THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 15 AND 16 ]
Proposed Reorganization of Chapter 15 and Adoption of New Chapter 16
[45 Pa.B. 4885]
[Saturday, August 22, 2015]The Appellate Court Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the reorganization of Chapter 15 of the Rules of Appellate Procedure and the adoption of a new Chapter 16 of the Rules of Appellate Procedure.
Reorganized Chapter 15 would apply exclusively to appeals of administrative agency action, original jurisdiction actions cognizable in an appellate court in the nature of actions in equity, replevin, mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition, and appeals of certain other enumerated adjudications. Actions initiated under reorganized Chapter 15 would retain the existing name ''petition for review.''
New Chapter 16 would apply to judicial review of all government unit action or inaction not otherwise permitted under Chapters 9, 11, 13 or reorganized Chapter 15, and would include certain existing initiating documents that under present practice are called ''petitions for review'' under Chapter 15 or another chapter, but that are ancillary and/or preliminary to appellate review, including: requests for review of refusal of interlocutory review under Pa.R.A.P. 341(c) and 1311(Note); review of bail orders under Pa.R.A.P. 1762; review of orders that find a double jeopardy claim to be frivolous under Pa.R.A.P. 1573; review of special prosecution orders under Pa.R.A.P. 3331; and review of out-of-home-placement of minors under Pa.R.A.P. 1770. Actions initiated under Chapter 16 would be called ''petitions for limited review.'' The residuary function previously assigned to Chapter 15 (i.e., that actions not initiated under some other chapter of the Rules of Appellate Procedure must fall within Chapter 15) would be assigned to new Chapter 16.
Proposed new material is in bold-faced type and deleted material is bracketed and in bold-faced type.
The Committee invites all interested persons to submit comments, suggestions, or objections. At this time, the Committee is soliciting input primarily on the concept of the reorganization of Chapter 15 and the creation of a new Chapter 16, rather than the form or content of individual rules. If, after the receipt and evaluation of comments received concerning the concept of the reorganization of Chapter 15 and the creation of a new Chapter 16, the Committee determines to move forward with the proposal, the Committee will republish the proposed amendments to Chapters 15 and new Chapter 16, and will publish for the first time proposed modifications to all of the other Rules in other chapters of the Rules of Appellate Procedure that are affected by the proposed changes to Chapter 15 and the adoption of new Chapter 16. At that time, the Committee will invite comment on the form and content of individual proposed rule changes in Chapters 15, 16, and all of the other affected rules in the Rules of Appellate Procedure.
Comments should be provided to:
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, Pennsylvania 17106-2635
FAX: (717) 231-9551
appellaterules@pacourts.usAll communications in reference to the proposal should be received by October 30, 2015. E-mail is the preferred method for submitting comments, suggestions, or objections; any emailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.
An Explanatory Comment precedes the proposed amendments and has been inserted by this 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 CommitteeHONORABLE RENEÉ COHN JUBELIRER,
Chair
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] paragraphs (b) and (c) of this rule, this chapter applies to judicial review of the following government unit action or inaction:
(1) Appeals from an administrative agency (within the meaning of Section 9 of Article V of the Constitution of Pennsylvania) to an appellate court or pursuant to 42 Pa.C.S. § 763(b) (awards of arbitrators).
(2) Appeals to an appellate court pursuant to 2 Pa.C.S. § 702 (appeals)[,] or 42 Pa.C.S. § 5105 (right to appellate review) [or any other statute providing for judicial review of a determination of a government unit].
(3) Original jurisdiction actions heretofore cognizable in an appellate court by actions in the nature of equity, replevin, mandamus or quo warranto or for 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] Appeals under Section 17(d) of Article II of the Constitution of Pennsylvania [and review of special prosecutions or investigations].
(5) Appeals under 42 Pa.C.S. § 725(3) (final orders of the Minor Judiciary Education Board), 42 Pa.C.S. § 725(4) (final orders of the Pennsylvania Board of Law Examiners) and 42 Pa.C.S. § 725(5) (final order taxing expenses in attorney discipline matters).
(6) Appeals under Pa.R.J.A. No. 509(c)(5) (denial of access to Unified Judicial System financial records).
(b) Appeals governed by other provisions of rules.—This chapter does not apply to any appeal within the scope of:
(1) Chapter 9 [(appeals from lower courts)].
(2) Chapter 11 [(appeals from Commonwealth Court and Superior Court)].
(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.
(4) [Rule 1941 (review of death sentences).] Chapter 16
(5) Rule 1941
(c) Unsuspended statutory procedures.—This chapter does not apply to any appeal pursuant to the following statutory provisions, which are not suspended by these rules:
(1) [Section 137 of Title 15 of the Pennsylvania Consolidated Statutes (Court to pass upon rejection of documents by Department of State).] 15 Pa.C.S. § 137.
(2) The Pennsylvania Election Code.
(d) Jurisdiction of courts unaffected.—This chapter does not enlarge or otherwise modify the jurisdiction and powers of the Commonwealth Court or any other court.
[Official Note: This chapter applies to review of any ''determination'' of a ''government unit'' as defined in Rule 102 assuming, of course, that the subject matter of the case is within the jurisdiction of a court subject to these rules (see Subdivision (d) of this rule). A ''determination'' means ''action or inaction by a government unit which action or inaction is subject to judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. The term includes an order entered by a government unit.'' The term ''government unit'' is all inclusive and means ''the Governor and the departments, boards, commissions, officers, authorities and other agencies of the Commonwealth, including the General Assembly and its officers and agencies and any court or other officer or agency of the unified judicial system, and any political subdivision or municipal or other local authority or any officer or agency of any such political subdivision or local authority. The term includes a board of arbitrators whose determination is subject to review under 42 Pa.C.S. § 763(b) (awards of arbitrators).'' The term ''administrative agency'' is not defined in these rules, although the term is used in these rules as a result of its appearance in Section 9 of Article V of the Constitution of Pennsylvania.
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), and Rule 1770 directs the filing of a petition for review when a juvenile seeks review of placement in a juvenile delinquency matter. 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 and 2012 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.
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.]
Official Note: This chapter applies to appeals of administrative agency action, original jurisdiction actions cognizable in an appellate court in the nature of actions in equity, replevin, mandamus or quo warranto or for declaratory judgment, or upon writs of certiorari or prohibition, and appeals of other actions as enumerated in paragraph (a). The document that initiates the case under Chapter 15 is called a petition for review. Judicial review of all other government unit actions or inactions not otherwise permitted under Chapters 9, 11, 13 or 15, including those enumerated in Pa.R.A.P. 1601, is available under Chapter 16; the document that initiates the case under Chapter 16 is called a petition for limited review. The ''residuary'' initiating document function previously assigned to Chapter 15 is now assigned to Chapter 16.
Rule 1502. Exclusive Procedure.
The appeal 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 and are replaced by the petition for review. [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 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, 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 manda-
mus 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 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 substantive rights of the parties.
It should be noted that a petition for review in the nature of mandamus or prohibition will lie against a lower court (which is a ''government unit''), since such relief is not available under the rules cited in Rule 1501(b).
See 42 Pa.C.S. § 708(e) (single form of action) which provides as follows:
(e) Single form of action.—Where pursuant to general rules review of a determination of a government unit may be had by a petition for a review or another single form of action embracing the appeal and actions in the nature of equity, mandamus, prohibition, quo warranto or otherwise, the jurisdiction of the appellate court shall not be limited by the provisions of 1 Pa.C.S. § 1504 (relating to statutory remedy preferred over common law), but such provisions to the extent applicable shall limit the relief available.]
Rule 1503. Improvident Appeals or 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 objecting to a determination by any one or more of them] If a filing in a court that should be labeled as a petition for review is not so labeled, this alone shall not be a ground for dismissal. The [papers whereon the improvident matter was commenced] filing 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] filing was made. The court may require that the [papers] filing be clarified by amendment.
Official Note: Based on 42 Pa.C.S. § 708 (improvident administrative appeals and other matters).
Rule 1504. Improvident Petitions for Review.
[If a petition for review is filed against any person, where] If a filing in a court is labeled as a petition for review but 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]. The filing 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] filing was made. The court may require that the [papers] filing 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 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 1511. Manner of Obtaining Judicial Review of Governmental Determinations.
