Supersedeas And Stays Following Appeals From Pennsylvania Trial Courts To The Appellate Courts
One of the more confusing areas of Pennsylvania appellate practice involves the scope of a trial court’s power after the filing of a notice of appeal. The general rule is that once an appeal is taken, the trial court may no longer proceed further with the matter. Pa.R.A.P. 1701(a); Rosen v. Rosen, 549 A.2d 561, 564 (Pa. 1988). There are, however, a number of important exceptions to the general rule.
Trial court’s powers after filing notice of appeal
While an appeal is pending, the trial court may, among other things, take action to preserve the status quo, correct formal errors, cause the record to be transcribed, grant leave to appeal in forma pauperis and grant supersedeas. Pa.R.A.P. 1701(b)(1). The court may also grant reconsideration, authorize the taking of depositions, take actions authorized by an appellate court or proceed further in any matter in which a nonappealable interlocutory order has been entered. Pa.R.A.P. 1701(b).
A trial court also retains the power to add prejudgment interest and attorneys’ fees. See TruServ Corp. v. Morgan’s Tool Supply Co., Inc. 39 A.3d 253, 264 (Pa. 2012) (prejudgment interest); Samuel-Bassett v. Kia Motors Am., Inc. 34 A.3d 1, 48 (Pa. 2011) (attorneys’ fees).
An appeal or petition for review proceeding, however, only operates to prevent the trial court or other governmental unit from proceeding further with the same “item, claim, or assessment.” Pa.R.A.P. 1701(c). The limitation to the same “item, claim, or assessment” prevents appeals of collateral issues from delaying resolution of the case where the proceeding below can proceed without prejudicing the appellant’s rights. Rosen, 549 A.2d at 564. See Beasley v. Beasley, 518 A.2d 545, 548-49 (Pa. Super. 1986) (appeal of appraisal order did not stay proceedings in underlying divorce case).
A trial court retains the power to enforce its order
Absent a supersedeas, a trial court retains the inherent power to enforce its orders after the filing of a notice of appeal. Pa.R.A.P. 1701(b)(2); Brocker v. Brocker, 241 A.2d 336, 337 (Pa. 1968). The power to enforce an order, however, does not include the power to make substantive changes. Pennsylvania. Indus. Energy Coalition v. Pennsylvania PUC, 653 A.2d 1336, 1344-46 (Pa. Cmwlth. 1995), aff ’d 670 A.2d 1152 (1996). Where a trial court’s Rule 1925 opinion acknowledges a substantive error, rather than proceed with the appeal, counsel should file with the appellate court an application to remand the case to allow the trial court to correct the error. See Pa.R.A.P. 123.
Supersedeas vs. stay
A party seeking to suspend the enforcement of a trial court order during an appeal must obtain a supersedeas. In civil actions, some governmental entities are entitled to an automatic supersedeas upon the filing of a notice of appeal or petition for allowance of appeal (but not a petition for review). Pa.R.A.P. 1736(b), 1781.
Although the terms stay and supersedeas are often used interchangeably, a stay is not the same as a supersedeas. A stay stops the proceedings from going forward and prevents the court from taking action prospectively. A supersedeas operates retroactively and supersedes the effect of the order during the pendency of the appeal. The parties are therefore returned to the status that existed before the trial court entered the order on appeal. See A.S.C. v. N.B.C., 747 WDA 2018, 2019 Pa. Super. Unpub. LEXIS 3296 (Aug. 28, 2019) (trial court order granted stay but noted that court’s order was “in place until further Order of Court” so there was no supersedeas).
A supersedeas order is not an appellate ruling on the merits of the judgment below and does not open, strike off or vacate the judgment, remove the judgment from the record or otherwise render it invalid. Goodstein v. Goodstein, 619 A.2d 703, 706 (Pa. Super. 1992), app. dismissed, 639 A.2d 1180 (Pa. 1994). Rather, “a supersedeas order is an auxiliary process designed to supersede or hold in abeyance the enforcement of the judgment of an inferior tribunal.” Id.
