THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CHS. 1 AND 9]
Order Amending Rules 102, 108, and 904 of the Pennsylvania Rules of Appellate Procedure; No. 312 Appellate Procedural Rules Docket
[54 Pa.B. 5079]
[Saturday, August 10, 2024]
Order Per Curiam
And Now, this 26th day of July, 2024, upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been published for public comment at 53 Pa.B. 4962 (August 12, 2023):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 102, 108, and 904 of the Pennsylvania Rules of Appellate Procedure are amended in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 2024.
Additions to the rule are shown in bold and are underlined.
Deletions from the rule are shown in bold and brackets.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
IN GENERAL Rule 102. Definitions.
Subject to additional definitions contained in subsequent provisions of these rules which are applicable to specific provisions of these rules, the following words and phrases when used in these rules shall have, unless the context clearly indicates otherwise, the meanings given to them in this rule:
* * * * * Orphans' Court Appeal.—Any appeal from an order of the Orphans' Court Division as set forth in Pa.R.A.P. 342 or an appeal from an order from the First Judicial District Family Division deciding an adoption petition.
* * * * * (Editor's Note: Rule 108 as printed in 210 Pa. Code reads ''Official Note'' rather than ''Note.'' Rule 108 was not included in the proposal that was published for public comment at 53 Pa.B. 4962.)
Rule 108. Date of Entry of Orders.
(a) General [rule] Rule.
(1) Except as otherwise prescribed in this rule, in computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public. The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances.
(2) When pursuant to law a determination of a government unit other than a court is deemed to have been made by reason of the expiration of a specified period of time after submission of a matter to the government unit or after another prior event, any person affected may treat the expiration of such period as equivalent to the entry of an order for the purposes of appeal (in which event the notice of appeal or other document seeking review shall set forth briefly facts showing the applicability of this [paragraph] subdivision) and shall so treat the expiration of the period where the person has actual knowledge (other than knowledge of the mere lapse of time) that the implied determination has occurred.
(b) Civil [orders] Orders.—The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the [day] date on which the clerk makes the notation in the docket that written notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).
(c) [Emergency appeals.—Notwithstanding Subdivisions (a) and (b) of this rule, an order subject to Rule 301(e) (emergency appeals) shall be deemed entered for the purposes of these rules when the party intending to appeal has complied with such rule to the extent practicable under the circumstances.] Orphans' Court Orders.—The date of entry of an order in a matter subject to the Pennsylvania Rules of Orphans' Court Procedure shall be the date on which the clerk makes the notation in the docket that written notice of entry of the order has been given as required by Pa.R.O.C.P. 4.6.
(d) Criminal Orders.
(1) In determining the date of entry of criminal orders, subdivision (a)(1) shall apply except as provided in [subparagraph] subdivision (d)(2).
(2) In a criminal case in which no post-sentence motion has been filed, the date of imposition of sentence in open court shall be deemed to be the date of entry of the judgment of sentence.
(e) Emergency Appeals.—Notwithstanding the provisions of this rule, an order subject to Pa.R.A.P. 301(e) (emergency appeals) shall be deemed entered for the purposes of these rules when the party intending to appeal has complied with such rule to the extent practicable under the circumstances.
[Note:] Comment: Based in part on 42 Pa.C.S. § 5572 (time of entry of order) (which is not applicable to appeals to or judicial review of quasijudicial orders by the Supreme, Superior, or Commonwealth Courts; see 42 Pa.C.S. § 5571(a) (appeals generally)) and 1 Pa. Code § 31.13. The purpose of this rule is to fix a date from which the time periods such as those set forth in [Rules] Pa.R.A.P. 903 (time for appeal), Pa.R.A.P. 1113 (time for petitioning for allowance of appeal), Pa.R.A.P. 1311 (interlocutory appeals by permission), Pa.R.A.P. 1512 (time for petitioning for review), Pa.R.A.P. 1602 (filing), and Pa.R.A.P. 2542 (time for application for reargument) [shall be] are computed. [Rule] Pa.R.A.P. 5101(g) (statutes suspended) suspends all inconsistent statutes so that all appellate time periods are [now] computed on the same basis.
Subdivision (a)(2) is patterned after 42 Pa.C.S. § 5571(c)(6) (implied determinations). See [note] Comment to [Rule] Pa.R.A.P. 903 (time for appeal). The purpose of the provision is[, on the one hand,]: (1) to permit an aggrieved party to appeal immediately after the expiration of the period notwithstanding the failure of the government unit to take formal action[, and on the other,]; and (2) to eliminate complicated calendar watching by forcing the government unit or another affected person to notify all parties of the expiration of the period as a prerequisite to commencement of the running of the appeal period for the purpose of the finality of the implied determination. [See, e.g. Rule] See, e.g., Pa.R.A.P. 1571(b)(3) (determinations of the Board of Finance and Revenue).
