness.

Rule 904 provides a form for your Notice of Appeal, as well as guidance on what papers must accompany it. Follow the Rule. Unless you have a truly photographic memory, follow the Rule by actually looking at the text. Don’t risk having your Notice rejected for want of a docket copy or a transcript request with no time left to refile.

You are now in a slightly strange place. The appeal has not yet been docketed at the Superior Court, so you are still “in” the trial court, but governed in large part by the Rules of Appellate Procedure, the details of which may be less familiar than the Rules of Civil Procedure. So, what exactly do you do with this Notice of Appeal after preparing it in strict accordance with Rules 904 and 1911?

Filing and Service of Notice of Appeal

Two copies of the Notice of Appeal must be filed of record in the court that entered the order from which appeal is being taken.8

In addition to being served on all parties, Notice of Appeal also must be served on the judge that signed the order from which appeal is being taken, as well as upon the official court reporter and the district court administrator.9

The important point is that filing and service requirements are a bit more extensive than those you have been following in the trial court proceedings. Just because the Notice of Appeal is filed with the trial court doesn’t mean you can just reuse that same old certificate of service.

Note that the trial court Prothonotary will take care of getting your appeal to the Superior Court Prothonotary.10 Some courts of common pleas will want separate checks for their fees and those of the Superior Court; others will accept a single combined payment. Check the specific common pleas court website or call the Prothonotary’s office to find out. Particularly if time is tight, you do not want your Notice of Appeal to be rejected, even electronically. If you want to know whether the Superior Court has docketed your appeal without waiting for notice to arrive by mail, go to:

 http://ujsportal.pacourts.us/DocketSheets/Appellate.aspx. Bookmark this site so you can keep an eye on the appellate docket.

At this point, you may start getting mail from the Superior Court, such as a request to review the caption and let the Prothonotary know if it is incorrect, and a request for a docketing statement and confidential mediation memorandum. Soon, you will need to put the briefing schedule on your calendar. So, are you done with the trial court? Almost certainly not.

Rule 1925

If any Rule should be thought of as “that which must be obeyed,”11 Rule 1925, Opinion in Support of Order, is that Rule. Rule 1925 begins with direction to the trial court, but it is the requirements it allows the trial court to impose upon on an appellant that concern us.

Notwithstanding any sequence suggested by the text or arrangement of Rule 1925, the scenario I have encountered most often is that the trial court will have the last word. That is, the trial court will react to the Notice of Appeal by ordering the appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) (“Concise Statement”) and only thereafter file its opinion pursuant to Rule 1925(a). Regardless of when a 1925(b) order is entered, the importance of strict compliance cannot be overstated.

 

File Timely

Pa. R.A.P. 1925(b)(2) directs the trial court to give appellant at least 21 days to file its Concise Statement but the court’s timeliness is not something an advocate wants to spend time and money arguing. Keep an eye on the trial court docket.

There is authority that ALL issues can be waived by failure to timely file.12

File and Serve Properly

Like the Notice of Appeal discussed above, the service requirements for appellant’s Concise Statement require more than the usual trial court service. Read Pa. R.A.P. 1925(b)(1), and the Rules it references, carefully, have anyone helping you do the same, and don’t trust memory or custom. It is probably worth taking advantage of obtaining a Postal Service Certificate of Mailing as contemplated by the Rule, even if it means a trip to the post office, because the date of mailing is then deemed the date of service upon the judge.

There is authority that ALL issues are waived for failure to properly serve the judge.13

Be Complete and Concise

Pa. R.A.P. 1925(b)(4)(vii) expressly states that any issues not raised in the Concise Statement are waived. Thus, including one or perhaps two issues in the Concise Statement that you later waive by not briefing them could be preferable to being prohibited from arguing an issue because you omitted it from the Concise Statement.

Nevertheless, the Rule says concise and means it. Not only does 1925(b)(4) provide everything an appellant needs in order to be concise (citation allowed but not required, no redundancy, no lengthy explanations, subsidiary issues deemed included, etc.), but Superior Court opinions excoriating Statements for being other than concise are not entirely rare.14

No Excuses

Do what the Rule says, and do what the trial court’s 1925(b) order says.

But wait: if all the appellant has is a bald order with no reasoning and the trial court has not yet entered any opinion, 1925(a) or otherwise, how does the appellant know what errors to complain of?! This possibility is expressly foreseen and addressed by 1925(b)(4)(vi), which instructs the appellant to include a preface and allows errors to be expressed in general terms. Concentrate on what YOU must do, not what the trial court should have done.

Rule 1925 is one of those practical pieces of writing that clearly embodies years of experience. Very properly, the Superior Court wants to know what errors15 the appellant believes the trial court made. This is the vehicle provided to convey such information in the first instance—the “initial winnowing.”16 Beyond trial, your Concise Statement is where you preserve issues for appeal. You are required to use it.

Hopefully, you are now a bit better armed to avoid the pitfalls of assuming appeal-related procedure in the trial court is identical to the procedures that prevailed before appeal.
 


[1] Simplifying somewhat, where the Commonwealth of Pennsylvania, or one of its subdivisions, is a party, the Commonwealth Court has initial appellate jurisdiction.

[2] Pa. R.A.P. 301, 311-313 & 341.

[3 See Pa. R.A.P. 1111, et seq.

[4] See generally Chad M. Oldfather, Error Correction, 85 Ind. L.J. 49 (2010).

[5] Pa. R.A.P. 903.

[6] Pa. R.A.P. 903(a).

[7] See, e.g., Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

[8] Pa. R.A.P. 905(a).

[9] Pa. R.A.P. 906.

[10] Pa. R.A.P. 905(b).

[11] All due apologies to John Mortimer’s Horace and Hilda Rumpole.

[12] Peoples v. Dayle, 16 Pa. D. & C.5th 85, 89 (Phila. 2010).

[13] Forest Highland Cmty. Ass’n v. Hammer, 879 A.2d 223, 229 (Pa. Super. 2005), but see, Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002, 1012 (Pa. 2010) *(plurality opinion) (forgiving appellant where 1925(b) order was less than clear).

[14] See, e.g., Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004) (raising “preposterous” number of issues warranted quashal as Superior Court “unwilling to succumb to such chicanery”). The official note published with Rule 1925 is highly instructive.

[15] Prior to the 2007 amendments, Rule 1925 spoke of “matters complained of on appeal” rather than “errors complained of on appeal”. This change speaks for itself.

[16] Pa. R.A.P. 1925, Official Note.


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