In Re: Order Amending Rule 311, 341, and 904 of the Pennsylvania Rules of Appellate Procedure ( 2015 )

Rule 311. Interlocutory Appeals as of Right.
(a) General rule.—An appeal may be taken as of right and without reference to
Pa.R.A.P. 341(c) from:
(1) Affecting judgments.—An order refusing to open, vacate, or strike off a
judgment. If orders opening, vacating, or striking off a judgment are sought in the
alternative, no appeal may be filed until the court has disposed of each claim for relief.
(2) Attachments, etc.—An order confirming, modifying,[or] dissolving, or refusing
to confirm, modify or dissolve an attachment, custodianship, receivership, or similar
matter affecting the possession or control of property, except for orders pursuant to
[Section 3323(f) or 3505(a) of the Divorce Code,]23 Pa.C.S. §§ 3323(f), 3505(a).
(3) Change of criminal venue or venire.—An order changing venue or venire in a
criminal proceeding.
(4) Injunctions.—An order that grants or denies, modifies or refuses to modify,
continues or refuses to continue, or dissolves or refuses to dissolve an injunction unless
the order was entered:
(i) Pursuant to[Section 3323(f) or 3505(a) of the Divorce Code,] 23
Pa.C.S. §§ 3323(f), 3505(a); or
(ii) After a trial but before entry of the final order. Such order is
immediately appealable, however, if the order enjoins conduct previously permitted or
mandated or permits or mandates conduct not previously mandated or permitted, and is
effective before entry of the final order.
(5) Peremptory judgment in mandamus.—An order granting peremptory
judgment in mandamus.
(6) New trials.—An order in a civil action or proceeding awarding a new trial, or
an order in a criminal proceeding awarding a new trial where the defendant claims that
the proper disposition of the matter would be an absolute discharge or where the
Commonwealth claims that the [lower]trial court committed an error of law.
(7) Partition.—An order directing partition.
(8) Other cases.—An order [which is made appealable by statute or general
rule]that is made final or appealable by statute or general rule, even though the
order does not dispose of all claims and of all parties.
(b) Order sustaining venue or personal or in rem jurisdiction.—An appeal may be
taken as of right from an order in a civil action or proceeding sustaining the venue of the
matter or jurisdiction over the person or over real or personal property if:
(1) the plaintiff, petitioner, or other party benefiting from the order files of record
within ten days after the entry of the order an election that the order shall be deemed
final; or
(2) the court states in the order that a substantial issue of venue or jurisdiction is
presented.
(c) Changes of venue, etc.—An appeal may be taken as of right from an order in a
civil action or proceeding changing venue, transferring the matter to another court of
coordinate jurisdiction, or declining to proceed in the matter on the basis of [forum non
conveniens]forum non conveniens or analogous principles.
(d) Commonwealth [A]appeals in [C]criminal [C]cases.—In a criminal case, under
the circumstances provided by law, the Commonwealth may take an appeal as of right
from an order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap the
prosecution.
(e) Orders [O]overruling [P]preliminary [O]objections in [E]eminent [D]domain
[C]cases.—An appeal may be taken as of right from an order overruling preliminary
objections to a declaration of taking and an order overruling preliminary objections to a
petition for appointment of a board of viewers.
(f) Administrative [R]remand.—An appeal may be taken as of right from: (1) an order
of a common pleas court or government unit remanding a matter to an administrative
agency or hearing officer for execution of the adjudication of the reviewing tribunal in a
manner that does not require the exercise of administrative discretion; or (2) an order of
a common pleas court or government unit remanding a matter to an administrative
agency or hearing officer that decides an issue [which]that would ultimately evade
appellate review if an immediate appeal is not allowed.
(g) Waiver of objections.
(1) [Where an interlocutory order is immediately appealable under this rule,
failure to appeal:] Except as provided in subparagraphs (g)(1)(ii), (iii), and (iv),
failure to file an appeal of an interlocutory order does not waive any objections to
the interlocutory order:
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(i)[Under Subdivisions (a), (b)(2) or (f) of this rule shall not constitute
a waiver of the objection to the order and the objection may be raised on any
subsequent appeal in the matter from a determination on the merits.]
RESCINDED
(ii) [Under Subdivisions] Failure to file an appeal from an
interlocutory order under subparagraph (b)(1) or paragraph (c) of this rule shall
constitute a waiver of all objections to jurisdiction over the person or over the property
involved or to venue, etc., and the question of jurisdiction or venue shall not be
considered on any subsequent [appellate review of the matter]appeal.
(iii) [Under Subdivision] Failure to file an appeal from an interlocutory
order under paragraph (e) of this rule shall constitute a waiver of all objections to such
an order[s and any objection may not be raised on any subsequent appeal in the
matter from a determination on the merits].
