You may be wondering why, as a family lawyer, you need appellate advice. After all, most of your cases settle. Of the cases that do go to trial, only a few of them are appealed to the Superior Court. So why worry about an appeal? Because you are likely to have an appeal to deal with sometime soon.
In 2015, there were 8,444 cases filed in the Pennsylvania Superior Court. Of those, 1,316, or approximately 15%, were appeals from family law cases. By comparison, in 2012, there were 7,808 appeals filed in the Superior Court, of which 796, or approximately 10%, were appeals in family law cases. Appeals of family law cases are growing at a pace that exceeds appeals in every other area.
Most appeals are won or lost at the trial court level. No matter how strong your case on the merits may be, if you fail to preserve the issue in the trial court, or you err in the filing of the notice of appeal, the outcome is decided long before you brief and argue your case.
Here are some of the questions you should ask to make sure your appeal isn’t lost before it gets to the Superior Court:
(1) Is the order appealable?
The Pennsylvania Rules of Appellate Procedure are very specific regarding what types of orders can be appealed. You first need to determine if the Order is a final order or an interlocutory order. See Pa.R.A.P. 301, 311, 312, 313, 341. If it’s an interlocutory order, is it appealable as of right under Pa.R.A.P. 311? Is it a collateral order appealable under Pa.R.A.P. 313? See, e.g., K.C. v. L.A., 128 A.3d 774 (Pa. 2015) (an order denying a petition to intervene in a custody action is a collateral order appealable as of right pursuant to Pa.R.A.P. 313).
If the order is not a final order or an appealable interlocutory order, you will need to file a Petition for Permission to Appeal under Chapter 13 of the appellate rules. Pa.R.A.P. 312; Pa.R.A.P. 1312. You should make this determination right away. It takes more time to prepare a Petition for
Permission to Appeal than it does to draft a Notice of Appeal. If you plan ahead you won’t be caught by surprise when the deadline for filing an appeal is approaching.
Finally, in Pennsylvania, appeals from certain interlocutory orders, including orders regarding venue, personal jurisdiction, forum non conveniens, and arbitration, must be filed as interlocutory appeals or the right to appeal is waived. Pa.R.A.P. Rule 311(g).
(2) Did I preserve the issue on appeal?
Many appeals are lost because trial counsel waived the issues by failing to preserve them in the trial court. See Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116 (Pa. 1974). Waiver can occur in several ways. The failure to timely object is a textbook example of how claims are waived. Opposing counsel has a witness on the stand, the witness says something but you are distracted by your client handing you a note and you don’t object. After you lose, you review the transcript, find the damaging testimony, and want to argue on appeal that the admission of the testimony resulted in the unfavorable verdict. Too late – the claim is waived.
In the hustle and bustle of a trial, it is easy to overlook the obvious – you can’t just discuss a document, it must be introduced into evidence. If it’s not introduced into evidence, it is not part of the record on appeal and cannot be referred to in your appellate brief. If an exhibit is not admitted at trial, in order to be considered on appeal, it must be filed with the Superior Court along with a written ruling from the trial court. See Pa.R.A.P. 1926.
Another common problem is failing to get colloquies with the court in the record. Sometimes things happen during a trial out of the earshot of the court reporter – a sidebar conference, a meeting with the judge in chambers. If there is any chance that the sidebar or conference could be an issue on appeal, you must make sure that it is transcribed. If there’s no transcript, the appellate court doesn’t know what really happened and the issue is waived.
Once you obtain the transcript, you need to be sure that it is included in the certified record on appeal. See McKinney v. Willis, 1045 EDA 2015,
2016 Pa. Super. Unpub. LEXIS 169 (1/21/16) (appeal dismissed for failure to insure transcript was included in the certified record on appeal).
Finally, be careful what you agree to. Trial judges like to get the parties to agree on things. Even if the parties can’t agree enough to settle the case, judges know that trials go more smoothly when the parties agree on the little things – discovery issues, authentication of documents, qualifications of an expert witness. Judges also know that if they make fewer rulings during trial, there are fewer potential issues on appeal. But be careful – if you agree to something, you can’t change your mind and later challenge it on appeal. Your claim will be waived. See Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999); Karkaria v. Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991).
(3) Is this a Children’s Fast Track Appeal?
In 2009, the Pennsylvania Superior Court implemented new appellate rules governing custody, adoption, termination of parental rights, paternity, and dependency cases. See Pa. Super. I.O.P., 210 Pa.Code § 65.14; Pa.R.A.P. 102. Appeals in those cases, and in some support matters, are governed by the Children’s Fast Track rules.
If the case is a Children’s Fast Track appeal, the notice of appeal must clearly identify the case as a fast track appeal. Pa.R.A.P. 904(f). Also, in Children’s Fast Track appeals, the concise statement of errors on appeal must be filed with the notice of appeal and served on the judge and the parties in accordance with Rule 1925(b)(1). Pa.R.A.P. 905(a)(2); 1925(a)(2).
The briefing schedule is also shortened for Children’s Fast Track appeals. The appellant has 30 days instead of 40 days to file the brief of appellant, the appellee has 21 days instead of 30 days to file the brief of appellee, and the appellant has 7 days instead of the standard 14 days to file a reply brief. Pa.R.A.P. 2185(2)(i).
