In Re: Order Amending Rule 311 and 312 of the Pennsylvania Rules of Appellate Procedure

APPELLATE COURT PROCEDURAL RULES COMMITTEE
ADOPTION REPORT
Amendment of Pa.R.A.P. 311 and 312
On September 8, 2022, the Supreme Court of Pennsylvania adopted amendments
to Rules of Appellate Procedure 311 and 312. 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,
Comment. The statements contained herein are those of the Committee, not the Court.
Pursuant to a request, the Appellate Court Procedural Rules Committee reviewed
recent case law to determine whether pertinent cross references should be added to
commentary the Pennsylvania Rules of Appellate Procedure.
In In re Passarelli Trust, 231 A.3d 969 (Pa. Super. 2020), the Superior Court
considered the appealability of injunctions pursuant to Pa.R.A.P. 311(a)(4), which is an
appeal as of right, and the non-appealability of applications for stay pending appeal. The
appellant in that case filed a petition for allowance of appeal with the Supreme Court.
While the petition for allowance of appeal was pending, the appellant sought an injunction
pending appeal from the trial court. The injunction was denied and the appellant filed a
notice of appeal from that denial. See In re Passarelli Trust, 231 A.3d at 970-971. The
Superior Court observed that, given pendency of petition for allowance of appeal, the
appellant should have filed an application for stay pending appeal with the Superior Court.
Id. at 974; see also Pa.R.A.P. 1732. Accordingly, the Superior Court quashed the appeal
because the proper procedure would have been to file an application for an injunction
pending appeal ancillary to the existing appellate proceeding rather than a notice of
appeal. Id.
The Committee believed adding a cross reference was salutary so that litigants
are cautioned as to the holding in the case. Accordingly, the cross reference specifies
that relief from an order granting or denying injunctive relief under Pa.R.A.P. 311(a)(4)
should be sought directly from the appellate court under Pa.R.A.P. 1732(b). The same
cross reference was added as a comment to Pa.R.A.P. 312 to provide a similar caution
for litigants seeking relief from an order granting or denying relief of an interlocutory
appeal by permission.
In Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), the Supreme Court
considered whether an order declaring a mistrial was included within the scope of
Pa.R.A.P. 311(a)(6), which provides for an interlocutory appeal as of right for new trials.
The Court clarified that this subdivision covers only orders granting motions for a new
trial, and not orders declaring a mistrial. The Committee recommended adding a cross
reference to this case in the commentary to Pa.R.A.P. 311 to advise counsel of this
distinction.
Stylistic revisions to the text of both Pa.R.A.P. 311 and 312 were also made. The
commentary to Pa.R.A.P. 311 was replaced in its entirety for easier readability.
The Committee did not publish the amendments for public comment because they
are informational in nature and do not affect practice or procedure.
The amendments become effective January 1, 2023.
The commentary from the following rule has been removed and replaced by this
rulemaking:
Pa.R.A.P. 311
Official Note:
Authority—This rule implements 42 Pa.C.S. § 5105(c), which provides:
(c) Interlocutory appeals. There shall be a right of appeal from such
interlocutory orders of tribunals and other government units as may be
specified by law. The governing authority shall be responsible for a
continuous review of the operation of section 702(b) (relating to interlocutory
appeals by permission) and shall from time to time establish by general rule
rights to appeal from such classes of interlocutory orders, if any, from which
appeals are regularly permitted pursuant to section 702(b).
The appeal rights under this rule and under Pa.R.A.P. 312, Pa.R.A.P.
313, Pa.R.A.P. 341, and Pa.R.A.P. 342 are cumulative; and no inference shall be drawn
from the fact that two or more rules may be applicable to an appeal from a given order.
Paragraph (a)—If an order falls under Pa.R.A.P. 311, an immediate appeal may
be taken as of right simply by filing a notice of appeal. The procedures set forth
in Pa.R.A.P. 341(c) and 1311 do not apply to an appeal under Pa.R.A.P. 311.
Subparagraph (a)(1)—The 1989 amendment to subparagraph (a)(1) eliminated
interlocutory appeals of right from orders opening, vacating, or striking off a judgment
while retaining the right of appeal from an order refusing to take any such action.
Subparagraph (a)(2)—The 1987 Amendment to subparagraph (a)(2) is consistent
with appellate court decisions disallowing interlocutory appeals in matrimonial
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matters. Fried v. Fried, 501 A.2d 211 (Pa. 1985); O'Brien v. O'Brien, 519 A.2d 511 (Pa.
