THE COURTS
Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CH. 15]
Order Amending Pa.R.A.P. 1501--1571; No. 155 Appellate Procedural Rules; Doc. No. 1
[34 Pa.B. 3862]
Amended Order Per Curiam:
And Now, this 8th day of July, 2004, upon the recommendation of the Appellate Court Procedural Rules Committee, this recommendation having been published before adoption at 33 Pa.B. 2259 (May 10, 2003).
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the proposed amendments to Pa.R.A.P. 1501--1571 are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective 60 days after adoption.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
IN GENERAL Rule 1501. Scope of Chapter.
(a) General rule. Except as otherwise prescribed by Subdivisions (b) and (c) of this rule, this chapter applies to:
* * * * * (3) [Objections to a determination by a government unit] Original jurisdiction actions heretofore cognizable in an appellate court by [an action] actions in the nature of equity, replevin, mandamus or quo warranto or for [a] declaratory judgment, or upon writs of certiorari or prohibition.
(4) Matters designated by general rule, e.g., review of orders refusing to certify interlocutory orders for immediate appeal, release prior to sentence, appeals under Section 17(d) of Article II of the Constitution of Pennsylvania and review of special prosecutions or investigations.
(b) Appeals governed by other provisions of rules. This chapter does not apply to any appeal within the scope of:
* * * * * (3) Chapter 13 (interlocutory appeals by permission), except that the provisions of this chapter and ancillary provisions of these rules applicable to practice and procedure on petition for review, so far as they may be applied, shall be applicable: (a) where required by the Note to Rule 341 and the Note to Rule 1311; and (b) after permission to appeal has been granted from a determination which, if final, would be subject to judicial review pursuant to this chapter.
* * * * * Official Note:
* * * * * Subdivision (a)(4) was added in 2004 to recognize the references in various appellate rules and accompanying notes to petition for review practice. For example, the Notes to Rules 341 and 1311 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. See Rule 1762(b). 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 2004 amendments clarify the use of petitions for review in these special situations.
Subdivision (b) of this rule is necessary because otherwise conventional appeals from a court (which is included in the scope of the term ''government unit'') to an appellate court would fall within the scope of this chapter under the provisions of Paragraph (a)(2) of this rule.
Subdivision (c) expressly recognizes that some statutory procedures are not replaced by petition for review practice. Thus, matters brought pursuant to Section 137 of the Associations Code governing judicial review of documents rejected by the Department of State or pursuant to the Election Code are controlled by the applicable statutory provisions and not by the rules in Chapter 15. See 15 Pa.C.S. § 137; Act of June 3, 1937, P. L. 1333, as amended 25 P. S. §§ 2600--3591.
[Rule 1561 (disposition of petition for review) makes clear that this chapter does not apply to ordinary tort, contract and post hearing conviction matters.
Where] In light of Subdivision (d), where the court in which a petition for review is filed lacks subject matter jurisdiction (e.g., a petition for review of a local government question filed in the Commonwealth Court), Rules 741 (waiver of objections to jurisdiction), 751 (transfer of erroneously filed cases) and 1504 (improvident petitions for review) will be applicable. See also 42 Pa.C.S. § 5103.
The 2004 amendments are made to petition for review practice to address the evolution of judicial responses to governmental actions. As indicated in the Note to Rule 1502, 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 arises less often. Moreover, the emphasis on a petition for review as a generic pleading that permits the court to simultaneously consider all aspects of the controversy is diminished. The primary concern became 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 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.
[Explanatory Comment--1976 It is made clear that where permission to appeal is granted under Chapter 13 from a determination, which, if final, would be subject to the petition for review procedures of Chapter 15 (e.g. permission to appeal from an interlocutory order of the Public Utility Commission) the further proceedings in the appellate court are governed by Chapter 15.]
Rule 1502. Exclusive Procedure.
The appeal[, the] and the original jurisdiction actions of equity, replevin, mandamus and quo warranto, the action for a declaratory judgment, and the writs of certiorari and prohibition are abolished insofar as they relate to matters within the scope of a petition for review under this chapter. The petition for review, insofar as applicable under this chapter, shall be the exclusive procedure for judicial review of a determination of a government unit.
Official Note: This chapter recognizes that the modern label ''appeal'' has little significance in connection with judicial review of governmental determinations in light of the long history in this Commonwealth of relatively complete exercise of the judicial review function under the traditional labels of equity, mandamus, certiorari and prohibition. If the simple form of notice of appeal utilized in Chapter 9 (appeals from lower courts) were extended to governmental determinations without any requirement for the filing of [exceptions] motions for post-trial relief, a litigant who incorrectly selected the appeal label, rather than the equity, mandamus, replevin, or prohibition, etc. label, would probably suffer dismissal, [since] because the court would be reluctant to try a proceeding in the nature of equity, mandamus, replevin, or prohibition, etc. in the absence of a proper pleading adequately framing the issues.