Furthermore, in a Children’s Fast Track appeal, dispositive motions to transfer, dismiss, or quash the appeal must be filed within 10 days of the filing of the Pa.R.A.P. 905(a)(2) statement of errors or within 10 days of the lower court’s filing of a Pa.R.A.P. 1925(a)(2) opinion, whichever is later. Pa.R.A.P. 1972(b).
Finally, the Superior Court has declared that in Children’s Fast Track appeals, petitions for extensions of time to file a brief “should rarely be granted, and when granted should rarely be for a period in excess of seven days.” Pa. Super. I.O.P., 210 Pa.Code § 65.21 B.2. “Generalities such as the purpose of the motion is not for delay or that counsel is too busy will not constitute either good cause or extraordinary circumstances.” Id.
(2) What is my deadline for filing the notice of appeal?
The general rule in Pennsylvania is that a notice of appeal must be filed in the trial court within 30 days of the entry of the order on the docket. Pa.R.A.P. 903. Remember that a notice of appeal is filed in the trial court, not the appellate court. Pa.R.A.P. 902.
A cross-appeal must be filed within 14 days of the filing of the Notice of Appeal. Pa.R.A.P. 903(b).
(3) What must I include in the notice of appeal?
Although a notice of appeal is only a paragraph or two, it is important that the notice follow the form set forth in Pa.R.A.P 904(a). You must also include a copy of the request for the transcript, a copy of the docket entry, proof of service, and a check for the filing fee. Pa.R.A.P. 904. For Children’s Fast Track appeals, the concise statement of errors complained of must be filed with the notice of appeal. Pa.R.A.P. 905(2), 1925(a).
Two copies of the notice are to be filed with the clerk of the trial court. Pa.R.A.P. 905(a). The notice of appeal must also be served on the trial judge, all parties in the trial court, the court reporter, and the district court administrator. Pa.R.A.P. 906.
(4) How does the filing of a motion for reconsideration affect the timing of my notice of appeal?
Rule 1930.2 of the Pennsylvania Rules of Civil Procedure states that there shall be no motions for post-trial relief in any domestic relations matter. Pa.R.C.P. 1930.2(a). See also Pa.R.C.P. 1915.4-2(b)(6) (custody); Pa.R.C.P. 1920.52(a)(7) (divorce); Pa.R.C.P. 1910.12(h)
(support). A party may, however, file a motion for reconsideration in accordance with Pa.R.A.P. 1701(b)(3). Pa.R.C.P. 1930.2(b).
Do not be lulled into thinking that the filing of a motion for reconsideration will automatically extend the time for filing a notice of appeal. It doesn’t. If you file a motion for reconsideration and the court does not grant the motion before the expiration of the appeal period, “the time for filing a notice of appeal will run as if the motion for reconsideration had never been filed.” Pa.R.C.P. 1930.2(b). See Pa.R.C.P. 1930.2, Explanatory Comment – 1994.
The trial court continues to have jurisdiction to act on a motion for reconsideration after a notice of appeal is filed. Pa.R.A.P. 1701(b)(3). In order to preserve your appeal, the smart course of action is to file both a notice of appeal and a motion for reconsideration. See generally Pa.R.A.P. 1701 Note. If the trial court grants reconsideration, the notice of appeal is nullified. Pa.R.A.P. 1701(b)(3).
In a domestic relations matter, if the court grants your motion for reconsideration, the judge has 120 days to write an opinion. Pa.R.C.P. 1930.2(c). The time for filing an appeal will begin to run again after the entry of the court’s decision on reconsideration. Pa.R.C.P. 1930.2(d). If the court does not issue a decision within 120 days, the time for filing a notice of appeal begins to run from the 121st day. Pa.R.C.P. 1930.2(d). See Pa.R.C.P. 1930.2, Explanatory Comment – 1994.
(5) When do I need to file and serve the Rule 1925(b) concise statement of errors on appeal?
In Children’s Fast Track appeals, the 1925(b) statement gets filed with the notice of appeal. Pa.R.A.P. 905(a)(2), 1925(a)(2).
In all other cases, the trial judge may enter an order directing the appellant to file a concise statement of the errors complained of on appeal. Pa.R.A.P. 1925(b). The judge must give the appellant at least 21 days to file the statement of errors. Pa.R.A.P. 1925(b)(2). The statement of errors must be filed with the trial court and served on the judge and the parties as provided in Pa.R.A.P. 121. Pa.R.A.P. 1925(b)(1).
Issues not included in the statement of errors are waived and cannot be raised on appeal. Pa.R.A.P. 1925(b)(3)(vii). Failure to timely file a Rule 1925(b) statement of errors will result in a waiver of the issues and, in some instances, a dismissal of the appeal. See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).
This is just an overview of things to keep in mind if you are appealing an order in a family law case. The best source, of course, is the appellate rules themselves. The next step is to compile the record on appeal and draft the appellate brief. But that’s a discussion for another day.
Good luck with your appeal. See you in Superior Court!
Reprinted with permission from the Vol. 254, No. 7, July 12, 2016 issue of The Legal Intelligencer. ©2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.