PA Law Weekly, 7/1/03

PA Law Weekly, 7/1/03

Allegations of error

Make Mine Express

Use the appellate rules to achieve finality, now

By BarbaraS.Magen, Special to the Law Weekly

Our culture has often been accused, perhaps rightly, of always wanting everything on an immediate basis. Few of us are fulfilled by the prospect of deferred gratification, and whether our demands are satisfied by fast food or high-speed Internet access, we seem to have no real interest in waiting for just about anything.

It is undoubtedly in this same spirit that the active and aggressive advocate, particularly upon receipt of an adverse order from a trial court, frequently has the automatic, and almost impulsive reaction, to pursue immediate review by an appellate tribunal. Rash or quick decisions, however, might only result in your appeal being quashed as unripe, like an apple that is not yet ready for the picking. To avoid this unsavory declaration of immaturity, it is wise to be familiar with the methods that an order may be considered as "final" and therefore appropriate for imminent appellate evaluation. It is Pennsylvania Rule of Appellate Procedure 341 that could satisfy your craving for immediacy in the context of an appellate arena.

Ordinarily, in accordance with Section 742 of the state Judicial Code, an appellate tribunal has jurisdiction only over those appeals that are taken from final orders. As defined by Pennsylvania Rule of Appellate Procedure 341(b)(1), a final order is one that disposes of all claims and of all parties. Notably, however, an order may also be characterized as final by statute or, if the order eradicates fewer than all claims or fewer than all parties, the order may be deemed final if the trial court makes an express determination of finality pursuant to Rule 341(c).

As it was recently addressed by the Superior Court in Gustine Uniontown Associates v. Crane Rental Inc., 786 A.2d 246 (Pa. Super. 2001), Rule 341(c) has come to be known as the "extraordinary" method for transforming an otherwise interlocutory order into one which is designated as final and appropriate for an immediate appeal. This rule, as revised in 1992, provides for a special type of final order when more than one claim for relief is presented or multiple parties are involved. In such a case, in accordance with the parameters of Rule 341(c), a trial court 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." Likewise, any party to the litigation, interested in a prompt appeal from an interlocutory order, may request that the trial court take such action, even if the order in issue is not adverse to that party's interest.

Significantly, if a trial court is to make such a declaration, the order at issue is considered final and appealable when it is entered on the docket. In other words, when a trial court makes an express determination of finality, the appellate court does not have the discretion to grant, or to deny, the appeal; the directive of the trial court is entered as a final order and must be treated as a final order for all purposes. Moreover, once the element of finality is infused by amendment into the underlying order, and once that order is entered, if any party, including the aggrieved litigant, does not, thereafter, pursue an appeal within the thirty days as required by Pa.R.A.P. 903, the matter is deemed waived.

Despite the seeming simplicity of Rule 341(c), the prudent advocate must be aware that it is somewhat difficult to persuade a trial judge to make the declaration of an express determination of finality. It has been said that interlocutory orders are to be imbued with finality only in the most extraordinary circumstances since such actions frustrate and hinder the 1992 revisions to the Appellate Rules which were meant to curb the existence of piecemeal appeals which result in delay.

Yet another aspect of the rule, equally worthy of note, is that contained in sub-section (c)(1). Therein, it is specified that when asking a trial judge to amend an order to include an express determination of finality, the court must act on the application within thirty days of the entry of the underlying order or the request is deemed denied. Further, during this same time period, when the application for an express determination is pending before the trial court, the action is subject to a stay.

Once a litigant opts to make the plea for Rule 341(c) finality language, a question remains as to what factors are taken into consideration by a lower court when making its decision. In this vein, commentary accompanying Rule 341, as also discussed in Pullman Power Products v. Basic Engineers Inc., 713 A.2d 1169 (Pa. Super. 1998), elaborates that a trial judge should evaluate: "(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 ... will consider issues a second time; [and] (4) whether an immediate appeal will enhance prospects of settlement." In conjunction with appraising the above factors, a trial judge is also meant to certify an Order as final for an immediate appeal only in the most extraordinary circumstances and, as the Gustine court noted, where the "failure to do so would result in an injustice which a later appeal can not correct." Additionally, a trial judge's ruling is itself reviewable only under the "abuse of discretion" standard.

The existence of Rule 341(c) does not, however, mean that a litigant has an obligation to utilize the procedures set forth by the appellate rules when in receipt of an order which disposes of less than all claims and of all parties. The notes which accompany the rule make clear that a party is under no obligation to request an express determination of finality and that the failure of a party to make such an application does not constitute a waiver. Hence, the matter in controversy may still be raised in a subsequent appeal following the entry of a final order which does, later, dispose of all claims and of all parties. Accordingly, a safety net is in place. If a litigant fails to invoke the Rule 341(c) procedure (either consciously or unconsciously), or if an application for an express determination is filed and denied, that party has not waived its right to ultimately have the issue reviewed by an appellate tribunal when the case, in its entirety, is subject to a final order (when all matters as to all parties are resolved at the lower court level).

Thus, the choice and the strategy are yours. Although an advocate's initial instinct is to achieve finality at the earliest possible moment to reach a result which is not subject to alteration, each party desiring an express determination must be prepared to demonstrate why such extraordinary relief is required as well as the potential injustice which will occur should the judge not comply with the request. This task presents hurdles not easily overcome, but in appropriate cases, the effort may certainly prove to be worthwhile and satisfying, particularly in our fast-paced world.

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