Howard Bashman.

Upon Further Review

Another typical day at the office. The phone rings. On the line is an experienced Pennsylvania state court trial attorney, exasperated because the Pennsylvania Superior Court has just dismissed his client's appeal as premature. What's worse, the dismissal order issued more than 30 days after the trial court had issued a final, appealable judgment, meaning that if the dismissal stands then his client will receive no appellate review whatsoever of the trial court's adverse decision.

I agree to help. As always, the next step is to learn more about what happened so that I can advise whether any hope exists to get the dismissal order vacated by the Superior Court or reviewed and set aside by the Pennsylvania Supreme Court. The case's relevant procedural history was as follows: The case had proceeded to a nonjury trial in the Philadelphia Court of Common Pleas, after which the trial judge issued findings of fact and conclusions of law and returned a decision in favor of the defendants and against the plaintiff.

The plaintiff's attorney, who had contacted me for assistance, had filed a timely motion for post-trial relief in the trial court, which in Pennsylvania state court is a prerequisite for preserving issues for appellate review even following a nonjury trial. In federal court, by contrast, the filing- of post–trial motions is not always required to obtain appellate review of an adverse decision at a nonjury trial.

While the plaintiff's timely post–trial motions remained pending, undecided, before the trial court, but within 30 days from the trial court's issuance of its decision at the conclusion of the nonjury trial, the plaintiff's counsel for whatever reason decided to file a notice of appeal from the trial court's adverse decision at the conclusion of the nonjury trial.

Regular readers of this column are familiar with my longstanding advice that it is better to file too many notices of appeal in a case than too few. Unnecessary notices of appeal can always be dismissed. But if a party fails to file the one notice of appeal that was necessary to obtain appellate review, the fact that a bunch of other, improper notices of appeal had been filed at other times might not end up being of any help whatsoever.

In the particular case that I have been describing, the plaintiff's filing of a notice of appeal within 30 days of the trial court's nonjury decision, but while the plaintiff's timely filed post–trial motions remained pending before the trial court for decision, was to those of us who are familiar with these things clearly an unnecessary notice of appeal. The appeal was premature because no final, appealable decision will exist in that case until the trial court decides the timely filed post–trial motions and final judgment is entered in the trial court.

In fairly short order, the trial court issued an order denying the plaintiff's motions for post–trial relief on the merits and entering judgment in favor of the defendants. Unfortunately, for whatever reason, the plaintiff's counsel never filed a new notice of appeal from the trial court's entry of final judgment in favor of the defendants and against the plaintiff.

At some point thereafter, counsel for one of the two defendants–appellees filed a motion to quash the plaintiff's appeal as premature because it had been filed before the trial court decided the plaintiff's motions for post–trial relief. The plaintiff filed an answer in opposition to the motion to quash. Next, the Superior Court issued a per curiam (unsigned) order granting the motion to quash, thereby dismissing the plaintiff's appeal as premature. That soon thereafter led to the phone call I received from the plaintiff's counsel seeking my assistance.

Fortunately for the plaintiff's counsel, there remained reason for hope that the appeal could be reinstated and a decision on the merits of the appeal obtained. Pennsylvania Rule of Appellate Procedure 905(a)(5) provides that "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." A similar provision is found in Rule 4(a)(4)(B) of the Federal Rules of Appellate Procedure.

The Superior Court most frequently invokes Pa. R. App. P. 905(a)(5) in appeals where the appellant has appealed from a trial court's ruling on post–trial motions but judgment has not separately been entered in the trial court. In such instances, the Superior Court will direct the appealing party to file a praecipe for entry of judgment in the trial court, after which the previously filed notice of appeal will be deemed sufficient to appeal from the final judgment in accordance with Rule 905(a)(5).

In the case I have been describing, the trial court denied the plaintiff's motion for post–trial relief in its entirety, and thus the trial court's decision at the conclusion of the nonjury trial, from which the plaintiff had prematurely appealed, remained undisturbed and in effect. My research unearthed one Superior Court and two Pennsylvania Commonwealth Court rulings with identical procedural postures to this new case in which the appellate court treated notices of appeal filed before the disposition of post–trial motions as sufficient to appeal from final judgments entered after the post–trial motions had been denied. Longtime Pennsylvania appellate attorney, and short–time Superior Court Judge, Carl A. Solano, was the author of the directly on–point Superior Court ruling in United Environmental Group v. GKK McKnight, 176 A.3d 946, 957–62, 967 (Pa. Super. Ct. 2017).

On Dec. 17, 2019, I filed an application for reconsideration/reargument in the Superior Court asking that the court's order dismissing the appeal as premature be vacated and the case reinstated on that court's docket for consideration and disposition on the merits. A little over two weeks later, on Jan. 2, the Superior Court granted reconsideration/reargument, vacated its earlier order dismissing the appeal as premature, and reinstated the appeal for consideration and disposition on the merits. As you might imagine, trial counsel was extremely appreciative that the matter ultimately had been resolved in a way that preserved the client's ability to obtain to appellate review.

To summarize, the better practice is to file a new notice of appeal in a case once final judgment is entered even if an earlier notice of appeal had been filed as a precautionary matter. Had the Superior Court dismissed this plaintiff's notice of appeal as premature while the post–trial motions remained pending, a new notice of appeal after final judgment had entered would have been necessary to assure appellate review.

But, under the particular circumstances of this case, where a premature appeal had been filed from what turned out to be the final decision in the case, that premature appeal had not been dismissed while the post–trial motion remained pending, and the time to appeal from the actual final judgment had passed, under Pa. R. App. P. 905(a)(5) the premature appeal sufficed to assure appellate review of the final judgment.

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.law.com/ and via Twitter @howappealing.