Review under this chapter shall be obtained by filing a petition for review with the prothonotary of the appellate court within the time allowed by [Rule 1512 (time for petitioning for review)] Pa.R.A.P. 1512. Failure of a petitioner for review to take any step other than the timely filing of a petition for review does not affect the validity of the review proceeding, but is grounds only for such action as the appellate court deems appropriate, which may include dismissal of the review proceeding.
Rule 1512. Time for Petitioning for Review.
(a) Appeals authorized by law.—Except as otherwise prescribed by [subdivision] paragraph (b) of this rule:
(1) A petition for review of a quasijudicial order, or an order appealable under 42 Pa.C.S. § 763(b) (awards of arbitrators) or under any other provision of law, shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order.
(2) If a timely petition for review of such an order is filed by a party, any other party may file a cross petition for review within 14 days of the date on which the first petition for review was served, or within the time otherwise prescribed by [subdivision] subparagraph (a)(1) of this rule, whichever period last expires.
(b) Special appellate provisions. A petition for review of:
(1) A determination of the Department of Community 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.
(2) A determination governed by [Rule 1571 (determinations of the Board of Finance and Revenue)] Pa.R.A.P. 1571 shall be filed within the appropriate period therein specified.
[(3) A determination governed by Rule 3331 (review of special prosecutions or investigations) shall be filed within ten days after the entry of the order sought to be reviewed.
(4)] (3) A determination of a Commonwealth agency under section 1711.1(g) of the Commonwealth Procurement Code, 62 Pa.C.S. § 1711.1(g), shall be filed within 15 days of the mailing date of a final determination denying a protest.
[(5) A determination governed by Rule 1770 (review of dispositional order for out of home placement in juvenile delinquency matters) shall be filed within ten days of the order sought to be reviewed.]
(c) Original jurisdiction actions. A petition for review of a determination of a government unit not within the scope of [Subdivisions] paragraphs (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)] Pa.R.A.P. 903 addresses the development of the standard 30 day appeal period. [Rule] Pa.R.A.P. 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] Paragraph (c) relates to matters 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) 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, but the omission of an issue from the statement shall not be the basis for a finding of waiver if the court is able to address the issue based on the certified record;
6. a short statement of the relief sought; and
7. a copy of the order or other determination to be reviewed, which shall be attached to the petition for review as an exhibit.
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 Pa.R.A.P. 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;
5. a short statement of the relief sought; and
6. a notice to plead and verification 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 Pa.R.A.P. 102 as ''[a]ction or inaction by a government unit'') is reviewable in the court's appellate or original jurisdiction, compliance with the requirements of paragraphs (d) and (e) is appropriate.]
Official Note: Paragraphs (a) and (b) reflect the provisions of Pa.R.A.P. 501, Pa.R.A.P. 503, Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702 (Appeals), and Pa.R.C.P. No. 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.
Paragraphs (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 Pa.R.A.P. 1501 and 1502.] Where it is not readily apparent whether a ''determination'' (defined in Pa.R.A.P. 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 paragraphs (d) and (e) is appropriate.
Official Note—2014 The 2014 amendments to Pa.R.A.P. 1513(d) relating to the general statement of objections in an appellate jurisdiction petition for review are intended to preclude a finding of waiver if the court is able, based on the certified record, to address an issue not within the issues stated in the petition for review but included in the statement of questions involved and argued in a brief. The amendment neither expands the scope of issues that may be addressed in an appellate jurisdiction petition for review beyond those permitted in Pa.R.A.P. 1551(a) nor affects Pa.R.A.P. 2116's requirement that ''[n]o question will be considered unless it is stated in the statement of questions involved [in appellant's brief] or is fairly suggested thereby.''
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] paragraph (c) of this rule, shall be filed with the prothonotary of the appellate court in person or by first class, express, or priority United States Postal Service mail.
If the petition for review is filed by first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the prothonotary for the purposes of [Rule 121(a) (filing)] Pa.R.A.P. 121(a) on the date deposited in the United States mail, shown on a United States Postal Service Form 3817, Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified. The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service and 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] paragraph, shall constitute the date 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 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 fees therefor 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 both the government unit that made the determination sought to be reviewed and the Attorney General of Pennsylvania. [In matters involving the Commonwealth, the petitioner shall similarly serve a copy upon the Attorney General of Pennsylvania.] Where there is more than one respondent, the petitioner shall separately serve each one. All other parties before the government unit that made the determination sought to be reviewed shall be served as prescribed by [Rule 121(b) (service of all papers required)] Pa.R.A.P. 121(b).
(d) Entry of appearance. Upon the filing of the petition for review, the prothonotary shall note on the docket as counsel for the petitioner the name of 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. Notwithstanding the automatic entry of appearance pursuant to this paragraph, a party to a proceeding before a government unit that resulted in a quasi-judicial order who seeks to participate in an appellate jurisdiction petition for review must file a notice or application for intervention pursuant to Pa.R.A.P. 1531(a).
Official Note: See the Official Note to [Rule 1112 (appeals by allowance)] Pa.R.A.P. 1112 for an explanation of the procedure when Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified 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.
With respect to appearances by new counsel following the initial docketing of appearances pursuant to [Subdivision] paragraph (d) of this rule, please note the requirements of [Rule] Pa.R.A.P. 120.
Rule 1515. (Rescinded).
Official Note: [Rule] Pa.R.A.P. 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] Pa.R.A.P. 1516.
Rule 1516. Other Pleadings Allowed.
(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 1573 (review of orders finding an assertion of double jeopardy frivolous), Rule 1762 (regarding release in criminal matters), Rule 1770 (regarding placement in juvenile delinquency matters), Rule 3321 (regarding appeals from decisions of the Legislative Reapportionment Commission) or Rule 3331 (regarding review of special prosecutions and investigations)] Pa.R.A.P. 3321. Where an answer is authorized, the time for filing an answer shall be as stated in [Rule] Pa.R.A.P. 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, 2012, and 2013 amendments made clear that, with 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] Pa.R.C.P. Nos. 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. See Rule 1770 regarding placement in juvenile delinquency matters.]
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 Rule 1770 regarding placement in juvenile delinquency matters. See also Rule 3331 regarding Review of Special Prosecutions or Investigations.]
Rule 1531. Intervention.
(a) Appellate jurisdiction petition for review proceedings. A party to a proceeding before a government unit 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. The notice of intervention may be in substantially the following form:
[[CAPTION]]
NOTICE OF INTERVENTION Notice is hereby given that A.B., a party below, hereby intervenes in this matter.
(s) _________________
_________________
(Address and telephone number)After 30 days after notice of filing of an appellate petition for review, permission to intervene may be sought by application pursuant to [Rule] Pa.R.A.P. 123.
(b) Original jurisdiction petition for review proceedings. A person not named as a respondent in an original jurisdiction petition for review, who desires to intervene in a proceeding under this chapter, 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. 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)] Pa.R.A.P. 531 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)] Pa.R.A.P. 521(b) and Pa.R.A.P. 522(b), 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 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)] Pa.R.A.P. 501, 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, 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] Paragraph (a) provides examples of specific types of interim relief that may be sought using the procedures set forth in [Rule 123 (application for relief)] Pa.R.A.P. 123. Thus, multiple forms of relief, including those in the alternative, may be combined in the same application, even though separate actions might otherwise be necessary under the Pennsylvania Rules of Civil Procedure. Compare [Rule 106 (original jurisdiction matters)] Pa.R.A.P. 106; 42 Pa.C.S. § 708(e) (single form of action).
[Subdivision] Paragraph (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.]
The 1997 amendment to [subdivision] paragraph (b) is analogous to the 1996 amendment to Pa.R.C.P. No. 1098. The deletion of the last sentence of [Rule] Pa.R.A.P. 1532(b) is intended to eliminate the requirement of filing a motion to open or vacate the order granting summary relief. Under prior practice, a party was required to file a motion to open or vacate the order granting summary relief before an appeal could be taken. An order denying an application for summary relief is not appealable as of right.
Rule 1541. Certification of the Record.
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: 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, 1770, 3321 or 3331, or the note to Rules 341 or 1311.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.]
Rule 1542. Evidentiary Hearing.