(iv) Failure to file an appeal from an interlocutory order refusing to
compel arbitration, appealable under 42 Pa.C.S. § 7320(a)(1) and subparagraph
(a)(8) of this rule, shall constitute a waiver of all objections to such an order.
(2) Where no election that an interlocutory order shall be deemed final is filed
under [Subdivision]subparagraph (b)(1) of this rule, the objection may be raised on
any subsequent appeal[in the matter from a determination on the merits].
(h) Further proceedings in the [lower]trial court.--[Rule]Pa.R.A.P. 1701(a) [(effect
of appeal generally)]shall not be applicable to a matter in which an interlocutory order
is appealed under [Subdivisions]subparagraphs (a)(2) or (a)(4) of this rule.
Official Note:
Authority—This rule implements 42 Pa.C.S. § 5105(c)[(interlocutory appeals)],
which provides:
(c) Interlocutory appeals. There shall be a right of appeal from such
interlocutory orders of tribunals and other government units as may be
specified by law. The governing authority shall be responsible for a
continuous review of the operation of section 702(b) (relating to
interlocutory appeals by permission) and shall from time to time establish
by general rule rights to appeal from such classes of interlocutory orders,
if any, from which appeals are regularly [allowed]permitted pursuant to
section 702(b).
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The appeal rights under this rule[,] and under [Rule]Pa.R.A.P.
312[(Interlocutory Appeals by Permission)], [Rule]Pa.R.A.P. 313[(Collateral
Orders)], [Rule]Pa.R.A.P. 341[(Final Orders; Generally)], and [Rule]Pa.R.A.P.
342[(Appealable Orphans’ Court Orders)[,] are cumulative; and no inference shall be
drawn from the fact that two or more rules may be applicable to an appeal from a given
order.
[Subdivision]Paragraph (a)—If an order falls under [Rule]Pa.R.A.P. 311, an
immediate appeal may be taken as of right simply by filing a notice of appeal. The
procedures set forth in [Rules]Pa.R.A.P. 341(c) and 1311 do not apply to an appeal
under [Rule]Pa.R.A.P. 311.
[Subdivision (a),]Sub[P]paragraph (a)(1)[(Affecting judgments)]--The 1989
amendment to subparagraph (a)(1) eliminated interlocutory appeals of right from orders
opening, vacating, or striking off a judgment while retaining the right of appeal from an
order refusing to take any such action.
Subp[P]aragraph (a)(2)[(Attachments, etc.)]—The 1987 Amendment to
subparagraph (a)(2) is consistent with appellate court decisions disallowing
interlocutory appeals in matrimonial matters. Fried v. Fried, [509 Pa. 89, ]501 A.2d 211
(Pa. 1985); O’Brien v. O’Brien, [359 Pa. Super. 594, ]519 A.2d 511 (Pa. Super. 1987).
[Paragraph (a)(3) (Change of criminal venue or venire)—Under prior
practice, either a defendant or the Commonwealth could appeal an order
changing venue. See former Pa.R.Crim.P. 311(a) (Third sentence) before
amendment of June 29, 1977, 471 Pa. XLIV. An order refusing to change venue is
not appealable. Commonwealth v. Swanson, 424 Pa. 192, 225 A.2d 231 (1967).
This rule makes no change in existing practice.]
Subparagraph (a)(3)--Change of venire is authorized by 42 Pa.C.S. § 8702
[(impaneling jury from another county)]. Pa.R.Crim.P. [312]584 [(motion for
change of venue or change of venire) ]treats changes of venue and venire the same.
Thus an order changing venue or venire is appealable by the defendant or the
Commonwealth, while an order refusing to change venue or venire is not.
See also [Rule]Pa.R.A.P. 903(c)(1) regarding time for appeal.
Subp[P]aragraph (a)(4)[(Injunctions)]—The 1987 amendment to subparagraph
(a)(4) is consistent with appellate court decisions disallowing interlocutory appeals in
matrimonial matters. Fried v. Fried, [509 Pa. 89, ]501 A.2d 211, 215 (Pa. 1985);
O’Brien v. O’Brien, [359 Pa. Super. 594, ]519 A.2d 511, 514 (Pa. Super. 1987).
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The 1996 amendment to subparagraph (a)(4) reconciled two conflicting lines of
cases by adopting the position that generally an appeal may not be taken from a
[decree nisi] decree nisi granting or denying a permanent injunction.
The 2009 amendment to the rule conformed the rule to the 2003 amendments to
the Pennsylvania Rules of Civil Procedure abolishing actions in equity and thus
eliminating the decree nisi. Because decrees nisi were in general not appealable to the
extent they were not effective immediately upon entry, this principle has been expressly
incorporated into the body of the rule as applicable to any injunction.