Super. 1987).
Subparagraph (a)(3)—Change of venire is authorized by 42 Pa.C.S. §
8702. Pa.R.Crim.P. 584 treats changes of venue and venire the same. Thus an order
changing venue or venire is appealable by the defendant or the Commonwealth, while an
order refusing to change venue or venire is not.
See also Pa.R.A.P. 903(c)(1) regarding time for appeal.
Subparagraph (a)(4)—The 1987 amendment to subparagraph (a)(4) is consistent
with appellate court decisions disallowing interlocutory appeals in matrimonial
matters. Fried v. Fried, 501 A.2d 211, 215 (Pa. 1985); O'Brien v. O'Brien, 519 A.2d 511,
514 (Pa. Super. 1987).
The 1996 amendment to subparagraph (a)(4) reconciled two conflicting lines of
cases by adopting the position that generally an appeal may not be taken from a decree
nisi granting or denying a permanent injunction.
The 2009 amendment to the rule conformed the rule to the 2003 amendments to
the Pennsylvania Rules of Civil Procedure abolishing actions in equity and thus
eliminating the decree nisi. Because decrees nisi were in general not appealable to the
extent they were not effective immediately upon entry, this principle has been expressly
incorporated into the body of the rule as applicable to any injunction.
Subparagraph (a)(5)—Subparagraph (a)(5), added in 1996, authorizes an
interlocutory appeal as of right from an order granting a motion for peremptory judgment
in mandamus without the condition precedent of a motion to open the peremptory
judgment in mandamus. An order denying a motion for peremptory judgment in
mandamus remains unappealable.
Subparagraph (a)(8)—Subparagraph (a)(8) recognizes that orders that are
procedurally interlocutory may be made appealable by statute or general rule. For
example, see 27 Pa.C.S. § 8303. The Pennsylvania Rules of Civil Procedure, the
Pennsylvania Rules of Criminal Procedure, etc., should also be consulted.
See Pa.R.A.P. 341(f) for appeals of Post Conviction Relief Act orders.
Following a 2005 amendment to Pa.R.A.P. 311, orders determining the validity of
a will or trust were appealable as of right under former subparagraph(a)(8). Pursuant to
the 2011 amendments to Pa.R.A.P. 342, such orders are now immediately appealable
under Pa.R.A.P. 342(a)(2).
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Paragraph(b)-- Paragraph (b) is based in part on the Act of March 5, 1925, P.L.
23. The term “civil action or proceeding” is broader than the term “proceeding at law or
in equity” under the prior practice and is intended to include orders entered by the
orphans' court division. Cf. In the Matter of Phillips, 370 A.2d 307 (Pa. 1977).
In subparagraph (b)(1), a plaintiff is given a qualified (because it can be overridden
by petition for and grant of permission to appeal under Pa.R.A.P. 312) option to gamble
that the venue of the matter or personal or in rem jurisdiction will be sustained on appeal.
Subparagraph (g)(1)(ii) provides that if the plaintiff timely elects final treatment, the failure
of the defendant to appeal constitutes a waiver. The appeal period under Pa.R.A.P.
903 ordinarily runs from the entry of the order, and not from the date of filing of the
election, which procedure will ordinarily afford at least 20 days within which to
appeal. See Pa.R.A.P. 903(c) as to treatment of special appeal times. If the plaintiff does
not file an election to treat the order as final, the case will proceed to trial unless (1) the
trial court makes a finding under subparagraph (b)(2) of the existence of a substantial
question of jurisdiction and the defendant elects to appeal, (2) an interlocutory appeal is
permitted under Pa.R.A.P. 312, or (3) another basis for appeal appears, for example,
under subparagraph (a)(1), and an appeal is taken. Presumably, a plaintiff would file
such an election where plaintiff desires to force the defendant to decide promptly whether
the objection to venue or jurisdiction will be seriously pressed. Paragraph (b) does not
cover orders that do not sustain jurisdiction because they are, of course, final orders
appealable under Pa.R.A.P. 341.
Subparagraph (b)(2)--The 1989 amendment to subparagraph (b)(2) permits an
interlocutory appeal as of right where the trial court certifies that a substantial question of
venue is present. This eliminated an inconsistency formerly existing between paragraph
(b) and subparagraph (b)(2).
Paragraph (c)-- Paragraph (c) is based in part on the act of March 5, 1925 (P. L.
23, No. 15). The term “civil action or proceeding” is broader than the term “proceeding at
law or in equity” under the prior practice and is intended to include orders entered by the
orphans' court division. Cf. In the Matter of Phillips, 370 A.2d 307, 308 (Pa. 1977).