The solution introduced by these rules is to substitute a new pleading (the petition for review) for all of the prior types of pleading which seek relief from a governmental determination (including governmental inaction). Where the reviewing court is required or permitted to hear the matter de novo, the judicial review proceeding will go forward in a manner similar to an equity or mandamus action. Where the reviewing court is required to decide the questions presented solely on the record made below, the judicial review proceeding will go forward in a manner similar to appellate review of an order of a lower court. However, experience teaches that governmental determinations are so varied in character, and generate so many novel situations, that [frequently] on occasion it is only at the conclusion of the judicial review process, when a remedy is being fashioned, that one can determine whether the proceeding was in the nature of equity, mandamus, prohibition, or statutory appeal, etc. The petition for review will eliminate the wasteful and confusing practice of filing multiple ''shotgun'' pleadings in equity, mandamus, prohibition, statutory appeal, etc., and related motions for consolidation, and will permit the parties and the court to proceed directly to the merits unencumbered by procedural abstractions.
Rule 1551 (scope of review) makes clear that the change in manner of pleading does not change the scope or standard of review of governmental determinations or otherwise affect the [substantial] substantive rights of the parties.
* * * * * Rule 1503. Improvident Appeals or [Plenary] Original Jurisdiction Actions.
If an appeal is taken from an order of a government unit, or if a complaint in the nature of equity, replevin, mandamus, or quo warranto, or a petition for a declaratory judgment or for a writ in the nature of certiorari or prohibition is filed against a government unit or one or more of the persons for the time being conducting its affairs[, as such,] objecting to a determination by any one or more of them, this alone shall not be a ground for dismissal[, but the]. The papers whereon the improvident matter was commenced shall be regarded and acted upon as a petition for review of such governmental determination and as if filed at the time the improvident matter was commenced. The court may require that the papers be clarified by amendment.
* * * * * Rule 1504. Improvident Petitions for Review.
If a petition for review is filed against any person, where the proper mode of relief is an original jurisdiction action in equity, replevin, mandamus or quo warranto, or a petition for a declaratory judgment or for a writ of certiorari or prohibition, this alone shall not be a ground for dismissal, but the papers whereon the improvident matter was commenced shall be regarded and acted upon as a complaint or other proper process commenced against such person and as if filed at the time the improvident matter was commenced. The court may require that the papers be clarified by amendment.
Official Note: Based on 42 Pa.C.S. § 102 (definitions) (which includes petition for review proceedings within the statutory definition of ''appeal'') and 42 Pa.C.S. § 708(b) (appeals). When the moving party files [his] a clarifying amendment, the amendment will operate to specify that one form of action which the party elects to proceed on.
PETITION FOR REVIEW Rule 1512. Time for Petitioning for Review.
* * * * * (b) Special appellate provisions. A petition for review of:
(1) A determination of the Department of Community [Affairs] and Economic Development in any matter arising under the Local Government Unit Debt Act, 53 Pa.C.S. §§ 8001--8271, shall be filed within 15 days after entry of the order or the date the determination is deemed to have been made, when no order has been entered.
* * * * * (4) A determination of a Commonwealth agency under section 1711 of the Commonwealth Procurement Code, 62 Pa.C.S. § 1711, shall be filed within 14 days of receipt of the decision.
(c) [Other governmental determinations] Original jurisdiction actions. A petition for review of a determination of a government unit not within the scope of Subdivisions (a) or (b) of this rule may be filed with the prothonotary of the appellate court within the time, if any, limited by law.
Official Note: The note to Rule 903 (time for appeal) addresses the development of the standard 30 day appeal period. Rule 102 defines a ''quasijudicial order'' as ''an order of a government unit, made after notice and opportunity for hearing, which is by law reviewable solely upon the record made before the government unit, and not upon a record made in whole or in part before the reviewing court.''
* * * * *
Subdivision (c) relates to matters [which are original in nature] addressed to the original jurisdiction of an appellate court. For example, equitable matters are governed by existing principles of laches, etc. Other matters, such as petitions for review raising issues formerly cognizable by action in mandamus or quo warranto, etc., are governed by the time limits, if any, applicable under the prior procedure. See generally 42 Pa.C.S. §§ 1702 (regarding the Supreme Court's rulemaking procedures), 1722(c) (Time limitations), 5501--5574 (Limitations of time).Rule 1513. Petition for Review.
