The last thing an appellate lawyer wants to do is accidentally waive something. A waiver can be a particularly knotty issue where rules or case law provides an opportunity to take an interlocutory appeal of a particular issue or ruling. If an interlocutory appeal is procedurally available, does foregoing that appeal constitute a waiver of the appealable issue? Fortunately, the changes to Pa. R.A.P. 311 that become effective in April, will clarify when a waiver exists and, conversely, when an interlocutory appeal can be passed up without prejudicing a party’s ability to pursue the issue on final appeal, as in In Re: Order Amending Rule 311, 341, and 904 of the Pennsylvania Rules of Appellate Procedure, No. 258 APR Dkt. (Pa. Dec. 14, 2015).

First, a new section of Rule 311, subsection (g)(1)(i), will specify that no waiver will be incurred by virtue of not immediately appealing the following types of orders: refusing to open, vacate or strike a prior judgment; similar refusals to confirm, modify, or dissolve attachments, custodianships and receiverships—except in the case of certain divorce proceedings; venue changes in criminal actions; most orders granting, modifying or affecting injunctions, again with a divorce code exception; grants of mandamus; new trial orders, including criminal orders affecting double jeopardy; partition orders; any order “appealable by statute or general rule;” orders sustaining jurisdiction or venue orders where the court finds a “substantial question;” and orders directing partitions.

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