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PA Bulletin, Doc. No. 96-666

THE COURTS

Title 210--APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

[210 PA. CODE CH. 3]

Amendments to Rule 311; No. 100; Doc. No. 1

[26 Pa.B. 1985]

Order

Per Curiam:

   And Now, this 10th day of April, 1996, the amendments to Rule 311 of the Pennsylvania Rules of Appellate Procedure and the Note to Rule 311 are adopted as follows.

   This order shall be processed in accordance with Rule 103(b), Pa.R.J.A. and shall become effective April 27, 1996.

Annex A

TITLE 210.  APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

ARTICLE I.  PRELIMINARY PROVISIONS

CHAPTER 3.  ORDERS FROM WHICH APPEALS MAY BE TAKEN

INTERLOCUTORY APPEALS

Rule 311.  Interlocutory Appeals as of Right.

   (a)  General rule. [Except as otherwise prescribed by general rule, an] An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:

*      *      *      *      *

   (2)  Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property, except for [attachments pursuant to Sections 401(c) and 403 (a) of the Divorce Code, Act of April 2, 1980, P. L. 63, 23 P. S. §§  401(c) and 403(a)] orders pursuant to Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§ 3323(f) and 3505(a).

*      *      *      *      *

   (4)  Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except for injunctions pursuant to [Sections 401(c) and 403(a) of the Divorce Code, Act of April 2, 1980, P. L. 63, 23 P. S. §§ 401(c) and 403(a)] Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§ 3323(f) and 3505(a). A decree nisi granting or denying an injunction is not appealable as of right under this rule, unless the decree nisi (i) grants an injunction effective upon the entry of a decree nisi or (ii) dissolves a previously granted preliminary injunction effective upon the entry of a decree nisi.

   (5)  Peremptory judgment in mandamus. An order granting peremptory judgment in mandamus.

   [(5)] (6)  ***

   [(6)] (7)  ***

   [(7)] (8)  ***

*      *      *      *      *

   (d)  Commonwealth Appeals in Criminal Cases. In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case [but] where the Commonwealth [asserts] certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

*      *      *      *      *

   The official Note to Rule 311 is rescinded and replaced with the following:

   Official Note: Authority--This rule implements 42 Pa.C.S. § 5105(c) (interlocutory appeals), which provides:

   (c)  Interlocutory appeals. There shall be a right of appeal from such interlocutory orders of tribunals and other government units as may be specified by law. The governing authority shall be responsible for a continuous review of the operation of section 702(b) (relating to interlocutory appeals by permission) and shall from time to time establish by general rule rights to appeal from such classes of interlocutory orders, if any, from which appeals are regularly allowed pursuant to section 702(b).

   The appeal rights under this rule, and under Rule 312 (interlocutory appeals by permission), Rule 313 (collateral orders), Rule 341 (final orders generally), and Rule 342 (final distribution orders), are cumulative; and no inference shall be drawn from the fact that two or more rules may be applicable to an appeal from a given order.

   Subdivision (a)--If an order falls under Rule 311, an immediate appeal may be taken as of right simply by filing a notice of appeal. The procedures set forth in Rules 341(c) and 1311 do not apply to an appeal under Rule 311.

   Subdivision (a), Paragraph (a)(1) (Affecting judgments)--The 1989 amendment to paragraph (a)(1) eliminated interlocutory appeals of right from orders opening, vacating, or striking off a judgment while retaining the right of appeal from an order refusing to take any such action.

   Paragraph (a)(2)  (Attachments, etc.)--The 1987 Amendment to paragraph (a)(2) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); O'Brien v. O'Brien, 359 Pa. Super. 594, 519 A.2d 511 (1987).

   Paragraph (a)(3)  (Change of criminal venue or venire)--Under prior practice, either a defendant or the Commonwealth could appeal an order changing venue. See former Pa.R.Crim.P. 311(a) (Third sentence) before amendment of June 29, 1977, 471 Pa. XLIV. An order refusing to change venue is not appealable. Commonwealth v. Swanson, 424 Pa. 192, 225 A.2d 231 (1967). This rule makes no change in existing practice.

   Change of venire is authorized by 42 Pa.C.S. § 8702 (impaneling jury from another county). Pa.R.Crim.P. 312 (motion for change of venue or change of venire) treats changes of venue and venire the same. Thus an order changing venire is appealable by the defendant or the Commonwealth, while an order refusing to change venire is not.

   See also Rule 903(c)(1) regarding time for appeal.

   Paragraph (a)(4)  (Injunctions)--The 1987 amendment to paragraph (a)(4) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); O'Brien v. O'Brien, 359 Pa. Super. 594, 519 A.2d 511 (1987).