[See] Subdivision (d)—See Pa.R.A.P. 301(a)(1) and (2), Pa.R.A.P. 903(c)(3), and Pa.R.Crim.P. 462, 720, and 721 governing criminal appeals. When no post-sentence motion is filed, the time for appeal begins to run from the date of imposition of sentence. See Pa.R.Crim.P. 462(H)(2), 720(A)(3) and (D), and 721(B)(2)(a)(ii), Pa.R.A.P. 301(a)(2) and 903(c)(3). See also Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (en banc), petition for allowance of appeal denied, 882 A.2d 477 (Pa. 2005). When post-sentence motions are denied by operation of law, the appeal period shall run from the date of entry of the order denying the motion by operation of law. See Pa.R.Crim.P. 720(A)(2)(c).
Historical Commentary The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:
Explanatory Comment—1979 Where a determination is implied by the passage of time without action by a government unit, an aggrieved party is given the option either to appeal at once at the expiration of the period or to rely on the government unit or other affected person to give notice that an implied determination has been made.
Explanatory Comment—2007 New subdivision (d) governs criminal appeals. Under new subdivision (d), when no post-sentence motion is filed, the time for appeal begins to run from the date of imposition of sentence. See Pa.R.Crim.P. 462(G)(2), 720(A)(3) and (D), and 721(B)(2)(a)(ii), and the conforming amendments to Pa.R.A.P. 301(a)(2) and 903(c)(3), and 2006 Explanatory Comment thereto. See also Commonwealth v. Green, 862 A.2d 613 (Pa. Super. 2004) (en banc), allocatur denied, 584 Pa. 692, 882 A.2d 477 (2005). When post-sentence motions are denied by operation of law, the appeal period shall run from the date of entry of the order denying the motion by operation of law. See Pa.R.Crim.P. 720(B)(3)(c).
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS (Editor's Note: Rule 904 as printed in 210 Pa. Code does not contain Explanatory Comment—2002.)
Rule 904. Content of the Notice of Appeal.
(a) Form. Except as otherwise prescribed by this rule, the notice of appeal shall be in substantially the following form:
* * * * * (b) Caption.
(1) General Rule. The parties shall be stated in the caption as they appeared on the record of the trial court at the time the appeal was taken.
(2) Appeal of Custody Action. In an appeal of a custody action where the trial court has used the full name of the parties in the caption, upon application of a party and for cause shown, an appellate court may exercise its discretion to use the initials of the parties in the caption based upon the sensitive nature of the facts included in the case record and the best interest of the child.
(c) Request for Transcript. The request for transcript contemplated by Pa.R.A.P. 1911 or a statement signed by counsel that either there is no verbatim record of the proceedings or the complete transcript has been lodged of record shall accompany the notice of appeal, but the absence of or defect in the request for transcript shall not affect the validity of the appeal.
(d) Docket Entry. The notice of appeal shall include a statement that the order appealed from has been entered on the docket. A copy of the docket entry showing the entry of the order appealed from shall be attached to the notice of appeal.
(e) Content in Criminal Cases. [When] If the Commonwealth takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall include a certification by counsel that the order will terminate or substantially handicap the prosecution.
(f) Content in Children's Fast Track Appeals. In a children's fast track appeal, the notice of appeal shall include a statement advising the appellate court that the appeal is a children's fast track appeal.
(g) Content in Orphans' Court Appeals. In an orphans' court appeal, the notice of appeal shall include a statement advising the appellate court that the appeal is an orphans' court appeal.
(h) Completely Consolidated Civil Cases. In an appeal of completely consolidated civil cases where only one notice of appeal is filed, a copy of the consolidation order shall be attached to the notice of appeal.
Comment: The Offense Tracking Number (OTN) is required only in an appeal in a criminal proceeding. It enables the Administrative Office of the Pennsylvania Courts to collect and forward to the Pennsylvania State Police information pertaining to the disposition of all criminal cases as provided by the Criminal History Record Information Act, 18 Pa.C.S. §§ 9101 et seq.
The notice of appeal must include a statement that the order appealed from has been entered on the docket. Because generally a separate notice of appeal must be filed on each docket on which an appealable order is entered so as to appeal from that order, [see] see Pa.R.A.P. 902(a), the appellant is required to attach to the notice of appeal a copy of the docket entry showing the entry of the order appealed from on that docket. The appellant does not need to certify that the order has been reduced to judgment. This omission does not eliminate the requirement of reducing an order to judgment before there is a final appealable order where required by applicable practice or case law.
Subdivision (b)(2) provides the authority for an appellate court to initialize captions in custody appeals. See also [Pa.R.C.P.] Pa.R.Civ.P. 1915.10.