Subp[P]aragraph (a)(5)[(Peremptory judgment in mandamus)]—
Subp[P]aragraph (a)(5), added in 1996, authorizes an interlocutory appeal as of right
from an order granting a motion for peremptory judgment in mandamus without the
condition precedent of a motion to open the peremptory judgment in mandamus.
[Under prior practice established in Hamby v. Stoe, 448 Pa. 483, 295 A.2d 309
(1972), an order granting peremptory judgment in mandamus was not appealable;
only the order denying a motion to open the peremptory judgment in mandamus
was appealable. The 1996 amendment eliminated the need to move to open. The
January 1, 1996 amendment to Pa.R.C.P. 1098 eliminates the former practice of
filing a petition to open a peremptory judgment in mandamus. The 1996
amendment overrules Hamby v. Stoe and other decisions that quashed appeals
that were taken from the peremptory judgment in mandamus rather than the order
denying the motion to open the judgment, e.g., Butler v. Emerson, 76 Pa. Cmwlth.
156, 463 A.2d 109 (1983); Mertz v. Lakatos, 21 Pa. Cmwlth. 291 (1975); Ellenbogen
v. Larsen, 16 Pa. Cmwlth. 353, 328 A.2d 587 (1974).]An order denying a motion for
peremptory judgment in mandamus remains unappealable.
[Following a 2005 amendment to [Rule] Pa.R.A.P. 311, orders determining
the validity of a will or trust were appealable as of right under former
sub[division]paragraph (a)(8). Pursuant to the 2011 amendments to [Rule]
Pa.R.A.P. 342 [(Appealable Orphans’ Court Orders)], such orders are now
immediately appealable under sub[division]paragraph (a)(2) of [Rule] Pa.R.A.P.
342.]
Subp[P]aragraph (a)(8)[(Other cases)]—Subp[P]aragraph (a)(8)[is directed
primarily to statutes and general rules hereafter enacted or promulgated.]
recognizes that orders that are procedurally interlocutory may be made
appealable by statute or general rule. For example, see 27 Pa.C.S. § 8303. The
[current text of the]Pennsylvania Rules of Civil Procedure, the Pennsylvania Rules of
Criminal Procedure, etc., should also be consulted. [to identify any interlocutory
appeal rights provided for therein. See also, e.g., 42 Pa.C.S. § 7320 (appeals from
court orders), concerning appeals from certain orders in nonjudicial arbitration
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proceedings, which section is not suspended by these rules. See Rule 5102(a)
(Judicial Code unaffected).]
Following a 2005 amendment to [Rule] Pa.R.A.P. 311, orders determining
the validity of a will or trust were appealable as of right under former
subparagraph (a)(8). Pursuant to the 2011 amendments to Pa.R.A.P. 342, such
orders are now immediately appealable under Pa.R.A.P. 342(a)(2).
[Subdivision]Paragraph (b)[(Order sustaining venue or personal or in rem
jurisdiction)]—[Subdivision] Paragraph (b) is based in part on the Act of March 5,
1925, P. L. 23 [(order ruling on question of jurisdiction)]. The term ‘‘civil action or
proceeding’’ is broader than the term ‘‘proceeding at law or in equity’’ under the prior
practice and is intended to include orders entered by the orphans’ court division.
[Cf.]Cf. In the Matter of Phillips, [471 Pa. 289,]370 A.2d 307 (Pa. 1977).
In subparagraph (b)(1), a plaintiff is given a qualified (because it can be
overridden by petition for and grant of permission to appeal under [Rule]Pa.R.A.P. 312
[(interlocutory appeals by permission)]) option to gamble that the venue of the
matter or personal or [in rem]in rem jurisdiction will be sustained on appeal.
Subp[P]aragraph (g)(1)(ii) provides that if the plaintiff timely elects final treatment, the
failure of the defendant to appeal constitutes a waiver. The appeal period under [Rule]
Pa.R.A.P. 903[(time for appeal)] ordinarily runs from the entry of the order, and not
from the date of filing of the election, which procedure will ordinarily afford at least 20
days within which to appeal. [See]See [Rule]Pa.R.A.P. 903(c) as to treatment of
special appeal times. If the plaintiff does not file an election to treat the order as final,
the case will proceed to trial unless (1) the trial court makes a finding under
subp[P]aragraph (b)(2) of the existence of a substantial question of jurisdiction and the
defendant elects to appeal, (2) an interlocutory appeal is permitted under
[Rule]Pa.R.A.P. 312, or (3) another basis for appeal appears, [e.g.,]for example,
under subparagraph (a)(1), and an appeal is taken. Presumably, a plaintiff would file
such an election where [he]plaintiff desires to force the defendant to decide promptly
whether the objection to venue or jurisdiction will be seriously pressed.
[Subdivision]Paragraph (b) does not cover orders that do not sustain jurisdiction
because they are, of course, final orders appealable under [Rule]Pa.R.A.P. 341.
