[33 Pa.B. 2259]

[Continued from previous Web Page]

EXPLANATORY COMMENT FOR
INTERNAL RECOMMENDATION 50--CHAPTER 15

   The primary purpose of this Recommendation is to make Chapter 15 more user-friendly. The recommendation includes amendments to the notes that should make the Chapter easier for attorneys and judges to follow. The Recommendation conforms various rules to statutory amendments and includes technical and stylistic revisions. A summary of the Recommendation follows a brief introduction to Chapter 15. This Recommendation follows a comprehensive review of Chapter 15 by the Appellate Court Procedural Rules Committee and was prepared with substantial contributions from the Commonwealth Court's legal staff. After an exhaustive review of the Chapter and consideration of alternatives to the Petition for Review practice for original and appellate jurisdiction matters prescribed in Chapter 15, the Committee has determined that Chapter 15 still represents the most efficient and comprehensive method for review of governmental action. Accordingly, this Recommendation does not propose any fundamental change in practice under Chapter 15.

Introduction to Chapter 15

   Chapter 15 of the Rules of Appellate Procedure is titled ''Judicial Review of Governmental Determinations.'' The Chapter is a road map for one of the four primary ways to appeal a matter to an appellate court within the Unified Judicial System.¹

   A thorough introduction to Chapter 15 is found in Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice 2d at 1501:1. Darlington states:

The adoption of Chapter Fifteen of the Pennsylvania Rule of Appellate Procedure marked a significant departure from past Practice where a party sought judicial review of a Governmental determination at the appellate court level. The chapter introduced the petition for review, a generic pleading that replaced the appeal and the original jurisdiction common law causes of action in the context of reviewing governmental determinations.''

   Pursuant to Chapter Fifteen, the petition for review is used to commence an appeal from an administrative agency to an appellate court. The petition for review is also the document that is used to commence an original jurisdiction action in the nature of equity, mandamus, quo warranto, declaratory judgment and prohibition in an appellate court, against a government unit.

   The dual use of the petition for review has been the source of much confusion to the occasional practitioner in the appellate courts. The use of the petition for review to commence an appeal has not created the confusion because it is clear that, when counsel files an appellate jurisdiction petition for review, counsel is invoking the appellate jurisdiction of the court and seeking review of a determination or adjudication of an administrative agency. Thus, the court is clearly reviewing a governmental determination.

   When, however, counsel seeks to enjoin governmental action (equity), compel governmental action (mandamus), declare rights between citizens or corporations and government (declaratory judgment) or seeks other traditional remedies in a court's original jurisdiction, counsel is not seeking a ''review'' of governmental determination as that term is generally defined. Nevertheless, if the original jurisdiction action is within the scope of Chapter Fifteen, the document that counsel files to commence the original jurisdiction action in the appellate court is a petition for review.

   The second major source of confusion created by Chapter Fifteen is the chapter's poor organization. It is often not clear whether a particular rule in Chapter Fifteen applies to an original jurisdiction petition for review, an appellate jurisdiction petition for review, or both. Succeeding sections in Chapter Fifteen of Pennsylvania Appellate Practice attempt to dispel the confusion.

   The greatest impact of Chapter Fifteen is in the Commonwealth Court because that court is vested with both original and appellate jurisdiction involving governmental determinations. In the Commonwealth Court, the petition for review is also used as the vehicle to review a trial court's or agency's refusal to certify an interlocutory order for appellate review.

   In the Supreme Court, the petition for review is the document that is filed to commence an appeal from a Legislative Reapportionment Commission, a review of certain special prosecutions or investigations, and certain matters within the Supreme Court's original jurisdiction.

   In the Superior Court, the primary use of the petition for review is to seek review of a trial court order granting or denying release or modifying the conditions of release of a criminal defendant before sentencing. In the Superior Court, the petition for review is also used to review a trial court's refusal to certify an interlocutory order for appellate review.

   The proposed Recommendation is the result of a comprehensive review of Chapter 15. Its primary purpose is to make the chapter more user-friendly and to conform the chapter to statutory amendments as well as making certain technical changes.