With respect to subdivision (e), in Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa. 1985), the Supreme Court held that the Commonwealth's certification that an order will terminate or substantially handicap the prosecution is not subject to review as a prerequisite to the Superior Court's review of the merits of the appeal. The principle in Dugger has been incorporated in and superseded by Pa.R.A.P. 311(d). Commonwealth v. Dixon, 907 A.2d 468, 471 n.8 (Pa. 2006). Thus, the need for a detailed analysis of the effect of the order, formerly necessarily a part of the Commonwealth's appellate brief, has been eliminated.
A party filing a cross-appeal should identify it as a cross-appeal in the notice of appeal to assure that the prothonotary will process the cross-appeal with the initial appeal. [See also] See also Pa.R.A.P. 2113, 2136, and 2185 regarding briefs in cross-appeals and Pa.R.A.P. 2322 regarding oral argument in multiple appeals.
See Pa.R.A.P. 342 for the orders that may be appealed as of right in orphans' court matters.
A party appealing completely consolidated civil cases using one notice of appeal must attach a copy of the consolidation order to the notice of appeal to assure the applicability of Pa.R.A.P. 902.
Historical Commentary The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:
Explanatory Comment—2002 See Comment following Pa.R.A.P., Rule 511.
SUPREME COURT OF PENNSYLVANIA
APPELLATE COURT PROCEDURAL RULES COMMITTEE
ADOPTION REPORT
Amendment of Pa.R.A.P. 102, 108, and 904 On July 26, 2024, the Supreme Court of Pennsylvania adopted amendments to Pennsylvania Rules of Appellate Procedure 102, 108, and 904. The Appellate Court Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, cmt. The statements contained herein are those of the Committee, not the Court.
The Committee received a request to amend Pa.R.A.P. 108 to establish the date of entry of orphans' court orders for purposes of computing any time period involving an orphans' court order under the Pennsylvania Rules of Appellate Procedure. Relevant to the request, Pa.R.A.P. 108(b) provides that the date of entry of an order for civil cases is the date on which the clerk of the trial court makes a notation on the docket that notice of the entry of the order was given as required by Pa.R.Civ.P. 236. Additional provisions address emergency appeals and criminal orders.
In its initial consideration, the Committee assumed that Pa.R.A.P. 108 was silent on the date of entry of orders in the orphans' court because, when the relevant provisions of Pa.R.A.P. 108 were drafted, the Pennsylvania Rules of Orphans' Court Procedure themselves were silent on the matter of notice of an adjudication or court order. Notably, however, former Pa.R.O.C.P. 3.1 required conformity with the Pennsylvania Rules of Civil Procedure when the Rules of Orphans' Court Procedure did not provide guidance on a particular matter. Therefore, appellants in orphans' court cases were guided by Pa.R.Civ.P. 236, which squared with Pa.R.A.P. 108(b).
Subsequently, the Rules of Orphans' Court Procedure were largely rewritten and adopted, effective September 1, 2016. The rewrite included new rule Pa.R.O.C.P. 4.6, which established a notice procedure analogous to and derived from Pa.R.Civ.P. 236.
The Committee recognized that the request to amend Pa.R.A.P. 108 also implicated a need to effectively identify orphans' court appeals for purposes of docketing statements. To effectuate Pa.R.A.P. 108 generally, when a notice of appeal is filed with the Superior Court, the prothonotary of that court sends: a docketing statement form [to the appellant] which shall be completed and returned within ten (10) days in order that the Court shall be able to more efficiently and expeditiously administer the scheduling of argument and submission of cases on appeal. Failure to file a docketing statement may result in dismissal of the appeal.
Pa.R.A.P. 3517. At present, there are three docketing statement forms: (a) Civil Docketing Statement; (b) Criminal Docketing Statement; and (c) Family and Domestic Relations Docketing Statement. The Civil Docketing Statement requires the date of entry of the Pa.R.Civ.P. 236 notice, although the Family and Domestic Relations Docketing Statement does not. In the absence of an orphans' court specific form, the Civil Docketing Statement presumably has been used with orphans' court appeals. There was a concern that omission of the Pa.R.O.C.P. 4.6 notice date from the Docketing Statement may lead an appellant to complete the form incorrectly, resulting in possible delays or confusion.
While the Committee initially considered a proposed amendment of Pa.R.A.P. 108 to add a new subdivision pertaining to orders subject to the Rules of Orphans' Court Procedure, it concluded that this approach was insufficient because it was unlikely that counsel or a self-represented party would look to Pa.R.A.P. 108 for the requirement to file a docketing statement. In addition, orphans' court appeals are not routinely identified as such when the notice of appeal is filed. As a result, filing office staff would not be aware which docketing statement should be sent to counsel or a self-represented party.