Sub[division]paragraph (b)(2) [(Substantial issue of venue or
jurisdiction)]—The 1989 amendment to subparagraph (b)(2) permits an interlocutory
appeal as of right where the trial court certifies that a substantial question of venue is
present. This eliminated an inconsistency formerly existing between
[subdivision]paragraph (b) and subparagraph (b)(2).
[Subdivision]Paragraph (c) [(Changes of venue, etc.)]—
[Subdivision]Paragraph (c) is based in part on the act of March 5, 1925 (P. L. 23, No.
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15)[(order ruling on question of jurisdiction)]. The term ‘‘civil action or proceeding’’
is broader than the term ‘‘proceeding at law or in equity’’ under the prior practice and is
intended to include orders entered by the orphans’ court division. [Cf.]Cf. In the Matter
of Phillips, [471 Pa. 289,]370 A.2d 307, 308 (Pa. 1977).
[Subdivision]Paragraph (c) covers orders that do not sustain venue,
[e.g.,]such as orders under Pa.R.C.P. 1006(d) and (e).
However, the [subdivision]paragraph does not relate to a transfer under 42
Pa.C.S. § 933(c)(1)[(concurrent and exclusive jurisdiction)], 42 Pa.C.S. § 5103,
[(transfer of erroneously filed matter)] or [under] any other similar provision of law,
because such a transfer is not to a ‘‘court of coordinate jurisdiction’’ within the meaning
of this rule; it is intended that there shall be no right of appeal from a transfer order
based on improper subject matter jurisdiction. Such orders may be appealed by
permission under [Rule] Pa.R.A.P. 312, or an appeal as of right may be taken from an
order dismissing the matter for lack of jurisdiction. [See]See Balshy v. Rank, [507 Pa.
384, 388,]490 A.2d 415, 416 (Pa. 1985).
Other orders relating to subject matter jurisdiction (which for this purpose does
not include questions as to the form of action, [e.g.,]such as between law and equity, or
divisional assignment, [see]see 42 Pa.C.S. § 952[(status of court divisions)]) will be
appealable under [Rule]Pa.R.A.P. 341 if jurisdiction is not sustained, and otherwise will
be subject to [Rule]Pa.R.A.P. 312.
[Subdivision]Paragraph (d)[(Commonwealth appeals in criminal matters)]—
[In subdivision]Pursuant to paragraph (d), the[1992 amendment permits appeals
by the] Commonwealth[from certain interlocutory orders that were previously
treated as final orders under the pre-1992 version of Rule 341(c). See, e.g.,] has a
right to take an appeal from an interlocutory order provided that the
Commonwealth certifies in the notice of appeal that the order terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 904(e). This rule
supersedes Commonwealth v. Dugger, [506 Pa. 537,] 486 A.2d 382, 386 (Pa. 1985).
Commonwealth v. Dixon, 907 A.2d 468, 471 n.8 (Pa. 2006). [; Commonwealth v.
Deans, 530 Pa. 514, 610 A.2d 32 (1992); and Commonwealth v. Cohen, 529 Pa.
552, 605 A.2d 1212 (1992). The 1996 amendment to Rule 904(e) requires that the
Commonwealth assert in the notice of appeal that the trial court’s order will
terminate or substantially handicap the prosecution.]
[Subdivision (e) (Orders overruling preliminary objections in eminent
domain cases)—In subdivision(e), the 1992 amendment permits interlocutory
appeals from orders overruling preliminary objections in eminent domain cases.
These orders were previously appealable as final orders under Rule 341 even
though such orders did not dispose of all claims and all parties. See In Re Certain
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Parcels of Real Estate, 420 Pa. 289, 216 A.2d 774 (1966); and Central Bucks Joint
School Bldg. Authority v. Rawls, 8 Pa. Cmwlth. 491, 303 A.2d 863 (1973).]
[Subdivision]Paragraph (f) [(Administrative remand)]—[In]Pursuant to
[subdivision] paragraph (f), [the 1992 amendment permitted]there is an immediate
appeal as of right from an order of a common pleas court or government unit remanding
a matter to an administrative agency or hearing officer for execution of the adjudication
of the reviewing tribunal in a manner that does not require the exercise of administrative
discretion. Examples of such orders include: [(1)] a remand by a court of common
pleas to the Department of Transportation for removal of points from a drivers license;
and [(2)] an order of the [Workmen’s]Workers’ Compensation Appeal Board
reinstating compensation benefits and remanding to a referee for computation of
benefits.
