THE COURTS
Title 210--APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CH. 13]
Proposed Adoption of New Pa.R.A.P. 1316
[32 Pa.B. 3075] Counsel for the Appellate Court Procedural Rules Committee has discovered an error in Recommendation 47, previously published for comment in the Pennsylvania Bulletin Vol. 32, No. 23 at p. 2752 (June 8, 2002), The Legal Intelligencer Vol. 226, No. 113 at p. 13 (June 12, 2002 and posted on the Administrative Office of Pennsylvania Courts' web site, www.courts.state.pa.us.
The correct version of Recommendation 47 is published as follows.
The Counsel and Committee apologize for any inconvenience caused by the error.
By the Appellate Court Procedural Rules Committee
DEAN R. PHILLIPS, Esquire
Counsel
Proposed Adoption of New Pa.R.A.P. 1316 The Appellate Court Procedural Rules Committee proposes adoption of new Rule 1316 of the Pennsylvania Rules of Appellate Procedure.
The proposed new Rule is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.
An Explanatory Comment follows the proposed new Rule.
Proposed new material is boldface.
All communications in reference to the proposed adoption should be sent not later than July 17, 2002 to the Appellate Court Procedural Committee c/o Dean R. Phillips, Esquire, P. O. Box 3010, 925 Harvest Drive, Blue Bell, PA 19422.
The Explanatory Comment, which appears in connection with the proposed new rule, has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated by the Court.
By the Appellate Court Procedural Rules Committee
HONORABLE JOSEPH M. AUGELLO,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 13. INTERLOCUTORY APPEALS BY PERMISSION Rule 1316. Incorrect Use of Petition for Permission to Appeal or Petition for Review.
(a) General Rule. The appellate court may treat a request for discretionary review of an order, which is immediately appealable as a notice of appeal under the following circumstances;
(1) where a party has filed a timely petition for permission to appeal pursuant to Pa.R.A.P. 1311; or
(2) where a party has filed a timely petition for review from a trial court's refusal of a timely application pursuant to Pa.R.A.P. 1311 to amend the order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b).
(b) Additional Requirements. The appellate court may require any additional actions necessary to perfect the appeal.
Official Note: This Rule permits the appellate court to treat a timely, but erroneous, petition for permission to appeal pursuant to Pa.R.A.P. 1311 from an order which is, in fact, immediately appealable as of right, as a timely notice of appeal. This rule supersedes Thermo-Guard, Inc. v. Cochran, 596 A.2d. 188, 192 (Pa. Super. 1991) which had stated, as dictum, that ''. . . in the future, where a petition for permission to appeal seeking review of a final order, appealable as of right, or of an interlocutory order made appealable as of right . . . is filed, this court should simply deny the petition.'' Also, pursuant to subdivision (a)(2) of this Rule, where the trial court refuses an application to amend an order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b) and that order was in fact appealable as of right, the appellate court may treat a Chapter 15 petition for review of the trial court's refusal to amend as a notice of appeal.
To be considered timely in the context of Rule 1316, the petitioner must have met all of the deadlines established in Rule 1311 regarding seeking certification of the order pursuant to 42 Pa.C.S. § 702(b) and filing the appeal in the appellate court.
Use of the term ''notice of appeal'' in this rule is not intended to preclude treatment of the petition for permission to appeal as a petition for review if the proper method of appeal as of right would be a petition for review addressed to the Commonwealth Court's appellate jurisdiction found at 42 Pa.C.S. § 763.
Explanatory Comment Internal Committee Recommendation 47
Proposed new Pa.R.A.P. 1316 would permit the appellate court to treat a timely petition for permission to appeal as a notice of appeal where appellant sought permissive review of an order immediately appealable as of right. The proposed Recommendation would also permit the Appellate Court to treat a timely petition for review from a trial court's refusal of a timely application pursuant to Pa.R.A.P. 1311 requesting that the trial court amend the order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b). The proposed new Rule avoids the harsh result of waiver of appellate rights where appellant erroneously files a petition for permission to appeal from a final order (see Pa.R.A.P. 341(b)), or an order otherwise immediately appealable as of right. See Pa.R.A.P. 311, 313, and 341.
This rule supersedes Thermo-Guard, Inc. v. Cochran, 596 A.2d. 188, 192 (Pa. Super. 1991) which had stated, as dictum, that ''. . . in the future, where a petition for permission to appeal seeking review of a final order, appealable as of right, or of an interlocutory order made appealable as of right . . . is filed, this court should simply deny the petition.''
[Pa.B. Doc. No. 02-1132. Filed for public inspection June 28, 2002, 9:00 a.m.]
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