Paragraph (c) covers orders that do not sustain venue, such as orders
under Pa.R.C.P. 1006(d) and (e).
However, the paragraph does not relate to a transfer under 42 Pa.C.S. §
933(c)(1), 42 Pa.C.S. § 5103, or any other similar provision of law, because such a
transfer is not to a “court of coordinate jurisdiction” within the meaning of this rule; it is
intended that there shall be no right of appeal from a transfer order based on improper
subject matter jurisdiction. Such orders may be appealed by permission under Pa.R.A.P.
312, or an appeal as of right may be taken from an order dismissing the matter for lack of
jurisdiction. See Balshy v. Rank, 490 A.2d 415, 416 (Pa. 1985).
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Other orders relating to subject matter jurisdiction (which for this purpose does not
include questions as to the form of action, such as between law and equity, or divisional
assignment, see 42 Pa.C.S. § 952) will be appealable under Pa.R.A.P. 341 if jurisdiction
is not sustained, and otherwise will be subject to Pa.R.A.P. 312.
Paragraph (d)—Pursuant to paragraph (d), the Commonwealth has a right to take
an appeal from an interlocutory order provided that the Commonwealth certifies in the
notice of appeal that the order terminates or substantially handicaps the
prosecution. See Pa.R.A.P. 904(e). This rule supersedes Commonwealth v. Dugger,
486 A.2d 382, 386 (Pa. 1985). Commonwealth v. Dixon, 907 A.2d 468, 471 n.8 (Pa.
2006).
Paragraph (f)—Pursuant to paragraph (f), there is an immediate appeal as of right
from an order of a common pleas court or government unit remanding a matter to an
administrative agency or hearing officer for execution of the adjudication of the reviewing
tribunal in a manner that does not require the exercise of administrative discretion.
Examples of such orders include: a remand by a court of common pleas to the
Department of Transportation for removal of points from a drivers license; and an order
of the Workers' Compensation Appeal Board reinstating compensation benefits and
remanding to a referee for computation of benefits.
Paragraph (f) further permits immediate appeal from an order of a common pleas
court or government unit remanding a matter to an administrative agency or hearing
officer that decides an issue that would ultimately evade appellate review if an immediate
appeal is not allowed. See Lewis v. Sch. Dist. of Philadelphia, 690 A.2d 814, 816 (Pa.
Cmwlth. 1997).
Subparagraph (g)(1)(iv)—Subparagraph (g)(1)(iv), added in 2015, addresses
waiver in the context of appeals from various classes of arbitration orders. All six types
of arbitration orders identified in 42 Pa.C.S. § 7320(a) are immediately appealable as of
right. Differing principles govern these orders, some of which are interlocutory and some
of which are final. The differences affect whether an order is appealable under this rule
or Pa.R.A.P. 341(b) and whether an immediate appeal is necessary to avoid waiver of
objections to the order.
• Section 7320(a)(1)—An interlocutory order refusing to compel arbitration
under 42 Pa.C.S. § 7320(a)(1) is immediately appealable pursuant to
Pa.R.A.P. 311(a)(8). Failure to appeal the interlocutory order immediately
waives all objections to it. See Pa.R.A.P. 311(g)(1)(iv). This supersedes
the holding in Cooke v. Equitable Life Assurance Soc'y, 723 A.2d 723, 726
(Pa. Super. 1999). Pa.R.A.P. 311(a)(8) and former Pa.R.A.P. 311(g)(1)(i)
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require a finding of waiver based on failure to appeal the denial order when
entered).
• Section 7320(a)(2)—Failure to appeal an interlocutory order granting an
application to stay arbitration under 42 Pa.C.S. § 7304(b) does not waive
the right to contest the stay; an aggrieved party may appeal such an order
immediately under Pa.R.A.P. 311(a)(8) or challenge the order on appeal
from the final judgment.
• Section 7320(a)(3)-(a)(6)—If an order is appealable under 42 Pa.C.S. §
7320(a)(3), (4), (5), or (6) because it is final, that is, the order disposes of
all claims and of all parties, see Pa.R.A.P. 341(b), failure to appeal
immediately waives all issues. If the order does not dispose of all claims or
of all parties, then the order is interlocutory. An aggrieved party may appeal
such an order immediately under Pa.R.A.P. 311(a)(8) or challenge the order
on appeal from the final judgment.
Paragraph (h)—See note to Pa.R.A.P. 1701(a).
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