CHAPTER 17. EFFECT OF APPEALS;
SUPERSEDEAS AND STAYS

IN GENERAL

Rule


1701.    Effect of Appeal Generally.
1702.    Stay Ancillary to Appeal.
1703.    Contents of Application for Stay.
1704.    Application in a Capital Case for a Stay of Execution or for Review of an Order Granting or Denying a Stay of Execution.

STAY OR INJUNCTION IN CIVIL MATTERS


1731.    Automatic Supersedeas of Orders for the Payment of Money.
1732.    Application for Stay or Injunction Pending Appeal.
1733.    Requirements for Supersedeas on Agreement or Application.
1734.    Appropriate Security.
1735.    Effect of Supersedeas on Execution or Distribution.
1736.    Exemption from Security.
1737.    Modification of Terms of Supersedeas.
1738.    Substitution of Security.
1739.    Order for Sale of Perishable Property.
1740.    Order for an Accounting.
1751.    Form of Bond.

STAY IN CRIMINAL MATTERS


1761.    Capital Cases.
1762.    Release in Criminal Matters.
1763.    Vacation of Supersedeas on Affirmance of Conviction.
1764.    Other Stays in Criminal Matters.

REVIEW OF DISPOSITIONAL ORDER FOR OUT OF HOME PLACEMENT IN JUVENILE DELINQUENCY MATTERS


1770.    Review of Out of Home Placement in Juvenile Delinquency Matters.

STAY PENDING ACTION ON PETITION FOR REVIEW


1781.    Stay Pending Action on Petition for Review.
1782.    Security on Review in Tax Matters.

IN GENERAL


Rule 1701. Effect of Appeal Generally.

 (a)  General rule.—Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.

 (b)  Authority of a trial court or agency after appeal.—After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:

   (1)  Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.

   (2)  Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.

   (3)  Grant reconsideration of the order which is the subject of the appeal or petition, if:

     (i)   an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and

     (ii)   an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.

   A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order. The petitioning party shall and any party may file a praecipe with the prothonotary of any court in which such an inoperative notice or petition is filed or docketed and the prothonotary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court or other government unit. No additional fees shall be required for the filing of the new notice of appeal or petition for review.

   (4)  Authorize the taking of depositions or the preservation of testimony where required in the interest of justice.

   (5)  Take any action directed or authorized on application by the appellate court.

   (6)  Proceed further in any matter in which a non-appealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.

 (c)  Limited to matters in dispute.—Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.

 (d)  Certain petitions for review.—The filing of a petition for review (except a petition relating to a quasijudicial order) shall not affect the power or authority of the government unit to proceed further in the matter but the government unit shall be subject to any orders entered by the appellate court or a judge thereof pursuant to this chapter.

   Official Note

   The following statutory provisions relate to supersedeas generally:

   42 Pa.C.S. §  702(c) (supersedeas) provides that except as otherwise prescribed by general rule, a petition for permission to appeal under that section shall not stay the proceedings before the lower court or other government unit, unless the lower court or other government unit or the appellate court or a judge thereof shall so order. See also Rule 1313 (effect of filing petition).

   42 Pa.C.S. §  5105(e) (supersedeas) provides that an appeal shall operate as a supersedeas to the extent and upon the conditions provided or prescribed by law, and that unless a supersedeas is entered no appeal from an order concerning the validity of a will or other instrument or the right to the possession of or to administer any real or personal property shall suspend the powers or prejudice the acts of the appointive judicial officer, personal representative or other person acting thereunder.

   Subdivision (a) codifies a well-established principle. See e.g. Merrick Estate, 432 Pa. 450, 454, 247 A.2d 786, 787 (1968); Corace v. Balint, 418 Pa. 262, 275-76, 210 A.2d 882, 889 (1965). Rule 5102 saves the provisions of Section 426 of the Pennsylvania Workmen’s Compensation Act (77 P. S. §  871), which permit a rehearing by the agency under certain circumstances during the pendency of an appeal. Rule 311(h) (further proceedings in lower court) provides that Subdivision (a) is not applicable where an appeal as of right is taken from interlocutory orders relating to attachments, injunctions, etc., thus making clear that the procedure for seeking appellate review of these collateral matters does not impair the power of the lower court to continue with the case proper.

   Subdivision (b)(1) sets forth an obvious power of the lower court or agency under these rules to take actions to preserve the status quo and to clarify or correct an order or verdict. The power to clarify or correct does not extend to substantive modifications. Pa. Indus. Energy Coalition v. Pennsylvania PUC, 653 A.2d 1336, 1344-45 (Pa. Cmwlth. 1995), aff’d, 543 Pa. 307, 670 A.2d 1152 (1996). Examples of permissible actions to preserve the status quo are those ‘‘auxiliary to the appellate process, such as a supersedeas or injunction.’’ Id. Examples of permissible corrections are ‘‘non-substantial technical amendments to an order, changes in the form of a decree, and modification of a verdict to add prejudgment interest.’’ Id. at 1344. ‘‘Such actions have no effect on the appeal or petition for review and cannot prompt a new appealable issue.’’ Id. at 1345.

