THE COURTS

Title 210--APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

[210 PA. CODE CH. 3]

Proposed Amendment to Rule 311(a)(4); Proposed Recommendation No. 61

[36 Pa.B. 4457]
[Saturday, August 12, 2006]

   The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rule of Appellate Procedure 311(a)(4). The amendment is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   Proposed new material is bold while deleted material is bracketed and bold.

   All communications in reference to the proposed amendment should be sent no later than October 2, 2006 to:

Dean R. Phillips, Chief Counsel
D. Alicia Hickok, Deputy Counsel
Appellate Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
 
or Fax to
717-795-2116
 
or E-Mail to
appellaterules@pacourts.us

   The Explanatory Comment which appears in connection with the proposed amendments 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 Appellate Court Procedural
Rules Committee

HONORABLE JANE CUTLER GREENSPAN,   
Acting Chair

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. An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:

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   (4)  Injunctions. An order of a court granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except for [injunctions] an order entered pursuant to [Sections]:

   (i)  Section 3323(f) [and] or 3505(a) of the Divorce Code, 23 Pa.C.S. §§ 3323(f) [and], 3505(a)[.]; or

   (ii)  Pa.R.C.P. No. 1038 (Trial Without Jury) that is not immediately effective upon its entry. When a bond is required to be posted, the appeal shall be from the date of the order appealed and not from the date of the posting of the bond.

   [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.]

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   Official Note:

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   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)(1) or (ii).]

   The 2006 amendment to this paragraph conformed the rule to the 2003 amendments to the Pennsylvania Rules of Civil Procedure abolishing actions in equity and thus eliminating the decree nisi. Because decrees nisi were in general not appealable to the extent they were not effective immediately upon entry, this principle has been expressly incorporated into the body of the Rule as applicable to any injunction.

   The word ''court'' has been inserted to clarify that orders or decisions that grant, modify, or deny injunctive relief but are issued by administrative tribunals are not immediately appealable. See Pittsburgh Bd. of Pub. Educ. v. Pa. Human Rels. Comm'n, 820 A.2d 838 (Pa. Commw. 2003); Green Mt. Energy Co. v. Pennsylvania Public Utilities Comm'n, 812 A.2d 740 (Pa. Commw. 2002); Columbia Gas of Pennsylvania, Inc. v. Pennsylvania Public Utilities Comm'n, 104 Pa. Commw. 142, 521 A.2d 105 (1987), petition for allowance of appeal denied, 517 Pa. 628, 538 A.2d 880 (1988). The time period for filing an appeal begins when the order is entered so that appellants will have a firm date to use to begin calculating the period of appeal. The provision does not in any way vitiate the requirement that the bond be posted promptly.

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Explanatory Comment

   On December 16, 2003, effective July 1, 2004, the Supreme Court of Pennsylvania amended the Rules of Civil Procedure to abolish actions in equity and provide that equitable relief may be obtained in a civil action. Under the 2004 amendments to the Rules of Civil Procedure, equitable claims are now governed by Pa.R.C.P. No. 1038, concerning consolidated civil actions by a judge without a jury. Rule 1517 of the Pennsylvania Rules of Civil Procedure, which had governed the form of decision in an equity action, was rescinded. Under prior practice, an adjudication in an equity action was completed by a decree nisi, from which an aggrieved party could then file post-trial motions under Pa.R.C.P. No. 227.1.

   Rule 311 of the Pennsylvania Rules of Appellate Procedure addresses interlocutory appeals as of right. Pursuant to Pa.R.A.P. 311(a)(4), decrees nisi are not immediately appealable, unless the order is effective immediately upon the decree's entry. This is an exception to the general rule that following a trial, a party must file post-trial motions in order to preserve issues for appeal. The Committee wishes to preserve the right to file an interlocutory appeal from an order that is effective immediately upon entry of a decision under Pa.R.C.P. No. 1038, while recognizing that otherwise post-trial motions are necessary. However, since a decree nisi will no longer be entered in actions in which injunctive relief is sought, a conforming amendment to Rule 311(a)(4) to substitute ''order'' for ''decree nisi'' is appropriate.

   The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rule of Appellate Procedure Rule 311(a)(4) to conform the rule to the 2003 amendments to the Pennsylvania Rules of Civil Procedure abolishing equity actions. The proposed amendment preserves the above fundamental principle but removes references to the now-rescinded decree nisi. The Committee does not believe that this change in Rule 311(a)(4) will substantively affect appellate practice in this Commonwealth and, in fact, this proposed conforming amendment is recommended to preserve the intent of the existing rule.

   To reflect the change from decrees nisi, the phrase ''immediately effective upon entry'' was used because it accurately reflects the law, but the phrase needed amplification. That is because the failure to comply with the requirement that a party post a bond promptly renders the preliminary injunction void. In order to avoid confusion, it was determined that the time period for appeal would be calculated from the date of the order, not the date of the posting of the bond. Nonetheless, the requirement of prompt posting of the bond is in no way reduced by the changes to the Rule and Note.

   The Committee is also recommending that the Rule and Note reflect that an order from an administrative tribunal, even one that appears to affect what is in the nature of an injunction, is not immediately appealable. This clarification should prevent confusion that may arise from the fact that courts have on occasion looked through orders to treat injunctive relief as a preliminary injunction--but not when that relief was granted by administrative tribunals. Compare Pennsylvania Orthopaedic Society v. Independence Blue Cross, 885 A.2d 542 (Pa. Super. 2005), appeal denied, 2006 Pa. LEXIS 385 (April 4, 2006) with Pittsburgh Bd. of Pub. Educ. v. Pa. Human Rels. Comm'n, 820 A.2d 838 (Pa. Commw. 2003); Green Mt. Energy Co. v. Pennsylvania Public Utilities Comm'n, 812 A.2d 740 (Pa. Commw. 2002); Columbia Gas of Pennsylvania, Inc. v. Pennsylvania Public Utilities Comm'n, 104 Pa. Commw. 142, 521 A.2d 105 (1987), petition for allowance of appeal denied, 517 Pa. 628, 538 A.2d 880 (1988). Accordingly, the Committee recommends the addition of ''of a court'' to the Rule to clarify that an agency order is not encompassed within the Rule.

[Pa.B. Doc. No. 06-1532. Filed for public inspection August 11, 2006, 9:00 a.m.]

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