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CHAPTER 11. APPEALS FROM COMMONWEALTH COURT
AND SUPERIOR COURT
APPEALS FROM COMMONWEALTH COURT AND SUPERIOR COURT Rule
1101. Appeals As of Right From the Commonwealth Court.
1102. Improvident Appeals.
1103. Improvident Petitions for Allowance of Appeal.
PETITION FOR ALLOWANCE OF APPEAL
1111. Form of Papers; Number of Copies.
1112. Appeals by Allowance.
1113. Time for Petitioning for Allowance of Appeal.
1114. Considerations Governing Allowance of Appeal.
1115. Content of the Petition for Allowance of Appeal.
1116. Brief in Opposition to Petition.
1121. Transmission of Papers to and Action by the Court.
1122. Allowance of Appeal and Transmission of Record.
1123. Denial of Appeal; Reconsideration.
APPEALS AS OF RIGHT FROM COMMONWEALTH COURT
AND SUPERIOR COURTRule 1101. Appeals as of Right from the Commonwealth Court.
(a) Scope of rule. This rule applies to any appeal to the Supreme Court from an order of the Commonwealth Court entered in:
(1) Any matter which was originally commenced in the Commonwealth Court and which does not constitute an appeal to the Commonwealth Court from another court, a district justice or another government unit.
(2) Any appeal from a decision of the Board of Finance and Revenue.
(b) Procedure on appeal. An appeal within the scope of Subdivision (a) of this rule shall be taken to the Supreme Court in the manner prescribed in Chapter 9 (appeals from lower courts), except that if the notice of appeal is transmitted to the Prothonotary of the Commonwealth Court by means of first class mail, the notice of appeal shall be deemed received by the Prothonotary for the purposes of Rule 121(a) (filing) on the date deposited in the United States mail, as shown on a U.S. Postal Service Form 3817 certificate of mailing. The certificate of mailing shall show the docket number of the matter in the Commonwealth Court and shall be either enclosed with the notice of appeal or separately mailed to the Prothonotary. Upon actual receipt of the notice of appeal the Prothonotary shall immediately stamp it with the date of actual receipt. That date, or the date of earlier deposit in the United States mail as prescribed in this subdivision, shall constitute the date when the appeal was taken, which date shall be shown on the docket.
Official Note
Subdivision (a) is based on 42 Pa.C.S. § 723 (appeals from the Commonwealth Court). This rule is not applicable to an appeal under 42 Pa.C.S. § 763(b) (awards of arbitrators). See also 42 Pa.C.S. § 5105(b) (successive appeals) which provides as follows:
(b) Successive appeals. Except as otherwise provided in this subsection, the rights conferred by subsection (a) are cumulative, so that a litigant may as a matter of right cause a final order of any tribunal in any matter which itself constitutes an appeal to such tribunal, to be further reviewed by the court having jurisdiction of appeals from such tribunal. Except as provided in section 723 (relating to appeals from the Commonwealth Court) there shall be no right of appeal from the Superior Court or the Commonwealth Court to the Supreme Court under this section or otherwise. Appealable orders to which this rule is not applicable are governed by the procedures of Rule 1111 (form of papers; number of copies) et seq.
Rule 906(4) (service of notice of appeal) is not applicable to an appeal under this rule since that provision relates only to service upon the district court administrator of a court of common pleas.
The U.S. Postal Service Form 3817 mentioned in Subdivision (b) is reproduced in the note to Rule 1112 (appeals by allowance).
Source The provisions of this Rule 1101 amended through December 16, 1983, effective December 16, 1983, 13 Pa.B. 3998. Immediately preceding text appears at serial pages (70065) to (70066).
Rule 1102. Improvident Appeals.
If an appeal is improvidently taken to the Supreme Court under Rule 1101 (appeals as of right from the Commonwealth Court) in a case where the proper mode of review is by petition for allowance of appeal under this chapter, this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded and acted on as a petition for allowance of appeal and as if duly filed in the Supreme Court at the time the appeal was taken.