   Among the permissible ‘‘corrections’’ is the addition or modification of contractual or statutory prejudgment interest, which is an element of contract damages. In such cases, the award of such interest is mandatory and not discretionary. TruServ Corp. v. Morgan’s Tool & Supply Co. Inc.,


Pa
, 39 A.3d 253, 264 (2012). Accordingly, even though the amount of a verdict is changed by the addition of prejudgment interest, the verdict has been ‘‘corrected’’ and not ‘‘modified.’’

   The Supreme Court has held that, so long as a motion for attorneys’ fees has been timely filed, a trial court may act on that motion under subdivision (b)(1) even after an appeal has been taken. Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 34 A.3d 1, 48 (2011). Thus, unlike the court actions discussed in Pa. Indus. Energy Coalition, an award of attorneys’ fees constitutes a separately appealable order that would be reviewable upon filing of a timely separate notice of appeal, measured from the date the fee award order was entered.

   Generally an appeal does not operate as a supersedeas of government agency action.

   Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the trial court or other government unit to grant reconsideration if action is taken during the applicable appeal period, which is not intended to include the appeal period for cross appeals, or, during any shorter applicable reconsideration period under the practice below, and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by the taking of a ‘‘snap’’ appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court or other government unit may deny the application by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period. If the trial court or other government unit fails to enter an order ‘‘expressly granting reconsideration’’ (an order that ‘‘all proceedings shall stay’’ will not suffice) within the time prescribed by these rules for seeking review, Subdivision (a) becomes applicable and the power of the trial court or other government unit to act on the application for reconsideration is lost.

   Subdivision (b)(3) provides that: ‘‘(W)here a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after entry of the decision on reconsideration.’’ Pursuant to Pa.R.C.P. 1930.2, effective July 1, 1994, where reconsideration from a domestic relations order has been timely granted, a reconsidered decision or an order directing additional testimony must be entered within 120 days of the entry of the order granting reconsideration or the motion shall be deemed denied. See Pa.R.C.P. 1930.2(c), (d) and (e). The date from which the appeal period will be measured following a reconsidered decision in a domestic relations matter is governed by Pa.R.C.P. 1930.2(d) and (e).

   Under the 1996 amendments to the Rules of Criminal Procedure governing post-sentence practice, see Pa.R.Crim.P. 720 and 721, reconsideration of a decision on a defendant’s post-sentence motion or on a Commonwealth motion to modify sentence must take place within the time limits set by those rules, and the judge may not vacate sentence or ‘‘grant reconsideration’’ pursuant to subdivision (b)(3) in order to extend the time limits for disposition of those motions. The amendments to Pa.R.Crim.P. 720 and new Pa.R.Crim.P. 721 resolve questions raised about the interplay between this subdivision and post-trial criminal practice. See, e.g., Commonwealth v. Corson, 444 A.2d 170 (Pa. Super, 1982).

Source

   The provisions of this Rule 1701 amended through December 10, 1986, effective January 31, 1987, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending, 16 Pa.B. 4951; amended August 22, 1997, effective January 1, 1998, 27 Pa.B. 4543; amended April 9, 2013, effective to appeals and petitions for review filed 30 days after adoption, 43 Pa.B. 2271. Immediately preceding text appears at serial pages (365273) to (365274) and (315517) to (315518).

Rule 1702. Stay Ancillary to Appeal.

 (a)  General rule.—Applications for relief under this chapter will not be entertained by an appellate court or a judge thereof until after a notice of appeal has been filed in the lower court and docketed in the appellate court or a petition for review has been filed.

 (b)  Proceedings on petition for allowance of or permission to appeal.—Applications for relief under this chapter may be made without the prior filing of a petition for allowance of appeal or petition for permission to appeal, but the failure to effect timely filing of such a petition, or the denial of such a petition, shall automatically vacate any ancillary order entered under this chapter. In such a case the clerk of the court in which the ancillary order was entered shall, on praecipe of any party to the matter, enter a formal order under this rule vacating such ancillary order.

 (c)  Supreme Court review of appellate court supersedeas and stay determinations.—No appeal, petition for allowance of appeal or petition for review need be filed in the Supreme Court in connection with a reapplication under Rule 3315 (review of stay orders of appellate courts).

   Official Note

   Based on former Superior Court Rule 53 and Commonwealth Court Rule 112A, which required the taking of an appeal prior to an application for supersedeas or other interlocutory order. Subdivision (b) is new and is added in recognition of the fact that the drafting of a petition for allowance of appeal or a petition for permission to appeal in the form required by these rules may not be possible prior to the time when an application for supersedeas may have to be made in the appellate court in order to avoid substantial harm.