In any matter 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)] Pa.R.A.P. 106 and Pa.R.A.P. 1532, motions for judgment on the pleadings, Pa.R.C.P. No. 1034, summary relief and summary judgment, Pa.R.C.P. [1035] Nos. 1035.1—1035.5, will be available where a petition for review 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)] Pa.R.A.P. 104(a)(3) or by order.
[See Rule 3331 regarding Review of Special Prosecutions or Investigations.]
Rule 1543. (Rescinded).
[Official Note: See 42 Pa.C.S. § 5104 (trial by jury).
See Rule 3331 regarding Review of Special Prosecutions or Investigations.]
Rule 1551. Scope of Review.
(a) Appellate jurisdiction petitions for review. Review of quasijudicial orders shall be 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:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit over the subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. If, upon hearing before the court, the court is satisfied that any such additional question within the scope of this paragraph should be so raised it shall remand the record to the government unit for further consideration of the additional question.
The court may in any case remand the record to the government unit for further proceedings if the court deems them necessary.
(b) Original jurisdiction petitions for review. The court shall hear and decide original jurisdiction petitions for review in accordance with law. This chapter is not intended to modify, enlarge 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.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).
Subdivision (b) is based on Section 10(c) of Article V of the Constitution of Pennsylvania, which prevents this chapter from enlarging the substantive rights of the petitioner or abridging the 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.
For example, where a party joins both a challenge to the action of a government unit in the nature of an appeal and a challenge to the composition of the government unit in the nature of quo warranto, the latter challenge will come too late under the standards of State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 318 A.2d 910 (1974). Similarly, where a petition for review in the nature of prohibition is filed in the Supreme Court to attack an unappealable order of a lower court, in a case where relief would not have been available on an application for a writ of prohibition under the standards of Carpentertown Coal and Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426 (1948) and subsequent cases, the change in the label of the papers to a petition for review will not affect the result, and the petition will be dismissed.
See Rule 3331 regarding Review of Special Prosecutions or Investigations.]
Rule 1561. Disposition of Petition for Review.
(a) 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 as may be just under the circumstances.
(b) Original jurisdiction petitions for review.—Where the petition for review raises questions 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.
(c) Money damages.—Money damages arising out of tort or contract claims may not be granted under this chapter (except on review of determinations of the Board of Claims or similar agencies), but relief granted under [Subdivision] paragraph (b) of this rule may include any damages to which the petitioner is entitled which are claimed in the petition, which are ancillary to the matter, and which may be granted by a court.
[(d) Review of detention.—Except as prescribed by Rule 1762(b)(2), which governs applications relating to bail when no appeal is pending, or by Rule 3331 (review of special prosecutions or investigations), review in the nature of criminal habeas corpus or post conviction relief may not be granted under this chapter.]
Official Note: [Subdivision] Paragraph (a) is based on 42 Pa.C.S. § 706 (disposition of appeals).
[Subdivision] Paragraph (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] paragraph 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] Paragraph (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.
(a) General rule.—Review of a determination of the Board of Finance and Revenue shall be governed by this chapter and ancillary provisions of these rules, except as otherwise prescribed by this rule.
(b) Time for petitioning for review.—A petition for review of a determination of the Board of Finance and Revenue shall be filed:
(1) Within 30 days after entry of an order of the Board which does not expressly state that it is interlocutory in nature.
(2) Within 30 days after entry of an order of the Board adopting a determination by the Department of Revenue or other government unit made at the direction of the Board respecting any matter pending before the Board.
(3) Where the Board is required by statute to act finally on any matter pending before it within a specified period after the matter is filed with the Board and has not done so, at any time between:
(i) the expiration of such specified period; and
(ii) 30 days after service of actual notice by the Board stating that it has failed to act within such period.
(c) Form.—The petition for review shall contain a statement of the basis for the jurisdiction of the court; the name of the party seeking review; a statement that the Board of Finance and Revenue made the determination sought to be reviewed; reference to the order or other determination sought to be reviewed; and a general statement of the objections to the order or other determination. The petition for review need not be verified and shall not contain or have endorsed upon it notice to plead. A petition for review of a taxpayer or similar party shall name the ''Commonwealth of Pennsylvania'' as respondent and a petition for review filed by the Commonwealth of Pennsylvania shall name all real parties in interest before the Board as respondents.
(d) Service.—In the case of a petition for review by a taxpayer or similar party, a copy of the petition shall be served on the Board of Finance and Revenue and on the Attorney General by the petitioner in accordance with [Rule] Pa.R.A.P. 1514(c). All other parties before the Board shall be served as prescribed by [Rule 121(b) (service of all papers required)] Pa.R.A.P. 121(b).
(e) Answer.—An answer may not be filed to a petition for review of a determination of the Board of Finance and Revenue. The Commonwealth may raise any question on review, although no cross petition for review has been filed by it, and may introduce any facts in support of its position if 20 days written notice is given to the petitioner prior to trial of the intention of raising such new questions or presenting new facts.
(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 (evidentiary hearing)] Pa.R.A.P. 1542.
(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) [(appellate jurisdiction petitions for review)] shall be applicable to review of a determination of the Board of Finance and Revenue except that:
(1) A question will be heard and considered by the court if it was raised at any stage of the proceedings below and thereafter preserved.
(2) To the extent provided by the applicable law, the questions raised by the petition for review shall be determined on the record made before the court. See [Subdivision] paragraph (f) of this rule.
(i) Exceptions.—Any party may file exceptions to an initial determination by the 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)] Pa.R.A.P. 1701(b)(3) 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] Paragraph (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. The following statutes expressly require the Board of Finance and Revenue to act within six months in certain cases:
Section 1103 of The Fiscal Code (72 P. S. § 1103).
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).
Act of January 14, 1952 (1951 P. L. 1965, No. 550), known as the Fuel Use Tax Act, § 7 (72 P. S. § 2614.7).
Sections 234 (sales and use tax), 341 (personal income tax), and 2005 (malt beverage tax), [act] 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):
Sections 809 (various insurance taxes) and 1001 (miscellaneous settlements, e.g., under the [act] 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)) of The Fiscal Code (72 P. S. §§ 809 and 1001).
Act of June 22, 1931 (P. L. 694, No. 255) § 4 (72 P. S. § 2186) (motor carriers-trackless trolley carriers).
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 of April 25, 1929 (P. L. 669, No. 288), § 1.
Act of May 23, 1945 (P. L. 893, No. 360), known as the Co-operative Agricultural Association Corporate Net Income Tax Act, § 6 (72 P. S. § 3420-26).
Act of January 24, 1966 (P. L. (1965) 1509, No. 531), § 11 (40 P. S. § 1006.11) (surplus lines tax).
Sections 407 (corporate net income tax), 603 (capital stock—franchise tax), 702 (bank shares tax), 802 (title insurance and trust companies shares tax), 904 (insurance premiums tax), 1102 (utilities gross receipts tax), 1111-C (realty transfer tax) and 1503 (mutual thrift institutions tax of the Tax Reform Code of 1971 (72 P. S. §§ 7407, 7603, 7702, 7802, 7904, 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] Paragraph (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 (Pa. Cmwlth. 1978).
[Subdivision] Paragraph (e) is based on Section 1104(e) of The Fiscal Code, which was suspended absolutely by these rules, and subsequently repealed.
[Subdivision] Paragraph (f) is based on 2 Pa.C.S. § 501(b)(1) (scope of subchapter) and 2 Pa.C.S. § 701(b)(1) (scope of subchapter), which exclude tax matters from the on-the-record review requirements of 2 Pa.C.S. § 704 (disposition of appeal).
[Subdivision] Paragraph (h) is based on Section 1104(d) of The Fiscal Code, which 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] Paragraph (i) is intended to make clear that the failure to file exceptions will result in waiver by a petitioner of any issues previously presented to the Commonwealth Court.
See also [Rule 1782 (security on review in tax matters)] Pa.R.A.P. 1782.
[REVIEW OF DETERMINATIONS BY A COURT OF COMMON PLEAS THAT A CLAIM OF DOUBLE JEOPARDY IS FRIVOLOUS] Rule 1573. [Review of Orders in Which the Court Finds an Assertion of Double Jeopardy Frivolous] (Rescinded).
[(a) General rule.—Any party seeking review of a frivolousness determination by a court of common pleas under Pennsylvania Rule of Criminal Procedure 587 shall file a petition for review in the appellate court having jurisdiction over the matter. Review of a frivolousness determination under Pennsylvania Rule of Criminal Procedure 587 shall be governed by this chapter and ancillary provisions of these rules, except as otherwise prescribed by this rule. The time for filing is provided for in Pa.R.A.P. 1512(a)(1).
