Defense Digest

Appellate Rules Thwart The Inexperienced

Most attorneys are somewhat conversant with the rules of appellate procedure. However, the appellate rules can become both bewildering and lethal when a case involves a novel procedural stance. The con-sequences of ignorance can be extreme and may result in the dismissal, or "quashing," of an otherwise meritorious claim.

The need for experienced appellate counsel was never so evident as in the recent case of Cerniga v. Non Valley Speed Boat Club, Inc., 2004 Pa. Super. 444 (2004). In Cerniga, the appellant Boat Club filed post-trial motions as to the trial court's adverse order. The trial court denied post-trial relief and the Boat Club then appealed to the Commonwealth Court. The Commonwealth Court vacated the trial court's order and remanded the case for additional findings. The trial court issued additional findings on remand and issu-ed a second order, also adverse to the Boat Club. However, the Boat Club mistakenly appealed this second order directly to the Commonwealth Court, without first filing post-trial motions. Not surpris-ingly, the Commonwealth Court quashed the Boat Club's appeal, holding that the Boat Club failed to preserve any issues for review. This most severe of sanctions was imposed by the court, even though the trial court's second ruling was consistent with its first. The court reasoned that the issues raised in the second appeal involved the additional factual findings and legal conclusions entered by the trial court on remand. The court held that the direct appeal deprived the trial court of the opportunity to reassess its decision on post-trial motions, frustrating Pa. R.C.P. 227.1. As a consequence, the Boat Club will never have the merits of its case examined on appeal.

Appellate litigation is full of such pitfalls for the unwary and inexperienced. Interpretation of even basic appellate rules often requires reading between the lines. Indeed, Rule 227.1 does not directly address the post-trial procedure to be followed after remand to a trial court. The mistake in Cerniga may have been avoided by experienced appellate counsel cognizant of the subtleties of appellate litigation. The appellate rules can only be effectively followed, employed, or avoided where an attorney understands their foundation and context, as well as their text.

To many, the idea of fluency in appellate practice seems to be a superfluous skill. After all, how many appeals will the average attorney handle in his lifetime? However, virtually every trial ruling is to the benefit of one party and the detriment of the other. The loser must understand appellate practice in order to timely preserve his issues for review. The winner must be mindful of the appellate rules in order to ensure that the favorable judgment or ruling is protected on appeal. The winner must also comply with the guidelines for briefing, the protocol for argument, and must stand ready to seize the opportunity to limit or even quash the appeal.

Complicating an already arcane subject is the fact that the federal, state, and administrative tribunals each have its own set of appellate rules. The appellate courts will apply these rules ruthlessly, as the Boat Club discovered in Cerniga. Thus, reading the relevant rules and explanatory comments, though they are dull as dirt, is imperative. Yet, even the rules themselves do not provide a pat answer in every case and may simply be a starting point. An appellate attorney's experience in the various appellate courts can be crucial for both compliance with the rules, or, where necessary, avoidance of their consequences.

Appellate experience can be necessary simply to cross the threshold of an appellate court. An attorney must know the time periods set forth in the appellate rules and ensure that the appeal document is timely. The deadlines set forth in the rules are absolute, and the time period for filing an appeal goes directly to the appellate court's jurisdiction. Virtually no amount of excuses, cajoling, or downright begging can get an appellate court to accept an untimely appeal.

To retain a foothold in the appellate court, the order must also be appealable. Is the order or judgment final? Is it interlocutory? Is it interlocutory but appealable as a right? To whom is application made for a permissive appeal? An appellate attorney may be able to find sufficient wiggle room in the rules govern-ing appealable orders to prevent an appeal from being quashed.

Timeliness and finality aside, issues must also be preserved throughout the litigation from the initial complaint to the final judgment on appeal. Should an attorney omit to raise an issue at the appropriate time and in the right way, he is forever precluded from doing so no matter how meritorious the claim. Appellate experience can be invaluable at this juncture.

The appellate courts also strictly enforce the rules concerning the briefing and presentation of the issues on appeal. Even minor deviations regarding font size, margins, verifications, binding and service, much less content, can derail an appeal. Also, as with a defective brief, an inexperienced attorney's failure to follow protocol during an oral argument can frustrate appellate judges (and cause onlookers to cringe).

Once a decision issues from the appellate court, and further discretionary appeal is sought, new rules control. Petitions for en banc reargument, rehearing, or allowance of appeal often involve tight deadlines and a high level of proof. Knowledge of the standard of review for each step, as well as appellate procedure itself, greatly simplifies the process of seeking further appellate relief.

The appellate courts give no quarter to those who violate the rules, no matter how unintentionally. Did the Boat Club in Cerniga have a meritorious case? We will never know for want of a little appellate experience.

*Audrey, a shareholder in our King of Prussia, PA office, can be reached at (610) 354-8274 or acopeland@mdwcg.com.