[(a) Content. The petition for review shall contain a statement of the basis for the jurisdiction of the court; the names of the parties seeking review; the name of the government unit (see Rule 503 (description of public officers)) which made the determination sought to be reviewed; reference to the order or other determination sought to be reviewed; a general statement of the objections to the order or other determination; and a short statement of the relief sought. The statement of objections will be deemed to include every subsidiary question fairly comprised therein. It shall not be necessary for the petition to include or have annexed thereto a copy of the text, if any, of the order or other determination sought to be reviewed.
(b) Caption and parties. The government unit which made the determination sought to be reviewed, and no other party, shall be named as a respondent, except where the petition seeks review of an order of a government unit which is in fact disinterested in the subject matter of the order, in which case all real parties in interest before such government unit shall be named as respondents and the government unit shall not be named as a respondent. Where a public act or duty is required to be performed by an executive or administrative department, by a departmental administrative board or commission or by an independent administrative board or commission of this Commonwealth, or other board or body, it shall be sufficient to name the department, board, commission or body in the petition for review, without naming or joining as a respondent the head of the department or the members of the board, commission or body. Where necessary in order to join an indispensable party to the matter, the petition for review may name as a respondent a person who is not a government unit.
(c) Alternative objections. Objections to a determination of a government unit and the related relief sought may be stated in the alternative, and relief of several different types may be demanded.
(d) Notice to plead. If under the applicable law the questions raised by the petition for review may be determined in whole or in part upon the record made before the court, the petition shall contain or have endorsed upon it a notice to plead.
(e) Verification. A petition for review which contains or has endorsed upon it a notice to plead shall be verified either by oath or affirmation or by verified statement. Otherwise a petition for review need not be verified.
(f) Form. The petition for review shall be divided into paragraphs numbered consecutively, each containing as nearly as may be a single allegation of fact or other statement.
Official Note: This rule supersedes former Commonwealth Court Rules 20A, 20B and 21. Subdivision (b) is based in part upon Pa.R.Civ.P. 1094.
Examples of government units which are not ordinarily ''interested'' in the subject matter of a petition for review of their action for the purposes of Subdivision (b) of this rule are the Environmental Hearing Board, the Department of Education (with respect to tenure appeals under Section 1132 of the Public School Code of 1949 (24 P. S. § 11-1132)) and the State Civil Service Commission. With respect to the last sentence of Subdivision (b) see Bruhin v. Commonwealth, 14 Pa. Commonwealth Ct. 300, 320 A.2d 907 (1974) and 42 Pa.C.S. § 761(d) (ancillary matters) (last sentence), which provides that to the extent prescribed by general rule the Commonwealth Court shall have ancillary jurisdiction over any claim or other matter which is related to a claim or other matter otherwise within its exclusive original jurisdiction.
The inclusion or omission of a notice to plead in the petition for review is the signal which the petition gives to the opposing parties and the court as to the position which the petitioner will take on the issue of going beyond the record made below. If a notice to plead is included, the fact issue may be resolved by the subsequent pleadings permitted by Rules 1515 (answer to petition) and 1516 (other pleadings allowed), but if not the matter will under Rule 1542 (oral argument and evidentiary hearing) move either to summary judgment or to trial.
The 1997 amendment to subdivision (d) remedies what had been an inconsistency between the former heading and the text of the rule.
Explanatory Note--1979 The note is expanded to reflect the fact that the Department of Education does not defend its decisions in teacher tenure appeals from local school districts.]
(a) Caption and parties on appeal. In an appellate jurisdiction petition for review, the aggrieved party or person shall be named as the petitioner and, unless the government unit is disinterested, the government unit and no one else shall be named as the respondent. If the government unit is disinterested, all real parties in interest, and not the government unit, shall be named as respondents.
(b) Caption and parties in original jurisdiction actions. The government unit and any other indispensable party shall be named as respondents. Where a public act or duty is required to be performed by a government unit, it is sufficient to name the government unit, and not its individual members, as respondent.
(c) Form. Any petition for review shall be divided into consecutively numbered paragraphs. Each paragraph shall contain, as nearly as possible, a single allegation of fact or other statement. When petitioner seeks review of an order refusing to certify an interlocutory order for immediate appeal, numbered paragraphs need not be used.
