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Taking an Appeal in PA? 10 Waiver Traps to Avoid

  1. Must you appeal?  Most, but not all, orders that do not end a case cannot be appealed until the case is resolved as to all issues and parties.  A subset of those interlocutory orders that may be appealed must be appealed immediately, or the right to do so is lost. These include certain orders deemed appealable under Pa. R.A.P. 311, certain orders involving declaratory judgments, certain orders under the Arbitration Act, certain orders in estate cases, and all collateral orders.  Answering the “must I appeal?” question is critical.  For further analysis on the issue see Pennsylvania Appellate Practice §§ 311:140 (right of appeal waived in certain cases where immediate apeal not taken); 341:3.2.1 and 341:3.2.2 (declaratory judgments and arbitration orders); 342:13 (Orphans’s Court orders) and 313:3 (collateral orders and waiver).
  2. Thinking reconsideration before you appeal?  Think again.  If you think that trial court/agency reconsideration of a final order can avoid the need for an appeal, file a motion for reconsideration, but do yourself a favor and simultaneously file a timely appeal.  The potential for waiver of all appeal rights when seeking reconsideration is so great that even the appellate courts take the time to point out the peril.  See, e.g., M.O. v. J.T.R., 85 A.3d 1058, 1060 n.1 (Pa. Super. 2014). For further explanation and pointers on the issue see Pennsylvania Appellate Practice § 1701:27.
  3. Beware post-trial motion practice.  In civil cases a request for post-trial relief pursuant to Pa. R.C.P. No. 227.1 is required in most instances in order to preserve issues for appeal.  But not in all cases.  So you need to know.  If a request for post-trial is not required, the appeal clock will start to run from the date of the order you want to appeal.   If you seek post-trial relief, the appeal period likely will have expired by the time you discover your mistake, resulting in waiver of all issues on appeal.  For further discussion and suggestions how to avoid the trap, see Pennsylvania Appellate Practice § 302:28.
  4. If you are “misled” by the trial court on post-trial motions, it’s your fault.    Sometimes it is difficult to know whether post-trial motions are required. You might think that if the trial court, through its actions or statements, contributes to the confusion by suggesting the wrong procedure, you will be excused.  That used to be the law, but no more.  If you fail to file post-trial motions where required because of something the trial court said or did, that may be a basis for entertaining post-trial motions nunc pro tunc, but that is cold comfort.  The law on this point is summarized in Pennsylvania Appellate Practice § 302:29.
  5. … Except in statutory appeals.  Rule 227.1(g) prohibits the filing of post-trial motions in statutory appeals.  However, in Appeal of Borough of Churchill the Supreme Court held that parties must file exceptions to orders of courts of common pleas disposing of statutory appeals if directed to do so by local rule or if invited to do so by the trial judge. To prevent waiver in statutory appeals, (a) comply with Pa.R.C.P. 227.1(g) by timely filing a notice of appeal from the order of the court of common pleas disposing of the statutory appeal; (b) comply with the holding in Churchill in those statutory appeal situations in which post-trial motions or exceptions are either required by local rule or invited by the trial judge, by also filing post-trial motions or exceptions; and (c) file a notice of appeal from the entry of judgment on the order resolving post-trial motions.  This topic is discussed in more detail in Pennsylvania Appellate Practice § 302:21.
  6. “Entry of judgment” can be a waiver trap.  The appealable event in civil cases in which post-trial relief pursuant to Pa. R.C.P. No. 227.1 applies is not the order disposing of the request for post-trial relief, but the entry of judgment on the verdict following resolution of the request for post-trial relief.  That means that where post-trial motions are required, the parties control the occurrence of the appealable event, not the court.  There is no requirement that the praecipe to enter judgment be filed at any particular time.  If you appeal without entering judgment, that is a curable defect.  The problem arises where post-trial motions are not required, such as in a dismissal on summary judgment or preliminary objections, and you mistakenly assume that the appeal period is triggered by the filing of a praecipe to enter judgment filed by counsel.  It is not: the appealable event is the entry of the order of dismissal, and if you assume otherwise you may miss your appeal deadline.  See Pennsylvania Appellate Practice §§ 301:17-301:26.
  7. Post supersedeas security timely, or you may regret it.  If you are appealing a money judgment and seek to avoid paying it pending appeal, make sure you post the required security (120% of the judgment) within the appeal period.  Otherwise, the appellee can proceed to execution, and, as a practical matter in many cases, render your appeal pointless. For the details on timely posting security see Pennsylvania Appellate Practice §§ 1731:1 and 1735:1.
  8. If it isn’t in the record sent up, it does not exist.  Although the Appellate Rules have been amended in recent years to limit the potential for waivers for failure of the appellant to assure that the appellate court has the complete original record before it when deciding an appeal, assume that if you plan to rely on a document that should be in the original record and is not, it is your fault and the issue related to the missing document will be deemed waived, even if the document is in the reproduced record.  Just make it your practice to check the original record as transmitted to the appellate court.   You will sleep better.  See Pennsylvania Appellate Practice §§ 1921:3.
  9. Be specific enough in your petition for review.  Unlike a notice of appeal, a petition for review appealing an administrative agency’s decision must provide detail on the basis for the appeal.  Every year, the Commonwealth Court quashes agency appeals or deems particular issues waived because the petition for review is deemed not specific enough.  Don’t let that happen to you. Although a rule amendment fix has been published for comment, it has not yet been adopted by the Supreme Court. See Pennsylvania Appellate Practice § 1513:9.
  10. Waiving waiver arguments.  An ironic twist to the waiver trap problem is that your opponent has the capacity to waive the waiver argument against you by not raising it at the earliest opportunity.  If you are confronted with a waiver challenge to your appeal, consider pushing back on this basis. See In Re Adoption of G.K.T., 75 A.3d 521 (Pa. Super. 2013); Pennsylvania Appellate Practice § 302:54.1.

Kevin McKeon is a co-author of West’s Pennsylvania Appellate Practice, an annually updated three-volume treatise on appellate litigation in Pennsylvania.

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