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Is the Order Final? That’s the Appellate Court’s Call

Although trial courts and agencies often take a position on whether an order they have entered is final for purposes of appeal, it is essential for counsel to make an independent assessment of appealability, because orders that lower tribunals believe to be interlocutory and unappealable frequently are deemed final by the appellate court.  That was the result in Fiore v. County of Allegheny, ___ A. 3d ___, ___ n. 3 (Pa Cmwlth. 2011) (1805 CD 2009, decided February 1, 2011), where a landowner who had valuable coal rights under South Park in Allegheny County filed  two actions in the court of common pleas, one seeking a declaration that he had a right to strip mine and the other seeking appointment of a Board of Viewers.  After the County filed preliminary objections to both actions, alleging among other arguments in each that the landowner had no right to strip mine, the trial court held a hearing on the issue of whether the landowner had a right to strip mine and then entered an order stating that based on the evidence he did not, without ever expressly ruling on the preliminary objections.  In his opinion, the trial judge argued that the order was not final because the preliminary objections remained pending, but the Commonwealth Court viewing the matter from a practical perspective, held that the order was final because it effectively disposed of at least one of the preliminary objections – whether the landowner had the right to strip mine – and thus effectively disposed of both cases.

The Commonwealth Court’s approach in Fiore is consistent with settled law.  The “finality of an order is a judicial conclusion which results from practical rather than technical interpretation, taking into account the order’s ramifications.”  Consumer Education and Protective Assoc. v. Public Utility Commission, 847 A.2d 789, 794 (Pa. Cmwlth. 2004), quoting Popowsky v. Pa. Pub. Utility Comm’n., 640 A.2d 302, 305 (1994).  The “practical” decision whether an order is final is one for the appellate court, not the lower tribunal.  See, e.g., Bell Atlantic-Pennsylvania, Inc. v. Pa. Pub. Utility Comm’n., 763 A.2d 460-61 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 567 Pa. 746, 788 A.2d 378 (2001))(Court denied lower tribunal’s motion to quash: “Hence this Court agrees with Bell [the petitioner] that the separation order, by its very terms, does possess finality sufficient to subject its validity to [appeal] now.”).

Suggested further reading:  Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2010-2011 (West) § 341.3.1.

The Fiore case can be accessed by clicking here.

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