How to Draft an Effective Petition for Allowance of Appeal

The situation is all too familiar to many attorneys: after years of litigation, you and your client have been handed a crushing defeat by one of Pennsylvania’s two intermediate appellate courts. Convinced that Superior or Commonwealth Court, as the case may be, “got it all wrong,” you want to take your case to the Supreme Court. But how do you persuade the highest court in the commonwealth to take your case? Your first instinct may be to hone in on what you perceive as the most glaring legal errors. While that approach is often sound on direct appeal as of right, it is unlikely to prove fruitful when seeking discretionary appellate review. In fact, as we discuss below, persuading the Supreme Court to take your case requires a unique—and sometime counterintuitive—type of advocacy.

Above all else, a strong petition for allowance of appeal to the Pennsylvania Supreme Court—or an allocatur petition—requires a deep understanding of Rule 1114 of the Rules of Appellate Procedure. That rule, which is the court’s chief focus when examining allocatur petitions, provides that discretionary review will be granted “only where there are special and important reasons” and proceeds to list seven reasons for granting an appeal:

• the holding of the intermediate appellate court conflicts with another intermediate appellate court opinion;
• the holding of the intermediate appellate court conflicts with a holding of the Pennsylvania Supreme Court or the United States Supreme Court on the same legal question;
• the question presented is one of first impression;
• the question presented is one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court;
• the issue involves the constitutionality of a statute of the Commonwealth;
• the intermediate appellate court has so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of the Pennsylvania Supreme Court’s supervisory authority; or
• the intermediate appellate court has erroneously entered an order quashing or dismissing an appeal.