Source

   The provisions of this Rule 1702 amended May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended October 7, 2005, effective February 1, 2006, 35 Pa.B. 5768; amended May 31, 2013, effective immediately, 43 Pa.B. 3223. Immediately preceding text appears at serial pages (366451) and (338829).

Rule 1703. Contents of Application for Stay.

 In addition to the requirements set forth in Rule 123 (Application for Relief), an application for stay pursuant to this chapter shall set forth the procedural posture of the case, including the result of any application for relief in any court below or federal court, the specific rule under which a stay or supersedeas is sought, grounds for relief, and, if expedited relief is sought, the nature of the emergency. The application shall also identify and set forth the procedural posture of all related proceedings.

Source

   The provisions of this Rule 1703 adopted March 15, 2004, effective 60 days after adoption, 34 Pa.B. 1670.

Rule 1704. Application in a Capital Case for a Stay of Execution or for Review of an Order Granting or Denying a Stay of Execution.

 Prior notice of the intent to file an application in a capital case for a stay or review of an order granting or denying a stay of execution shall be provided to the Prothonotary of the Pennsylvania Supreme Court, if prior notice is practicable.

 The application for stay or review shall set forth the following:

   1.  The date the warrant issued; the date and nature of the order that prompted the issuance of the warrant; and the date the execution is scheduled, if a date has been set;

   2.  Whether any direct or collateral challenges to the underlying conviction are pending, and, if so, in what court(s) or tribunal(s);

   3.  Whether any other applications for a stay of the pending execution have been filed, and, if so, in what court(s) or tribunal(s), when, and the status of the application(s);

   4.  The grounds for relief and the showing made to the trial court of entitlement to a stay under 42 Pa.C.S. §  9545(c), if applicable;

   5.  A statement certifying that emergency action is required and setting forth a description of the emergency.

 All dockets, pleadings, and orders that are referred to in 1—5 above must be attached to the application. If any of the information provided in the application changes while the motion is pending, the party seeking the stay or review must file with the Pennsylvania Supreme Court written notice of the change within 24 hours.

 No notice of appeal or petition for review needs to be filed in order to file an application under this rule.

Source

   The provisions of this Rule 1704 adopted May 31, 2013, effective immediately, 43 Pa.B. 3223.

STAY OR INJUNCTION IN CIVIL MATTERS


Rule 1731. Automatic Supersedeas of Orders For the Payment of Money.

 (a)  General Rule.—Except as provided by subdivision (b), an appeal from an order involving solely the payment of money shall, unless otherwise ordered pursuant to this chapter, operate as a supersedeas upon filing with the clerk of the lower court of appropriate security in the amount of 120% of the amount found due by the lower court and remaining unpaid. Where the amount is payable over a period of time, the amount found due for the purposes of this rule shall be the aggregate amount payable within 18 months after entry of the order.

 (b)  Domestic Relations Matters.—An appeal from an order of child support, spousal support, alimony, alimony pendente lite, equitable distribution or counsel fees and costs shall operate as a supersedeas only upon application to and order of the trial court and the filing of security as required by subdivision (a). The amount and terms of security shall be within the discretion of the trial court.

Source

   The provisions of this Rule 1731 amended November 24, 1986, effective December 13, 1986, 16 Pa.B. 4798; amended December 30, 1987, effective January 16, 1988 and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending, 18 Pa.B. 245. Immediately preceding text appears at serial pages (115441) to (115442).

Rule 1732. Application for Stay or Injunction Pending Appeal.

 (a)  Application to lower court.—Application for a stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, must ordinarily be made in the first instance to the lower court, except where a prior order under this chapter has been entered in the matter by the appellate court or a judge thereof.

 (b)  Contents of application for stay.—An application for stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts of the record as are relevant. Where practicable, the application should be accompanied by the briefs, if any, used in the lower court.

 (c)  Number of copies.—Seven copies of applications under this rule in the Supreme Court or the Superior Court, and three copies of applications under this rule in the Commonwealth Court, shall be filed with the original.

   Official Note

   The subject matter of this rule was covered by former Supreme Court Rule 62, former Superior Court Rule 53, and former Commonwealth Court Rule 112. The flat seven day period for answer of former Supreme Court Rule 62 (which presumably was principally directed at allocatur practice) has been omitted in favor of the more flexible provisions of Rule 123(b).

Source

   The provisions of this Rule 1732 amended September 10, 2008, effective December 1, 2008, 38 Pa.B. 5257. Immediately preceding text appears at serial page (315520).

Rule 1733. Requirements for Supersedeas on Agreement or Application.