[Subdivision]Paragraph (f) further permits immediate appeal from an order of a
common pleas court or government unit remanding a matter to an administrative
agency or hearing officer that decides an issue that would ultimately evade appellate
review if an immediate appeal is not allowed. [See]See Lewis v. Sch. Dist. of
Philadelphia, 690 A.2d 814, 816 (Pa. Cmwlth. 1997).[Department of Environmental
Resources v. Big B Mining Co., Inc., 123 Pa. Cmwlth. 591, 554 A.2d 1002 (1989)
(order of Environmental Hearing Board reversing D.E.R.’s denial of a surface
mining permit and remanding to D.E.R. for re-evaluation of effluent limitations);
Phila. Commission On Human Relations v. Gold, 95 Pa. Cmwlth. 76, 503 A.2d 1120
(1986) (court of common pleas order reversing a Philadelphia Human Relations
Commission finding of discrimination on ground the commission impermissibly
commingled prosecutorial [or] and adjudicative functions). The 1992 amendment
overrules, in part, FMC Corporation v. Workmen’s Compensation Appeal Board,
116 Pa. Cmwlth. 527, 542 A.2d 616 (1988) to the extent that it is inconsistent with
subdivision (f).]
Subparagraph (g)(1)(iv)--Subparagraph (g)(1)(iv), added in 2015, addresses
waiver in the context of appeals from various classes of arbitration orders. All six
types of arbitration orders identified in 42 Pa.C.S. § 7320(a) are immediately
appealable as of right. Differing principles govern these orders, some of which
are interlocutory and some of which are final. The differences affect whether an
order is appealable under this rule or Pa.R.A.P. 341(b) and whether an immediate
appeal is necessary to avoid waiver of objections to the order.
 Section 7320(a)(1)--An interlocutory order refusing to compel arbitration
under 42 Pa.C.S. § 7320(a)(1) is immediately appealable pursuant to
Pa.R.A.P. 311(a)(8). Failure to appeal the interlocutory order immediately
waives all objections to it. See Pa.R.A.P. 311(g)(1)(iv). This supersedes the
holding in Cooke v. Equitable Life Assurance Soc’y, 723 A.2d 723, 726 (Pa.
8
Super. 1999). Pa.R.A.P. 311(a)(8) and former Pa.R.A.P. 311(g)(1)(i) require a
finding of waiver based on failure to appeal the denial order when entered).
 Section 7320(a)(2)--Failure to appeal an interlocutory order granting an
application to stay arbitration under 42 Pa.C.S. § 7304(b) does not waive
the right to contest the stay; an aggrieved party may appeal such an order
immediately under Pa.R.A.P. 311(a)(8) or challenge the order on appeal
from the final judgment.
 Section 7320(a)(3)-(a)(6)--If an order is appealable under 42 Pa.C.S. §
7320(a)(3), (4), (5), or (6) because it is final, that is, the order disposes of all
claims and of all parties, see Pa.R.A.P. 341(b), failure to appeal immediately
waives all issues. If the order does not dispose of all claims or of all
parties, then the order is interlocutory. An aggrieved party may appeal
such an order immediately under Pa.R.A.P. 311(a)(8) or challenge the order
on appeal from the final judgment.
[Subdivision]Paragraph (h)[(Further proceedings in lower court)]—[See]See
note to [Rule] Pa.R.A.P. 1701(a) [(effect of appeal generally)].
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Rule 341. Final Orders; Generally.
(a) General Rule.—Except as prescribed in [subdivisions]paragraphs (d)[,] and (e)
of this rule, an appeal may be taken as of right from any final order of a[n
administrative agency]government unit or [lower]trial court.
(b) Definition of Final Order.—A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) [is expressly defined as a final order by statute; or]RESCINDED
(3) is entered as a final order pursuant to [subdivision]paragraph (c) of this
rule.
(c) Determination of finality.—When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or third-party claim or when
multiple parties are involved, the trial court or other government[al] unit may enter a
final order as to one or more but fewer than all of the claims and parties only upon an
express determination that an immediate appeal would facilitate resolution of the entire
case. Such an order becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not constitute a final order. In
addition, the following conditions shall apply:
(1) The trial court or other government[al] unit is required to act on an
application for a determination of finality under [subdivision]paragraph (c) within 30
days of entry of the order. During the time an application for a determination of finality
is pending the action is stayed.
(2) A notice of appeal may be filed within 30 days after entry of an order as
amended unless a shorter time period is provided in [Rule]Pa.R.A.P. 903(c). Any
denial of such an application shall be reviewable only for abuse of discretion pursuant to
Chapter 15.
(3) Unless the trial court or other government[al] unit acts on the application
within 30 days of entry of the order, the trial court or other government[al] unit shall no
longer consider the application and it shall be deemed denied.
(4) The time for filing a petition for review will begin to run from the date of entry
of the order denying the application for a determination of finality or, if the application is
deemed denied, from the 31st day. A petition for review may be filed within 30 days of
the entry of the order denying the application or within 30 days of the deemed denial
unless a shorter time period is provided by [Rule]Pa.R.A.P. 1512(b).