   The 1996 amendment to paragraph (a)(4) reconciled two conflicting lines of cases by adopting the position that generally an appeal may not be taken from a decree nisi granting or denying a permanent injunction. Humphreys v. Cain, 84 Pa. Cmwlth. 222, 474 A.2d 353 (1984). To the extent that Agra Enterprises Inc. v. Brunozzi, 302 Pa. Super. 166, 170, 448 A.2d 579, 581 (1982); Martin Industrial Supply Corp. v. Riffert, 366 Pa. Super. 89, 91, 530 A.2d 906, 907 (1987); Bolus v. Ryder Truck Rental, Inc., 258 Pa. Super. 387, 388, 517 A.2d 995, 996 (1986); Commonwealth ex. rel. Lewis v. Allouwill Realty Corp., 330 Pa. Super. 32, 35, 478 A.2d 1334, 1336 (1984); and Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa. Super. 420, 422 n.1, 449 A.2d 1389, 1390 n.1 (1982) permit an immediate appeal from a decree nisi granting or denying prospective injunctive relief, they are overruled.

   The 1996 amendment to paragraph (a)(4) simultaneously recognized two exceptions to the non-appealability of a decree nisi; these exceptions, identified as phrases (a)(4)(i) and (ii), permit an appeal from a decree nisi if the order has the immediate effect of changing the status quo. Thus, if the decree nisi grants or denies permanent injunctive relief to become effective when the decree nisi is made final, no appeal is possible. If, however, the decree nisi provides for permanent injunctive relief upon entry of the decree nisi, or strikes a previously granted preliminary injunction upon entry of the decree nisi, the decree nisi is appealable pursuant to phrase (a)(4)(i) or (ii).

   Paragraph (a)(5)  (Peremptory judgment in mandamus)--Paragraph (a)(5), added in 1996, authorizes an interlocutory appeal as of right from an order granting a motion for peremptory judgment in mandamus without the condition precedent of a motion to open the peremptory judgment in mandamus. Under prior practice established in Hamby v. Stoe, 448 Pa. 483, 295 A.2d 309 (1972), an order granting peremptory judgment in mandamus was not appealable; only the order denying a motion to open the peremptory judgment in mandamus was appealable. The 1996 amendment eliminated the need to move to open. The January 1, 1996 amendment to Pa.R.C.P. 1098 eliminates the former practice of filing a petition to open a peremptory judgment in mandamus. The 1996 amendment overrules Hamby v. Stoe and other decisions that quashed appeals that were taken from the peremptory judgment in mandamus rather than the order denying the motion to open the judgment, e.g., Butler v. Emerson, 76 Pa. Cmwlth. 156, 463 A.2d 109 (1983); Mertz v. Lakatos, 21 Pa. Cmwlth. 291 (1975); Ellenbogen v. Larsen, 16 Pa. Cmwlth. 353, 328 A.2d 587 (1974). An order denying a motion for peremptory judgment in mandamus remains unappealable.

   Paragraph (a)(8)  (Other cases)--Paragraph (a)(8) is directed primarily to statutes and general rules hereafter enacted or promulgated. The current text of the Pennsylvania Rules of Civil Procedure, the Pennsylvania Rules of Criminal Procedure, etc., should be consulted to identify any interlocutory appeal rights provided for therein. See also, e.g., 42 Pa.C.S. § 7320 (appeals from court orders), concerning appeals from certain orders in nonjudicial arbitration proceedings, which section is not suspended by these rules. See Rule 5102(a) (Judicial Code unaffected).

   Subdivision (b)  (Order sustaining venue or personal or in rem jurisdiction)--Subdivision (b) is based in part on the Act of March 5, 1925, P. L. 23 (order ruling on question of jurisdiction). The term ''civil action or proceeding'' is broader than the term ''proceeding at law or in equity'' under the prior practice and is intended to include orders entered by the orphans' court division. Cf. In the Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977).

   In paragraph (b)(1), a plaintiff is given a qualified (because it can be overriden by petition for and grant of permission to appeal under Rule 312 (interlocutory appeals by permission)) option to gamble that the venue of the matter or personal or in rem jurisdiction will be sustained on appeal. Paragraph (g)(ii) provides that if the plaintiff timely elects final treatment, the failure of the defendant to appeal constitutes a waiver. The appeal period under Rule 903 (time for appeal) ordinarily runs from the entry of the order, and not from the date of filing of the election, which procedure will ordinarily afford at least 20 days within which to appeal. See Rule 903(c) as to treatment of special appeal times. If the plaintiff does not file an election to treat the order as final, the case will proceed to trail unless (1) the trial court makes a finding under Paragraph (b)(2) of the existence of a substantial question of jurisdiction and the defendant elects to appeal, (2) an interlocutory appeal is permitted under Rule 312 or (3) another basis for appeal appears, e.g., under paragraph (a)(1), and an appeal is taken. Presumably a plaintiff would file such an election where he desires to force the defendant to decide promptly whether the objection to venue or jurisdiction will be seriously pressed. Subdivision (b) does not cover orders that do not sustain jurisdiction because they are, of course, final orders appealable under Rule 341.