(b) Contents.—The contents of the petition for review are not governed by Pa.R.A.P. 1513. Instead, the petition for review need not be set forth in numbered paragraphs in the manner of a pleading, and shall contain the following (which shall, insofar as practicable, be set forth in the order stated):
(i) A statement of the basis for the jurisdiction of the appellate court.
(ii) The text of the order in question, and the date of its entry in the trial court. If the order is voluminous, it may, if more convenient, be appended to the petition.
(iii) A concise statement of the case containing the facts necessary to an understanding of the frivolousness issue(s) presented.
(iv) The question(s) presented, expressed in the terms and circumstances of the case but without unnecessary detail.
(v) A concise statement of the reasons why the trial court erred in its determination of frivolousness.
(vi) There shall be appended to the petition a copy of any opinions relating to the order sought to be reviewed, including findings of fact and conclusions of law in support of the frivolousness determination, as well as a copy of any transcripts or other record documents necessary to the appellate court's review.
(vii) There shall be appended to the petition the verbatim texts of the pertinent provisions of constitutional provisions, statutes, ordinances, regulations or other similar enactments which the case involves.
(viii) There shall be appended to the petition any briefs filed in the trial court in support of the motion to dismiss.
(c) Caption and parties.—The parties in the trial court shall be named as parties in the appellate court. If there are multiple defendants but the order for which review is sought adjudicates the motion of only a single defendant, only that defendant may file a petition for review.
(d) No supporting brief.—All contentions in support of a petition shall be set forth in the body of the petition as prescribed by subparagraph (b)(v) of this rule. No separate brief in support of the petition for review will be received, and the prothonotary of the appellate court will refuse to file any petition for review to which is annexed or appended any brief other than the briefs filed in the trial court.
(e) Essential requisites of petition.—The failure of a petitioner to present with accuracy, brevity, and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying the petition.
(f) Effect of filing petition.—The filing of a petition for review shall not automatically stay the proceedings before the trial court. A petitioner may file an application for a stay in the trial or appellate court pending the determination of the petition for review, or the trial or appellate court may issue a stay sua sponte.
(g) Answer to petition for review.—If the Commonwealth does not intend to file an answer under this rule, it shall, within the time fixed by these rules for filing an answer, file a letter stating that it does not intend to file an answer to the petition for review. The failure to file an answer will not be construed as concurrence in the petition for review. The appellate court may, however, direct the Commonwealth to file an answer.
(h) Pa.R.A.P. 1531—1571 do not apply to petitions for review filed under this rule. Pa.R.A.P. 1514 does apply, except that no copy of the petition needs to be served upon the Attorney General.
(i) Grant of petition for review and transmission of record.—If the petition for review is granted, the prothonotary of the appellate court shall immediately give written notice of the entry of the order to the clerk of the trial court and to each party who has appeared in the appellate court. The grant of the petition for review shall operate as a stay of all trial court proceedings. The clerk of the trial court shall docket the notice in the same manner as a notice of appeal and shall mail that notice to all parties to the trial court proceeding. The certified record shall be transmitted and filed in accordance with Chapter 19 (preparation and transmission of the record and related matters). The times fixed by those provisions for transmitting the record shall run from the date of the entry of the order granting the petition for review. No party needs to file a separate notice of appeal.
(j) Denial of petition for review.—If the petition for review is denied, the prothonotary of the appellate court shall immediately give written notice of the order to the clerk of the trial court and to each party who has appeared in the appellate court.
Official Note: The trial court's determination and the procedure for determining a motion to dismiss on double jeopardy grounds is set forth in Pa.R.Crim.P. 587. If a trial court denies such a motion without expressly finding that the motion is frivolous, the order is immediately appealable by means of a notice of appeal under Pa.R.A.P. 313. If, however, the trial court finds the motion to be frivolous, appellate review can be secured only if the appellate court grants a petition for review. See Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011); Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). If the Superior Court does not grant the petition for review, the defendant may file a petition for allowance of appeal with the Supreme Court.
Where the petition for review of the determination of frivolousness is granted, the grant automatically initiates a separate appeal on the merits from the order denying the pretrial motion seeking dismissal of criminal charges on double jeopardy grounds.
A party may seek (or a court may sua sponte issue) a stay of the trial court proceedings pending review of the frivolousness determination. Otherwise, the trial court may proceed while the petition for review is pending. See Pa.R.A.P. 1701(d). Where the petition for review of the determination of frivolousness is granted, the grant automatically stays further proceedings in the trial courts.]
Official Note: Pa.R.A.P. 1573 formerly provided for review of orders in which the court finds an assertion of double jeopardy frivolous. The substance of the Rule is now found in Pa.R.A.P. 1613.
(Editor's Note: Chapter 16 is new and printed in regular type to enhance readability.)
CHAPTER 16. LIMITED REVIEW OF LOWER TRIBUNAL DECISIONS
IN GENERAL Rule
1601. Scope of Chapter. 1602. Filing. 1603. Form and Content. 1604. Service. 1605. Response to Petition.
SPECIFIC PETITIONS FOR LIMITED REVIEW
1610. Review of Refusal to Enter Final Order on Fewer than All Claims. 1611. Review of Refusal to Certify Interlocutory Orders for Appeal. 1612. Review of Bail Orders. 1613. Review of Orders Finding Double Jeopardy Claim Frivolous. 1614. Review of Special Prosecution Orders. 1615. Review of Out-of-Home Placement in Juvenile Delinquency.
IN GENERAL Rule 1601. Scope of Chapter.
This chapter provides a streamlined procedure for appellate review of certain discrete issues upon petition and response. Generally these matters are ancillary and/or preliminary to appellate review under Chapters 9, 11, 13, or 15, but the chapter also is intended to provide the method for initiating any form of appellate review that does not fall within those chapters.
The procedure applicable under this chapter is provided in Pa.R.A.P. 1602 through 1605, unless otherwise prescribed by statute or rule relating to a particular category of petition for limited review.
Official Note: Judicial review of government unit actions or inactions not otherwise permitted under Chapters 9, 11, 13 or 15, including those enumerated in Pa.R.A.P. 1601, is available under Chapter 16; the document that initiates the case under Chapter 16 is called a petition for limited review. The ''residuary'' initiating document function previously assigned to Chapter 15 is now assigned to Chapter 16.
Rule 1602. Filing.
(a) Time for filing.—A petition for limited review shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order sought to be reviewed. The petition shall be deemed filed on the date mailed if the petitioner complies with the requirements set forth in paragraph (b).
(b) Deemed received on date of mailing.—If the petition for limited review is transmitted to the prothonotary of the appellate court by means of first class, express, or priority United States Postal Service mail, the petition shall be deemed received by the prothonotary for the purposes of Pa.R.A.P. 121(a) on the date deposited in the United States mail, as shown on a United States Postal Service Form 3817 Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified.
The certificate of mailing or other similar Postal Service form from which the date of deposit can be verified shall be cancelled by the Postal Service, shall show the docket number of the matter in the lower court or other government unit and shall be either enclosed with the petition or separately mailed to the prothonotary. Upon actual receipt of the petition for limited review the prothonotary of the appellate court shall immediately 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 of filing, which date shall be shown on the docket.
The prothonotary of the appellate court shall immediately note the appellate docket number assignment upon the petition and give written notice of the docket number assignment in person or by first class mail to the government unit or clerk of the lower court, to the petitioner and to the other persons named in the proof of service accompanying the petition.
(c) Fee.—The petitioner, upon filing the petition for limited review, shall pay any fee therefor prescribed by Chapter 27.
Rule 1603. Form and Content.
(a) Caption and parties.—All parties to the proceeding in the lower court or other government unit other than the petitioner shall be named as respondents.
(b) Title.—If the petition for limited review is filed pursuant to Pa.R.A.P. 1610—1615, the title of the petition shall include a reference to the specific rule invoked.
(c) Content.—The petition for limited review need not be set forth in numbered paragraphs in the manner of a pleading, and shall contain the following (which shall, insofar as practicable, be set forth in the order stated):
1. a statement of the basis for the jurisdiction of the appellate court.
2. the name of the party or person seeking review.