 (a)  General rule.—An appeal from an order which is not subject to Rule 1731 (automatic supersedeas of orders for the payment of money), shall, unless otherwise prescribed in or ordered pursuant to this chapter, operate as a supersedeas only upon the filing with the clerk of the court below of appropriate security as prescribed in this rule. Either court may, upon its own motion or applica-tion of any party in interest, impose such terms and conditions as it deems just and will maintain the res or status quo pending final judgment or will facilitate the performance of the order if sustained.

 (b)  Tangible property.—When the order determines the disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages or when such property is in the custody of the sheriff, or when the proceeds of such property or appropriate security for its value is in the possession, custody or control of the court, the amount of the additional security shall be fixed by agreement of the parties, or by the court, at such sums only as will secure any damages for the use and detention of the property, interest, the costs of the matter and costs on appeal.

 (c)  Other cases.—In all other cases the security shall be in such amount as the lower court in the first instance or the appellate court or a judge thereof shall deem just and proper.

 (d)  Public Officer.—Where the effect of an order is to remove a public officer from office a supersedeas of the order shall not reinstate the officer unless the order of supersedeas shall expressly so provide.

   Official Note

   The court is granted wide discretion under this rule as to the terms and conditions to be imposed and it may require (1) the execution and deposit of a deed where the order appealed from directs the execution of the conveyance or other instrument, (2) the delivery of personal property for safe keeping pending appeal where the order appealed from directs the assignment or delivery of such property, or (3) other terms required in the interest of justice.

Source

   The provisions of this Rule 1733 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802. Immediately preceding text appears at serial page (25435).

Rule 1734. Appropriate Security.

 (a)  General rule.—For the purposes of this chapter any of the following, when deposited with the clerk, constitutes appropriate security, unless otherwise ordered pursuant to this chapter:

   (1)  Legal tender of the United States.

   (2)  Any of the following, if registered in the name of or to the order of the Commonwealth of Pennsylvania:

     (i)   United States Treasury bills;

     (ii)   certificates of deposit issued by a Federally-insured bank, bank and trust company, savings bank, savings association, banking association or savings and loan association having an office within this Commonwealth;

     (iii)   irrevocable letters of credit issued by a Federally-insured bank, bank and trust company, savings bank, savings association, banking association or saving and loan association having an office within this Commonwealth. The clerk may transfer or negotiate such bills or certificates for the purposes of this chapter.

   (3)  A bond conforming to the requirements of this rule executed by a surety company which has qualified with the clerk under Section 664 of The Insurance Company Law of 1921 (40 P. S. §  835).

   (4)  A bond conforming to the requirements of this rule executed by a surety approved by the court as sufficient.

 (b)  Terms of bond.—A supersedeas bond shall be conditioned for the satisfaction of the order if it is affirmed or if for any reason the appeal is dismissed, or for the satisfaction of any modification of the order and in either case costs, interest and any damages for delay that may finally be awarded.

 (c)  Liability of sureties.—If security is given under this chapter in the form of a bond, stipulation or other undertaking in the nature of a bond, with one or more sureties, each surety submits himself to the jurisdiction of the lower court and irrevocably appoints the clerk of the lower court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. This liability may be enforced on application in the lower court without the necessity of an independent action. The application and such notice of the application as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

   Official Note

   42 Pa.C.S. §  3561 (money paid into court) provides that all money paid into court shall be held in the custody of such officer, shall be invested in such manner, and shall be withdrawn from deposit, as shall be prescribed by general rules, and that any such investment, except as otherwise prescribed by or pursuant to general rules, shall be restricted to obligations of the United States or of the United States Treasury, or of the Commonwealth. Rule 1734(a)(2) provides an expanded form of investment as contemplated by the statute.

   As to book-entry treasury bills deposited in court, see 31 CFR §  350.3(a)(5).

Source

   The provisions of this Rule 1734 amended through April 26, 1982, effective September 12, 1982, 12 Pa.B. 1536; amended July 7, 1997, effective in 60 days, 27 Pa.B. 3503. Immediately preceding text appears at serial pages (124447) to (124448)

Rule 1735. Effect of Supersedeas on Execution or Distribution.

 (a)  General rule.—The filing of appropriate security in the amount required by or pursuant to this chapter within 30 days from the entry of the order appealed from shall stay any execution theretofore entered. The filing of such appropriate security after the 30 day period shall stay only executions or distributions thereafter issued or ordered.

 (b)  Notation in judgment index.—Upon the filing of appropriate security in the amount required by or pursuant to this chapter the clerk of the lower court shall note in the docket and in any separate judgment index: ‘‘appeal perfected; lien discharged.’’ Upon return of the record by the appellate court to the lower court, in a matter where the order appealed from was affirmed in whole or in part, the clerk of the lower court shall thereupon enter an order, as of the date of receipt of the remanded record, against the appellant for the amount due upon the order as affirmed, with interest and costs as provided by law.

