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Make the Most of Reply Brief Opportunity

Pennsylvania’s appellate rules permit a reply brief but limit the scope to “matters raised by appellee’s brief and not previously addressed in appellant’s brief.”  Pa. R.A.P. 2113(a).  Ideally, the reply brief is the opportunity for the appellant to add sharper focus the issues on appeal by responding to appellee’s advocacy in a way that underscores appellant’s principal themes.  Make the most of it.

Never use the reply brief to merely rehash arguments already made.  It is ineffective advocacy and contrary to the rules.  Never use the reply brief as a way to “sandbag” and raise new issues or arguments. The court will not allow it and it will cast doubt on the legitimacy of the other issues raised.  See, e.g., Gray v.Allegheny County Housing Authority,  8 A 3d 925, 927 n. 3 (Pa Cmwlth 2010) (“The Authority has filed a reply brief in which it alleges that Gray is precluded from arguing that he did not commit a serious lease violation based on the principle of collateral estoppel.  The Authority contends that the magistrate’s judgment amounted to a finding that Gray committed a serious lease violation.  We note that the Authority … is raising the issue of collateral estoppel for the first time in its reply brief.  As such, we decline to consider it.  See R. RAP 2113(a)( a reply brief may only address issues raised in Appellee’s brief).”).

Although generally a discretionary filing, a reply brief is essential where appellee’s brief makes arguments that, if accepted, would seriously undermine appellant’s claims, make the case that issues have been waived, or otherwise show that the appeal suffers from fatal procedural defects. Assume that failure to respond via reply brief in these situations will be treated as a concession that appellant is not able to effectively answer the claims.

Suggested further reading: Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2010-2011 (West) §§ 2113: 1- 2113:5.

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