THE COURTS

Title 210—APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

[ 210 PA. CODE CHS. 1, 9, 11 AND 15 ]

Proposed Amendments to Rules of Appellate Procedure 121, 903, 1113 and 1512

[40 Pa.B. 7207]
[Saturday, December 18, 2010]

 The Appellate Court Procedural Rules Committee proposes to amend the Official Note to Pa.R.A.P. 121 and Pa.R.A.P.s 903, 1113 and 1512. These amendments are being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

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

 All communications in reference to the proposed amendment should be sent no later than February 11, 2011 to:

Dean R. Phillips, Counsel
D. Alicia Hickok, Deputy Counsel
Scot Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, Pennsylvania 17106-2635
or Fax to (717) 231-9551
or E-Mail to appellaterules@pacourts.us

 An Explanatory Comment follows the proposed amendment 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 Committee

HONORABLE MAUREEN LALLY-GREEN, 
Chair

Annex A

TITLE 210. APPELLATE PROCEDURE

PART I. RULES OF APPELLATE PROCEDURE

ARTICLE I. PRELIMINARY PROVISIONS

CHAPTER 1. GENERAL PROVISIONS

DOCUMENTS GENERALLY

Rule 121. Filing and Service.

*  *  *  *  *

 Official Note:

*  *  *  *  *

 Subdivision (e)—Subdivision (e) of the rule does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or re-argument, since under these rules the time for filing such papers runs from the entry and service of the related order, nor to thefiling of a petition for review, which is governed by similar considerations. However, these rules permit the filing of such notice and petitions (except a petition for reconsideration or re-argument) in the local county (generally in the county court house; otherwise in a post office), thus eliminating a major problem under the prior practice. The amendments to Rules 903(b), 1113(b) and 1512(a)(2) clarified that subdivision (e) does apply to calculating the deadline for filing cross-appeals, cross-petitions for allowance of appeal and additional petitions for review.

ARTICLE II. APPELLATE PROCEDURE

CHAPTER 9. APPEALS FROM LOWER COURTS

Rule 903. Time for Appeal.

*  *  *  *  *

 (b) Cross appeals. Except as otherwise prescribed in Subdivision (c) of this rule, if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was [filed] served, or within the time otherwise prescribed by this rule, whichever period last expires.

*  *  *  *  *

CHAPTER 11. APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT

PETITION FOR ALLOWANCE OF APPEAL

Rule 1113. Time for Petitioning for Allowance of Appeal.

*  *  *  *  *

 (b) Cross petitions.—Except as otherwise prescribed in Subdivision (c) of this rule, if a timely petition for allowance of appeal is filed by a party, any other party may file a petition for allowance of appeal within 14 days of the date on which the first petition for allowance of appeal was [filed] served, or within the time otherwise prescribed by this rule, whichever period last expires.

*  *  *  *  *

CHAPTER 15. JUDICIAL REVIEW OF GOVERNMENTAL DETERMINATIONS

PETITION FOR REVIEW

Rule 1512. Time for Petitioning for Review.

 (a) Appeals authorized by law.—Except as otherwise prescribed by Subdivision (b) of this rule:

*  *  *  *  *

 (2) If a timely petition for review of such an order is filed by a party, any other party may file a petition for review within 14 days of the date on which the first petition for review was [filed] served, or within the time otherwise prescribed by Subdivision (a)(1) of this rule, whichever period last expires.

*  *  *  *  *

Explanatory Comment

 This Recommendation proposes to amend the Official Note to Pa.R.A.P. 121 and Pa.R.A.P.s 903, 1113 and 1512 to make it clear that subdivision 121(e) does apply to calculating the deadline for filing cross appeals, cross petitions for allowance of appeal and additional petitions for review.

 This Recommendation arises from an issue identified in Malt Beverages Distribution Association v. PLCB, No. 54 MM 2009, 2009 Pa. LEXIS 1613 (Pa. Aug. 6, 2009), where the Supreme Court entered a per curiam order denying a party's petition to file a cross-petition for allowance of appeal nunc pro tunc. In a dissent, Justice Todd wrote that the issue before the Court was the timeliness of the cross-petition. A group of parties filed a petition for allowance of appeal, and cross petitioner did not file its cross-petition until 17 days later. Pa.R.A.P. 1113(b) requires that cross-petitions be filed within 14 days after the first petition for allowance of appeal was ''filed.'' Cross petitioner argued that Pa.R.A.P. 121(e) allowed it an additional three days in addition to the 14 described in the rule.

 The official comment to Rule 121 includes the following:

Subdivision (e)—Subdivision (e) of the rule does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or re-argument, since under these rules the time for filing such papers runs from the entry and service of the related order, nor to the filing of a petition for review, which is governed by similar considerations. However, these rules permit the filing of such notice and petitions (except a petition for reconsideration or re-argument) in the local county (generally in the county court house; otherwise in a post office), thus eliminating a major problem under the prior practice.

 Justice Todd wrote that the interplay between Rule 121, its comment and Rule 1113 creates an ambiguity. She wrote that the comment does not expressly exclude cross-petitions for allowance of appeal, and the rationale for the exclusion (that each enumerated sort of filing is triggered by a court order rather than a filing by another party) is inapplicable.

 Justice Todd also cited Coney Island II, Inc. v. Pottsville Area School District, 497 Pa. 373, 441 A.2d 747 (1982). In that case, the Court considered the timeliness of a cross-appeal under Pa.R.A.P. 903(b). Although Rule 903(b) uses the same language as Rule 1113(b) (i.e. a cross-appeal must be filed ''within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires''), the Court held that the three-day extension in Rule 121(e) applied.

 Coney Island II does not discuss the fact that Rule 121(e) refers to ''service'' and Rule 903(b) (like Rule 1113(b)) refers to ''filed.'' Rule 1512(a)(2), which relates to additional petitions for review, also uses the ''filed'' terminology.

 The Committee believes that it is confusing to apply Coney Island II's holding narrowly to cross-appeals and that the three day extension provided in Rule 121(e) should be available to an aggrieved party filing a cross-petition for allowance of appeal or a cross-petition for review.

 In order to obviate any potential ambiguity engendered by the interplay of Rules 903(b), 1113(b) and 1512(a)(2) and Coney Island II, the committee recommends simply amending those rules to make the triggering event the service rather than the filing of the notice of appeal, the petition for allowance of appeal or the petition for review. The additional time permitted by Rule 121(e) would then unambiguously be permitted in calculating the time for cross-appeals, cross-petitions for allowance of appeal and additional petitions for review. Because Rule 121(b) requires service at the time of filing, the amendment should have no material effect on practice.

[Pa.B. Doc. No. 10-2395. Filed for public inspection December 17, 2010, 9:00 a.m.]

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