   Subdivision (b)(2)  (Substantial issue of venue or jurisdiction)--The 1989 amendment to paragraph (b)(2) permits an interlocutory appeal as of right where the trial court certifies that a substantial question of venue is present. This eliminated an inconsistency formerly existing between subdivision (b) and paragraph (b)(2).

   Subdivision (c)  (Changes of venue, etc.)--Subdivision (c) is based in part on the act of March 5, 1925 (P. L. 23, No. 15) (order ruling on question of jurisdiction). The term ''civil action or proceeding'' is broader than the term ''proceeding at law or in equity'' under the prior practice and is intended to include orders entered by the orphans' court division. Cf. In the Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977).

   Subdivision (c) covers orders that do not sustain venue, e.g., orders under Pa.R.C.P. 1006(d) and (e).

   However, the subdivision does not relate to a transfer under 42 Pa.C.S. § 933(c)(1) (concurrent and exclusive jurisdiction), 42 Pa.C.S. § 5103 (transfer of erroneously filed matter) or under any other similar provision of law, because such a transfer is not to a ''court of coordinate jurisdiction'' within the meaning of this rule; it is intended that there shall be no right of appeal from a transfer order based on improper subject matter jurisdiction. Such orders may be appealed by permission under Rule 312, or an appeal as of right may be taken from an order dismissing the matter for lack of jurisdiction. See Balshy v. Rank, 507 Pa. 384, 388, 490 A.2d 415, 416 (1985).

   Other orders relating to subject matter jurisdiction (which for this purpose does not include questions as to the form of action, e.g., as between law and equity, or divisional assignment, see 42 Pa.C.S. § 952 (status of court divisions)) will be appealable under Rule 341 if jurisdiction is not sustained, and otherwise will be subject to Rule 312.

   Subdivision (d)  (Commonwealth appeals in criminal matters)--In subdivision (d), the 1992 amendment permits appeals by the Commonwealth from certain interlocutory orders that were previously treated as final orders under the pre-1992 version of Rule 341(c). See, e.g., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32 (1992); and Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992). The 1996 amendment to Rule 904(e) requires that the Commonwealth assert in the notice of appeal that the trial court's order will terminate or substantially handicap the prosecution.

   Subdivision (e)  (Orders overruling preliminary objections in eminent domain cases)--In subdivision (e), the 1992 amendment permits interlocutory appeals from orders overruling preliminary objections in eminent domain cases. These orders were previously appealable as final orders under Rule 341 even though such orders did not dispose of all claims and all parties. See In Re Certain Parcels of Real Estate, 420 Pa. 289, 216 A.2d 774 (1966); and Central Bucks Joint School Bldg. Authority v. Rawls, 8 Pa. Cmwlth. 491, 303 A.2d 863 (1973).

   Subdivision (f)  (Administrative remand)--In subdivision (f), the 1992 amendment permitted an immediate appeal as of right from an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion. Examples of such orders include: (1) a remand by a court of common pleas to the Department of Transportation for removal of points from a drivers license; and (2) an order of the Workmen's Compensation Appeal Board reinstating compensation benefits and remanding to a referee for computation of benefits.

   Subdivision (f) further permits immediate appeal from an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue that would ultimately evade appellate review if an immediate appeal is not allowed. See Department of Environmental Resources v. Big B Mining Co., Inc., 123 Pa. Cmwlth. 591, 554 A.2d 1002 (1989) (order of Environmental Hearing Board reversing D.E.R.'s denial of a surface mining permit and remanding to D.E.R. for re-evaluation of effluent limitations); Phila. Commission On Human Relations v. Gold, 95 Pa. Cmwlth. 766, 503 A.2d 1120 (1986) (court of common pleas order reversing a Philadelphia Human Relations Commission finding of discrimination on ground the commission impermissibly commingled prosecutorial [or] and adjudicative functions). The 1992 amendment overrules, in part, FMC Corporation v. Workmen's Compensation Appeal Board, 116 Pa. Cmwlth. 527, 542 A.2d 616 (1988) to the extent that it is inconsistent with subdivision (f).

   Subdivision (h)  (Further proceedings in lower court)--See note to Rule 1701(a) (effect of appeal generally).

[Pa.B. Doc. No. 96-666. Filed for public inspection April 26, 1996, 9:00 a.m.]


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