CHAPTER 5. PERSONS WHO MAY TAKE OR
PARTICIPATE IN APPEALS

Rule 501. Any Aggrieved Party May Appeal.

 Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.

   Note

   Whether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party, etc.

 (a)  Death of a party.—If a party dies after a notice of appeal or petition for review is filed or while a matter is otherwise pending in an appellate court, the personal representative of the deceased party may be substituted as a party on application filed by the representative or by any party with the prothonotary of the appellate court. The application of a party shall be served upon the representative in accordance with the provisions of Rule 123 (applications for relief). If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court may direct. If a party against whom an appeal may be taken or a petition for review may be filed dies after entry of an order below but before a notice of appeal or petition for review is filed, an appellant may proceed as if death had not occurred. After the notice of appeal or petition for review is filed substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal or petition for review shall die before filing a notice of appeal or petition for review, the notice of appeal or petition for review may be filed by his personal representative, or, if he has no personal representative, by his counsel, within the time prescribed by these rules. After the notice of appeal or petition for review is filed substitution shall be effected in the appellate court in accordance with this subdivision.

 (b)  Substitution in other cases or for other causes.—If substitution of a party in an appellate court is necessary in connection with a petition for allowance of appeal or a petition for permission to appeal, or in connection with any other matter other than a notice of appeal or petition for review, or if substitution of a party in an appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in Subdivision (a) of this rule.

 (c)  Death or separation from office of public officer.—When a public officer is a party to an appeal or other matter in an appellate court in his official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the matter does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

   Official Note

 When a public officer is a party to an appeal or other matter in his official capacity he may be described as a party by his official title rather than by name; but the appellate court may require his name to be added.

   Official Note

   Patterned after Fed. Rules App. Proc. 43(c)(2).

MULTIPLE APPEALS

Rule 511. Cross Appeals.

 The timely filing of an appeal shall extend the time for any other party to cross appeal as set forth in Rules 903(b) (cross appeals), 1113(b) (cross petitions for allowance of appeal) and 1512(a)(2) (cross petitions for review). The discontinuance of an appeal by a party shall not affect the right of appeal of any other party regardless of whether the parties are adverse.

   Official Note

   The 2002 amendment clarifies the intent of the former rule that the filing of an appeal extends the time within which any party may cross appeal as set forth in Rules 903(b), 1113(b) and 1512(a)(2) and that a discontinuance of an appeal by a party will not affect the right of any other party to file a timely cross appeal under Rules 903(b), 1113(b) or 1512(a)(2) or to otherwise pursue an appeal or cross appeal already filed at the time of the discontinuance. The discontinuance of the appeal at any time before or after a cross appeal is filed will not affect the right of any party to file or discontinue a cross appeal.

   The 2002 amendment eliminates the requirement that a party be adverse in order to file a cross appeal and supersedes In Re Petition of the Board of School Directors of the Hampton Township School District, 688 A.2d 279 (Pa. Cmwlth. 1997), to the extent that decision requires that a party be adverse to the initial appellant in order to file a cross appeal. See Rule 903(b).

   See also Rules 2113, 2136 and 2185 regarding briefs in cross appeals and Rule 2322 regarding oral argument in multiple appeals.

   An appellee should not be required to file a cross appeal because the Court below ruled against it on an issue, as long as the judgment granted appellee the relief it sought. See Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695 (Pa. Super. 2000) and Hashagen v. Worker’s Compensation Appeal Board, 758 A.2d 276 (Pa. Cmwlth. 2000). To the extent that Saint Thomas Township Board of Supervisors v. Wycko, 758 A.2d 755 (Pa. Cmwlth. 2000) is in conflict, it is disapproved.

 Parties interested jointly, severally or otherwise in any order in the same matter or in joint matters or in matters consolidated for the purposes of trial or argument, may join as appellants or be joined as appellees in a single appeal where the grounds for appeal are similar, or any one or more of them may appeal separately or any two or more may join in an appeal.

   Official Note

 Where there is more than one appeal from the same order, or where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal. Appeals may be consolidated by stipulation of the parties to the several appeals.

   Note

   The first sentence is substantially the same as former Supreme Court Rule 29, former Superior Court Rule 21 and former Commonwealth Court Rule 27. The second sentence is patterned after Fed. Rules App. Proc. 3(b).

OFFICIAL PARTICIPATION UPON CHALLENGE TO
STATUTES OR RULES

Rule 521. Notice to Attorney General of Challenge to Constitutionality of Statute.

 (a)  Notice.—It shall be the duty of a party who draws in question the constitutionality of any statute in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate court, to give immediate notice in writing to the Attorney General of Pennsylvania of the existence of the question; together with a copy of the pleadings or other portion of the record raising the issue, and to file proof of service of such notice.

 (b)  Status of Attorney General.—The Attorney General may be heard on the question of the constitutionality of the statute involved without formal intervention. If the Attorney General files a brief concerning the question the Commonwealth shall thereafter be deemed to be an intervening party in the matter.

