THE COURTS
Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CHS. 5, 9, 15 AND 21]
Proposed Amendments to Pa.R.A.P. 511, 903, 1113, 1512, 2133, 2136 and 2185; Recommendation 33
[29 Pa.B. 2441] The Appellate Court Procedural Rules Committee proposes to amend Rules 511, 903, 1113, 1512, 2133, 2136 and 2185 of the Pennsylvania Rules of Appellate Procedure. The amendments are being submitted to the bench and bar for comments and suggestions prior to their submission to the Supreme Court.
All communications in reference to the proposed amendments should be sent not later than June 30, 1999 to the Appellate Court Procedural Rules Committee, P. O. Box 447, Ridley Park, PA 19078-0447.
The Explanatory Comment which appears in connection with the proposed amendments has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.
By the Appellate Court Procedural Rules Committee
JOSEPH M. AUGELLO,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 5. PERSONS WHO MAY TAKE OR PARTICIPATE IN APPEALS
MULTIPLE APPEALS Rule 511. [Cross] Multiple Appeals.
The timely filing of an appeal shall extend the time for any other party to cross appeal as set forth in Rules 903(b)(cross appeals), 1113(b)(cross petitions for allowance of appeal) and 1512(a)(2)(cross petitions for review). The discontinuance of an appeal by a party shall not affect the right of appeal of any other party regardless of whether the parties are adverse.
Official Note: [Based on former Supreme Court Rule 20B, former Superior Court Rule 10B, and the last sentence of former Commonwealth Court Rule 28.]
The 1998 amendment clarifies the intent of the former rule that the filing of an appeal extends the time within which any party may cross appeal as set forth in Rules 903(b), 1113(b) and 1512(a)(2) and that a discontinuance of an appeal by any other party will not affect the right of any other party to file a timely cross appeal under Rules 903(b), 1113(b) or 1512(a)(2) or to otherwise pursue an appeal or cross appeal already filed at the time of the discontinuance. The discontinuance of the appeal at any time before or after a cross appeal is filed will not affect the right of any party to file or dismiss a cross appeal. The 1998 amendment supersedes In Re: Petition of the Board of School Directors of the Hampton Township School District, 698 A.2d 279 (Pa.Cmwlth. 1997), to the extent that decision requires that a party be adverse to the initial appellant in order to file a cross appeal.
See also: Rules 2113, 2136 and 2185 regarding briefs in cross-appeals and Rule 2322 regarding oral argument in multiple appeals.
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 903. Time for Appeal.
* * * * * Official Note: 42 Pa.C.S. § 5571(a) (appeals generally) provides that the time for filing an appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for review of a quasi-judicial order, in the Supreme Court, the Superior Court or the Commonwealth Court shall be governed by general rules and that no other provision of 42 Pa.C.S. Ch. 55D shall be applicable to such matters. In order to prevent inadvertent legislative creation of nonuniform appeal times, 42 Pa.C.S. § 1722(c) (time limitations) expressly authorizes the suspension by general rule of nonuniform statutory appeal times. See also 42 Pa.C.S. § 5501(a) (scope of chapter), which makes Chapter 55 (limitation of time) of the Judicial Code subordinate to any other statute prescribing a different time in the case of an action or proceeding, but which does not so provide in the case of an appeal.
[Prior to enactment of the Judicial Code it had been established that the time within which a matter may move from one stage to another within the Unified Judicial System is a procedural matter similar to the deadline for responsive pleadings, etc., and is not a ''statute of limitation or repose'' as that phrase is used in Section 10(c) of the Judiciary Article. E.g., the Supreme Court had fixed the time for Supreme Court review on certiorari, had prescribed the time for seeking review of sheriffs' and district justices' determinations in execution matters, and of changes of venue in criminal matters, had fixed the time for appeal in certain PCHA matters and had fixed the time for appeal in certain arbitration matters. See former Supreme Court Rule 68 1/2 (416 Pa. xxv); Pa.R.Civ.P. 3206(b) and 3207(b); Pa.R.C.P.J.P. 1016; former Pa.R.Crim.P. 313(a) (471 Pa. XLIV); Pa.R.Crim.P. 325; former Pa.R.J.A. 2101 (451 Pa. lxxiii).]
Thus, on both a statutory and constitutional basis, this rule supersedes all inconsistent statutory provisions prescribing times for appeal.
[Subdivision (a) is patterned after 42 Pa.C.S. § 5571(b) (other courts). Where an appeal is taken under Rule 311 (interlocutory appeals as of right), unless an extension to plead is obtained it will as a practical matter continue to be necessary to take the appeal within the 20 day pleading period specified in Pa.R.Civ.P. 1026.]
As to Subdivision (b), compare 42 Pa.C.S. § 5571(f) (cross appeals). A party filing a cross appeal pursuant to Subdivision (b) 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 Rule 511 (cross appeals), Rule 2113 (reply brief), Rule 2136 (briefs in cases of cross appeals), Rule 2185 (time for service and filing of briefs) and Rule 2322 (oral argument in cross and separate appeals).
