In re Order Amending Rule 311 & 312 of the Pa. Rules of Appellate Procedure

IN RE:ORDER AMENDING RULE 311 AND 312 OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE

No. 302

Supreme Court of Pennsylvania

September 8, 2022

APPELLATE COURT RULES DOCKET

ORDER

PER CURIAM

AND NOW, this 8^th day of September, 2022 upon the recommendation of the Appellate Court Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3):

It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 311 and 312 of the Pennsylvania Rules of Appellate Procedure are amended in the attached form.

This Order shall be processed in accordance with Pa.R.J.A. 103(b) and shall be effective January 1, 2023.

Additions to the rule are shown in bold and are underlined.

Deletions from the rule are shown in bold and brackets.

Rule 311. Interlocutory Appeals as of Right.

(a) [General rule.-] General Rule. An appeal may be taken as of right and without reference to Pa.R.A.P 341(c) from the following types of orders:

(1) [Affecting judgments.-] 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.-] Attachments, etc. An order confirming, modifying, 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 23 Pa.C.S. §§ 3323(f), 3505(a).

(3) [Change of criminal venue or venire.-] Change of Criminal Venue or Venire. An order changing venue or venire in a criminal proceeding.

(4) [Injunctions.-] 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 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.-] Peremptory Judgment in Mandamus. An order granting peremptory judgment in mandamus.

(6) [New trials.-] 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 trial court committed an error of law.

(7) [Partition.-] Partition. An order directing partition.

(8) [Other cases.-] Other Cases. An order 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.-] 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.-] 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 or analogous principles.

(d) [Commonwealth appeals in criminal cases.-] Commonwealth Appeals in Criminal 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 overruling preliminary objections in eminent domain cases.- ] Orders Overruling Preliminary Objections in Eminent Domain 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 remand.-] Administrative 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 that would ultimately evade appellate review if an immediate appeal is not allowed.

(g) [Waiver of objections.] Waiver of Objections.

(1) Except as provided in [subparagraphs (g)(1)(ii), (iii), and (iv)] subdivision (g)(1), failure to file an appeal of an interlocutory order does not waive any objections to the interlocutory order:

(i) RESCINDED.

(ii) Failure to file an appeal from an interlocutory order under [subparagraph (b)(1) or paragraph (c)] subdivision (b)(1) or subdivision (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 appeal.

(iii) Failure to file an appeal from an interlocutory order under [paragraph] subdivision (e) of this rule shall constitute a waiver of all objections to such an order.

(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] subdivision (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 [subparagraph] subdivision (b)(1) of this rule, the objection may be raised on any subsequent appeal.

(h) [Further proceedings in the trial court.-] Further Proceedings in the Trial Court. Pa.R.A.P. 1701(a) shall not be applicable to a matter in which an interlocutory order is appealed under [subparagraphs] subdivisions (a)(2) or (a)(4) of this rule.

[Official Note:

Authority-This rule implements 42 Pa.C.S. § 5105(c), 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 permitted pursuant to section 702(b).

The appeal rights under this rule and under Pa.R.A.P. 312, Pa.R.A.P. 313, Pa.R.A.P. 341, and Pa.R.A.P. 342 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.

Paragraph (a)-If an order falls under 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 Pa.R.A.P. 341(c) and 1311 do not apply to an appeal under Pa.R.A.P. 311.

Subparagraph (a)(1)-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.

Subparagraph (a)(2)-The 1987 Amendment to subparagraph (a)(2) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 501 A.2d 211 (Pa. 1985); O'Brien v. O'Brien, 519 A.2d 511 (Pa. Super. 1987).

Subparagraph (a)(3)-Change of venire is authorized by 42 Pa.C.S. § 8702. Pa.R.Crim.P. 584 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 Pa.R.A.P. 903(c)(1) regarding time for appeal.

Subparagraph (a)(4)-The 1987 amendment to subparagraph (a)(4) is consistent with appellate court decisions disallowing interlocutory appeals in matrimonial matters. Fried v. Fried, 501 A.2d 211, 215 (Pa. 1985); O'Brien v. O'Brien, 519 A.2d 511, 514 (Pa. Super. 1987).

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 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.

Subparagraph (a)(5)-Subparagraph (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. ...