   Note

 (a)  Notice.—It shall be the duty of a party who draws in question the constitutionality of any general rule to give notice in writing to the Court Administrator of Pennsylvania in accordance with the procedure prescribed in Rule 521 (notice to Attorney General of challenge to constitutionality of statute).

 (b)  Status of Court Administrator.—The Court Administrator of Pennsylvania may be heard on the question of the constitutionality of the general rule involved without formal intervention. If the Court Administrator files a brief concerning
the question the Commonwealth, acting by and through the Court Administrator of Pennsylvania, shall thereafter be deemed to be an intervening party in the matter.

   Official Note

   The purpose of this rule is to prevent the recurrence of situations such as Swarb v. Lennox, 405 U.S. 191 (1972), where by reason of the withdrawal of the Attorney General of Pennsylvania, there was no official defense of the challenged rule of the Supreme Court of Pennsylvania. It is anticipated that the Court Administrator will coordinate with the appropriate rules committee.

AMICUS CURIAE

Rule 531. Participation by Amicus Curiae.

 (a)  Briefs.—Anyone interested in the questions involved in any matter pending in an appellate court, excluding Petitions for Allowance of Appeal, although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions. Unless otherwise ordered by the court, any amicus curiae shall file and serve its brief in the manner and number required and within the time allowed by these rules with respect to the party whose position as to affirmance or reversal the amicus brief will support, or with respect to the appellant, if the amicus brief does not support the position of any party.

 (b)  Oral argument.—Oral argument may be presented by amicus curiae only as the appellate court may direct. Requests for leave to present oral argument shall be by application and will be granted only for extraordinary reasons.

   Official Note

   Where the amicus cannot comply with the requirements of this rule because of ignorance of the pendency of the question, relief may be sought under Rule 105(b). The last eight words of the rule are new. In Piccirilli Bros. v. Lewis, 282 Pa. 328, 336, 127 Atl. 832, 835 (1925) the court noted the applicability of this rule to public officers who are represented by official counsel with an adverse position.

   The provisions of this Rule 531 amended May 16, 1979, effective September 30, 1979, 9 Pa.B. 1740; amended February 27, 1980, 10 Pa.B. 1038, effective date as set forth at 10 Pa.B. 1038; amended September 25, 1992, effective immediately, 22 Pa.B. 5014. Immediately preceding text appears at serial pages (87195) to (87196).

FORMA PAUPERIS

Rule 551. Continuation of In Forma Pauperis Status for Purposes of
Appeal.

 (a)  General rule.—A party who has been granted leave by a lower court to proceed in forma pauperis may proceed in forma pauperis in an appellate court upon filing with the clerk of the lower court two copies of a verified statement stating:

   (1)  The date on which the lower court entered the order granting leave to proceed in forma pauperis.

   (2)  That there has been no substantial change in the financial condition of the party since such date.

   (3)  That the party is unable to pay the fees and costs on appeal.

 (b)  Effect on filing fees.—A verified statement conforming to Subdivision (a) of this rule, papers transmitted therewith, and papers subsequently tendered by a party which has filed such a verified statement, shall be filed by any clerk who has notice of such filing without the payment of any fee required under Chapter 27 (fees and costs in appellate courts and on appeal).

   Official Note

   Ordinarily the copies of the verified statement under this rule would be filed with the clerk of the lower court at the time copies of the notice of appeal are filed under Rule 905 (filing of notice of appeal). See note to Rule 124 (form of papers; number of copies) as to method of counting number of copies.

 (a)  General rule.—A party who is not eligible to file a verified statement under Rule 551 (continuation of in forma pauperis status for purposes of appeal) may apply to the lower court for leave to proceed on appeal in forma pauperis. The application may be filed before or after the taking of the appeal, but if filed before the taking of the appeal, the application shall not extend the time for the taking of the appeal.

 (b)  Accompanying verified statement.—Except as prescribed in Subdivision (d) of this rule, the application shall be accompanied by a verified statement substantially conforming to the requirements of Rule 561 (form of IFP verified statement) showing in detail the inability of the party to pay the fees and costs provided for in Chapter 27 (fees and costs in appellate courts and on appeal).

 (c)  No filing fee required.—The clerk of the lower court shall file an application under this rule without the payment of any filing fee.

 (d)  Automatic approval in certain cases.—If the applicant is represented by counsel who certifies on the application or by separate document that the applicant is indigent and that such counsel is providing free legal service to the applicant, the clerk of the lower court shall forthwith enter an order granting the application. The clerk may accept and act on an application under this subdivision without an accompanying verified statement by the party.

 (e)  Consideration and action by the court.—Except as prescribed in Subdivision (d) of this rule, the application and verified statement shall be submitted to the court, which shall enter its order thereon within 20 days from the date of the filing of the application. If the application is denied, in whole or in part, the court shall briefly state its reasons.