Supersedeas of an order for the payment of money
Pennsylvania Appellate Rule 1731(a) provides that the posting of security will result in an automatic supersedeas of an order for the payment of money. Payment is often made by means of a supersedeas bond, which is a contract in which the surety obligates itself to pay a final judgment rendered against the principal. N. Coventry Twp. v. Tripodi, 64 A.3d 1128, 1134 (Pa. Cmwlth. 2013). The bond is designed to “supersede” the enforcement of the trial court’s judgment. Id.
Security is defined as “120% of the amount found due by the lower court and remaining unpaid” plus interest, costs and delay damages, but not other amounts appellant may owe that are not part of the judgment in question. Pa.R.A.P. 1731(a); N. Coventry Twp., 64 A.3d at 1134. The bond or other security must be paid within 30 days from the entry of the order appealed from and must be filed with the clerk of the lower court. Pa.R.A.P. 1731(a), 1735(a).
Payment of less than 120% will not result in a supersedeas. See Decatur Contracting v. Belin, Belin Naddeo, 898 F.2d 339, 345, n.6 (3d Cir. 1990) (applying Pennsylvania law). But “where the amount is payable over a period of time, the amount found due for the purpose of this rule shall be the aggregate amount payable within 18 months after entry of the order.” Pa.R.A.P. 1731(a). In domestic relations matters, supersedeas of an order awarding child support, spousal support, alimony, alimony pendente lite, equitable distribution or counsel fees requires the posting of security, with the amount and terms of security to be determined by the trial court. Pa.R.A.P. 1731(b).
The trial court has the power to “order otherwise.” Pa.R.A.P. 1731(a). The court may order that payment of money will not result in an automatic supersedeas. Pa.R.A.P. 1737. It may also deny supersedeas to a political subdivision entitled to an automatic supersedeas under Pa.R.A.P. 1736(a). Pa.R.A.P. 1737(a)(1); School Dist. of Borough of Aliquippa v. Pa. State Educ. Ass’n., 381 A.2d 1005 (Pa. Cmwlth. 1977) (denying appellant school district’s application for supersedeas of order enjoining a teachers’ strike). The trial court may also eliminate security completely or order that security be modified to be greater than or less than 120%. Pa.R.A.P. 1737.
The court may “impose such terms and conditions as it deems just” and may require specific performance as well as a monetary payment. Rule 1733(a); Linde v. Linde, 217 A.3d 416 (Pa. Super. Unpub. May 21, 2019) (trial court did not abuse discretion when it approved supersedeas bond conditioned on appellant also executing documents held in escrow).
A stay of execution on a judgment also stays discovery in aid of execution. Linde, 217 A.3d 416.
Federal Rule 62
In the federal courts, F.R.C.P. 62 governs the stay of proceedings to enforce a judgment. Stays of money judgments during the pendency of an appeal are governed by Rules 62(d) and 62(f ). Rule 62(f ) provides that “if a judgment is a lien on the judgment debtor’s property under the law of the state where the court is located, the judgment debtor is entitled to the same stay of execution the state court would give.” If the judgment debtor is able to satisfy the requirements of Rule 62(f ), the district court must grant the stay.
Rule 62(d) automatically stays a monetary judgment upon the posting of a supersedeas bond. As in state court practice, an appellant may appeal without posting a bond, but the filing of the notice of appeal will not stay execution on the judgment.
The federal rules, unlike the Pennsylvania rules, do not specify the amount and conditions of a supersedeas bond, but leave it to the discretion of the court.
What is appropriate security?
Rule 1734(a) defines “appropriate security” to include U.S. legal tender, U.S. Treasury bills and certificates of deposit from a Federal Deposit Insurance Corp. (FDIC)-insured bank or savings and loan with offices in the commonwealth. Pa.R.A.P. 1734(a)(1); 1734(a)(2).
Security may also be in the form of a bond executed by a surety company qualified under Section 664 of the Insurance Company Law of 1921 (40 P.S. § 835) in the county from which the appeal is taken. Pa.R.A.P. 1734(a)(3). Alternatively, the bond may be one approved by the court. Pa.R.A.P. 1734(a)(4).