Official Note
Based on 42 Pa.C.S. § 724(b) (improvident appeals). In a similar fashion, any motion to quash the appeal would be regarded as a brief in opposition to the petition under Rule 1116 (brief in opposition to petition).
Source The provisions of this Rule 1102 amended December 11, 1978, effective December 30, 1978, amended May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended February 27, 1980, 10 Pa.B. 1038, effective as set forth at 10 Pa.B. 1038. Immediately preceding text appears at serial page (42985).
Rule 1103. Improvident Petitions for Allowance of Appeal.
If a petition for allowance of appeal is improvidently filed in the Supreme Court under Rule 1112 (appeals by allowance) in a case where the proper mode of review is by appeal under Rule 1101 (appeals as of right from the Commonwealth Court), this alone shall not be a ground for dismissal, but the petition for allowance of appeal shall be regarded as a notice of appeal and as if duly filed in the Commonwealth Court at the time the petition for allowance of appeal was filed in the Supreme Court.
PETITION FOR ALLOWANCE OF APPEAL
Rule 1111. Form of Papers; Number of Copies.
All papers filed under this chapter, other than under Rule 1101 (appeals as of right from the Commonwealth Court), shall be prepared in the manner provided by Rule 2171 (method of reproduction) through Rule 2174 (tables of contents and citations). Eight copies shall be filed with the original.
Official Note
The provisions of this Rule 1112 amended through December 16, 1983, effective December 16, 1983, 13 Pa.B. 3998; amended July 7, 1997, effective in 60 days, 27 Pa.B. 3503; amended March 15, 2004, effective 60 days after adoption, 34 Pa.B. 1670. Immediately preceding text appears at serial pages (231633) to (231634) and (293783).
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 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.
(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, or within the time otherwise prescribed by this rule, whichever period last expires.
(c) Special provisions.Notwithstanding any other provision of this rule, a petition for allowance of appeal from an order in any matter arising under any of the following shall be filed within ten days after the entry of the order sought to be reviewed:
(1) Pennsylvania Election Code.
(2) Local Government Unit Debt Act or any similar statute relating to the authorization of public debt.
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 Involving Cross Appeals) and Rule 2322 (Cross and Separate Appeals).
Source The provisions of this Rule 1113 amended through April 26, 1982, effective September 12, 1982, 12 Pa.B. 1536; amended October 18, 2002, effective December 2, 2002, 32 Pa.B. 5402. Immediately preceding text appears at serial pages (279431) and (279432).
Rule 1114. Considerations Governing Allowance of Appeal.
Except as prescribed in Rule 1101 (appeals as of right from the Commonwealth Court), review of a final order of the Superior Court or the Commonwealth Court is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and important reasons therefor.
Official Note
Based on U.S. Supreme Court Rule 19. The following, while neither con- trolling nor fully measuring the discretion of the Supreme Court, indicate the character of the reasons which will be considered:
(1) Where the appellate court below has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with applicable decisions of the Supreme Court of Pennsylvania or the Supreme Court of the United States.
(2) Where an appellate court has rendered a decision in conflict with the decision of the other appellate court below on the same question, or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an administrative agency or lower court, as to call for an exercise of the power of supervision of the Supreme Court.
(3) Where the question involves an issue of immediate public importance such as would justify assumption of plenary jurisdiction under 42 Pa.C.S. § 726 (extraordinary jurisdiction).
Source The provisions of this Rule 1114 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802. Immediately preceding text appears at serial page (27918).
Rule 1115. Content of the Petition for Allowance of Appeal.
(a) General rule.The petition for allowance of appeal need not be set forth in numbered paragraphs in the manner of a pleading, and shall contain the following (which shall, insofar as practicable, be set forth in the order stated):
(1) A reference to the official and unofficial reports of the opinions delivered in the courts below, if any, and if reported. Any such opinions shall be appended as provided in Paragraph (6) of this subdivision.
(2) The text of the order in question, or the portions thereof sought to be reviewed, and the date of its entry in the appellate court below. If the order is voluminous, it may, if more convenient, be appended to the petition.