The Committee therefore devised a different approach to address both concerns. Pa.R.A.P. 342 sets forth the orders of the orphans' court that are appealable as of right. The proposal would amend Pa.R.A.P. 102 (definitions) to add a definition of ''Orphans' Court Appeal'' with a reference to Pa.R.A.P. 342 so that counsel or a self-represented party is advised of the Rule of Appellate Procedure applicable to that appeal. In addition, Pa.R.A.P. 904 was amended to add a new subdivision requiring the notice of appeal to include a statement advising the appellate court that the appeal is an orphans' court appeal. Finally, a statement cross-referencing Pa.R.A.P. 342 regarding orders that may be appealed as of right in orphans' court matters was added to the comment to Pa.R.A.P. 904.
The Committee published the proposal for comment, see 53 Pa.B. 4962 (August 12, 2023), and received responses supporting the proposal; the respondents also suggested modifications to the proposal.
A respondent suggested that the amendments of Pa.R.A.P. 102 and 904 did not obviate the need for an amendment to Pa.R.A.P. 108. The proposal appeared to overlook the reason for amending the rule given the adoption of Pa.R.O.C.P. 4.6. Specifically, without an amendment of Pa.R.A.P. 108, an appellate court's calculation of the timeliness of orphans' court appeals in ascertaining its jurisdiction will diverge from past practice.
The respondent indicated that Pa.R.A.P. 108(a) provides a general rule for computing time periods involving the date of entry of an order: ''the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties,'' unless it is subject to one of enumerated exceptions set forth in the rule. Pa.R.A.P. 108(b) provides one exception for the date of entry of civil orders. It diverges from the general rule in that it references docketing of the notice:
The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).
When the notation of giving of the notice occurs on a date after the day on which the copies were served, the date of expiration of the 30-day appeal period will differ depending on whether the case is subject to Rules of Civil Procedure or the general rule in Pa.R.A.P. 108(a).
Prior to the adoption of Pa.R.O.C.P. 4.6, the notice requirements of Pa.R.Civ.P. 236 applied to orphans' court decisions. Following the adoption of Pa.R.O.C.P. 4.6, Pa.R.Civ.P. 236 no longer governed the notice of the entry of orphans' court orders. Consequently, orphans' court orders are no longer ''civil orders'' subject to the exception in Pa.R.A.P 108(b) and instead are now subject to the general rule in Pa.R.A.P. 108(a). As a result, the appeal period begins to run from the date the order is mailed or delivered to the parties, regardless of when the clerk of the orphans' court makes a notation on the docket as required by Pa.R.O.C.P. 4.6. The respondent urged amendment of Pa.R.A.P. 108 to fully account for the adoption of Pa.R.O.C.P. 4.6. In doing so, appeals in civil cases and orphans' court cases will receive equal treatment.
The Committee accepted these suggestions and agreed that Pa.R.A.P. 108 should be amended to add a provision recognizing the operation of Pa.R.O.C.P. 4.6. This new provision governing orphans' court orders is set forth as subdivision (c) and hews to the exact text of Pa.R.O.C.P. 4.6. The text of current subdivision (c) relating to emergency appeals has been moved to new subdivision (e).
A second respondent supported the proposal but also urged amendment of Pa.R.A.P. 108 to distinguish between the date of entry for civil orders and orphans' court orders, and to recognize the requirements of Pa.R.O.C.P. 4.6. The Committee concluded that this suggestion dovetailed with the comment from the first respondent and was addressed by the above-mentioned amendment to Pa.R.A.P. 108(c).
This respondent also suggested that the proposal may benefit from the addition of commentary to Pa.R.A.P. 102 and 904 that is currently set forth in the note to Pa.R.A.P. 342 (appealable orphans' court orders). This commentary identifies orders ''otherwise appealable as provided by Chapter 3,'' i.e., Pa.R.A.P. 311, 312, 313, and 341. The respondent believed that cross-referencing them in commentary to Pa.R.A.P. 102 and 904 would educate counsel and self-represented litigants as to the scope of appealable orphans' court orders. The Committee, however, declined to include the cross reference because the Comment to Pa.R.A.P. 342 provides a substantial discussion of Pa.R.A.P. 342(a)(8), the orders appealable as provided in Chapter 3, and cites to Pa.R.A.P. 311, 312, 313, and 341. Further, the amendments to Pa.R.A.P. 102 and the commentary to Pa.R.A.P. 904 already cross referenced Pa.R.A.P. 342 and were intended to point readers to review Pa.R.A.P. 342 and its comment.
The amendments become effective October 1, 2024.
[Pa.B. Doc. No. 24-1106. Filed for public inspection August 9, 2024, 9:00 a.m.]
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