Upon Further Review

Howard Bashman.

Today's column is the first of a three-part series intended to help readers understand and hopefully avoid some of the most troublesome pitfalls lurking in appellate practice. This column focuses on the start of the appellate process—filing a notice of appeal or its equivalent to initiate an appeal. Next month's column will focus on briefing the appeal—the appellate briefs and the appendix or reproduced record. And February's column will focus on orally arguing an appeal.

Initiating an appeal by preparing and filing a notice of appeal is certainly the most simple aspect of the entire appellate process, albeit deceptively so. The Federal Rules of Appellate Procedure and the Pennsylvania Rules of Appellate Procedure each furnish an example of what a notice of appeal must contain, and each example is quite straightforward and unquestionably adequate to initiate an appeal. Nevertheless, deciding what a notice of appeal should include can present hidden dangers that are far better recognized in advance of filing than only after it is too late to remedy any defects that the notice of appeal may contain.

A notice of appeal consists of three components: who is taking the appeal; what is being appealed; and to which court is the appeal being taken. In a simple two party case with one plaintiff and one defendant, identifying which party is taking the appeal can be very straightforward. But in a case with more than a single party taking the appeal, it may be necessary for the notice of appeal to unambiguously set forth who is taking the appeal. In a multi-party appeal, simply saying “defendants” are appealing may not be enough. Simply saying “all defendants” are appealing may not be enough. Instead, you may need to identify by name each and every party taking the appeal. And if you intend to include all parties that are appealing but inadvertently omit one or more, the omitted parties might not be considered as among the parties that have appealed. The best policy is to carefully ensure that the notice of appeal precisely identifies by name and description in the trial court each and every party that is taking the appeal.

Unfortunately, identifying what is being appealed in the notice of appeal is an area even more fraught with danger than identifying who is appealing. To somewhat differing degrees, both federal appellate courts and Pennsylvania appellate courts adhere to what's known as the “final judgment rule,” whereby most decisions that issue during the course of trial court proceedings cannot be challenged on appeal until the trial court issues a final judgment that disposes of all claims as to all parties.

Both federal courts and Pennsylvania state courts in principle follow the policy that an aggrieved party's appeal from the final judgment in a case suffices to bring before the appellate court the previously nonappealable interlocutory orders that the trial court issued on its way to later entering a final judgment. Yet the extent to which the appealing party should or must specifically identify earlier interlocutory orders that are being appealed in the notice of appeal is an especially troublesome subject.

Difficulties in particular can arise where a party appeals from the final judgment and identifies specifically in the notice of appeal some, but not all, of the earlier interlocutory orders that will be challenged on appeal. An appellate court could conclude that the identification of some interlocutory orders that will be challenged on appeal in the notice of appeal had the effect of excluding from being the subject of the appeal all other interlocutory orders that were not specifically mentioned in the notice of appeal. Thus, in a case in which it is necessary or prudent to identify interlocutory orders in the notice of appeal, the party taking the appeal should use extreme care to ensure that the notice of appeal identifies each and every interlocutory order that will be challenged on appeal.

The notice of appeal must also identify to which appellate court the appeal is being taken. To begin with the most rudimentary point, a notice of appeal is filed in the trial court, and it is the trial court that transmits the notice of appeal to the appellate court identified therein to formally initiate the case on appeal. Identifying the appellate court that actually possesses the power and jurisdiction to hear and decide an appeal will not present a difficult question in the vast majority of appeals, but in some cases even this can prove tricky. For example, just because a case is pending in federal district court in Pennsylvania does not guarantee that an appeal must be taken to the U.S. Court of Appeals for the Third Circuit. In patent cases, for example, the appellate court with jurisdiction over a Pennsylvania federal district court's ruling may be the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

There are two intermediate appellate courts that collectively possess jurisdiction over cases being appealed from Pennsylvania state trial courts. Although the Superior Court has appellate jurisdiction over most cases, the Commonwealth Court will have jurisdiction over certain cases. And there are some obscure aspects of the Commonwealth Court's jurisdiction that can only truly be appreciated by actually reading the statute, and the cases construing that statute, governing when the Commonwealth Court will have appellate jurisdiction over a given case.

The good news is that both federal appellate courts and the Pennsylvania Superior and Commonwealth courts have the ability to transfer appeals improvidently filed in one court to the proper appellate court having jurisdiction over the appeal. But the bad news is that taking an appeal to the wrong court unnecessarily introduces uncertainty and the potential for needless delay into the process.

The final and yet nevertheless incredibly important concern in filing a notice of appeal is doing so in a timely manner. Numerous traps for the unwary lurk in the Pennsylvania Rules of Civil and Appellate Procedure on this subject, and the case law in this area is also not always a model of clarity. The rules for federal appeals can be a bit more forgiving, at least when it comes to the effect of post-judgment motion practice. At the risk of oversimplification, the best approach is “better safe than sorry”—meaning that an unnecessary appeal can always be dismissed, but a necessary appeal that wasn't filed may mean the complete loss of a party's ability to obtain appellate review.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.