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(d) Superior Court and Commonwealth Court Orders.—Except as prescribed by
[Rule]Pa.R.A.P. 1101[(appeals as of right from the Commonwealth Court)] no
appeal may be taken as of right from any final order of the Superior Court or of the
Commonwealth Court.
(e) Criminal Orders.—An appeal may be taken by the Commonwealth from any final
order in a criminal matter only in the circumstances provided by law.
Official Note:
Related Constitutional and Statutory Provisions—Section 9 of Article V of the
Constitution of Pennsylvania provides that ‘‘there shall be a right of appeal from a court
of record or from an administrative agency to a court of record or to an appellate court.’’
[The term ‘‘administrative agency’’ is not defined in Rule 102 of these rules and
as used in this rule is intended to have the same meaning as the term
‘‘administrative agency’’ in Section 9 of Article V of the Constitution of
Pennsylvania.]The constitutional provision is implemented by 2 Pa.C.S. § 702
[(appeals)], 2 Pa.C.S. § 752[ (appeals)], and 42 Pa.C.S. § 5105[ (right to appellate
review)].
Criminal Law Proceedings—Commonwealth Appeals—Orders formerly
appealable under [Rule]Pa.R.A.P. 341 by the Commonwealth in criminal cases as
heretofore provided by law, but which do not dispose of the entire case, are now
appealable as interlocutory appeals as of right under [Subdivision]paragraph (d) of
[Rule]Pa.R.A.P. 311.
Final Orders—Pre- and Post-1992 Practice—The 1992 amendment generally
eliminates appeals as of right under [Rule]Pa.R.A.P. 341 from orders not ending the
litigation as to all claims and as to all parties. Formerly, there was case law that orders
not ending the litigation as to all claims and all parties are final orders if such orders
have the practical consequence of putting a litigant out of court.
A party needs to file only a single notice of appeal to secure review of prior non-
final orders that are made final by the entry of a final order, [see]see K.H. v. J.R.,[ 573
Pa. 481, 493-94,] 826 A.2d 863, 870-71 (Pa. 2003) (following trial); Betz v. Pneumo
Abex LLC,[ ___ Pa. ___,] 44 A.3d 27, 54 (Pa. 2012) (summary judgment). Where,
however, one or more orders resolves issues arising on more than one docket or
relating to more than one judgment, separate notices of appeal must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal
taken by single notice of appeal from order on remand for consideration under
Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
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The 1997 amendments to [subdivisions]paragraphs (a) and (c), substituting
the conjunction ‘‘and’’ for ‘‘or,’’ are not substantive. The amendments merely clarify that
by definition any order which disposes of all claims will dispose of all parties and any
order that disposes of all parties will dispose of all claims.
[Final Orders in Declaratory Judgment Matters—In an action taken
pursuant to the Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, orders
based on a pre-trial motion or petition are considered ‘‘final’’ within the meaning
of this Rule, under subdivision (b)(2), if they affirmatively or negatively declare
the rights and duties of the parties. Nationwide Mut. Ins. Co. v. Wickett, 563 Pa.
595, 604, 763 A.2d 813, 818 (2000). Thus, an order in a declaratory judgment
action sustaining a demurrer and dismissing some, but not all, defendants is
considered a final order under subdivision (b)(2) because it is expressly defined
as such by statute. Importantly, however, when a court enters an order in a
declaratory judgment action that overrules preliminary objections in the nature of
a demurrer, the order is not ‘‘final’’ under subdivision (b)(2), because such order
merely allows the case to go forward without declaring the rights and duties of
the parties. Safe Harbor Water Power Corp. v. Fajt, 583 Pa. 234, 876 A.2d 954
(2005).
In order to preserve issues for appeal after a trial in a declaratory judgment
action, an aggrieved party must file post-trial motions as required by Pa.R.C.P.
No. 227.1. Motorists Mutual v. Pinkerton, 574 Pa. 333, 830 A.2d 958 (2003);
Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491 (2002).
Orders Appealable Under Other Rules—Orders which are separable from
and collateral to the main cause of action where the right involved is too
important to be denied review, and the question presented is such that if review
is postponed until final judgment in the case, the claim will be irreparably lost,
previously appealable as final orders under Rule 341, are now appealable under
Rule 313. See Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (quoting
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)).
The following is a partial list of orders that are no longer appealable as final
orders pursuant to Rule 341 but which, in an appropriate case, might fall under
Rules 312 (Interlocutory Appeals by Permission) or 313 (Collateral Orders) of this
Chapter.
