What should I do in the trial court to prepare for a potential appeal?

It’s important to identify, raise, preserve and monitor the appellate issues throughout the case. Tracking and preservation of appellate issues often requires scrupulous attention to consistency in language, theories, and questions asked on direct and cross at trial. Critical appellate issues can surface in the trial court at any time from the initial pleadings to the final judgment.  Any case could involve significant or novel legal issues.

When can I take an interlocutory appeals?

In general, important issues of first impression warrant interlocutory appeal. A motion for interlocutory appeal can serve two purposes––first, it can help resolve an important legal issue before trial, and, second, it can become a vehicle for preserving key issues (even if denied).

1. When a Collateral Issue Is Involved.

Pa.R.A.P. 313 allows an appeal to be taken from a collateral order, i.e, an  order that is “separable from and collateral to the main cause of action” where “the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” The classic example of a collateral order is an order directing disclosure of privileged attorney-client communications.

2. When Unique Issues are Involved.

The appellate rules also allow a trial court to certify a unique, important issue of first impression for immediate interlocutory appeal pursuant to 42 Pa.C.S. §702(b), in conjunction with PA.R.A.P. 312 and 1311. However, this requires that the trial court enter an order with the exact, express language (from the statute): “This Order involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the Order will materially advance the ultimate termination of this matter, within the meaning of 42 Pa.C.S. §702(b).

3. When Certain Other Issues Are Involved.

In addition, appeal from certain interlocutory orders is expressly permitted under PA.R.A.P. 311 (for example, an order confirming, modifying or dissolving an attachment, receivership, custodianship; an order that grants, modifies or denies an injunction, or refuses to do so; or an order awarding a new trial.

Failure to take such an interlocutory appeal in the above examples does not result in waiver of those issues but a waiver does occur in other instances (See PA.R.A.P 311(g)).)

What do I need to do to avoid waiving potential appellate issues?

In all cases, it is critical that important potential appellate issues be articulated clearly, succinctly, and consistently at every opportunity, so as to establish the occasion and grounds for future appeal, if necessary (for example it is well established that constitutional issues must be raised at every stage of the trial and appellate proceedings, hence you can’t complain about state procedures for the first time post trial).

The basic mantra for appellate practice in Pennsylvania is “early and often”– a lawyer can never raise an issue too many times, or even try too many times to have that issue review by the appellate courts.  It is therefore important to preserve issues at every opportunity provided by the procedural rules, by, for example, motion for interlocutory appeal, written points for charge on which you ask for specific rulings, written motion for nonsuit and directed verdict, and, of course post trial motion and Rule 1925 Statement.

 

When do I have to appeal?

Pennsylvania Rule of Appellate Procedure 341 provides that an appeal of right may be taken from a “final order” of the trial court. A “final order” is one that “disposes of all claims and of all parties.” Sounds easy, doesn’t it? But there are many pitfalls along the way.  In some scenarios there is confusion as to what is the “final” order under Rule 341. Is it the decision of the trial court after a bench trial, entered on the docket? Or the docketed order denying post trial motions?

The best approach is to file a praecipe for entry of judgment, although that may seem redundant. Even then, in some counties the prothonotaries don’t actually enter final judgment, but simply note on the docket that the praecipe was filed.  Perils arise where the court grants summary judgment against some parties and other claims are settled. You should use the belt and suspenders approach and file a notice of appeal if there is any doubt. There is no penalty for filing early: “A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” Pa. R.A.P. 905 (a)(5). It may be prudent to file another notice of appeal if it appears that a “final order” has been entered later. This way you can avoid having your earlier appeal quashed.

 

The keys to issue preservation are: 1) identifying potential appellate issues early in the trial court; 2) tracking, raising and preserving those issues at every available opportunity in the trial court  even where it seems redundant to do so; and 3) post trial carefully following the civil and appellate rules by identifying appellate issues and making timely filings.

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 James (Jim) C. Sargent is a Partner and Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department.  Jim represents small businesses, as well as major national and multinational manufacturers in litigation and appeals.  His practice includes commercial contracts, real estate and banking law, construction litigation, municipal law, restrictive covenants, employment contracts, as well as condemnation matters. Jim also offers mediation services in commercial/construction/business ownership disputes. jsargent@lambmcerlane.com. 610-701-4417.