(3) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. The statement of questions
(2) Where an appellate court has rendered a decision in conflict with the decision of the other appellate court below on the same question, or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an administrative agency or lower court, as to call for an exercise of the power of supervision of the Supreme Court.
(3) Where the question involves an issue of immediate public importance such as would justify assumption of plenary jurisdiction under 42 Pa.C.S. § 726 (extraordinary jurisdiction).
Source The provisions of this Rule 1115 amended May 16, 1979, effective June 2, 1979, 9 Pa.B. 1753. Immediately preceding text appears at serial page (27920).
Rule 1116. Brief in Opposition to Petition.
Within 14 days after service of a petition for allowance of appeal an adverse party may file a brief in opposition. The brief in opposition need not be set forth in numbered paragraphs in the manner of a pleading, shall set forth any procedural, substantive or other argument or ground why the order involved should not be reviewed by the Supreme Court and shall comply with Rule 1115(a)(7) (content of petition for allowance of appeal.). No separate motion to dismiss a petition for allowance of appeal will be received. A party entitled to file a brief in opposition under this rule who does not intend to do so shall, within the time fixed by these rules for filing a brief in opposition, file a letter stating that a brief in opposition to the petition for allowance of appeal will not be filed. The failure to file a brief in opposition will not be construed as concurrence in the request for allowance of appeal.
Official Note
Based on former Supreme Court Rule 62 and makes no change in substance except as follows: The time for opposition is increased from ten to 17 days (where service is by mail). This rule and Rule 1115 contemplate that the petition and brief in opposition will address themselves to the heart of the issue, i.e. whether the Supreme Court ought to exercise its discretion to allow an appeal, without the need to comply with the formalistic pattern of numbered averments in the petition and correspondingly numbered admissions and denials in the response. While such a formalistic format is appropriate when factual issues are being framed in a trial court (as in the petition for review under Chapter 15) such a format interferes with the clear narrative exposition necessary to outline succinctly the case for the Supreme Court in the allocatur context.
Rule 1121. Transmission of Papers to and Action by the Court.
Upon receipt of the brief in opposition to the petition for allowance of appeal, or a letter stating that no brief in opposition will be filed, from each party entitled to file such, the petition and the brief in opposition, if any, shall be distributed by the Prothonotary to the Supreme Court for its consideration. An appeal may be allowed limited to one or more of the questions presented in the petition, in which case the order allowing the appeal shall specify the question or questions which will be considered by the Court.
Source The provisions of this Rule 1121 amended through April 30, 1984, effective April 30, 1984, 14 Pa.B. 1639. Immediately preceding text appears at serial pages (42991) to (42992).
Rule 1122. Allowance of Appeal and Transmission of Record.
If an appeal is allowed the Prothonotary of the Supreme Court shall immediately give written notice in person or by first class mail of the entry of the order allowing the appeal to the prothonotary of the appellate court below and to each party who has appeared in the Supreme Court. The notice shall specify the question or questions which will be considered by the Supreme Court, if an appeal has been allowed as to less than all questions presented. The prothonotary of the appellate court below shall docket the notice in the same manner as a notice of appeal, and shall forthwith transmit the record to the Prothonotary of the Supreme Court, but for the purpose of computing time under these rules the record shall be deemed filed in the Supreme Court on the date of entry of the order allowing the appeal. A notice of appeal need not be filed.
Official Note
This rule eliminates the little-known procedural trap whereby the number of days between the entry of the judgment below and the date of filing the petition for allowance of appeal is subtracted from the time available to the appellant for formal entry of the appeal after it has been allowed. See Platt-Barber Co. v. Groves, 193 Pa. 475, 44 Atl. 571 (1899). Under this rule the entry by the Supreme Court of the order allowing the appeal automatically perfects the appeal.
Source The provisions of this Rule 1123 amended May 16, 1996, effective July 1, 1996, 26 Pa.B. 2482. Immediately preceding text appears at serial pages (115429) to (115430).
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