INTERLOCUTORY APPEALS


Rule 311. Interlocutory Appeals as of Right.

 (a)  General rule. An appeal may be taken as of right and without reference to Pa.R.A.P. 341(c) from:

   (1)  Affecting judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

   (2)  Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property, except for orders pursuant to Section 3323(f) or 3505(a) of the Divorce Code, 23 Pa.C.S. § §  3323(f), 3505(a).

   (3)  Change of criminal venue or venire. An order changing venue or venire in a criminal proceeding.

   (4)  Injunctions. An order that grants or denies, modifies or refuses to modify, continues or refuses to continue, or dissolves or refuses to dissolve an injunction unless the order was entered:

     (i)   Section 3323(f) or 3505(a) of the Divorce Code, 23 Pa.C.S. § §  3323(f), 3505(a); or

     (ii)   After a trial but before entry of the final order. Such order is immediately appealable, however, if the order enjoins conduct previously permitted or mandated or permits or mandates conduct not previously mandated or permitted, and is effective before entry of the final order.

   (5)  Peremptory judgment in mandamus. An order granting peremptory judgment in mandamus.

   (6)  New trials. An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the lower court committed an error of law.

   (7)  Partition. An order directing partition.

   (8)  Other cases. An order which is made appealable by statute or general rule.

 (b)  Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:

   (1)  the plaintiff, petitioner or other party benefiting from the order files of record within ten days after the entry of the order an election that the order shall be deemed final; or

   (2)  the court states in the order that a substantial issue of venue or jurisdiction is presented.

 (c)  Changes of venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.

 (d)  Commonwealth Appeals in Criminal Cases. In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

 (e)  Orders Overruling Preliminary Objections in Eminent Domain Cases. An appeal may be taken as of right from an order overruling preliminary objections to a declaration of taking and an order overruling preliminary objections to a petition for appointment of a board of viewers.

 (f)  Administrative Remand. An appeal may be taken as of right from: (1) 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; or (2) an order of a common pleas court or government unit remanding a matter to an administrative agency or hearing officer that decides an issue which would ultimately evade appellate review if an immediate appeal is not allowed.

 (g)  Waiver of objections.

   (1)  Where an interlocutory order is immediately appealable under this rule, failure to appeal:

     (i)   Under Subdivisions (a), (b)(2) or (f) of this rule shall not constitute a waiver of the objection to the order and the objection may be raised on any subsequent appeal in the matter from a determination on the merits.

     (ii)   Under Subdivisions (b)(1) or (c) of this rule shall constitute a waiver of all objections to jurisdiction over the person or over the property involved or to venue, etc. and the question of jurisdiction or venue shall not be considered on any subsequent appellate review of the matter.

     (iii)   Under Subdivision (e) of this rule shall constitute a waiver of all objections to such orders and any objection may not be raised on any subsequent appeal in the matter from a determination on the merits.

   (2)  Where no election that an interlocutory order shall be deemed final is filed under Subdivision (b)(1) of this rule, the objection may be raised on any subsequent appeal in the matter from a determination on the merits.

 (h)  Further proceedings in lower court. Rule 1701(a) (effect of appeal generally) shall not be applicable to a matter in which an interlocutory order is appealed under Subdivisions (a)(2) or (a)(4) of this rule.

   Official Note

   Authority—This rule implements 42 Pa.C.S. §  5105(c) (interlocutory appeals), 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 allowed pursuant to section 702(b).

   The appeal rights under this rule, and under Rule 312 (Interlocutory Appeals by Permission), Rule 313 (Collateral Orders), Rule 341 (Final Orders; Generally), and Rule 342 (Appealable Orphans’ Court Orders), 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.

   Subdivision (a)—If an order falls under Rule 311, an immediate appeal may be taken as of right simply by filing a notice of appeal. The procedures set forth in Rules 341(c) and 1311 do not apply to an appeal under Rule 311.

   Subdivision (a), Paragraph (a)(1) (Affecting judgments)—The 1989 amendment to paragraph (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.

   Paragraph (a)(2) (Attachments, etc.)—The 1987 Amendment to paragraph (a)(2) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); O’Brien v. O’Brien, 359 Pa. Super. 594, 519 A.2d 511 (1987).