Summary of Proposed Amendments

   The following is a summary of the amendments:

   Rule 1501. Subsection (a)(4) would be added to recognize the references in various appellate rules and accompanying notes to petition for review practice. For example, the Notes to Rules 1311 and 341 direct counsel to file a petition for review of a trial court or government agency order refusing to certify an interlocutory order for immediate appeal. Similarly, Rule 1762 directs the filing of a petition for review when a party seeks release on bail before judgment of sentence is rendered. A petition for review is also the proper method by which to seek judicial review pursuant to Rule 3321 (regarding legislative reapportionment commission) and Rule 3331 (regarding special prosecutions or investigations). The 2003 amendments clarify the use of petitions for review in these special situations.

   The Note to Rule 1501 referring to Subdivision (c) would be amended to expressly recognize that some statutory procedures are not replaced by the adoption of the generally comprehensive nature of petition for review practice.

   The Note to Rule 1501 would also be amended to state that the proposed amendments to Chapter 15 petition for review practice address the evolution of judicial responses to governmental actions. The Note would explain that when the Rules of Appellate Procedure were initially adopted, there was a ''long history in the Commonwealth . . . of relatively complete exercise of the judicial review function under the traditional labels of equity, mandamus, certiorari and prohibition.'' While such original jurisdiction forms of action are still available, their proper usage is now the exception rather than the rule because appellate proceedings have become the norm. Thus, the need to rely on Rule 1503 to convert an appellate proceeding to an original jurisdiction action and vice versa is less common. Moreover, the emphasis on a petition for review as a generic pleading that permits the court to simultaneously consider all aspects of the controversy shifted to making the practice for appellate proceedings more apparent to the occasional appellate practitioner. Accordingly, the rules have been amended to more clearly separate procedures for appellate proceedings from those applicable to original jurisdiction proceedings.

   The proposed amendment to the Note would further explain that the responsibility of identifying the correct type of proceeding to be used to challenge a governmental action is initially that of counsel. Where precedent makes the choice clear, counsel can proceed with confidence. Where the choice is more problematic, then counsel should draft the petition for review so as to satisfy the directives for both appellate and original jurisdiction proceedings. Then the court can designate the proper course of action regardless of counsel's earlier assessment.

   Rule 1512. Subdivision (b)(4) is added to provide that pursuant to statute, an appeal shall be filed within fifteen days of the mailing date of a determination of a Commonwealth agency denying a protest under Section 1711 of the Commonwealth Procurement Code, 62 Pa.C.S. § 1711.

   Rule 1513. The proposed amendments to this rule would clarify what must be included in a petition for review addressed to an appellate court's appellate jurisdiction and what must be included in a petition for review addressed to an appellate court's original jurisdiction. Where it is not readily apparent whether a ''determination'' (defined in Rule 102 as ''[a]ction or inaction of a government unit) is reviewable in the court's appellate or original jurisdiction, compliance with the requirements of Subdivisions (d) and (e) is appropriate.

   Subdivisions (a) and (b) reflect the provisions of Rule 501 (Any Aggrieved Party May Appeal), Rule 503 (Description of Public Officers), Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702 (Appeals), and Pa.R.C.P. 1094, regarding parties defendant in mandamus actions.

   Government units that are usually disinterested in appellate jurisdiction petitions for review of their determinations include: the Board of Claims, the Department of Education (with regard to teacher tenure appeals from local school districts pursuant to section 1132 of the Public School Code of 1949, 24 P. S. § 11-1123), the Environmental Hearing Board. the State Civil Service Commission, and the Workers' Compensation Appeal Board. The provision for joinder of indispensable parties in original jurisdiction actions reflects the last sentence of section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c), providing for the implementation of ancillary jurisdiction of the Commonwealth Court by general rule.

   Subdivisions (d) and (e) reflect the differences in proceeding in a court's original and appellate jurisdiction, while preserving the need for sufficient specificity to permit the conversion of an appellate document to an original jurisdiction pleading and vice versa should such action be necessary to assure proper judicial disposition. See also the notes to Rules 1501 and 1502. The paragraph regarding the notice to participate was formerly found in Rule 1514(c).

   Rule 1514. The amendment to the Note to Rule 1514 clarifies that the petition for review must be served on the government unit that made the determination in question. Rule 102 defines ''government unit'' as including ''any court or other officer or agency of the unified judicial system.'' Thus, a petition for review of a trial court order must be served on the judge who issued the order. Service on the Attorney General shall be made at: Strawberry Square, Harrisburg, PA 17120.