Rule of Appellate Procedure 107 incorporates by reference the rules of construction of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1901 through 1991. See 1 Pa.C.S. § 1908 relating to computation of time for the rule of construction relating to (1) the exclusion of the first day and inclusion of the last day of a time period and (2) the omission of the last day of a time period which falls on Saturday, Sunday or legal holiday.
CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT
PETITION FOR ALLOWANCE OF APPEAL Rule 1113. Time for Petitioning for Allowance of Appeal.
(a) General Rule.--Except as otherwise prescribed by this rule, a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days [after] of the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed. If a timely application for reargument is filed in the Superior Court or Commonwealth Court by any party, the time for filing a petition for allowance of appeal for all parties shall run from the entry of the order denying reargument or from the entry of the decision on reargument, whether or not that decision amounts to a reaffirmation of the prior decision. Unless the Superior Court or the Commonwealth Court acts on the application for reargument within 60 days after it is filed the court shall no longer consider the application, it shall be deemed to have been denied and the prothonotary of the appellate court shall forthwith enter an order denying the application and shall immediately give written notice in person or by first class mail of entry of the order denying the application to each party who has appeared in the appellate court. A petition for allowance of appeal filed before the disposition of such an application for reargument shall have no effect. A new petition for allowance of appeal must be filed within the prescribed time measured from the entry of the order denying or otherwise disposing of such an application for reargument.
* * * * * Official Note: See Note to Rule 903 (time for appeal).
A party filing a cross petition for allowance of appeal pursuant to Subdivision (b) should identify it as a cross petition to assure that the prothonotary will process the cross petition with the initial petition. See also Rule 511 (cross appeals), Rule 2136 (briefs in cases of cross appeals) and Rule 2322 (oral argument in cross and separate appeals).
CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS
PETITION FOR REVIEW Rule 1512. Time for Petitioning for Review.
* * * * * (b) Special Provisions.--A petition for review of:
(1) A determination of the Department of Community [Affairs] and Economic Development in any matter arising under the Local Government Unit Debt Act [(53 P. S. § 8001, et seq.)] 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.
* * * * * Official Note: [See note to Rule 903 (time for appeal).] Rule 102 defines a ''quasijudicial order'' as ''an order of a government unit, made after notice and opportunity for hearing, which is by law reviewable solely upon the record made before the government unit, and not upon a record made in whole or in part before the reviewing court.''
See Note to Rule 903 (time for appeal.) A party filing a cross petition for review pursuant to Subdivision (a)(2) should identify it as a cross petition for review to assure that the prothonotary will process the cross petition for review with the initial petition for review. See also Rule 511 (cross appeals), Rule 2136 (briefs in cases of cross appeals) and Rule 2322 (oral argument in cross and separate appeals).
* * * * *
CHAPTER 21. BRIEFS AND REPRODUCED RECORD
CONTENT OF BRIEFS Rule 2113. Reply Brief.
* * * * * [(c) Cross Appeal.--A reply brief may be filed by the appellant as prescribed in Rule 2136 (briefs in cases involving cross appeals).]
[(d)] (c) Other briefs.--No further briefs may be filed except with leave of court.
Official Note: The 1987 amendment grants a general right to file a reply brief in every case to matters not previously raised in appellant's brief. Appellees may file a similarly limited reply brief to the response of the appellant to the issues presented by the cross-appeal. The length of a reply brief is provided in Rule 2135(b). The 1998 amendment makes clear that the time for filing is set forth in Rule 2185(a).
Rule 2136. Briefs in Cases Involving Cross Appeals.
* * * * * Official Note: [Ordinarily there will be three briefs in a case involving a cross appeal: appellant's main brief, appellee's main brief, and appellant's reply brief directed to the issues on the cross appeal. However, Rule 2113 permits a fourth brief; appellee's reply to appellant's answer on the cross appeal.]
When there are cross appeals, there may be up to four briefs: (1) the deemed or designated appellant's principal brief on the merits of the appeal; (2) the deemed or designated appellee's brief responding to appellant's arguments and presenting the merits of the cross appeal; (3) the appellant's second brief replying in support of the appeal and responding to the issues raised in the cross appeal; and (4) appellee's second brief replying in support of the cross appeal. See Pa.R.A.P. 2113(a).
In cross appeals, appellant's second brief shall be served within 30 days after service of the preceding brief. The appellee's second brief is due 14 days later. See Rule 2185(a).
[Explanatory Note--1979 The appellate prothonotary is directed to designate the party who shall file the first brief in cases involving cross appeals where the identity of the ''moving party'' below is not readily apparent.] Where the identity of the moving party below is not readily apparent, either party may notify the prothonotary by letter that the prothonotary must designate the appellant or that the parties have agreed which party shall be the appellant.