   Paragraph (a)(3) (Change of criminal venue or venire)—Under prior practice, either a defendant or the Commonwealth could appeal an order changing venue. See former Pa.R.Crim.P. 311(a) (Third sentence) before amendment of June 29, 1977, 471 Pa. XLIV. An order refusing to change venue is not appealable. Commonwealth v. Swanson, 424 Pa. 192, 225 A.2d 231 (1967). This rule makes no change in existing practice.

   Change of venire is authorized by 42 Pa.C.S. §  8702 (impaneling jury from another county). Pa.R.Crim.P. 312 (motion for change of venue or change of venire) treats changes of venue and venire the same. Thus an order changing venire is appealable by the defendant or the Commonwealth, while an order refusing to change venire is not.

   See also Rule 903(c)(1) regarding time for appeal.

   Paragraph (a)(4) (Injunctions)—The 1987 amendment to paragraph (a)(4) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); O’Brien v. O’Brien, 359 Pa. Super. 594, 519 A.2d 511 (1987).

   The 1996 amendment to paragraph (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.

   Paragraph (a)(5) (Peremptory judgment in mandamus)—Paragraph (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. Under prior practice established in Hamby v. Stoe, 448 Pa. 483, 295 A.2d 309 (1972), an order granting peremptory judgment in mandamus was not appealable; only the order denying a motion to open the peremptory judgment in mandamus was appealable. The 1996 amendment eliminated the need to move to open. The January 1, 1996 amendment to Pa.R.C.P. 1098 eliminates the former practice of filing a petition to open a peremptory judgment in mandamus. The 1996 amendment overrules Hamby v. Stoe and other decisions that quashed appeals that were taken from the peremptory judgment in mandamus rather than the order denying the motion to open the judgment, e.g., Butler v. Emerson, 76 Pa. Cmwlth. 156, 463 A.2d 109 (1983); Mertz v. Lakatos, 21 Pa. Cmwlth. 291 (1975); Ellenbogen v. Larsen, 16 Pa. Cmwlth. 353, 328 A.2d 587 (1974). An order denying a motion for peremptory judgment in mandamus remains unappealable.

   Following a 2005 amendment to Rule 311, orders determining the validity of a will or trust were appealable as of right under former subdivision (a)(8). Pursuant to the 2011 amendments to Rule 342 (Appealable Orphans’ Court Orders), such orders are now immediately appealable under subdivision (a)(2) of Rule 342.

   Paragraph (a)(8) (Other cases)—Paragraph (a)(8) is directed primarily to statutes and general rules hereafter enacted or promulgated. The current text of the Pennsylvania Rules of Civil Procedure, the Pennsylvania Rules of Criminal Procedure, etc., should be consulted to identify any interlocutory appeal rights provided for therein. See also, e.g., 42 Pa.C.S. §  7320 (appeals from court orders), concerning appeals from certain orders in nonjudicial arbitration proceedings, which section is not suspended by these rules. See Rule 5102(a) (Judicial Code unaffected).

   Subdivision (b) (Order sustaining venue or personal or in rem jurisdiction)—Subdivision (b) is based in part on the Act of March 5, 1925, P. L. 23 (order ruling on question of jurisdiction). 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, 471 Pa. 289, 370 A.2d 307 (1977).

   In paragraph (b)(1), a plaintiff is given a qualified (because it can be overriden by petition for and grant of permission to appeal under Rule 312 (interlocutory appeals by permission)) option to gamble that the venue of the matter or personal or in rem jurisdiction will be sustained on appeal. Paragraph (g)(ii) provides that if the plaintiff timely elects final treatment, the failure of the defendant to appeal constitutes a waiver. The appeal period under Rule 903 (time for appeal) 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 Rule 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 trail unless (1) the trial court makes a finding under Paragraph (b)(2) of the existence of a substantial question of jurisdiction and the defendant elects to appeal, (2) an interlocutory appeal is permitted under Rule 312 or (3) another basis for appeal appears, e.g., under paragraph (a)(1), and an appeal is taken. Presumably a plaintiff would file such an election where he desires to force the defendant to decide promptly whether the objection to venue or jurisdiction will be seriously pressed. Subdivision (b) does not cover orders that do not sustain jurisdiction because they are, of course, final orders appealable under Rule 341.

   Subdivision (b)(2) (Substantial issue of venue or jurisdiction)—The 1989 amendment to paragraph (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 subdivision (b) and paragraph (b)(2).