(d) Content of appellate jurisdiction petition for review. An appellate jurisdiction petition for review shall contain: (1) a statement of the basis for the jurisdiction of the court; (2) the name of the party or person seeking review; (3) the name of the government unit that made the order or other determination sought to be reviewed; (4) reference to the order or other determination sought to be reviewed, including the date the order or other determination was entered; (5) a general statement of the objections to the order or other determination; and (6) a short statement of the relief sought. A copy of the order or other determination to be reviewed shall be attached to the petition for review as an exhibit. The statement of objections will be deemed to include every subsidiary question fairly comprised therein. No notice to plead or verification is necessary.
Where there were other parties to the proceedings conducted by the government unit, and such parties are not named in the caption of the petition for review, the petition for review shall also contain a notice to participate, which shall provide substantially as follows:
If you intend to participate in this proceeding in the (Supreme, Superior or Commonwealth, as appropriate) Court, you must serve and file a notice of intervention under Rule 1531 of the Pennsylvania Rules of Appellate Procedure within 30 days.(e) Content of original jurisdiction petition for review. A petition for review addressed to an appellate court's original jurisdiction shall contain: (1) a statement of the basis for the jurisdiction of the court; (2) the name of the person or party seeking relief; (3) the name of the government unit whose action or inaction is in issue and any other indispensable party; (4) a general statement of the material facts upon which the cause of action is based and (5) a short statement of the relief sought. It shall also contain a notice to plead and be verified either by oath or affirmation or by verified statement.
(f) Alternative objections. Objections to a determination of a government unit and the related relief sought may be stated in the alternative, and relief of several different types may be requested.
Official Note: The 2004 amendments to this rule 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. § 11-1132),
* the Environmental Hearing Board,
* the State Charter School Appeal 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. Filing and Service of the Petition for Review.
(a) Filing with the prothonotary. The petition for review, with proof of service required by Subdivision (c) of this rule, shall be filed with the prothonotary of the appellate court in person or by first class or certified mail.
If the petition for review is [transmitted to the prothonotary] filed by [means of] first class or certified mail, the petition shall be deemed received by the prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as [shown] stamped by post office personnel on a U. S. Postal Service Form 3817, certificate of mailing, or U. S. Postal Service Form 3800. The certificate of mailing shall show the docket number of the matter in the government unit, and shall be either enclosed with the petition or separately mailed to the prothonotary.
Upon actual receipt of the petition for review, the prothonotary shall immediately:
(1) stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date [when review was sought, which date shall be shown on the docket. The prothonotary of the appellate court shall immediately note the docket number assignment in the appellate court upon] of filing;
(2) assign a docket number to the petition for review; and
(3) give written notice of the docket number assignment in person or by first class mail to the government unit [which] that made the determination sought to be reviewed, to the petitioner, and to the other persons named in the proof of service accompanying the petition.
(b) Fee. The petitioner, upon filing the petition for review, shall pay any [fee] fees therefor [prescribed by Chapter 27 (fees and costs in appellate courts and on appeal)] as set by law or general rule.
(c) Service. A copy of the petition for review shall be served by the petitioner in person or by certified mail on the government unit [which] that made the determination sought to be reviewed. In matters involving the Commonwealth, the petitioner shall similarly serve a copy upon the Attorney General of Pennsylvania. [When the government unit is comprised of a plurality of persons, each of whom is to be joined individually, or where there is otherwise a plurality of persons named as respondents] Where there is more than one respondent, the petitioner shall separately serve each [such person] one. All other parties before the government unit [which] that made the determination sought to be reviewed shall be served as prescribed by Rule 121(b) (service of all papers required). [Whenever any such other parties are served, unless they have been named as respondents under Rule 1513(b) (caption and parties), the petition for review shall contain or have endorsed upon it a statement substantially as follows: ''If you intend to participate in this proceeding in the (Supreme, Superior or Commonwealth, as appropriate) Court, you must serve and file a notice of or application for intervention under Rule 1531 of the Pennsylvania Rules of Appellate procedure within 30 days.'']
(d) Entry of appearance. Upon the filing of the petition for review, the prothonotary shall note on the [record] docket as counsel for the petitioner the name of [his] counsel, if any, set forth in or endorsed upon the petition for review, and, as counsel for other parties, counsel, if any, named in the proof of service. The prothonotary shall, upon praecipe of any such counsel for other parties, filed within 30 days after filing of the petition, strike off or correct the record of appearances. Thereafter a counsel's appearance for a party may not be withdrawn without leave of court, unless another lawyer has entered or simultaneously enters an appearance for the party.
Official Note: [This rule supersedes former Commonwealth Court Rules 20C, 21, 22 and 24.] See the note to Rule 1112 (appeals by allowance) for an explanation of the procedure when Form 3817 is used.
