Upon Further Review

Howard Bashman.

This month's column focuses on an issue that I have seen arising with increasing frequency in my own appellate practice in Pennsylvania state court, which focuses on civil appeals. A while back, I wrote about the ever-increasing number of petitions for review that parties were filing after failing to convince the trial court to certify an interlocutory order either for appeal by permission or appeal as of right. My concern was that such petitions for review, which are rarely successful, represented a waste of client resources and an unfortunate diversion of judicial attention away from the more important work of correctly deciding cases that are properly before the appellate court on the merits.

The petition for review in a state appellate court, which is akin to a petition for writ of mandamus in a federal appellate court, is an original proceeding that a disgruntled litigant can initiate directly in the appellate court relating to a case that remains pending in the trial court. The most frequent type of petition for review that I encounter in my practice is one challenging a trial court's refusal to certify an interlocutory order for immediate appeal by permission.

To obtain such a certification, the losing party must convince the trial court that order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. If the trial court issues such an order, then the party seeking to take the interlocutory appeal by permission must next convince the appellate court that it should hear the appeal right now rather than having it await the conclusion of the entire case. Obtaining an immediate interlocutory appeal by permission thus involves persuading both the trial court and the appellate court. But if the trial court disagrees, the party wishing to pursue an immediate interlocutory appeal can file a petition for review directly in the appellate court, and that party's burden is then to establish that the trial court egregiously abused its discretion in refusing to certify the order for immediate interlocutory appeal by permission.

The final judgment rule that Pennsylvania's state appellate courts follow ordinarily requires any appellate review to await the conclusion of the entire case. However, when a trial court has decided a case as to fewer than all parties or claims, the trial court at the request of a party could certify such an order as a final order, thereby allowing its resolution of the case as to fewer than all parties or claims to head to appeal immediately as a final order. If the trial court so certifies, the losing party can take an appeal as of right; permission to appeal from the appellate court is not required. However, if the trial court refuses to certify such an order as a final order, then the party that sought that relief can file a petition for review.

The ability to file a petition for review from a trial court's order refusing to certify a decision for immediate interlocutory appeal by permission is set forth in the advisory committee's note to the Pennsylvania Rule of Appellate Procedure governing interlocutory appeals by permission. And the ability to file a petition for review from a trial court's order refusing to certify an order resolving the case as to fewer than all parties or claims as a final order is set forth in that Pennsylvania Rule of Appellate Procedure's express provisions.

With that background in mind, let's focus on another, rather unusual aspect of the Pennsylvania Rules of Appellate Procedure. Appellate Rule 311(b)(2) states that a trial court can certify an order sustaining venue or personal or in rem jurisdiction as presenting a substantial issue of venue or jurisdiction, which then would make the trial court's order immediately appealable as of right (meaning no permission would be necessary from the appellate court for the appeal to proceed). But what if the trial court refuses to certify an order sustaining venue or personal or in rem jurisdiction as presenting a substantial issue of venue or jurisdiction? Can the losing party then file a petition for review in the appellate court to which it would have appealed arguing that the trial court egregiously abused its discretion in refusing to authorize an immediate appeal?

The answer to that question appears to be "no." To begin with, neither the text of the Pennsylvania Rule of Appellate Procedure governing a party's ability to immediately appeal from an order sustaining venue or personal or in rem jurisdiction if the trial court certifies the matter as presenting a substantial question of jurisdiction or venue, nor that rule's advisory committee note, expressly authorizes the filing of a petition for review from an order denying certification. What's more, the rule's advisory committee notes instead say that if the trial judge refuses to certify the order for immediate interlocutory appeal as of right, the only remedy available to the party seeking an immediate appeal is to convince the trial court that the order qualifies for immediate appellate review under the standards applicable to an interlocutory appeal by permission.

Consider a case that I worked on, as appellate co-counsel for the plaintiff, in which the defendant filed a petition for review in the Pennsylvania Superior Court challenging the trial court's refusal to amend its order sustaining venue and personal jurisdiction as presenting substantial questions of venue and jurisdiction. In opposing that petition for review, we pointed out that the defendant had never asked the trial court to certify its order for immediate interlocutory appeal by permission. Thereafter, the Superior Court issued an order denying the defendant's petition for review on the grounds that the Pennsylvania Rules of Appellate Procedure do not authorize a defendant to file a petition for review to challenge a trial court's refusal to certify an order as presenting a substantial question of jurisdiction or venue unless the defendant had first asked the trial court to certify its order for interlocutory appeal by permission.

The lesson here, it seems, is that if a defendant in a Pennsylvania state court proceeding wishes to seek immediate interlocutory appellate review of a trial court's order sustaining either venue or personal jurisdiction, that defendant should simultaneously ask the trial court to certify the order as presenting a substantial question of jurisdiction or venue or, in the alternative, to certify the order for interlocutory appeal by permission. Then, if the trial court denies both requests for relief, the defendant can at least properly file a petition for review in the appellate court asserting that the trial court egregiously abused its discretion in refusing to certify the matter for immediate interlocutory appeal by permission.

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.