   Rule 1515. The Recommendation would rescind Rule 1515. Rule 1515 formerly provided for an answer to a petition for review addressed to an appellate court's original jurisdiction. Answers to such petitions are now discussed in Rule 1516.

   Rule 1516. The 2003 amendments would rescind old Rule 1516 and replace it with a new Rule clearly explaining that, with five limited exceptions, no answer or other pleading to a petition for review addressed to an appellate court's appellate jurisdiction is proper. With regard to original jurisdiction proceedings, practice is patterned after Rules of Civil Procedure 1017(a) (Pleadings Allowed) and 1026 (Time for Filing Notice to Plead). The ten additional days in which to file a subsequent pleading are in recognition of the time required for agency coordination where the Commonwealth is a party.

   Rule 1517. Rule 1517 would be amended to state that unless otherwise prescribed in these Rules, the Rules of Civil Procedure apply to original jurisdiction petition for review practice.

   Rule 1531. Rule 1531 would be amended so that it is clear that Subdivision (a) prescribes the procedure for intervention in appellate jurisdiction petition for review proceedings. Subdivision (a) would delete the following: ''In the case of a person for whom an appearance has been entered pursuant to Rule 1514(d) (entry of appearance) the failure to file a timely notice of intervention under this rule shall operate to strike off the appearance of such person in the appellate court.'' Subdivision (a) would also provide that: ''After 30 days after notice of filing of an appellate petition for review, permission to intervene may be sought by application pursuant to Rule 123.''

   Subdivision (b) would be amended to make it clear that it applies to intervention in original jurisdiction review proceedings.

   Rule 1532. The Note to Subdivision (b) would be amended to explain that it authorizes immediate disposition of a petition for review, similar to the type of relief envisioned by the Pennsylvania Rules of Civil Procedure regarding judgment on the pleadings and peremptory and summary judgment. However, such relief may be requested before the pleadings are closed where the right of the applicant is clear.

   Rule 1541. Certification of the Record. Rule 102 defines ''government unit'' to include ''any court or other officer or agency of the unified judicial system.'' Thus, if the order to be reviewed was filed by a trial court, that court shall certify the record. This occurs when the petition for review was filed pursuant to Rule 1762, 3321 or 3331, or the note to Rules 341 or 1311.

   Rule 1542. Evidentiary Hearing. This is a technical amendment making it clear that Pa.R.C.P. 1034 and 1035 are available where a petition for review involving the appellate court's original jurisdiction has been filed.

   Rule 1551. This Rule governs scope of review. Subdivision (a) would be amended to change the title from ''Review of Quasijudicial Orders'' to ''Appellate Jurisdiction Petitions for Review.''

   Subdivision (b) would be amended to change the title from ''Other Matters'' to ''Original Jurisdiction Petition for Review.'' Subdivision (b) is further amended to provide that the scope of judicial review in original jurisdiction matters as provided in Chapter 15 is not intended to modify, enlarge or abridge the rights of any party to an original jurisdiction petition for review.

   Rule 1561. This Rule governs ''Disposition of Petition for Review.'' The title to Subdivision (a) is amended to clarify that it applies to ''Appellate Jurisdiction for Review.'' The title to Subdivision (b) is amended to clarify that it applies to ''Original Jurisdiction Petitions for Review.''

   Rule 1571. The proposed revision to Rule 1571 contains technical amendments only.

[Pa.B. Doc. No. 03-867. Filed for public inspection May 9, 2003, 9:00 a.m.]

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¹  Chapter 9 (Appeals from Lower Courts) generally covers appeals from lower courts to the Superior Court and Commonwealth Court. Chapter 11 (Appeals from Commonwealth Court and Superior Court) includes both ''Appeals as of Right from Commonwealth Court'' and ''Petitions for Allowance of Appeal'' from Superior and Commonwealth Court. Chapter 13 governs ''Interlocutory Appeals by Permission.'' There are also rules applying to miscellaneous groups of cases which include Rule 1941 (Automatic Review of Death Sentences) and Rule 3331 (Review of Special Prosecutions or Investigations).

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