3. the text of the order in question, and the date of its entry. If the order is voluminous, it may, if more convenient, be appended to the petition. If the petition seeks review of a deemed denial, it should so state.
4. a concise statement of the case containing the facts necessary to an understanding of the issue(s) presented.
5. the question(s) presented, expressed in the terms and circumstances of the case but without unnecessary detail.
6. a concise statement of the reasons why the lower court or other government unit erred.
7. a copy of any opinions relating to the order sought to be reviewed, including findings of fact and conclusions of law, as well as a copy of any other record documents necessary to the appellate court's review.
(d) Supporting brief.—No supporting brief is permitted or required; the petition for limited review shall present all contentions and arguments relied on with accuracy, brevity, and clarity.
(e) Length.—A petition for limited review shall not exceed 9,000 words. A petition for limited review that does not exceed 20 pages when produced by a word processor or typewriter shall be deemed to meet the 9,000 word limit. In all other cases, the attorney or the unrepresented filing party shall include a certification that the petition complies with the word count limit. The certificate may be based on the word count of the word processing system used to prepare the brief.
Rule 1604. Service.
A copy of the petition for limited review shall be served by the petitioner on the lower court or other government unit 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. All parties before the lower court or other government unit shall be served in accordance with Pa.R.A.P. 121(b).
Rule 1605. Response to Petition.
(a) Time for filing.—A party may file and serve a response to a petition for limited review within 30 days of service of the petition. The response shall be deemed filed on the date of mailing if first class, express, or priority United States Postal Service mail is utilized.
(b) Content.—The response need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the relief requested should be denied and shall comply with the length limitation and the other provisions of Pa.R.A.P. 1603 to the extent applicable. No separate motion to dismiss a petition for limited review will be received. A party entitled to file a response under this rule who does not intend to do so shall, within the time fixed by these rules for filing a response, file a letter stating that a response to the petition for limited review will not be filed. The failure to file a response will not be construed as concurrence in the petition for limited review.
SPECIFIC PETITIONS FOR LIMITED REVIEW Rule 1610. Review of Refusal to Enter Final Order on Fewer than All Claims.
(a) General rule.—If an application under Pa.R.A.P. 341(c) is denied by a lower court or other government unit, the party seeking the determination may file a petition for limited review with the appellate court having appellate jurisdiction in the matter.
(b) Time for filing.—As set forth in Pa.R.A.P. 341(c), if the trial court or other government unit denies the application under that rule, a petition for limited review may be filed within 30 days of the denial order. If the trial court or other government unit fails to act on the application within 30 days after it is filed, and the application is deemed denied, a petition for limited review may be filed within 30 days of the deemed denial.
(c) Disposition.—The appellate court shall grant the petition for limited review if it determines that the trial court or other government unit abused its discretion in failing to grant the application. If the appellate court grants the petition for limited review, the requirements set forth in Pa.R.A.P. 1322 shall apply and no separate notice of appeal or petition for review need be filed. If the appellate court denies the petition for limited review, the requirements set forth in Pa.R.A.P. 1323 shall apply.
Rule 1611. Review of Refusal to Certify Interlocutory Orders for Appeal.
(a) General rule.—If an application under Pa.R.A.P. 1311(b) is denied by a lower court or other government unit, the party seeking to appeal the interlocutory order may file a petition for limited review with the appellate court having appellate jurisdiction in the matter.
(b) Time for filing.—As set forth in Pa.R.A.P. 1311(b), if the trial court or other government unit denies the application under that rule, a petition for limited review may be filed within 30 days of the denial order. If the trial court or other government unit fails to act on the application within 30 days after it is filed, and the application is deemed denied, a petition for limited review may be filed within 30 days of the deemed denial.
(c) Disposition.—The appellate court shall grant the petition for limited review if it determines that the trial court or other government unit abused its discretion in failing to grant the application. If the appellate court grants the petition for limited review, the requirements set forth in Pa.R.A.P. 1322 shall apply and no separate petition for permission to appeal need be filed in the appellate court. If the appellate court denies the petition for limited review, the requirements set forth in Pa.R.A.P. 1323 shall apply.
Rule 1612. Review of Bail Orders.
Where the trial court enters an order under Pa.R.A.P. 1762(b) granting or denying release or modifying the conditions of release before sentence, a party may seek review of that order by filing a petition for limited review in the appellate court that would have jurisdiction over the appeal from the judgment of sentence.
Official Note: Also see Pa.R.A.P. 1762(a) and Pa.R.A.P. 1762(e).
Rule 1613. Review of Orders Finding Double Jeopardy Claim Frivolous.
(a) General rule.—A criminal defendant seeking review of a frivolousness determination by a court of common pleas under Pa.R.Crim.P. No. 587 may file a petition for limited review in the appellate court having jurisdiction over the matter.
(b) Parties.—The parties in the trial court shall be named as parties in the appellate court. If there are multiple defendants but the order for which review is sought adjudicates the motion of only a single defendant, only that defendant may file a petition for limited review.
(c) Effect of filing petition.—The filing of a petition for limited review shall not automatically stay the proceedings before the trial court. A petitioner may file an application for a stay in the trial or appellate court pending the determination of the petition for review, or the trial or appellate court may issue a stay sua sponte.
(d) Grant of petition and transmission of record.—If the petition for limited review is granted, the prothonotary of the appellate court shall immediately give written notice of the entry of the order to the clerk of the trial court and to each party who has appeared in the appellate court. The grant of the petition shall operate as a stay of trial court proceedings in accordance with Chapter 17. The clerk of the trial court shall docket the notice in the same manner as a notice of appeal and shall mail that notice to all parties to the trial court proceeding. The certified record shall be transmitted and filed in accordance with Chapter 19 (preparation and transmission of the record and related matters). The times fixed by those provisions for transmitting the record shall run from the date of the entry of the order granting the petition for limited review. No party need file a separate notice of appeal.
(e) Denial of petition.—If the petition for limited review is denied, the prothonotary of the appellate court shall immediately give written notice of the order to the clerk of the trial court and to each party who has appeared in the appellate court.
Official Note: The trial court's determination and the procedure for determining a motion to dismiss on double jeopardy grounds is set forth in Pa.R.Crim.P. No. 587. If a trial court denies such a motion without expressly finding that the motion is frivolous, the order is immediately appealable by means of a notice of appeal under Pa.R.A.P. 313. If, however, the trial court finds the motion to be frivolous, appellate review can be secured only if the appellate court grants a petition for limited review. See Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011); Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986).
Where the petition for limited review of the determination of frivolousness is granted, the grant automatically initiates a separate appeal on the merits from the order denying the pretrial motion seeking dismissal of criminal charges on double jeopardy grounds.
A party may seek (or a court may sua sponte issue) a stay of the trial court proceedings pending review of the frivolousness determination. Otherwise, the trial court may proceed while the petition for review is pending. See Pa.R.A.P. 1701(d). Where the petition for limited review of the determination of frivolousness is granted, the grant automatically stays further proceedings in the trial courts.
Rule 1614. Review of Special Prosecution Orders.
(a) General rule.—Within ten days after the entry of the order sought to be reviewed, a petition for limited review may be filed in the Supreme Court of Pennsylvania seeking review of the following orders:
(1) An order relating to the supersession of a district attorney by an Attorney General or by a court or to the appointment, supervision, administration or operation of a special prosecutor.
(2) An order relating to the convening or discharge of an investigating grand jury or otherwise affecting its existence.
(3) An order entered in connection with the supervision, administration or operation of an investigating grand jury or otherwise directly affecting an investigating grand jury or any investigation conducted by it.
(4) An order enforcing or refusing to enforce a subpoena issued by or otherwise affecting the existence or operation of any investigating committee of the General Assembly.
(5) An order of the type specified in subparagraphs (1) through (4) of this paragraph which contains a statement by the lower court pursuant to 42 Pa.C.S. § 702(b) (interlocutory appeals by permission). Chapter 13 (interlocutory appeals by permission) shall not be applicable to such an order.
Seven copies of any filings under this rule shall be filed with the original. Pa.R.A.P. 3309 shall not be applicable to an order reviewable under this rule.
(b) Opinion and record.—The Supreme Court on its own initiative may direct that the lower court comply with Pa.R.A.P. 1925 or that the record be otherwise corrected or supplemented.