(1) a decision transferring an equity action to the law side;
(2) an order denying a defendant leave to amend his answer to plead an
affirmative defense;
(3) a pre-trial order refusing to permit a defendant to introduce evidence of
an affirmative defense;
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(4) an order denying a party the right to intervene;
(5) an order denying a petition to amend a complaint;
(6) an order requiring the withdrawal of counsel;
(7) an order denying class certification in a class action case; and
(8) an order striking a lis pendens.
The dismissal of preliminary objections to a petition for appointment of a
board of viewers and the dismissal of preliminary objections to a declaration of
taking, formerly appealable as final orders under Rule 341, are now appealable as
interlocutory appeals as of right under Rule 311.]
Rescission of subparagraph (b)(2) - The 2015 rescission of subparagraph
(b)(2) eliminated a potential waiver trap created by legislative use of the adjective
“final” to describe orders that were procedurally interlocutory but nonetheless
designated as appealable as of right. Failure to appeal immediately an
interlocutory order deemed final by statute waived the right to challenge the order
on appeal from the final judgment. Rescinding subparagraph (b)(2) eliminated
this potential waiver of the right to appeal. If an order designated as appealable
by a statute disposes of all claims and of all parties, it is appealable as a final
order pursuant to Pa.R.A.P. 341. If the order does not meet that standard, then it
is interlocutory regardless of the statutory description. Pa.R.A.P. 311(a)(8)
provides for appeal as of right from an order that is made final or appealable by
statute or general rule, even though the order does not dispose of all claims or of
all parties and, thus, is interlocutory; Pa.R.A.P. 311(g) addresses waiver if no
appeal is taken immediately from such interlocutory order.
One of the further effects of the rescission of subparagraph (b)(2) is to
change the basis for appealability of orders that do not end the case but grant or
deny a declaratory judgment. See Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d
813, 818 (Pa. 2000); Pa. Bankers Ass’n v. Pa. Dep’t. of Banking, 948 A.2d 790, 798
(Pa. 2008). The effect of the rescission is to eliminate waiver for failure to take an
immediate appeal from such an order. A party aggrieved by an interlocutory
order granting or denying a declaratory judgment, where the order satisfies the
criteria for “finality” under Pennsylvania Bankers Association, may elect to
proceed under Pa.R.A.P 311(a)(8) or wait until the end of the case and proceed
under subparagraph (b)(1) of this rule.
An arbitration order appealable under 42 Pa.C.S. § 7320(a) may be
interlocutory or final. If it disposes of all claims and all parties, it is final and,
thus, appealable pursuant to Pa.R.A.P. 341. If the order does not dispose of all
claims and all parties, that is, the order is not final, but rather interlocutory, it is
appealable pursuant to Pa.R.A.P. 311. Failure to appeal an interlocutory order
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appealable as of right may result in waiver of objections to the order. See
Pa.R.A.P. 311(g).
[Subdivision]Paragraph (c)—Determination of Finality—[Subdivision]
Paragraph (c) permits an immediate appeal from an order dismissing less than all
claims or parties from a case only upon an express determination that an immediate
appeal would facilitate resolution of the entire case. Factors to be considered under
[Subdivision]paragraph (c) include, but are not limited to:
(1) whether there is a significant relationship between adjudicated and
unadjudicated claims;
(2) whether there is a possibility that an appeal would be mooted by further
developments;
(3) whether there is a possibility that the court or [administrative
agency]government unit will consider issues a second time; and
(4) whether an immediate appeal will enhance prospects of settlement.
The failure of a party to apply to the [administrative agency]government unit
or [lower]trial court for a determination of finality pursuant to [subdivision]paragraph
(c)[,] shall not constitute a waiver and the matter may be raised in a subsequent appeal
following the entry of a final order disposing of all claims and all parties.
Where the [administrative agency]government unit or [lower]trial court
refuses to amend its order to include the express determination that an immediate
appeal would facilitate resolution of the entire case and refuses to enter a final order, a
petition for review under Chapter 15 of the unappealable order of denial is the exclusive
mode of review to determine whether the case is so egregious as to justify prerogative
appellate correction of the exercise of discretion by the lower tribunal. [See, e.g.]See,
e.g., Pa.R.A.P. 1311, Official Note. The filing of such a petition for review does not
prevent the [lower] trial [C]court or other government unit from proceeding further with
the matter[,] pursuant to Pa.R.A.P. 1701(b)(6). Of course, as in any case, the appellant
could apply for a discretionary stay of the proceeding below.
Sub[section]paragraph (c)(2) provides for a stay of the action pending
determination of an application for a determination of finality. If a petition for review is
filed challenging denial, a stay or [supersedeas]supersedeas will issue only as
provided under Chapter 17 of these [R]rules.
In the event that a trial court or other government[al] unit enters a final order
pursuant to [subdivision]paragraph (c) of this rule, the trial court or other
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government[al] unit may no longer proceed further in the matter, except as provided in
Pa.R.A.P. 1701(b)(1)-(5).