   Subdivision (c) (Changes of venue, etc.)—Subdivision (c) is based in part on the act of March 5, 1925 (P. L. 23, No. 15) (order ruling on question of jurisdiction). 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, 471 Pa. 289, 370 A.2d 307 (1977).

   Subdivision (c) covers orders that do not sustain venue, e.g., orders under Pa.R.C.P. 1006(d) and (e).

   However, the subdivision does not relate to a transfer under 42 Pa.C.S. §  933(c)(1) (concurrent and exclusive jurisdiction), 42 Pa.C.S. §  5103 (transfer of erroneously filed matter) or under 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 Rule 312, or an appeal as of right may be taken from an order dismissing the matter for lack of jurisdiction. See Balshy v. Rank, 507 Pa. 384, 388, 490 A.2d 415, 416 (1985).

   Other orders relating to subject matter jurisdiction (which for this purpose does not include questions as to the form of action, e.g., as between law and equity, or divisional assignment, see 42 Pa.C.S. §  952 (status of court divisions)) will be appealable under Rule 341 if jurisdiction is not sustained, and otherwise will be subject to Rule 312.

   Subdivision (d) (Commonwealth appeals in criminal matters)—In subdivision (d), the 1992 amendment permits appeals by the Commonwealth from certain interlocutory orders that were previously treated as final orders under the pre-1992 version of Rule 341(c). See, e.g., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32 (1992); and Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992). The 1996 amendment to Rule 904(e) requires that the Commonwealth assert in the notice of appeal that the trial court’s order will terminate or substantially handicap the prosecution.

   Subdivision (e) (Orders overruling preliminary objections in eminent domain cases)—In subdivision (e), the 1992 amendment permits interlocutory appeals from orders overruling preliminary objections in eminent domain cases. These orders were previously appealable as final orders under Rule 341 even though such orders did not dispose of all claims and all parties. See In Re Certain Parcels of Real Estate, 420 Pa. 289, 216 A.2d 774 (1966); and Central Bucks Joint School Bldg. Authority v. Rawls, 8 Pa. Cmwlth. 491, 303 A.2d 863 (1973).

   Subdivision (f) (Administrative remand)—In subdivision (f), the 1992 amendment permitted 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: (1) a remand by a court of common pleas to the Department of Transportation for removal of points from a drivers license; and (2) an order of the Workmen’s Compensation Appeal Board reinstating compensation benefits and remanding to a referee for computation of benefits.

   Subdivision (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 Department of Environmental Resources v. Big B Mining Co., Inc., 123 Pa. Cmwlth. 591, 554 A.2d 1002 (1989) (order of Environmental Hearing Board reversing D.E.R.’s denial of a surface mining permit and remanding to D.E.R. for re-evaluation of effluent limitations); Phila. Commission On Human Relations v. Gold, 95 Pa. Cmwlth. 76, 503 A.2d 1120 (1986) (court of common pleas order reversing a Philadelphia Human Relations Commission finding of discrimination on ground the commission impermissibly commingled prosecutorial [or] and adjudicative functions). The 1992 amendment overrules, in part, FMC Corporation v. Workmen’s Compensation Appeal Board, 116 Pa. Cmwlth. 527, 542 A.2d 616 (1988) to the extent that it is inconsistent with subdivision (f).

   Subdivision (h) (Further proceedings in lower court)—See note to Rule 1701(a) (effect of appeal generally).

Source

   The provisions of this Rule 311 amended June 28, 1985, effective July 20, 1985, 15 Pa.B. 2635; 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 March 31, 1989, effective July 1, 1989, 19 Pa.B. 1721; amended March 12, 1992, effective July 6, 1992, and shall govern all matters thereafter commenced, 22 Pa.B. 1354; amended May 6, 1992, effective July 6, 1992, 22 Pa.B. 2675; amended April 10, 1996, effective April 27, 1996, 26 Pa.B. 1985; amended June 29, 2005, effective 60 days after publication, 35 Pa.B. 3897; amended October 14, 2009, effective 30 days after publication 39 Pa.B. 6324; amended December 29, 2011, effective and applicable to all Orphans’ Court orders entered forty-five days after adoption, 42 Pa.B. 374; amended December 29, 2011, effective and applicable to all Orphans’ Court orders entered forty-five days after adoption, 42 Pa.B. 4693. Immediately preceding text appears at serial pages (360234) to (360239).



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