(c) Distribution and disposition.—Upon receipt of the last filing that a party is entitled to make under this rule, the filings shall be distributed by the Prothonotary to the Supreme Court for its consideration. The Supreme Court may thereafter dispose of the petition or set it down for argument.
(d) Interlocutory matters.—The interlocutory or final nature of an order shall not be affected by this rule and, unless independent grounds appear for the review of an interlocutory order, the interlocutory nature of the order will be a sufficient reason for denying the petition. The denial of a petition shall be deemed a disposition on the merits unless otherwise ordered or unless the petition expressly seeks permission to appeal from an interlocutory order and asserts no other basis of jurisdiction on appeal.
(e) Remand of record.—Unless otherwise ordered:
(1) A certified copy of the judgment of the Supreme Court and the opinion of the court, if one has been filed, shall be transmitted to the lower court forthwith upon entry, notwithstanding the pendency of any application for reargument or other proceeding affecting the judgment. This transmission shall be in lieu of the remand of the record.
(2) Such transmission shall operate to vacate any order theretofore entered pursuant to Chapter 17 (effect of appeals; supersedeas and stays).
Official Note: This rule is intended to provide a simple and expeditious method for Supreme Court supervision of special prosecutions and investigations, e.g. orders of the supervising judge of an investigating grand jury, findings of contempt (whether civil or criminal) by witnesses called before such a grand jury, etc. Pa.R.A.P. 702(c) and 42 Pa.C.S. § 722(5) (direct appeals from courts of common pleas) vest jurisdiction over such matters in the Supreme Court. However, this rule is not applicable to review of investigating grand jury issues that collaterally arise in a plenary criminal prosecution initiated by complaint, information or indictment. This rule requires that review be sought within ten days. Essentially the procedure is analogous to the review of a bail order under Pa.R.A.P. 1762. There is no delay for certification of the record, oral argument is ordinarily not available, and the matter is ready for final disposition by the Supreme Court immediately upon completion of the briefing schedule.
The term ''investigating grand jury'' in paragraph (a) includes a ''multicounty investigating grand jury'' convened under 42 Pa.C.S. § 4544 (convening multicounty investigating grand jury). The ''independent grounds'' referred to in paragraph (d) include grounds for relief in the nature of mandamus, prohibition, etc. and cases where the order is reviewable under the standards of 42 Pa.C.S. § 702(b) (interlocutory appeals by permission).
Failure to petition for limited review under this rule from an interlocutory order will ordinarily not constitute a waiver of objections to the order since, except as prescribed by Pa.R.A.P. 311(g)(1)(ii), there is no requirement under these rules that a party seek available interlocutory relief.
Under Pa.R.A.P. 1702(a), the Supreme Court or a justice thereof will not entertain an application for relief under Pa.R.A.P. 1781 in connection with a special prosecution or investigation order until a petition for limited review has been filed under this rule.
Rule 1615. Review of Out-of-Home Placement in Juvenile Delinquency.
(a) General rule.—If a court under the Juvenile Act, 42 Pa.C.S. § 6301 et seq., enters an order after an adjudication of delinquency of a juvenile pursuant to Pa.R.J.C.P. 409(A)(2) and 515, which places the juvenile in an out-of-home overnight placement in any agency or institution that shall provide care, treatment, supervision or rehabilitation of the juvenile, the juvenile may file a petition for limited review. The petition shall be filed within ten days of the order.
(b) Content.—A petition for limited review under paragraph (a) shall contain: (i) a specific description of any determinations made by the juvenile court; (ii) the matters complained of; (iii) a concise statement of the reasons why the juvenile court abused its discretion in ordering the out-of-home placement; (iv) the proposed terms and conditions of an alternative disposition for the juvenile; and (v) a request that the official court reporter for the juvenile court transcribe the notes of testimony as required by paragraph (g) of this rule. Any order(s) and opinion(s) relating to the out-of-home placement and the transcript of the juvenile court's findings shall be attached as appendices. The petition shall be supported by a certificate of counsel to the effect that it is presented in good faith and not for delay.
(c) Scope of review.
(1) The reviewing court shall not consider any challenge to the juvenile court's selection of a specific agency or specific institution as the site of the out-of-home placement and instead may consider only a challenge to the fact that the placement is out-of-home.
(2) The reviewing court shall not consider any challenge to the underlying adjudication of delinquency.
(d) Response.—Any response shall be filed within ten days of service of the petition, and no other pleading is authorized.
(e) Service.—A copy of the petition for limited review and any answer thereto shall be served on the judge of the juvenile court and the official court reporter for the juvenile court. All parties in the juvenile court shall be served in accordance with Pa.R.A.P. 121(b).
(f) Opinion of juvenile court.—Upon receipt of a copy of a petition for limited review under paragraph (a), if the judge who made the disposition of the out-of-home placement did not state the reasons for such placement on the record at the time of disposition pursuant to Pa.R.J.C.P. 512(D), the judge shall file of record a brief statement of the reasons for the determination or where in the record such reasons may be found, within five days of service of the petition for limited review.
(g) Transcription of Notes of Testimony.—Upon receipt of a copy of a petition for limited review under paragraph (a), the court reporter shall transcribe the notes of testimony and deliver the transcript to the juvenile court within five business days. If the transcript is not prepared and delivered in a timely fashion, the juvenile court shall order the court reporter to transcribe the notes and deliver the notes to the juvenile court, and may impose sanctions for violation of such an order. If the juvenile is proceeding in forma pauperis, the juvenile shall not be charged for the cost of the transcript.
(h) Non-waiver of objection to placement.—A failure to seek review under this rule of the out-of-home placement shall not constitute a waiver of the juvenile's right to seek review of the placement in a notice of appeal filed by the juvenile from a disposition after an adjudication of delinquency.
Official Note: This rule provides a mechanism for the expedited review of an order of out-of-home placement entered pursuant to Pa.R.J.C.P. 515. Pa.R.J.C.P. 512(D) requires the judge who made the disposition of an out-of-home placement to place the reasons for the out-of-home placement on the record at the time of the disposition, and paragraph (f) of this rule is applicable only in the exceptional circumstance where the judge who made the disposition of an out-of-home placement fails to comply with Pa.R.J.C.P. 512(D). The Juvenile Act, 42 Pa.C.S. § 6352, sets forth the considerations for a dispositional order following an adjudication of delinquency and the alternatives for disposition. The standard for review of a dispositional order is an abuse of discretion. See In the Interest of A.D., 771 A.2d 45 (Pa. Super. 2001) (en banc).
EXPLANATORY COMMENT The Committee is proposing to reorganize Chapter 15 of the Rules of Appellate Procedure and to create a new Chapter 16 of the Rules of Appellate Procedure in order to separate out from existing Chapter 15 and move into new Chapter 16 a number of initiating documents presently called ''petitions for review'' that are neither traditional administrative agency appeals nor original jurisdiction actions against the Commonwealth, but rather are either requests for interlocutory review from lower tribunals or requests for some other type of limited appellate court review in criminal or juvenile matters that are ancillary and/or preliminary to appellate review.
As presently structured, Chapter 15's purpose is to provide the procedure for obtaining judicial review of action or inaction of a ''government unit'' not otherwise available through a notice of appeal under Chapter 9, a petition for allowance of appeal under Chapter 11, or a petition for permission to appeal under Chapter 13. Since 1976 when Chapter 15 was adopted, most of the appellate court filings that utilize Chapter 15 have been, as intended, either traditional administrative agency appeals or original jurisdiction actions against the Commonwealth, filed either in the Commonwealth Court's appellate or original jurisdiction. However, because the definition of ''government unit'' is so broad as to encompass every government actor, including the courts, and because the Chapter 15 ''petition for review'' is the default initiating document where another initiating document is not already provided in Chapters 9, 11 or 13, Chapter 15 presently applies to a variety of matters in addition to traditional administrative agency appeals and original jurisdiction actions against the Commonwealth. These other types of petitions for review often involve appellate review that is more limited than a traditional appeal. For example, petitions for review under Pa.R.A.P. 341(c), 1311 (Note), and 1573 present only the question of whether to permit an appeal from an interlocutory order, and are more procedurally similar to a petition for allowance of appeal than an appeal. Other petitions for review involve appellate review using specialized procedures that depart from standard appeal procedures, such as review of bail orders under Pa.R.A.P. 1762, review of special prosecution orders under Pa.R.A.P. 3331, and review of out-of-home-placement of minors under Pa.R.A.P. 1770.