The following is a partial list of orders previously interpreted by the courts as
appealable as final orders under [Rule]Pa.R.A.P. 341 that are no longer appealable as
of right unless the trial court or [administrative agency]government unit makes an
express determination that an immediate appeal would facilitate resolution of the entire
case and expressly enters a final order pursuant to [Rule]Pa.R.A.P. 341(c):
(1) an order dismissing one of several causes of action pleaded in a complaint
but leaving pending other causes of action;
(2) an order dismissing a complaint but leaving pending a counterclaim;
(3) an order dismissing a counterclaim but leaving pending the complaint
[which]that initiated the action;
(4) an order dismissing an action as to less than all plaintiffs or as to less than
all defendants but leaving pending the action as to other plaintiffs and other defendants;
[and]
(5) an order granting judgment against one defendant but leaving pending the
complaint against other defendants; and
6) an order dismissing a complaint to join an additional defendant or denying a
petition to join an additional defendant or denying a petition for late joinder of an
additional defendant.
The 1997 amendment adding sub[division]paragraph (c)(3) provide[s]d for a
deemed denial where the trial court or other government[al] unit fails to act on the
application within 30 days.
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Rule 904. Content of the Notice of Appeal.
(a) Form.—Except as otherwise prescribed by this rule, the notice of appeal shall be
in substantially the following form:
* * *
(b) Caption.—The parties shall be stated in the caption as they stood upon the
record of the [lower]trial court at the time the appeal was taken.
(c) Request for transcript.—The request for transcript contemplated by
[Rule]Pa.R.A.P. 1911[(request for transcript)] or a statement signed by counsel that
either there is [either ]no verbatim record of the proceedings or the complete transcript
has been lodged of record[,] shall accompany the notice of appeal, but the absence of
or defect in the request for transcript shall not affect the validity of the appeal.
(d) Docket entry.—The notice of appeal shall include a statement that the order
appealed from has been entered [in]on the docket. A copy of the docket entry showing
the entry of the order appealed from shall be attached to the notice of appeal.
(e) Content in criminal cases.—When the Commonwealth takes an appeal pursuant
to [Rule]Pa.R.A.P. 311(d), the notice of appeal shall include a certification by counsel
that the order will terminate or substantially handicap the prosecution.
(f) Content in children’s fast track appeals.—In a children’s fast track appeal the
notice of appeal shall include a statement advising the appellate court that the appeal is
a children’s fast track appeal.
Official Note:
The Offense Tracking Number (OTN) is required only in an appeal in a criminal
proceeding. It enables the Administrative Office of the Pennsylvania Courts to collect
and forward to the Pennsylvania State Police information pertaining to the disposition of
all criminal cases as provided by the Criminal History Record Information Act, 18
Pa.C.S. § 9101, et seq[et seq].
[The 1986 amendment requires that t]The notice of appeal must include a
statement that the order appealed from has been entered [in]on the docket. [The 1986
amendment deletes the requirement that t]The appellant does not need to certify
that the order has been reduced to judgment. This omission does not eliminate the
requirement of reducing an order to judgment before there is a final appealable order
where required by applicable practice or case law.
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[The 1997 amendment changes the word ‘‘order’’ to ‘‘request’’ in order to
eliminate any unintended implication that a court order is required. No court
order is required to obtain a transcript of the proceedings. See Pa.R.J.A. 5000.5
and the 1997 amendment to subdivision (a) of Rule 1911.]
With respect to [subdivision]paragraph (e), in Commonwealth v. Dugger, [506
Pa. 537,]486 A.2d 382, 386 (Pa. 1985), the Supreme Court held that the
Commonwealth’s certification that an order will terminate or substantially handicap the
prosecution is not subject to review as a prerequisite to the Superior Court’s review of
the merits of the appeal. The principle in Dugger has been incorporated in and
superseded by Pa.R.A.P. 311(d). Commonwealth v. Dixon, 907 A.2d 468, 471 n.8
(Pa. 2006). Thus, the need for a detailed analysis of the effect of the order, formerly
necessarily a part of the Commonwealth’s appellate brief, [was]has been eliminated.
[See also Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32 (1992);
Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 ( 1992) (allowing appeals by
the Commonwealth from adverse rulings on motions in limine). Accordingly, the
1997 amendment added subdivision (e) as a requirement when the
Commonwealth takes an appeal pursuant to Rule 311(d).]
A party filing a cross-appeal should identify it as a cross-appeal in the notice of
appeal to assure that the prothonotary will process the cross-appeal with the initial
appeal. See [also]also [Rules]Pa.R.A.P. 2113, 2136, and 2185 regarding briefs in
cross-appeals and [Rule]Pa.R.A.P. 2322 regarding oral argument in multiple appeals.
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