Source

   The provisions of this Rule 1735 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802. Immediately preceding text appears at serial page (27950).

Rule 1736. Exemption from Security.

 (a)  General rule.—No security shall be required of:

   (1)  The Commonwealth or any officer thereof, acting in his official capacity.

   (2)  Any political subdivision or any officer thereof, acting in his official capacity, except in any case in which a common pleas court has affirmed an arbitration award in a grievance or similar personnel matter.

   (3)  A party acting in a representative capacity.

   (4)  A taxpayer appealing from a judgment entered in favor of the Commonwealth upon an account duly settled when security has already been given as required by law.

   (5)  An appellant who has already filed security in a lower court, conditioned as prescribed by these rules for the final outcome of the appeal.

 (b)  Supersedeas automatic.—Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in Subdivision (a) of this rule shall operate as a supersedeas in favor of such party, which supersedeas shall continue through any proceedings in the United States Supreme Court.

   Official Note

   This rule is self-executing, and a party entitled to its benefits is not required to bring the exemption to the attention of the court under Rule 1732 (application for stay or injunction pending appeal). However, the appellee may apply under Rule 1732 for elimination or other modification of the automatic supersedeas or under Rule 1737 (objections to security) for an order requiring security as a condition to the continuance of the stay, or for relief under any other applicable provision of this chapter.

   The 1987 amendment eliminates the automatic supersedeas for political subdivisions on appeals from the common pleas court where that court has affirmed an arbitration award in a grievance or similar personnel matter.

   The definition of ‘‘Appeal’’ in Pa.R.A.P. 102 does not reference proceedings in the United States Supreme Court. Rule 102 further defines ‘‘Determination’’ as ‘‘Action or inaction by a government unit which action or inaction is subject to judicial review by a court under Section 9 of Article V of the Constitution of Pennsylvania or otherwise. . . .’’ While the word ‘‘otherwise’’ could be read broadly to include the United States Supreme Court, the more specific reference to the Pennsylvania Constitution as limiting the scope of the term suggests that the Federal Courts are not part of the definition when ‘‘court’’ is used in the Rules. In light of this ambiguity, the Rule has been amended to make clear that the automatic supersedeas in subsection (b) continues through any proceedings in the United States Supreme Court.

Source

   The provisions of this Rule 1736 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802; amended May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended December 30, 1987, effective January 16, 1988 and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending, 18 Pa.B. 245; amended September 20, 2011, effective immediately, 41 Pa.B. 5353. Immediately preceding text appears at serial pages (233886) to (233887).

Rule 1737. Modification of Terms of Supersedeas.

 (a)  The trial court or the appellate court, may at any time, upon application of any party and after notice and opportunity for hearing:

   (1)  require security of a party otherwise exempt from the requirement of filing security upon cause shown;

   (2)  strike off security improperly filed;

   (3)  permit the substitution of surety and enter an exoneration of the former surety; or

   (4)  increase, decrease, eliminate, or otherwise alter the amount or type of any security that has been or is to be filed by a party, upon cause shown for the modification.

 (b)  The parties may at any time stipulate to the type or amount of security and, upon filing, such a written stipulation will act to set the terms of a supersedeas of the judgment to the same extent as would an order of the court.

   Official Note

   The amount of automatic supersedeas of money judgments has been set at 120 percent of the verdict, and in most instances that amount will assure payment of a judgment and interest accrued during an appeal without imposing undue hardship on an appellant. See Pa.R.A.P. 1731. Nonetheless, there may be circumstances in which it would be appropriate for a court to modify the default approach to security, either in type, method, or time for posting, or in amount. Courts have the discretion to increase or decrease and to eliminate the requirement that security be posted, based upon the proofs offered by the parties. The parties by agreement may also determine to modify the amount or type of supersedeas, particularly given that Pa.R.A.P. 2771 provides for the premium paid for the cost of supersedeas bonds or other appellate bonds to be taxable as a cost on appeal.

   A party may seek appellate review of an order resolving an application under this rule. See Pa.R.A.P. 1732 and Pa.R.A.P. 3315.

Source

   The provisions of this Rule 1737 amended June 7, 2016, effective October 1, 2016, 46 Pa.B. 3232. Immediately preceding text appears at serial page (358855).

Rule 1738. Substitution of Security.

 The clerk of the lower court, unless otherwise ordered pursuant to this chapter, shall permit an appellant to withdraw all or part of the security and substitute other appropriate security complying with the requirements of this chapter.

   Official Note

   Under this rule the appellant may, e.g., ‘‘roll over’’ certificates of deposit for the purpose of redeeming matured certificates, etc.

Rule 1739. Order for Sale of Perishable Property.

 When perishable property is the subject of the appeal, the lower court may make any order relating to its sale or disposition that shall be necessary or proper, and direct any fund realized to be paid into court to await the outcome of the appeal.

