Upon Further Review

Howard Bashman.

To the extent that we learn rules of civil procedure in law school—the rules that the litigants and the courts follow when presenting and processing civil cases for resolution—the focus is exclusively on the Federal Rules of Civil Procedure, which apply only in federal court. And my personal indoctrination into the nitty-gritty of federal civil practice was especially intensive at the start of my legal career, which began with a two-year judicial law clerkship for a judge serving on the Philadelphia-based U.S. Court of Appeals for the Third Circuit.

After my clerkship, I went to work for a large Philadelphia law firm that represented clients in civil cases in both federal and state court. And that experience was the first of many opportunities to learn that the procedures that applied to civil cases pending in federal court could be quite different from the procedures that applied to civil cases pending in Pennsylvania state court.

One difference in particular gives rise to an extremely problematic appellate waiver trap for the unwary in Pennsylvania civil cases that are heading for appeal. And no, I am not talking about the Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained of on appeal, which certainly can and frequently does present its own special waiver concerns.

Rather, today's column focuses on the appellate waiver trap for the unwary that motions for reconsideration can present in Pennsylvania state court civil cases. Let me begin by explaining in greater detail what I mean by a motion for reconsideration in a civil case, and how a motion for reconsideration differs from a motion for post-trial relief. Then I will turn specifically to the appellate waiver concerns surrounding state court civil motions for reconsideration that motivate today's column.

These days, attorneys and litigants frequently complain that far fewer civil cases proceed to trial. Of course, those civil cases that do proceed to trial are governed by the post-trial motion rules that, generally speaking, require the filing of post-trial motions to preserve various issues for appeal. And, generally speaking, a party's timely filing of post-trial motions in a civil case will postpone the time for appeal in both federal court and Pennsylvania state court until the trial court grants or denies those post-trial motions or they are otherwise disposed of under the applicable rules of civil procedure.

For purposes of my discussion here, when I refer to a motion for reconsideration, I do not intend to include a motion that is filed following the trial of a civil case. Rather, for present purposes, a motion for reconsideration simply means a motion seeking reconsideration of the resolution of a case that has not reached trial, such as a case that was disposed of at the summary judgment stage or at the preliminary objections (Pennsylvania state court) or motion for judgment on the pleadings (federal court) stage.

In federal court, a motion for reconsideration following the entry of a final, appealable judgment arises under Federal Rule of Civil Procedure 59(e), titled “Motion to Alter or Amend a Judgment.” Under the Federal Rules of Appellate Procedure, a timely filed Rule 59(e) motion will postpone the time for appeal until after the trial court has issued an order granting or denying that motion. In this important respect, a motion for reconsideration has the same effect in a federal civil case as a timely filed post-trial motion, in that both postpone the time for appeal until after the trial court has decided the motion.

By contrast, in a civil case pending in Pennsylvania state court, the rules and requirements could not be more different. A statutory provision, 42 Pa. Cons. Stat. Ann. Section 5505, provides a Pennsylvania state trial court only 30 days in which to rescind or modify an appealable order in response to a motion for reconsideration.

Far more important, however, are the procedures that a party seeking reconsideration of a final trial court order should follow in a case that has been resolved before trial as described in Pennsylvania Rule of Appellate Procedure 1701(b)(3) and its accompanying advisory committee notes. First, the losing party should file a notice of appeal. Then, the losing party can file a motion for reconsideration in the trial court. The trial court only has 30 days from the issuance of its appealable order to expressly grant reconsideration. Unless the trial court expressly grants reconsideration within the original 30-day appeal period, the trial court loses all jurisdiction to grant reconsideration thereafter, and the appeal will proceed as though the motion for reconsideration had never been filed.

The main trap for the unwary under the Pennsylvania state court approach to motions for reconsideration in civil cases is that in federal court, filing such a motion postpones the time for appeal until the motion is resolved, but in state court filing such a motion does not postpone the time for appeal unless the motion for reconsideration has been expressly granted during the original 30-day appeal period.

But the trap for the unwary that the Pennsylvania state court approach presents is even worse than just that. What if the state trial court grants a stay of its final judgment and orders further briefing and a hearing on the merits of the motion for reconsideration within the original 30-day appeal period? Under the advisory committee notes to Pennsylvania Rule of Appellate Procedure 1701(b)(3), anything other than an order expressly granting reconsideration within the original 30-day appeal period fails to postpone the time for appeal. Thus, a stay plus scheduling a hearing, without an order expressly granting reconsideration, will not suffice to postpone the time for appeal. Nor will an order expressly granting reconsideration issued outside of the original 30-day appeal period.

Perhaps one could argue in favor of the Pennsylvania state court approach, which allows civil cases decided before trial to head to appeal more promptly, without having to await resolution outside of the original 30-day appeal period of a timely filed motion for reconsideration. But the state court procedure for post-trial motions in civil cases that have been to trial is the opposite, in that a timely post-trial motion will postpone the time for appeal. And a timely application for reargument or reconsideration filed after a decision from the Pennsylvania Superior Court or Commonwealth Court  will postpone the period for filing a petition for allowance of appeal in the Pennsylvania Supreme Court. Only trial court motions for reconsideration receive this peculiar treatment, giving rise to numerous traps for the unwary, in the Pennsylvania state court system.

The best way to resolve this problem would be for the Pennsylvania state rules of procedure to be amended to provide that a timely filed motion for reconsideration in a civil case will postpone the time for appeal until after the motion is decided, just as in federal court civil practice. But that change may never happen, and unless and until it does happen, attorneys handling civil cases in Pennsylvania state court need to be aware of the appellate waiver trap for the unwary involving motions for reconsideration discussed above.

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.