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. [Answer to Petition] (Rescinded).
[Where under the applicable law the questions raised by the petition for review may be determined in whole or in part upon the record made before the court, and the right to an evidentiary hearing has been claimed by inclusion or endorsement of a notice to plead as prescribed by Rule 1513(d) (notice to plead), any adverse party may file an answer to the petition controverting any factual allegation of the petition.
Official Note: When the question is one of law, the denial of the contentions made in the petition for review will appear in the briefs of the parties. However, where for example the petition for review raises a question which formerly would have been determined in an action in equity, mandamus, etc., the petition may allege facts which the adverse party will desire to controvert at an evidentiary hearing before the reviewing court, and the factual issues should be properly framed for the court.]
Official Note: 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. Other Pleadings Allowed.
[(a) General rule. The pleadings on petition for review are limited to the petition, an answer thereto if permitted by Rule 1515 (answer to petition), a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.
(b) Effect of absence of answer. A further pleading may be filed only in a matter in which an answer is permitted to be or has been filed.
(c) Time for filing. Every pleading subsequent to the petition for review shall be filed within 30 days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading is endorsed with a notice to plead.
Official Note: Patterned after Pa.R.Civ.P. 1017 (a) and 1026. The ten additional days in the pleading period is in recognition of the time required for agency coordination where the Commonwealth is a party. Under Rule 1972 (dispositions on motion) a party may move to dispose of the matter on a number of grounds without reaching the merits.]
(a) Appellate jurisdiction petitions for review. No answer or other pleading to an appellate jurisdiction petition for review is authorized, unless the petition for review is filed pursuant to the Notes to Rules 341 or 1311 (seeking review of a trial court or other government unit's refusal to certify an interlocutory order for immediate appeal), Rule 1762 (regarding release in criminal matters), Rule 3321 (regarding appeals from decisions of the Legislative Reapportionment Commission) or Rule 3331 (regarding review of special prosecutions and investigations). Where an answer is authorized, the time for filing an answer shall be as stated in Rule 123(b).
(b) Original jurisdiction petitions for review. Where an action is commenced by filing a petition for review addressed to the appellate court's original jurisdiction, the pleadings are limited to the petition for review, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection, and an answer thereto. Every pleading filed after an original jurisdiction petition for review shall be filed within 30 days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading is endorsed with a notice to plead.
Official Note: The 2004 amendments made clear 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. See Rule 1762(b)(2) regarding bail applications.
Rule 1517. Applicable Rules of Pleading.
Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied.
Official Note: See Rule 1762(b)(2) regarding bail applications. See also Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1531. Intervention.
(a) [Notice of intervention] Appellate jurisdiction petition for review proceedings. A party to a proceeding before a government unit [which] that resulted in a quasijudicial order may intervene as of right in a proceeding under this chapter relating to such order by filing a notice of intervention (with proof of service on all parties to the matter) with the prothonotary of the appellate court within 30 days after notice of the filing of the petition for review. [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.] The notice of intervention may be in substantially the following form:
* * * * * 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.
(b) [Application for intervention] Original jurisdiction petition for review proceedings. A person not named as a respondent in [the] an original jurisdiction petition for review, who desires to intervene in a proceeding under this chapter, [and who is not entitled to file a notice of intervention under Subdivision (a) of this rule,] may seek leave to intervene by filing an application for leave to intervene (with proof of service on all parties to the matter) with the prothonotary of the court [within 30 days after the filing of the petition for review]. The application shall contain a concise statement of the interest of the applicant and the grounds upon which intervention is sought.
Official Note: A nonparty may file a brief as of right under Rule 531 (participation by amicus curiae) and, therefore, intervention is not necessary in order to participate in the appellate court where the petition for review is filed. However, except as provided in Rule 521(b) (status of Attorney General) and Rule 522(b) (status of Court Administrator), the mere filing of a brief does not confer party status. Where, for example, a nonparty to a petition for review proceeding in the Commonwealth Court desires to be in a position to seek further review in the Supreme Court of Pennsylvania or the Supreme Court of the United States of [the] an order of the Commonwealth Court disposing of the petition for review, the nonparty should intervene or seek leave to intervene in the Commonwealth Court at the outset, since under Rule 501 (any aggrieved party may appeal), party status is a prerequisite to the right to further review.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1532. Special and Summary Relief.
(a) Special relief. At any time after the filing of a petition for review, the court may, on application, order the seizure of property, dispose of seized property, [grant relief in the nature of peremptory mandamus,] issue a preliminary or special injunction, appoint a temporary receiver or grant other interim or special relief required in the interest of justice and consistent with the usages and principles of law.