   Official Note

   42 Pa.C.S. §  3546 (relief from liability for loss of property if expenses not paid) provides that any officer enforcing orders of a tribunal shall be relieved from any liability for the loss, destruction, removal of or damage to any personal property, or for any injury to any real property, levied upon, seized or taken into possession by virtue of any process if the person lodging such process with the officer shall refuse to advance or secure upon demand the reasonable fees and expenses incident to the seizure, safekeeping and proper protection of such property.

Source

   The provisions of this Rule 1739 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802. Immediately preceding text appears at serial page (27952).

Rule 1740. Order for an Accounting.

 Unless otherwise ordered pursuant to this chapter the taking of an appeal from an order directing an accounting shall operate as a supersedeas of the order.

   Official Note

   This rule is based on act of June 24, 1895 (P. L. 243, No. 150). Ordinarily this rule will be applicable only where an appeal has been permitted under Rule 312 (interlocutory appeals by permission). See note to Rule 311 (interlocutory appeals as of right).

Source

   The provisions of this Rule 1740 adopted May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740.

Rule 1751. Form of Bond.

 A bond under this chapter may be in substantially the following form:

   (Caption)

    Appellant, having appealed from an order of the Court of Common Pleas of


County [or ‘‘of the
Judicial District’’], entered in this matter on the
day of
, 19
, and having procured the execution of this instrument for the purpose of complying with the Pennsylvania Rules of Appellate Procedure, the undersigned surety acknowledges itself bound and indebted to the Commonwealth of Pennsylvania, for the use of the persons or parties entitled thereto, in the sum of
dollars ($ ), to be paid as required by law.

    Upon conclusion of this matter, if the appellant satisfies the above identified order or any court order modifying or affirming that order and pays all costs, interest and damages for delay that may be awarded, this obligation shall be void; otherwise, it shall remain in force.

    Date


   


(Name of Surety)
By
(Name and Title of Authorized signatory)

   Official Note

   Patterned after 20 Pa.C.S. §  7111(c)(2) (condition of bond).

Source

   The provisions of this Rule 1751 amended July 7, 1997, effective in 60 days, 27 Pa.B. 3503. Immediately preceding text appears at serial page (124451).

STAY IN CRIMINAL MATTERS


Rule 1761. Capital cases.

 The pendency of proceedings under Rule 1941 (review of sentence of death) shall stay execution of sentence of death.

   Official Note

   Based on 42 Pa.C.S. §  9711(h) (review of death sentence).

Source

   The provisions of this Rule 1761 amended through April 26, 1982, effective September 12, 1982, 12 Pa.B. 1536. Immediately preceding text appears at serial page (43024).

Rule 1762. Release in Criminal Matters.

 (a)  Applications relating to bail when an appeal is pending shall ordinarily first be presented to the lower court, and shall be governed by the Pennsylvania Rules of Criminal Procedure. If the lower court denies relief, a party may seek relief in the appellate court by filing an application, pursuant to Rule 123, ancillary to the pending appeal.

 (b)  Applications relating to bail when no appeal is pending:

   (1)  Applications relating to bail when no appeal is pending shall first be presented to the lower court, and shall be governed by the Pennsylvania Rules of Criminal Procedure.

   (2)  An order relating to bail shall be subject to review pursuant to Chapter 15 (judicial review of governmental determinations). Any answer shall be in accordance with Rule 1516 (other pleadings allowed), and no other pleading is authorized. Rule 1517 (applicable rules of pleading) and Rule 1531 (intervention) through 1551 (scope of review) shall not be applicable to a petition for review filed under this paragraph.

 (c)  Content. An application for relief under subdivision (a) or a petition for review under subdivision (b) shall set forth specifically and clearly the matters complained of and a description of any determinations made by the lower court. Any order and opinions relating to the bail determination shall be attached as appendices.

 (d)  Service. A copy of the application for relief or the petition for review and any answer thereto shall be served on the judge of the lower court. All parties in the lower court shall be served in accordance with Rule 121(b) (service of all papers required). The Attorney General of Pennsylvania need not be served in accordance with Rule 1514(c) (service), unless the Attorney General is a party in the lower court.

 (e)  Entry of Bail. Bail shall be entered in the lower court pursuant to the Pennsylvania Rules of Criminal Procedure.

 (f)  Extradition matters. Relief relating to bail in extradition matters shall be governed by the procedures prescribed by this rule.

 (g)  Opinion of lower court. Upon receipt of a copy of an application for relief under subdivision (a) or a petition for review under subdivision (b) that does not include an explanation for the bail determination, the judge who made the bail determination below shall forthwith file of record a brief statement of the reasons for the determination or where in the record such reasons may be found.