The Committee is proposing to reorganize Chapter 15 to limit its scope to the review of specifically enumerated government unit action or inaction, with the result that Chapter 15 will apply only to traditional administrative agency appeals, certain other enumerated appeals from adjudications or other actions, and original jurisdiction actions against the Commonwealth. Judicial review of all other action or inaction of a ''government unit'' not otherwise available through Chapters 9, 11, 13 or reorganized Chapter 15, including requests for interlocutory review under Pa.R.A.P. 341(c) and 1311 (Note), review of bail orders under Pa.R.A.P. 1762, review of orders that find a double jeopardy claim to be frivolous under Pa.R.A.P. 1573, review of special prosecution orders under Pa.R.A.P. 3331, and review of out-of-home-placement of minors under Pa.R.A.P. 1770, will fall under new Chapter 16, and will occur under an initiating document called a ''petition for limited review.'' This proposal thus moves the ''residuary'' function presently assigned to Chapter 15 to new Chapter 16.
As a general principle, the proposed reorganization of Chapter 15 and the adoption of new Chapter 16 are not intended to alter existing procedures. In certain instances, however, the Committee is proposing changes to existing procedures. For example, under existing practice, the standard of review for a Pa.R.A.P. 341(c) petition for review is ''abuse of discretion,'' whereas the standard of review for a Pa.R.A.P. 1311 (Note) petition for review is ''so egregious as to justify prerogative appellate correction.'' In transferring these initiating documents to Chapter 16 as petitions for limited review, the Committee is recommending that the standard of review for both be ''abuse of discretion.'' Similarly, existing practice under Pa.R.A.P. 341(c) requires that the lower tribunal has only 30 days from the date of entry of its original order to act on an application for a determination of finality, whereas the procedure in Pa.R.A.P. 1311 affords the lower tribunal 30 days from the filing of the application. In transferring these initiating documents to Chapter 16 as petitions for limited review, the Committee is recommending that in both the 341(c) application and the 1311 application, the lower tribunal have 30 days from the date of filing the application to act.
The Committee is aware that adoption of the proposed reorganization of Chapter 15 and the adoption of new Chapter 16 will necessitate a number of conforming changes throughout the Rules of Appellate Procedure, and has noted the particular changes required in other chapters. If, after receiving and evaluating comments to the concept of the proposed reorganization of Chapter 15 and the adoption of new Chapter 16, the Committee determines to move forward with the proposal, the Committee will republish for comment the proposed amendments to Chapters 15 and new Chapter 16, and will publish for comment for the first time, proposed modifications to all of the other rules in other chapters of the Rules of Appellate Procedure that are affected by the proposed changes to Chapter 15 and the adoption of new Chapter 16.
The following discussion of proposed changes in reorganized Chapter 15 and new Chapter 16 highlights proposed changes from existing practice.
Reorganized Chapter 15
Pa.R.A.P. 1501—Scope of Chapter
1501(a)(1): The reorganization adds appeals from awards of arbitrators who decide disputes between the Commonwealth and its employees. These have always been reviewable under Chapter 15, pursuant to 42 Pa.C.S. § 763(b), but were mentioned only in the Official Note to the Rule, not the Rule.
1501(a)(2): The reorganization deletes the words ''or any other statute providing for judicial review of a determination of a government unit'' in order to assure that the only appellate matters reviewable under Chapter 15 are those specified in 1501.
1501(a)(4): Legislative reapportionment appeals, while not traditional administrative agency appeals, follow an appellate process that has more similarities to Chapter 15 petitions for review than to Chapter 16 petitions for limited review; therefore, and for the additional reason discussed below as to 1501(a)(5), the reorganization retains them in Chapter 15.
1501(a)(5): Pursuant to 42 Pa.C.S. § 725 (Direct appeals from constitutional and judicial agencies), the Supreme Court has exclusive jurisdiction of appeals from certain judicial and legislative agencies. Under the current rules and practice, all of the 42 Pa.C.S. § 725 categories except appeals from the Court of Judicial Discipline, which are treated as notices of appeal under Chapter 9, fall under Chapter 15. The reorganization proposes to retain that treatment. Appeals from legislative reapportionment, 42 Pa.C.S. § 725 (1), are addressed in 1501(4) and discussed above. Appeals from orders of the other three judicial agencies (minor judiciary education, law examiners, attorney discipline), though different in some ways from a typical agency appeal, have more similarities to Chapter 15 petitions for review than to Chapter 16 matters that are typically preliminary to or ancillary to an appeal.
1501(a)(6): Similar to the appeals listed in 1501(a)(5), appeals to the Supreme Court from the Court Administrator's denial of access to judicial financial records, though different in some ways from a typical agency appeal, have more similarities to Chapter 15 petitions for review than to Chapter 16 matters that are typically preliminary to or ancillary to an appeal.
1501(b)(3): The reorganization transfers challenges to denial of the ability to seek interlocutory review under Pa.R.A.P. 341 and 1311 to Chapter 16.
1501(b)(4): This addition highlights that Chapter 15 does not apply to matters addressed in Chapter 16.
Official Note: The proposed Official Note explains the difference between Chapters 15 and 16. The previous Official Note is superseded by the reorganization.
Pa.R.A.P. 1502. Exclusive Procedure
The addition to the first sentence and deletion of the second sentence are intended to conform the rule to the limiting amendments to Pa.R.A.P. 1501.
The previous Official Note is superseded by the reorganization.
Pa.R.A.P. 1503. Improvident Appeals or Original Jurisdiction Actions
The additions and deletions are intended to conform the rule to the limiting amendments to Pa.R.A.P. 1501 and to make the rule more simple and clear.
Pa.R.A.P. 1504. Improvident Petition for Review
The additions and deletions are intended to conform the rule to the limiting amendments to Pa.R.A.P. 1501 and to make the rule more simple and clear.
Pa.R.A.P. 1512. Time for Petitioning for Review
1512(a)(2): The word ''cross'' was added to clarify that, as discussed in the Official Note to the Rule, the document that is referred to in this subsection is in fact a ''cross petition for review'' similar in kind to a ''cross notice of appeal.''
1512(a)(2) and (3): The deletion of subparagraphs (3) and (5) conform to the transfer of those matters to Chapter 16.
Pa.R.A.P. 1513. Petition for Review
The last sentence of Paragraph (c) is deleted to conform to the transfer of those matters to Chapter 16.
The Official Note is restructured to follow the order of the Rule.
Pa.R.A.P. 1514. Filing and Service of Petition for Review
Paragraph (c) is amended to require service on the Attorney General of all petitions for review. The current rule only requires service on the Attorney General ''in matters involving the Commonwealth.'' However, in Chapter 15 as reorganized, the Commonwealth will be involved in every petition for review.
Paragraph (d) is amended to add a sentence that warns practitioners that the party they represent in an appellate petition for review must intervene affirmatively under Pa.R.A.P. 1531(a) even if their counsel already is entered on the docket.
The Official Note is amended to delete the next-to-last sentence because under these amendments there no longer will be petitions for review of trial court orders in Chapter 15.
Pa.R.A.P. 1516. Other Pleadings Allowed
Paragraph (a) is amended to conform to the transfer of the deleted matters (all except Pa.R.A.P. 3321) to Chapter 16.
The Official Note is amended to delete the first and final sentences to conform to the transfer of the deleted matters to Chapter 16.
Pa.R.A.P. 1517. Applicable Rules of Pleading
The Official Note is deleted to conform to the transfer of the referenced matters to Chapter 16.
Pa.R.A.P. 1531. Intervention
The third paragraph of the Official Note is deleted to conform to the transfer of the referenced matter to Chapter 16.
Pa.R.A.P. 1541. Certification of the Record
The Official Note is deleted as under these amendments there no longer will be petitions for review of trial court orders in Chapter 15.
Pa.R.A.P. 1542. Evidentiary Hearing
The Official Note is deleted to conform to the transfer of the referenced matter to Chapter 16.
Pa.R.A.P. 1551. Scope of Review
The entire Official Note is deleted. All but the final paragraph is either obsolete or repetitive of other provisions or notes. The final sentence is deleted to conform to the transfer of the referenced matter to Chapter 16.