(b) Summary relief. At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear.
Official Note: Subdivision (a) [of this rule, which incorporates Rule 123(a) (contents of application for relief), makes clear that a request for two or more types of relief, including alternative relief] provides examples of specific types of interim relief that may be sought using the procedures set forth in Rule 123 (application for relief). Thus, multiple forms of relief, including those in the alternative, may be combined in the same application, [notwithstanding the fact that] even though separate actions might otherwise be necessary under the Pennsylvania Rules of Civil Procedure. Compare Rule 106 (original jurisdiction matters)[. See also]; 42 Pa.C.S. § 708(e) (single form of action).
[Subdivision (b) of this rule is a generalization of Pa.R.Civ.P. 1098 (peremptory judgment). Cf. Pa.R. Civ. P. 1035(a) (motion for summary judgment), which is not available until after the pleadings are closed.]
Subdivision (b) 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.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
* * * * * Rule 1541. Certification of the Record.
[When under the applicable law the questions raised by the petition for review may be determined by the court in whole or in part upon the record before the government unit] Upon notice from the appellate court of the filing of a petition for review addressed to the appellate jurisdiction of an appellate court, the government unit shall prepare and transmit the record as provided by Chapter 19 (preparation and transmission of record and related matters).
Official Note: [Based in part on former Pa.R.Civ.P. 5 and former Commonwealth Court Rule 23.] 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.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1542. [Oral Argument and] Evidentiary Hearing.
[(a) General rule. Except as otherwise ordered by the court on its own motion or on application of any party, after the pleadings are closed the matter may be listed for argument before or submission to the court. At argument or on briefs any party may urge in support of its position any factual ground appearing of record or any legal ground not theretofore waived.
(b) Evidentiary Hearing.] In any matter [where under the applicable law the questions raised by the petition for review may be determined by the court in whole or in part upon the record made before the court and where, before or at final hearing,] addressed to the appellate court's original jurisdiction, where it appears that a genuine issue as to a material fact has been raised by the pleadings, depositions, answers to interrogatories, stipulations of fact, admissions on file and supporting verified statements, if any, the court on its own motion or on application of any party shall, after notice to the parties, hold an evidentiary hearing for the development of the record.
Official Note: In view of Rule 106 (original jurisdiction matters) and Rule 1532 (special and summary relief), motions for judgment on the pleadings, Pa.R.C.P. 1034, summary relief and [for] summary judgment [under], Pa. R. [Civ.] C. P. [1034 and] 1035, will be available where a petition for review [with notice to plead] invoking the appellate court's original jurisdiction has been filed. The procedure under this rule is intended to be flexible, although subject to the control of the appellate court by either rule of court adopted pursuant to Rule 104(a)(3) (rules of court) or by order[, and is necessarily experimental. The rule permits the case to pass directly from the evidentiary hearing before a single judge to a panel or the court en banc without the necessity of a preliminary decision by the hearing judge].
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1543. [Trial by Jury] (Rescinded).
[An issue of fact shall be tried to a jury where the right to such trial is secured either by the Constitution or statutes of this Commonwealth or by the Constitution of the United States. Any right to trial by jury shall be deemed waived unless expressly reserved in the petition for review or an answer thereto.]
Official Note: * * *
See Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1551. Scope of Review.
(a) [Review of quasijudicial orders] Appellate jurisdiction petitions for review. Review of quasijudicial orders shall be [heard] conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit except:
* * * * * (b) [Other matters] Original jurisdiction petitions for review. The court shall hear and decide [all other matters raised by petition] original jurisdiction petitions for review [with the scope of review provided by] in accordance with law. This chapter is not intended to modify [or], enlarge [the scope of judicial review of determinations of government units as heretofore existing] or abridge the rights of any party to an original jurisdiction petition for review.
Official Note: Subdivision (a) is a generalization of former Pa.R.[Civ.]C.P. 8 and makes no change in substance except to provide that procedural issues not raised below are waived--unless excused under Paragraph (a)(3). Compare Rule 302 (requisites for reviewable issue). [Paragraph 3 of the Order amending Subdivision (a)(1) provides that where an administrative proceeding was commenced prior to September 1, 1976, a petitioner for review of a quasijudicial order entered in such proceeding may raise in the appellate court questions involving procedure before the government unit notwithstanding the fact that the questions were not raised before the government unit below.]