   Official Note

   Extends the substance of former Supreme Court Rule 61(b) (part) and 61(c) (part) to the Superior and Commonwealth Courts and provides for action by the clerk in lieu of the court. It is anticipated that an application under this rule ordinarily would be acted upon prior to the docketing of the appeal in the appellate court and the transmission of the record.

   Relief from requirements for posting a supersedeas bond in civil matters must be sought under Rule 1732 (application for stay or injunction pending appeal) and relief from bail requirements in criminal matters must be sought as prescribed by Rule 1762 (release in criminal matters), but under Rule 123 (applications for relief) the applications under Rule 552 (or 553) and ther rules may be combined into a single document.

 (a)  General rule.—A party who has been denied relief under Rule 552 (application to lower court for leave to appeal in forma pauperis), or who has been unable to file an application under such rule because the matter is an original action in the appellate court, or a petition for review proceeding relating to a government unit other than a court, or for any other reason, may apply to the appellate court for leave to proceed in forma pauperis in the appellate court.

 (b)  Form and procedure.—An application under this rule shall be governed by Rule 552 so far as it may be applied.

   Official Note

   See former Supreme Court Rule 61(d), which required an affidavit (verified statement) in all cases. Unlike the prior rule, this rule makes clear that the application may be renewed in the appellate court.

 (a)  Appeal taken before application filed.—If an application under Rule 552 (application to lower court for leave to appeal in forma pauperis) or Rule 553 (application in appellate court) is not filed before an appeal is taken, all applicable filing fees which are due before such an application is filed shall be treated as unpaid for purposes of Chapter 27 (fees and costs in appellate courts and on appeal).

 (b)  Appeal taken before application acted upon.—If an application under Rule 522 or Rule 553 has been filed but has not been acted upon any clerk who has notice of such filing shall accept any papers relating to the appeal without the payment of any fees required under Chapter 27. Transmission of a copy of the application under Rule 552 pursuant to Rule 905(b) (transmission to appellate court) or otherwise shall constitute notice to an appellate prothonotary of the pendency thereof for the purposes of this rule. If the application under Rule 552 or Rule 553 is thereafter denied the applicant shall pay all applicable filing fees required under Chapter 27.

 (c)  Appeal taken after application granted.—If an appeal is taken after an application under Rule 552 has been granted, the party shall proceed under Rule 551 (continuation of in forma pauperis status for purposes of appeal), except that a copy of the order granting the application may be substituted for the verified statement required by Rule 551.

   Official Note

   In addition to its elimination of the requirement for the payment of fees, IFP status eliminates the requirement of reproducing the record, see Rule 2151(b) (in forma pauperis), and reduces the number of copies of the brief required to be served and filed. See Rule 2187(c) (in forma pauperis).

 A party permitted to proceed in forma pauperis has a continuing obligation to inform the appellate court of improvement in the financial circumstances of the party. Counsel for a party shall likewise be under a continuing obligation to inform the appellate court of such improvement within a reasonable time after counsel learns of it.

   Note

 A claimant-appellant in an unemployment compensation matter may proceed in forma pauperis without applying for leave to do so. The petition for review, papers transmitted therewith and papers subsequently tendered by the part in such a matter shall be filed by the clerk without the payment of any fee required under Chapter 27 (fees and costs in appellate courts and on appeal).

   Note

   A claimant-appellant in a worker’s compensation matter, who was within the scope of the former version of this Rule, remains free to apply for leave to proceed in forma pauperis pursuant to Rule 553.

 A verified statement under this chapter in support of an application for leave to proceed in forma pauperis shall be in substantially the following form:

    (Insert name of applicant)

   18 Pa.C.S. 4904 (unsworn falsification to authorities) that:

   1. I am the

   (state with particularity the relief requested, e.g., appellate filing fees, costs of reproducing records or briefs, or filing of supersedeas security if irreparable harm would result if not waived.)

   2. My responses to the questions below relating to my ability to pay the fees and costs of prosecuting an appeal are true and correct.

 (a)  Are you presently employed?

   (1)  If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer.

   (2)  If the answer is no, state the date of your last employment and the amount of the salary and wages per month which you received.

 (b)  Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, pensions, annuities, social security benefits, support payments or other source?

     If the answer is yes, describe each source of income, and state the amount received from each during the past twelve months.

 (c)  Do you own any cash or checking or savings account?

     If the answer is yes, state the total amount of the items owned.

 (d)  Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)?

     If the answer is yes, describe the property and state its approximate value and the amount of any encumbrances.

 (e)  List the persons, if any, who are dependent upon you for support and state your relationship to those persons.

 (f)  List all your debts and obligations.

   3. I understand that a false statement or answer to any question in this verified statement will subject me to the penalties provided by law (misdemeanor of the second degree).

   Note

   :Extends former Supreme Court Rule 61 (form) to the Superior and Commonwealth Courts and makes no change in substance other than the substitution of the statutory verification for an affidavit.

   The provisions of this Rule 561 amended February 27, 1980, 10 Pa.B. 1038, effective date as set forth at 10 Pa.B. 1038. Immediately preceding text appears at serial page (25387).