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PA Bulletin, Doc. No. 02-975

THE COURTS

[210 PA. CODE CH. 13]

Proposed Adoption of New Pa.R.A.P. 1316

[32 Pa.B. 2752]

   The Appellate Court Procedural Rules Committee proposes to adopt new Rule 1316 of the Pennsylvania Rules of Appellate Procedure.

   The proposed new Rule is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   An Explanatory Comment follows the proposed new Rule.

   Proposed new material is bold.

   All communications in reference to the proposed adoption should be sent not later than July 20, 2002 to the Appellate Court Procedural Rules Committee c/o Dean R. Phillips, Esquire, P. O. Box 3010, 925 Harvest Drive, Blue Bell, PA 19422.

   The Explanatory Comment which appears in connection with the proposed new rule has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated by the Court.

By the Appellate Court Procedural Rules Committee

HONORABLE JOSEPH M. AUGELLO,   
Chair

Annex A

TITLE 210.  APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

ARTICLE II.  APPELLATE PROCEDURE

CHAPTER 13.  INTERLOCUTORY APPEALS BY PERMISSION

Rule 1316.  Incorrect Use of Petition for Permission to Appeal or Petition for Review.

   A timely petition for permission to appeal from an order which is, in fact, immediately appealable as of right may be deemed to be a timely notice of appeal.

   Official Note: This Rule permits the appellate court to treat a timely, but erroneous, petition pursuant to Pa.R.A.P. 1311 for permission to appeal an order which is, in fact, immediately appealable as of right, as a timely notice of appeal. This Rule supersedes Thermo-Guard, Inc. v. Cochran, 598 A.2d 188 (Pa. Super. 1991) which had stated, as dictum, that ''in the future, where a petition for permission to appeal seeking review of a final order, appealable as of right, or of an interlocutory order made appealable as of right . . . is filed, this court should simply deny the petition.'' However, under Rule 1311 a party may not file a petition for permission to appeal an interlocutory order unless the order contains the statement prescribed in 42 Pa.C.S. § 702(b). Where the trial court refuses an application to amend an order to set forth expressly the statement specified in 42 Pa.C.S. 702(b) and that order was in fact appealable as of right, the appellate court may not treat a Chapter 15 petition for review of the trial court's refusal as a notice of appeal.

Explanatory Comment

Internal Committee Recommendation 47

   Proposed new Pa.R.A.P. 1316 would permit the appellate court to treat a timely Petition for Permission to Appeal as a Notice of Appeal where appellant sought permissive review of an order immediately appealable as of right. The proposed new Rule avoids the harsh result of waiver of appellate rights where appellant erroneously files a Petition for Permission to Appeal from a final order (see Pa.R.A.P. 341(b)), or an order otherwise immediately appealable as of right. See Pa.R.A.P. 311, 313 and 341.

   See proposed Note to Rule 1316 for a more detailed explanation of the Recommendation.

[Pa.B. Doc. No. 02-975. Filed for public inspection June 7, 2002, 9:00 a.m.]


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