Pa.R.A.P. 1561. Disposition of Petition for Review
1561(d): The ''Except as'' clause of Paragraph (d) is deleted to conform to the transfer of the referenced matters to Chapter 16. The remainder of Paragraph (d) is deleted because it is clear from Pa.R.A.P. 1501 that Chapter 15 does not extend to habeas or PCRA.
The last two paragraphs of the Official Note are deleted for the same reasons.
Pa.R.A.P. 1573. Review of Orders in Which the Court Finds an Assertion of Double Jeopardy Frivolous
Pa.R.A.P. 1573 is transferred to Chapter 16.
New Chapter 16
Pa.R.A.P. 1603. Form and Content
Pa.R.A.P. 1603(b): This subsection addresses the Superior Court's concern expressed in Commonwealth v. K.M.-F., 2015 Pa. Super. 124, n.5 (May 22, 2015), that petitioners specifically label petitions for review seeking out-of-home placement in a juvenile delinquency matter in order to assure expeditious attention.
Pa.R.A.P. 1605. Response to Petition
1605(a): For certain existing petitions for review that are being transferred to Chapter 16 as petitions for limited review, the response time is less than 30 days. As a default rule, unless otherwise stated in a rule related to a specific petition for limited review, the response is 30 days, as there is no compelling justification for giving the respondent half the time provided to the petitioner.
1605(b): The rule does not explicitly provide for a ''reply brief'' by the petitioner, or for additional filings. Parties wishing to file additional responses must petition for permission under Pa.R.A.P. 123.
Pa.R.A.P. 1610. Review of Refusal to Enter Final Order on Fewer than All Claims
1610(b): Existing practice under Pa.R.A.P. 341(c) requires that the lower tribunal has only 30 days from the date of entry of its original order to act on an application for a determination of finality. Pa.R.A.P. 1610 would change that practice to afford the lower tribunal 30 days from the filing of the application to rule on the application, similar to the current practice under Pa.R.A.P. 1311 for applications to the lower tribunal to amend an order to certify it for interlocutory review. Implementation of Pa.R.A.P. 1610 will require a parallel change to Pa.R.A.P. 341(c).
Pa.R.A.P. 1611. Review of Refusal to Certify Interlocutory Orders for Appeal
1611(c): Existing practice under Pa.R.A.P. 1311 (Note) provides that the standard of review for Pa.R.A.P. 1311 (Note) petition for review is ''so egregious as to justify prerogative appellate correction.'' In contrast, the similar procedure under Pa.R.A.P. 341(c) and proposed Pa.R.A.P. 1610 calls for an ''abuse of discretion'' standard of review. The Committee observes that the Supreme Court has treated the ''so egregious as to justify prerogative appellate correction'' standard as the same as ''abuse of discretion,'' see Brittain v. Beard, 974 A.2d 479, 490 n.6 (Pa. 2009); Commonwealth v. Tilley, 780 A.2d 649, 651 (Pa. 2001), and proposes to replace the ''so egregious as to justify prerogative appellate correction'' standard in Pa.R.A.P. 1311 (Note) and proposed Pa.R.A.P. 1611 with the abuse of discretion standard. Implementation of proposed Pa.R.A.P. 1611 will require a parallel change to Pa.R.A.P. 1311 (Note).
Pa.R.A.P. 1612. Review of Bail Orders
Implementation of Pa.R.A.P. 1612 will require conforming changes to Pa.R.A.P. 1762, some of which will become obsolete if proposed Pa.R.A.P. 1612 is adopted.
Pa.R.A.P. 1613. Review of Orders Finding Double Jeopardy Claim Frivolous
Pa.R.A.P. 1613 transfers the substance of existing Pa.R.A.P. 1573 to Chapter 16, but also proposes several changes to Pa.R.A.P. 1573.
Pa.R.A.P. 1613(a): Existing Pa.R.A.P. 1573(a) provides that ''any party'' seeking review of a frivolousness determination may file a petition. The phrase implies that the Commonwealth could file such a petition if the judge ruled that the double jeopardy claim was not frivolous. In a criminal case, however, it is only the defendant, not the Commonwealth, who would be seeking interlocutory review of a pre-trial double jeopardy claim. Therefore the defendant is the only ''party'' to whom the rule applies.. There could be multiple criminal defendants, only one of whom would be in a position to file a petition for limited review, but subsection (b) of the proposed rule explicitly addresses the multiple defendant situation. Therefore, in transferring existing Pa.R.A.P. 1573 to Chapter 16, the Committee proposes to change ''any party'' in subsection (a) of Pa.R.A.P. 1573 to ''a criminal defendant.'' For clarity, we also propose to change ''shall'' in current Pa.R.A.P. 1573(a) to ''may.''
The second sentence of current Pa.R.A.P. 1573(a) (review governed by general rules in this chapter unless this rule says otherwise), is redundant in light of proposed Pa.R.A.P. 1601, second paragraph, and so is omitted from proposed Pa.R.A.P. 1613.
Pa.R.A.P. 1573 subsections (b) (contents of the petition), (d) (no supporting brief), (e) (essential requisites of petition), (g) (answer to petition) and (h) (service) are omitted from proposed Pa.R.A.P. 1613 because Pa.R.A.P. 1602—1605 supply these procedures.
Pa.R.A.P. 1613(d): Existing Pa.R.A.P. 1573(i) provides that the grant of the petition operates as a stay of ''all'' trial court proceedings. However, as the grant of a stay is supposed to put the defendant in the same position as if he had an appeal as of right, and an appeal as of right does not stay all trial court proceedings, proposed Pa.R.A.P. 1613(d) provides that the grant of a petition for limited review operates to stay trial court proceedings to the extent provided in Chapter 17.
Official Note: The existing Official Note to Pa.R.A.P. 1573 states that, if the petition is denied, the defendant can file a petition for allowance of appeal with the Supreme Court. The Official Note to proposed Pa.R.A.P. 1613 eliminates this sentence.
Pa.R.A.P. 1614. Review of Special Prosecution Orders
Pa.R.A.P. 1614 transfers the substance of existing Pa.R.A.P.E. 3331 to Chapter 16.
1614(b): The first three sentences of existing Pa.R.A.P. 3331(b) provide that the petitioner may file a brief in support of the petition for review, any party may file an answering brief, and all parties may attach portions of the record to their briefs. These sentences are removed from Pa.R.A.P. 1614 because Pa.R.A.P. 1603 provides that the petition for limited review must include all necessary legal argument.
Pa.R.A.P. 1615. Review of Out-of-Home Placement In Juvenile Delinquency
Pa.R.A.P. 1615 transfers the substance of existing Pa.R.A.P. 1770 to Chapter 16, and proposes several changes to Pa.R.A.P. 1770 for clarity.
1615(c): Existing Pa.R.A.P. 1770(c) addresses the narrow scope of review under this rule:
(c) ''Objection to specific agency or institution, or underlying adjudication of delinquency, is not permitted.''(1) A petition for review under subdivision (a) shall not challenge the specific agency or specific institution that is the site of the Out of Home Placement and instead shall be limited to the Out of Home Placement itself.(2) A petition for review under subdivision (a) shall not challenge the underlying adjudication of delinquency.Proposed Pa.R.A.P. 1615(c) changes the heading to ''scope of review,'' consistent with other proposed Chapter 16 rules, and proposes some rewriting to the subsection for clarity purposes.
1615(d): Existing Pa.R.A.P. 1770(d)'s second sentence provides that certain Chapter 15 rules, including rules related to pleading, intervention and scope of review, do not apply to Pa.R.A.P. 1770. With the transfer of Pa.R.A.P. 1770 to Chapter 16, those disclaimers are no longer needed.
1615(e): Existing Pa.R.A.P. 1770(e)'s third sentence provides for service on the attorney general. It is eliminated here because it is already covered in proposed Pa.R.A.P. 1604.
1615(g): Existing Pa.R.A.P. 1770(g)'s last sentence states that Chapter 19 does not apply to Pa.R.A.P. 1770 petitions. As Chapter 19 does not apply to any petitions for limited review under Chapter 16, the sentence is unnecessary and so is eliminated in the proposed Pa.R.A.P. 1615.
[Pa.B. Doc. No. 15-1531. Filed for public inspection August 21, 2015, 9:00 a.m.]
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