FILING AND SERVICE Rule 2185. Time for Serving and Filing Briefs.
(a) General Rule.--The appellant shall serve appellant's brief not later than the date fixed pursuant to Subdivision (b) of this rule, or within 40 days after the date on which the record is filed, if no other date is so fixed. The appellee shall serve appellee's brief within 30 days after service of appellant's brief and reproduced record if proceeding under Rule 2154(a). A party may serve a reply brief permitted by these rules within 14 days after service of the preceding brief but, except for good cause shown, a reply brief must be served an filed so as to be received at least three days before argument. In cross appeals, the brief of the appellee in the cross appeal shall be served within 30 days after service of the preceding brief. Except as prescribed by Rule 2187(b) (advance text of briefs) each brief shall be filed not later than the last day fixed by or pursuant to this rule for its service.
* * * * *
Explanatory Comment to Recommendation 33: Proposed Amendments to Pa.R.A.P. 511, 903, 1113, 1512, 2113 and 2136 Introduction: The Appellate Rules contemplate three ''multiple appeal'' situations in which more than one party may wish to challenge individually an order of a court. These are cross appeals; cross petitions for review; and cross petitions for allowance of appeal. The proposed amendments are intended to simplify and clarify the procedures in such cases. The proposed amendments do not create the right to file new briefs or affect the right to file briefs heretofore permitted by the Appellate Rules.
Rule 511. (Multiple Appeals)
The 1998 amendment clarifies the intent of the former rule that the filing of an appeal extends the time within which any party may cross appeal as set forth in Rule 903(b), 1113(b) and 1512(a)(2) and that a discontinuance of an appeal by any other party will not affect the right of any other party to file a timely cross appeal under rules 903 (b), 1113(b) or 1512(a)(2) or to otherwise pursue an appeal or cross appeal already filed at the time of the discontinuance. The discontinuance of the appeal at any time before or after a cross appeal is filed will not affect the right of any party to file or dismiss a cross appeal. The 1998 amendment supersedes In Re: Petition of the Board of School Directors of the Hampton Township School District, 698 A.2d 279 (Pa.Cmwlth. 1997) to the extent that decision requires that a party be adverse to the initial appellant in order to file a cross appeal.
Rule 903. (Time for Appeal)
The proposed amendment to the note to Rule 903 includes a suggestion, for the aid of the appellate court filing office, that a party identify a cross-appeal in its notice of appeal. This will assure that the appeals are linked for processing purposes. The proposed amendment to the note also cross-references Rule 511 (cross appeals), Rule 2136 (briefs in cases of cross appeals) and Rule 2322 (oral argument in cross and separate appeals). This is for the convenience of counsel and the parties to alert them to the unique aspects of cross appeal or petition practice. See also proposed conforming amendments to the Notes to Rules 1113 and 1512. The proposed Recommendation also deletes a portion of the Note which may be misleading insofar as it may be construed to imply that an aggrieved party has less than 20 days to appeal under Pa.R.A.P. 311 where there has been no extension to plead.
Rule 1113. (Time for Petitioning for Allowance of Appeal)
See explanatory comment to Rule 903.
Rule 1512. (Time for Petitioning for Review)
See explanatory comment to Rule 903.
Rule 2113. (Reply Brief)
The proposed amendment deletes subdivision (c), an obsolete cross reference to a reply brief in cross-appeals. The briefs permitted and proper sequence in cases involving cross appeals are explained in the Note to Rule 2136.
Rule 2136. (Briefs in Cases Involving Cross Appeals)
In a single party appeal or petition situation, there are three briefs: appellant's principal brief on the merits, appellee's principal brief on the merits, and appellant's reply brief. In a cross appeal or petition situation, there are four briefs, because the designated appellant's second brief must serve two purposes, that is, it is the appellant's reply brief (a brief limited in scope by Rule 2113) and, simultaneously, the appellant's principal brief on the merits of the cross appeal or petition. The appellee may then file a ''reply'' brief on the merits of the cross appeal, that is, a reply brief in the appeal filed by the appellee. This procedure is explained in the proposed amendment to the Note as follows:
When there are cross appeals, there may be up to four briefs: (1) the deemed or designated appellant's principal brief on the merits of the appeal; (2) the deemed or designated appellee's brief responding to appellant's arguments and presenting the merits of the cross appeal; (3) the appellant's second brief replying in support of the appeal and responding to the merits of the cross appeal; and (4) appellee's reply brief in the cross appeal, see Pa.R.A.P. 2113(a).Rule 2185. (Time for Serving and Filing Briefs)
The existing rule is unclear as to the due date for the filing of the cross-appellee's first brief in response to the merits of the cross appeal and second brief in support of the original appeal. (Brief No. 3 as described above). Under the proposed amendment that brief is due thirty days after the deemed appellee's brief (Brief No. 2) as described above.
[Pa.B. Doc. No. 99-745. Filed for public inspection May 7, 1999, 9:00 a.m.]
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