Proceedings in appellate courts are very different from those in trial courts and each one of the appellate courts has their own set of rules and internal operating procedures. If you do not follow the rules carefully, you may lose the chance to have your appeal considered. The role of Counsel Press’ appellate counsel and appellate consultants is to advise and shield our clients from all potential pitfalls.
A common problem arises when, after filing a Notice of Appeal, you receive a Rule to Show Cause notice from the Superior Court asking if the order appealed was final. This notice usually arrives after the court reviews the docketing statement. There are some steps to take on how to avoid this extra task.
Before filing a Notice of Appeal:
Make sure the Order disposes of all claims and parties. Orders must be reduced to judgment or final decree before they are final and entered on the docket. If there are issues still pending, your only other option is to file for permission to appeal under Pa. R.A.P. 311 which covers interlocutory appeals. There’s another way to look at it -- is there anything else that you can file at the trial court? If the answer is yes, then by definition a final, appealable order has not yet been issued.
Here is a sample Rule to Show Cause notice sent by the Pennsylvania Superior Court:
“Review of this matter indicates that judgment has not been entered on the trial court docket as required by Pa. R.A.P. 301.” Appellant is directed to praecipe the trial court prothonotary to enter judgment and file with the prothonotary of the Superior Court within 10 days of certified copy of the trial court docket reflecting the entry of judgment. “Upon compliance of Rule 301, the Notice of Appeal previously filed will be treated as filed after the entry of judgment.” Failure to do so will result in the appeal being dismissed.
This is usually fixed by filing a praecipe with the trial court prothonotary to enter judgment on the docket. Once proof is shown, the appeal is allowed to proceed.
Here is another example:
“Judgment has not been entered on the award of attorney’s fees; therefore, this filed appeal is interlocutory. Appellant had 14 days to provide proof that the order for attorney’s fees was entered on the docket.”
Proof was provided and the appeal was allowed to proceed.
In both these instances, this extra step could have been avoided by making sure there were no open claims pending before judgment was entered, including a pending Motion for Reconsideration. Note: If you do not respond, the Court usually dismisses the appeal and you need to start over, incurring additional costs.
Important rules to follow:
R.A.P. 301, Appealable Orders
R.A.P. 311, Interlocutory Appeals as of Right
R.A.P. 341, Final Orders
Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. My colleagues and I at our Philadelphia office specialize in rule-compliant appellate filings in the United States Court of Appeals for the First, Third and Fifth Circuits, Superior Court of Pennsylvania, Supreme Court of Pennsylvania, Commonwealth Court of Pennsylvania, the Massachusetts Appeals Court and the United States Supreme Court.
Read related articles:
Pennsylvania Rules of Appellate Procedure: What is the Purpose of the Docketing Statement?
Pennsylvania Rules of Appellate Procedure: A Look at Amendments Mandating Shorter Briefs