Murphy's law

It seems like such a simple thing to file a civil appeal within 30 days of the entry, let’s say, of an order granting summary judgment against your client.



Because most lawyers are peace-loving, frugal with their time and reluctant to undertake a full-fledged appeal, they have sometimes tempted fate. They have asked for reconsideration from the trial court and then waited to see what the trial court says before they appeal. If the judgment that was entered ends the whole case (i.e., is final), this approach flirts with real disaster.



In the state judicial system a petition for reconsideration addressed to the trial court does not toll the running of the 30 days for filing a notice of appeal. If the judgment ending the case has been docketed, a bid for reconsideration is useless unless the trial court actually grants it before the 30-day period runs out.



Pennsylvania Rule of Appellate Procedure 1701(b)(3) says as much, and the recent decision in Cheathem v. Temple University Hospital, PICS Case No. 99- 2345 (Pa. Super. Dec. 20, 1999) Cirillo, J., (5 pages), proves it with bells and ribbons.



In Cheathem, the trial court denied a promptly filed reconsideration motion within 30 days of granting summary judgment to defendant in a medical malpractice action. About five more days were left for a notice of appeal to be filed before the appeals window closed.



Instead the plaintiff filed a notice of appeal within thirty days of the reconsideration denial and the Superior Court quashed the appeal.



Notably, if a notice of appeal has been filed, the trial court becomes powerless to grant reconsideration or make any change in the disposition of the case from the 31st day on.



So clear and concise is this principle, that the trial court cannot even correct what it recognizes to have been a mistake. Not even a trial court’s stay will substitute for a timely grant of reconsideration, as the discussion in footnote five in Cheathem explains.



The safest course for lawyers bent on exploring the slim chance of reconsideration, therefore, is to file the proper notice of appeal early in the 30-day span, filing the reconsideration petition at the same time and within whatever period, if any, is specified locally. There is nothing wrong with such a dual filing in the state system.



The concurrence of a notice of appeal does not bar the trial court from reconsidering if everything is done within 30 days from the entry of the final order on the docket.



The notice of appeal becomes inoperative if reconsideration is timely granted; if reconsideration is denied or no action at all is taken, the appeal has already been protected. See Darlington, Pennsylvania Appellate Practice, Section 1701:30 (Lawyers Coop., 1986, 1992 Supp.).



There are too many unfortunate cases where the attorney waited more than 30 days after the trial court’s final order hoping for a reconsideration grant. By the time reconsideration was denied, the appeal was too late.



If the attorney did not wait but instead filed a notice of appeal within 30 days of the final order at the same time as filing the petition for reconsideration, the only worry once reconsideration is denied or the reconsideration clock runs out would have been beating the statistical odds that favor affirmance on appeal.

Federal Appeals

In the federal system, as in the state appellate courts, failure to file a notice of appeal within 30 days of a final summary judgment also cooks the goose, but it leaves the bird a little less well done.



If you have a good excuse, for example, you might use Rule 4(a)(5) of the Federal Rules of Appellate Procedure and ask the district court to extend the time for an appeal even after you missed the 30-day deadline.



Only a comedian, and a good one, would ever count on this rule in advance. An attorney recovering from medically documented amnesia should give it a try.



Setting the nuances of Rule 4(a)(5) aside, reconsideration by a federal district court after a final order granting summary judgment may be obtained pursuant to Federal Rule of Civil Procedure Rule 52(b), motion to amend or make additional findings, or Rule 59, motion to alter or amend judgment.



These motions have to be filed within 10 days of the judgment or final order. If they are, the 30-day appeal period is suspended until the decision on the motion, marking a sharp contrast with the state practice.



In Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985), the 3rd Circuit Court of Appeals went to great lengths to explain how this clear-cut approach works. Even if someone filed a notice of appeal one day after the final summary judgment order in question, and the Rule 59 or 52 motion came later (but within the mandated 10 days), the district court’s jurisdiction remains intact and all rights to appeal are preserved for a later time.



In state cases, the appeal period is not in any way extended by the filing of a reconsideration motion. Where any notice of appeal was filed within 30 days of the original order, moreover, the trial court’s power is cut off after the original appeal period runs.



So strongly favoring reconsideration by the trial court within the defined framework, the 3rd Circuit even allows anything generically termed a “motion for reconsideration” to be deemed the “functional equivalent of a Rule 59 motion.” This helps in those cases where the moving party’s attorney was a little sloppy and didn’t mention Rules 59 or 52 by name.



Although this graciousness is appreciated as a fallback, there is no reason to depend on it. A motion brought under Rule 59 can just as easily say so in the heading and body.



Under Venen, however, if a motion is labeled a Rule 60(b) motion or, presumably, if it is filed after the 10-day limit for a Rule 59 motion, the district court has no jurisdiction to grant it. In one of those remarkable twists that makes appellate practice so entertaining and keeps appellate practitioners so on edge, the district court apparently does, however, have jurisdiction to consider and then deny such a motion.



In the event a district court presented with a limited 60(b) motion wants to correct a mistake and afford the movant relief while the appeal is pending, it may “certify its inclination or its intention to the appellate court which can then entertain a motion to remand the case” under Venen. It just can’t grant the relief itself.



This approach may be laden with subtle distinctions and formal procedures, but at least it lets the district court “fess up” to what it believes was a mistake. The court of appeals reserves the right to ignore the expression of penitence in the context of a Rule 60(b) motion, but at least the lines of communication exist for it to be heard.



Ironically, in Venen the appeal was dismissed because the motion for reconsideration did not meet the 10-day requirement of Rules 59 or 52. Instead, the court determined that the motion was one under Rule 60(b) and dismissed the appeal.

Post-Appeal Opinions