Rule 1734 sets forth the requirements of the bond and the scope of liability of sureties. Pa.R.A.P. 1734(c).
The Process Gas criteria
Orders not requiring the payment of money can only be superseded or stayed upon the filing of an application with the trial court. Pa.R.A.P. 1732(a). The trial court has broad discretion to grant or deny a stay pending appeal. In re Estate of Hartman, 582 A.2d 648, 653 (Pa. Super. 1990). The court also has the power to impose conditions. See Linde, 217 A.3d 416.
In 2019, the Pennsylvania Supreme Court amended the official notes to Pa.R.A.P. 1732 to formally acknowledge that the Pennsylvania courts apply the criteria set forth in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983) to evaluate a request for a stay pending appeal. Under Process Gas, a stay pending appeal is warranted if: 1) the petitioner has made a strong showing that it is likely to prevail on the merits of the appeal; 2) the petitioner has shown that without such relief, it will suffer irreparable injury; 3) the issuance of a stay will not substantially harm other parties interested in the proceedings and 4) the issuance of a stay will not adversely affect the public interest. Process Gas, 467 A.2d at 808-09.
Since Process Gas was decided, the Pennsylvania courts have applied its criteria as a balancing of the equities, without giving any one criterion more weight than another. See, e.g., Reading Anthracite Co. v. Rich, 577 A.2d 881 (Pa. 1990). Process Gas applies to criminal as well as civil matters. Com. v. Melvin, 79 A.3d 1195, 1199-2000 (Pa. Super. 2013), Pa.R.A.P. 1764 (Explanatory Comment — 1976).
If the trial court does not grant relief, the procedure is to file an application with the appellate court. Pa.R.A.P. 1732(b). In the case of a petition for allowance of appeal to the Supreme Court, application for relief under Rule 1732(a) should be made to the intermediate appellate court.
Consequences of failing to obtain supersedeas or stay
Where a party does not obtain a supersedeas, a court may impose contempt sanctions for the party’s failure to comply with the order. See Tanglwood Lakes Cmty. Ass’n. v. Laskowski, 616 A.2d 37, 39 (Pa. Super. 1992); Glynn v. Glynn, 789 A.2d 242, 245 n. 4 (Pa. Super. 2001) (trial court had power to enforce alimony order and impose contempt sanctions where husband appealed but did not obtain supersedeas).
Failure to obtain a supersedeas or stay may also render an appeal moot. An issue before an appellate court is moot if in ruling on it the court cannot enter an order that has any legal force or effect. Commonwealth v. T.J.W., 114 A.3d 1098, 1102 (Pa. Super. 2015). In a mortgage foreclosure action, for example, the failure to obtain a supersedeas will allow the property to proceed to a sheriff sale. Once the property is sold and the deed transferred, the appeal becomes moot because the appellate court can no longer grant relief. See Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577-78 (Pa. Super. 2005) (dismissing appeal as moot).
Consequences of compliance with order in lieu of obtaining supersedeas
Although obtaining a supersedeas can be cumbersome and costly, and the failure to obtain a supersedeas or stay may render an appeal moot, counsel should be wary of the alternative, which is to comply with the order.
Pa.R.A.P. 501 provides that only aggrieved parties have standing to appeal. A party who consents to or acquiesces in the underlying order is not “aggrieved” and lacks standing to appeal. See Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999). An appeal by a party who is not aggrieved will be quashed. See Miller v. Bd. of Property Assessment, Appeals Review of Allegheny County, 703 A.2d 733, 736 (Pa. Cmwlth. 1997).
As helpful as this review may be, there is, of course, no substitute for a careful reading of the rules and case law in this important and sometimes confusing area of appellate practice. Virginia Hinrichs McMichael is managing attorney of Appellate Law Group LLC, a WBENC-certified woman-owned appellate law boutique based in Radnor; www.appellatelawpa.com. If you would like to comment on this article for publication in our next issue, please email us at firstname.lastname@example.org.Tags: Appellate Courts, Pennsylvania Trial Courts
Categorized in: Appellate Practice