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Is Order Granting New Trial in Statutory Appeal Appealable?

Orders granting new trials in civil and certain criminal proceedings are immediately appealable pursuant to Pa. R.A.P. 311 (a)(6), but is an order granting a new trial in a statutory appeal immediately appealable under the same Rule?  In Pittsburgh Water & Sewer Authority v. Gladstone, 999 A. 2d 1248 (Pa. Cmwlth. 2010), the Commonwealth Court said it is not, because a statutory appeal is not a “civil action” within the meaning of the Rule, and is not a “proceeding” within the meaning defined in the Judicial Code.  Under the facts and circu¬mstances presented in the case, however, the order was appealable as a collateral order because it met the three prongs of the collateral order test (it was “separable” from the main cause of action, because the error of law cited by the trial court for granting a new trial did not affect the merits of the underlying claim; it involved a right too important to be denied review because re-litigation of a matter is onerous and is the reason the Supreme Court promulgated Rule 311(a)(6) permitting an immediate appeal from an order in a civil action or proceeding granting a new trial; and the question presented was such that if review was postponed until final judgment the claim would have been irreparably lost,  because the claim was that appellant should not be required to re-litigate the matter in a new trial.

Suggested further reading: Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2010-2011 (West) §§ 311:57 – 311:64; § 313:2.

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