   Official Note

   Prior to sentence, Rule 1702 (stay ancillary to appeal) is satisfied by the filing of a plenary petition for review of the order of the lower court granting or denying release. After sentence a separate plenary filing is no longer necessary because the application for release pending appeal may be made as a matter ancillary to the appeal from the order imposing sentence.

   The reference in Subdivision (c) to the rulings complained of is not intended to suggest that the appellate court may ignore objective standards for release such as those established by Pa.R.Crim.P. 530.

Source

   The provisions of this Rule 1762 amended December 11, 1978, effective December 30, 1978, 8 Pa.B. 3802; amended May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended July 8, 2004, effective 60 days after adoption, 34 Pa.B. 3870. Immediately preceding text appears at serial pages (279437) to (279438).

Rule 1763. Vacation of Supersedeas on Affirmance of Conviction.

 Unless otherwise ordered pursuant to this chapter, upon the remand of the record in any matter in which the judgment of sentence was affirmed a defendant who has been released pending appeal shall appear in the lower court at such time as the defendant may be there called, and shall be committed by that court until the defendant has complied with the original sentence, or any part thereof which had not been performed at the time the defendant was released pending appeal.

   Official Note

   This rule is based on the prior practice in the Superior Court and will simplify the wording of per curiam affirmance orders.

Rule 1764. Other Stays in Criminal Matters.

 Except as otherwise prescribed by the Pennsylvania Rules of Criminal Procedure, Rule 1731 (automatic supersedeas of orders for the payment of money) et seq. shall be applicable to criminal or quasi-criminal matters or orders relating thereto which are not within the scope of Rule 1761 (capital cases) through Rule 1763 (vacation of supersedeas on affirmance of conviction).

REVIEW OF DISPOSITIONAL ORDER FOR OUT OF HOME PLACEMENT IN JUVENILE DELINQUENCY MATTERS


Rule 1770. Review of Out of Home Placement in Juvenile Delinquency Matters.

 (a)  General rule. If a court under the Juvenile Act, 42 Pa.C.S. §  6301 et seq., enters an order after an adjudication of delinquency of a juvenile pursuant to Rules of Juvenile Court Procedure 409(A)(2) and 515, which places the juvenile in an out of home overnight placement in any agency or institution that shall provide care, treatment, supervision or rehabilitation of the juvenile (‘‘Out of Home Placement’’), the juvenile may seek review of that order pursuant to a petition for review under Chapter 15 (judicial review of governmental determinations). The petition shall be filed within ten days of the said order.

 (b)  Content. A petition for review under subdivision (a) shall contain: (i) a specific description of any determinations made by the juvenile court; (ii) the matters complained of; (iii) a concise statement of the reasons why the juvenile court abused its discretion in ordering the Out of Home Placement; (iv) the proposed terms and conditions of an alternative disposition for the juvenile; and (v) a request that the official court reporter for the juvenile court transcribe the notes of testimony as required by subdivision (g) of this Rule. Any order(s) and opinion(s) relating to the Out of Home Placement and the transcript of the juvenile court’s findings shall be attached as appendices. The petition shall be supported by a certificate of counsel to the effect that it is presented in good faith and not for delay.

 (c)  Objection to specific agency or institution, or underlying adjudication of delinquency, is not permitted.

   (1)  A petition for review under subdivision (a) shall not challenge the specific agency or specific institution that is the site of the Out of Home Placement and instead shall be limited to the Out of Home Placement itself.

   (2)  A petition for review under subdivision (a) shall not challenge the underlying adjudication of delinquency.

 (d)  Answer. Any answer shall be filed within ten days of service of the petition, and no other pleading is authorized. Rule 1517 (applicable rules of pleading) and Rule 1531 (intervention) through 1551 (scope of review) shall not be applicable to a petition for review filed under subdivision (a).

 (e)  Service. A copy of the petition for review and any answer thereto shall be served on the judge of the juvenile court and the official court reporter for the juvenile court. All parties in the juvenile court shall be served in accordance with Rule 121(b) (service of all papers required). The Attorney General of Pennsylvania need not be served in accordance with Rule 1514(c) (service), unless the Attorney General is a party in the juvenile court.

 (f)  Opinion of juvenile court. Upon receipt of a copy of a petition for review under subdivision (a), if the judge who made the disposition of the Out of Home Placement did not state the reasons for such placement on the record at the time of disposition pursuant to Rule of Juvenile Court Procedure 512 (D), the judge shall file of record a brief statement of the reasons for the determination or where in the record such reasons may be found, within five days of service of the petition for review.

 (g)  Transcription of Notes of Testimony. Upon receipt of a copy of a petition for review under subdivision (a), the court reporter shall transcribe the notes of testimony and deliver the transcript to the juvenile court within five business days. If the transcript is not prepared and delivered in a timely fashion, the juvenile court shall order the court reporter to transcribe the notes and deliver the notes to the juvenile court, and may impose sanctions for violation of such an order. If the juvenile is proceeding in forma pauperis, the juvenile shall not be charged for the cost of the transcript. Chapter 19 of the Rules of Appellate Procedure shall not otherwise apply to petitions for review filed under this Rule.