Subdivision (b) is based on Section 10(c) of Article V of the Constitution of Pennsylvania, which prevents this chapter from enlarging the [substantial] substantive rights of the petitioner or abridging the [substantial] substantive rights of the government unit named in the petition. Under the new practice, the appellate judge should inquire: ''Assuming that this case had been properly brought before me by a complaint in equity (or in mandamus, replevin, quo warranto, etc., or by two or more of such actions properly consolidated for hearing and disposition) containing the factual allegations of the petition for review, to what relief, if any, would the moving party have been entitled under the prior practice?'' This rule makes clear that the moving party is entitled to the same relief, and no more, under the new practice, since only the procedural requirement for separately labeled papers has been eliminated.
* * * * * See Rule 3331 regarding Review of Special Prosecutions or Investigations.
Rule 1561. Disposition of Petition for Review.
(a) [General rule] Appellate jurisdiction petitions for review. The court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings [to be had,] as may be just under the circumstances.
(b) [Other relief] Original jurisdiction petitions for review. Where the petition for review raises questions [which] that formerly were determinable in an action in equity, replevin, mandamus, quo warranto or for a declaratory judgment or upon a petition for a writ of certiorari or prohibition, or in another similar plenary action or proceeding, the court may grant the relief heretofore available in any such plenary action or proceeding.
* * * * * (d) Review of detention. Except as prescribed by Rule 1762(a)(2) (release [prior to sentence] in criminal matters) or by Rule 3331 (review of special prosecutions or investigations), review in the nature of criminal habeas corpus or post conviction [hearing] relief may not be granted under this chapter.
Official Note: * * *
Subdivision (b) is based on 42 Pa.C.S. § 708(e) (single form of action) (which provides that 1 Pa.C.S. § 1504 (statutory remedy preferred over common law) does not limit the jurisdiction of a court over a petition for review proceeding, but to the extent applicable shall limit the relief available) and 42 Pa.C.S. § 5105(d)(2) (scope of appeal). Under 42 Pa.C.S. § 102 (definitions), statutory references to ''appeal'' include proceedings on petition for review. The subdivision is intended to make clear that the petition for review is a generic pleading which will permit the court to consider simultaneously all aspects of the controversy.
Subdivision (c) is intended to make clear that the petition for review does not encompass trespass or assumpsit actions, but that an appeal may reach tort or contract matters adjudicated by a government unit as contemplated by Section 2(h) of the Judiciary Act Repealer Act (42 P. S. § 20002(h)). As to ancillary statutory damages, see 42 Pa.C.S. § 8303 (action for performance of a duty required by law).
Subdivision (d) is intended to make clear that the scope of this chapter is essentially civil in nature. The application of the petition for review to questions of release prior to sentence in criminal matters and in questions arising out of special prosecutions or investigations is merely a recognition of the technical need for a plenary filing to bring the question within the appellate jurisdiction of the appropriate court. See Rule 1762(b)(2) regarding bail applications.
REVIEW OF DETERMINATIONS OF THE BOARD OF FINANCE AND REVENUE Rule 1571. Determinations of the Board of Finance and Revenue.
* * * * * (f) Record. No record shall be certified to the court by the Board of Finance and Revenue. After the filing of the petition for review, the parties shall take appropriate steps to prepare and file a stipulation of such facts as may be agreed to and to identify the issues of fact, if any, which remain to be tried. See Rule 1542[(b)] (evidentiary hearing).
(g) Oral argument. Except as otherwise ordered by the court on its own motion or on application of any party, after the record is closed, the matter may be listed for argument before or submission to the court.
(h) Scope of review. Rule 1551(a) [(review of quasijudicial orders)] (appellate jurisdiction petitions for review) shall be applicable to review of a determination of the Board of Finance and Revenue except that:
* * * * * (i) Exceptions. Any party may file exceptions to an initial determination by the [trial] court under this rule within 30 days after the entry of the order to which exception is taken. Such timely exceptions shall have the effect, for the purposes of Rule 1701(b)(3) (authority of lower court or agency after appeal) of an order expressly granting reconsideration of the determination previously entered by the court. Issues not raised on exceptions are waived and cannot be raised on appeal.
Official Note: Subdivision (b) represents an exercise of the power conferred by 42 Pa.C.S. § 5105(a) (right to appellate review) to define final orders by general rule[, and is derived from the provisions of Section 1104(a) of the Fiscal Code (72 P. S. § 1104(a)), which are suspended absolutely by these rules]. The following statutes expressly require the Board of Finance and Revenue to act within six months in certain cases:
Section 1103 of [the] The Fiscal Code (72 P. S. § 1103).
[Act of May 21, 1931 (P. L. 149, No. 105), known as The Liquid Fuels Tax Act, § 7 (72 P. S. § 2611g).
