Don't Let Vestigial Claims or Parties Wreck Your Appeal
Would-be appellants' counsel must ensure that whatever orders they intend to challenge are in fact final, in that no "claims" or "parties" remain outstanding. In particular, counsel need to take special care that no "vestigial" claims or parties linger in the weeds of the litigation.
February 16, 2023 at 11:13 AM
8 minute read
Civil AppealsIn Pennsylvania, as in most places, for an order to be appealable as of right, it must dispose of all claims against all parties. Thus, would-be appellants' counsel must ensure that whatever orders they intend to challenge are in fact final, in that no "claims" or "parties" remain outstanding. In particular, counsel need to take special care that no "vestigial" claims or parties linger in the weeds of the litigation. "The mere fact that some of the parties have been dismissed from a case, or that some of the counts of a multi-count complaint have been dismissed is insufficient reason to classify an order as final." See Bailey v. RAS Auto Body, 85 A.3d 1064, 1069 (Pa. Super. 2014). Appellate jurisdiction is nonwaivable, and vigorously policed by the appellate courts sua sponte, so even if the active litigants are no longer prosecuting such vestigial matters, their lingering presence can—and does—destroy appellate jurisdiction. See Pennsylvania Manufacturers' Association Insurance v. Johnson Matthey, 188 A.3d 396, 398 (Pa. 2018); Schmitt v. State Farm Mutual Automobile Insurance, 245 A.3d 678, 681 (Pa. Super. 2021) and Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super. 2009). Forgotten does not mean gone.
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