 (h)  Non-waiver of objection to placement. A failure to seek review under this rule of the Out of Home Placement shall not constitute a waiver of the juvenile’s right to seek review of the placement in a notice of appeal filed by the juvenile from a disposition after an adjudication of delinquency.

   Official Note

   This Rule provides a mechanism for the expedited review of an order of Out of Home Placement entered pursuant to Rule of Juvenile Court Procedure 515. Rule of Juvenile Court Procedure 512(D) requires the judge who made the disposition of an Out of Home Placement to place the reasons for an Out of Home Placement on the record at the time of the disposition, and subdivision (f) of this Rule is only applicable in the exceptional circumstance where the judge who made the disposition of an Out of Home Placement fails to comply with Rule of Juvenile Court Procedure 512(D). The Juvenile Act, 42 Pa.C.S. §  6352, sets forth the considerations for a dispositional order following an adjudication of delinquency and the alternatives for disposition. The standard for review of a dispositional order is an abuse of discretion. See In the Interest of A.D., 771 A.2d 45 (Pa. Super. 2001) (en banc).

Source

   The provisions of this Rule 1770 adopted December 10, 2012, effective in 60 days, 42 Pa.B. 7813.

STAY PENDING ACTION ON PETITION FOR REVIEW


Rule 1781. Stay Pending Action on Petition for Review.

 (a)  Application to government unit.—Application for a stay or supersedeas of an order or other determination of any government unit pending review in an appellate court on petition for review shall ordinarily be made in the first instance to the government unit.

 (b)  Contents of application for stay or supersedeas.—An application for stay or supersedeas of an order or other determination of a government unit, or for an order granting an injunction pending review, or for relief in the nature of peremptory mandamus, may be made to the appellate court or to a judge thereof, but the application shall show that application to the government unit for the relief sought is not practicable, or that application has been made to the government unit and denied, with the reasons given by it for the denial, or that the action of the government unit did not afford the relief which the applicant had requested. The application shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the application shall be supported by sworn or verified statements or copies thereof. With the application shall be filed such parts, if any, of the record as are relevant to the relief sought.

 (c)  Notice and action by court.—Upon such notice to the government unit as is required by Rule 123 (applications for relief) the appellate court, or a judge thereof, may grant an order of stay or supersedeas, including the grant of an injunction pending review or relief in the nature of peremptory mandamus, upon such terms and conditions, including the filing of security, as the court or the judge thereof may prescribe. Where a statute requires that security be filed as a condition to obtaining a supersedeas, the court shall require adequate security.

Source

   The provisions of this Rule 1781 amended through April 26, 1982, effective September 12, 1982, 12 Pa.B. 1536. Immediately preceding text appears at serial page (61056).

Rule 1782. Security on Review in Tax Matters.

 (a)  General Rule.—A petition for review of an order of the Board of Finance and Revenue in a tax matter shall, unless otherwise ordered pursuant to this chapter, operate as a supersedeas upon the filing with the Prothonotary of the Commonwealth Court of appropriate security in the amount of 120% of the amount of taxes and penalty found due by the Board and remaining unpaid.

 (b)  Form of bond.—A bond under this rule may be in substantially the following form:

   [Caption]

    Petitioner, having sought review of an order of the Board of Finance and Revenue entered (or deemed entered) in this matter on the    day of       , 19  , and having procured the execution of this instrument for the purpose of complying with the Pennsylvania Rules of Appellate Procedure, the undersigned surety acknowledges itself bound and indebted to the Commonwealth of Pennsylvania in the amount of $(  ), which is 120% of the sum of $


(taxes found due) and $(  ) (penalty found due), the amount of taxes and penalty found due by the Board and remaining unpaid in this matter, to be paid as required by law.

    Upon conclusion of this matter, if the petitioner satisfies the above identified order or any court order modifying or affirming that order and pays all costs, interest and any damages for delay that may be awarded, this obligation shall be void; otherwise it shall remain in full force.
Date




(Name of Surety)
By
(Name and Title of Authorized Signatory)

    Note: The requirement of a bond for costs only (as where the full amount of the tax found due below has already been paid) has been eliminated.

   Official Note

   The requirement of a bond for costs only (as where the full amount of the tax found due below has already been paid) has been eliminated.

Source

   The provisions of this Rule 1782 amended through April 26, 1982, effective September 12, 1982, 12 Pa.B. 1536; amended July 7, 1997, effective in 60 days, 27 Pa.B. 3503. Immediately preceding text appears at serial pages (124454) to (124455).



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