Act of May 5, 1933 (P. L. 284, No. 104), known as the Malt Beverage Tax Law, § 4 (47 P. S. § 106).]
Act of December 5, 1933, (Sp. Session 1933-34), (P. L. 38, No. 6), known as the Spirituous and Vinous Liquor Tax Law, § 5 (47 P. S. § 749).
* * * * * Sections 234 (sales and use tax) [and], 341 (personal income tax), and 2005 (malt beverage tax), act of March 4, 1971 (P. L. 6, No. 2), known as The Tax Reform Code of 1971 (72 P. S. §§ 7234, 7341, 9005). The following statute requires the Board of Finance and Revenue to act within twelve months in certain tax refund matters:
Section 3003.5 of the Tax Reform Code of 1971, Act of March 4, 1971, P. L. 6, No. 2, 72 P. S. § 10003.5. Section 3003.5 was added by Section 41 of the Act of June 16, 1994, P. L. 279, No. 48.
The following statutes are covered by Section 1103 of The Fiscal Code (petition to Board of Finance and Revenue for review):
[Section] Sections 809 (various insurance taxes) and 1001 (miscellaneous settlements, e.g., under the act of May 17, 1921 (P. L. 789, No. 285), known as The Insurance Department Act of 1921, § 212 (40 P. S. § 50) (retaliatory insurance taxes)[; with respect to district justice collections; etc.)]) of The Fiscal Code (72 P. S. §§ 809 and 1001).
* * * * * Act of June 22, 1935 (P. L. 414, No. 182), known as the State Personal Property Tax Act, § 18(b) (72 P. S. § 3250-11a(b)) (corporate loans tax). See [act] Act of April 25, 1929 (P. L. 669, No. [228] 288), § 1.
* * * * * [Act of December 27, 1951 (P. L. 1742, No. 467), known as The Realty Transfer Tax Act, § 10.1 (72 P. S. § 3291.1).
Act of June 19, 1964 (P. L. 7, No. 1), known as the Motor Carriers Road Tax Act, § 20 (72 P. S. § 2617.20).
Act of June 22, 1964 (P. L. 16, No. 2), known as The Mutual Thrift Institutions Tax Act, § 4 (72 P. S. § 1986.4).]
Act of January 24, 1966 ([1965] P. L. (1965) 1509, No. 531), § 11 (40 P. S. § 1006.11) (surplus lines tax).
Sections 407 (corporate net income tax), [503 (corporation income tax),] 603 (capital stock--franchise tax), 702 (bank shares tax), 802 (title insurance and trust companies shares tax), 904 (insurance premiums tax) [and], 1102 (utilities gross receipts tax), 1111-C (realty transfer tax) and 1503 (mutual thrift institutions tax of [The] the Tax Reform Code of 1971 (72 P. S. §§ 7407, [7503,] 7603, 7702, 7802, 7904 [and], 8102, 8111-C and 8503).
75 Pa.C.S. § 9616(f) (motor carriers road tax).
The basis of jurisdiction of the court under this rule will ordinarily be 42 Pa.C.S. § 763 (direct appeals from government agencies). Subdivision (c) is not intended to change the practice in connection with the review of orders of the Board of Finance and Revenue insofar as the amount of detail in the pleadings is concerned. What is required is that the petitioner raise every legal issue in the petition for review which the petitioner wishes the court to consider. The legal issues raised need only be specific enough to apprise the respondent of the legal issues being contested (e.g. ''valuation,'' ''manufacturing,'' ''sale for resale,'' etc.). See generally House of Pasta, Inc. v. Commonwealth, 37 Pa. Cmwlth. Ct. 317, 390 A.2d 341 (1978).
Subdivision (e) is based on Section 1104(e) of The Fiscal Code [(72 P. S. § 1104(e))], which [is] was suspended absolutely by these rules, and subsequently repealed.
* * * * * Subdivision (h) is based on Section 1104(d) of The Fiscal Code [(72 P. S. § 1104(d))], which [is] was suspended absolutely by these rules and subsequently repealed, and is intended as a continuation of the prior law, except, of course, that the separate specification of objections has been abolished by these rules.
Subdivision (i) is intended to make clear that the failure to file exceptions will result in waiver by [an appellant] a petitioner of any issues previously presented to the Commonwealth Court. [Compare note to Rule 343 (order determining challenge to plea of guilty).]
See also [rule] Rule 1782 (security on review in tax matters).
[Pa.B. Doc. No. 04-1337. Filed for public inspection July 23, 2004, 9:00 a.m.]
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