Kang Haggerty News
Pennsylvania has unique procedures for raising and preserving issues for appeal after trial that could “surprise” many unsuspecting practitioners, especially those who do not practice regularly in the commonwealth.
In the July 18, 2024 Edition of The Legal Intelligencer, Edward T. Kang writes, “Better Safe Than Sorry: Filing Post-Trial Motions in Pennsylvania.”
Practitioners try to avoid having to appeal, of course. If trial counsel finds it necessary to appeal, however, counsel should ensure that appealable issues have been properly preserved. And there are many pitfalls in preserving an issue for appeal before, during, or even after trial. In Pennsylvania, the general rule is that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. This means practitioners must raise and preserve issues at every opportunity under the procedural rules. Issues could be raised and preserved before trial by, for example, motions in limine. Issues could be raised and preserved during trial by, for example, objections or exceptions to the ruling on the objections. Pennsylvania has unique procedures for raising and preserving issues for appeal after trial that could “surprise” many unsuspecting practitioners, especially those who do not practice regularly in the commonwealth.
In Pennsylvania, a party who wishes to appeal a jury verdict or trial court’s decision must first file a post-trial motion with the trial court and raise all alleged errors. If not, the party would be precluded from raising the errors on appeal. This practice is different from other jurisdictions, including federal courts, where a party who wishes to appeal after trial would typically file a one-page notice of appeal. This requirement for preserving issues for appeal—i.e., filing a post-trial motion—is not found in either the Rules of Civil Procedure or the Rules of Appellate Procedure. The absence of such a rule is why practitioners can get caught surprised. It is easier to understand the requirement to file post-trial motions within the context of the Rules of Appellate Procedure. The requirement “postpones the finality of a case-ending decision or order that otherwise would qualify as a final order triggering a right to appeal under the final order rule embodied in Pennsylvania Rule of Appellate Procedure 341(a).” See Wolk v. School District of Lower Merion, 649 Pa. 604, 197 A.3d 730 (2018). “A trial court’s order at the conclusion of a trial, whether the action is one at law or in equity, simply cannot become final for purposes of filing an appeal until the court decides any timely post-trial motions.” See Gun Owners of America v. City of Philadelphia, 311 A.3d 72 (Pa. Commw. Ct. 2024) (quoting Chalkey v. Roush, 805 A.2d 491 (Pa. 2002)).
Under Pennsylvania Rule of Civil Procedure 227.1(c), post-trial motions must be filed within ten days after (1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of nonsuit or the filing of the decision in the case of a trial without jury. Issues that are waived for failure to file post-trial motions cannot be revived or saved by raising those issues in a Rule 1925(b) statement. See Diamond Reo Truck v. Mid-Pacific Industries, 806 A.2d 423 (Pa. Super. 2002). The rule applies to both actions at law and actions in equity. The purpose of a post-trial motion is to provide the trial court with the first opportunity to review and reconsider its earlier rulings and correct its error when it still has jurisdiction. See Diener Brick v. Mastro Masonry Contractor, 885 A.2d 1034 (Pa. Super. 2005).
The plain text of Rule 227.1 seems clear. However, challenging scenarios arise partly because the rule does not explicitly define what proceeding constitutes a “trial” for the purposes of the post-trial motion requirement. See Newman Development Group v. Genuardi’s Family Markets, 52 A.3d 1233 (Pa. 2012). The Newman case provides one example: the Supreme Court found that a remand proceeding before the trial court that did not involve taking new evidence or resolving a new factual dispute was not a trial within the meaning of the rule. For this reason, post-trial motions are not required before a party appealing the remand decision.
The ambiguity within the rule is one potential pitfall. Another is that the exceptions to the rule might not be absolute. Practitioners must carefully read both the relevant cases and the Rules of Civil Procedure in tandem. For example, a note added to the rule in 1985 states that a motion for post-trial relief may not be filed to orders disposing of motions for summary judgment. But an appellate court may dismiss an appeal due to waiver for failure to file post-trial motions when a trial court granted summary judgment after the trial has commenced because doing so in such cases is functionally equivalent to granting a compulsory nonsuit. But compare, Murphy v. International Druidic Society, 152 A.3d 286 (Pa. Super. 2016) (finding that entry of a compulsory nonsuit before trial has even begun is the functional equivalent of a pretrial dispositive order such as one granting summary judgment or judgment on the pleadings). Similarly, another note to the rule about “petitions” being exempt from the rule does not apply to actions that commenced as petitions but did not proceed under petition practice rules. See Motorists Mutual Insurance v. Pinkerton, 830 A.2d 958, 964 n.6 (Pa. 2003) (finding that a party’s initial filing of a petition did not exempt the entire action from the required filing of a post-trial motion when the opposing party responded to the petition as if it were a complaint, and the case did not proceed under petition practice rules).
In addition to filing a post-trial motion when necessary, to preserve issues for appeal, it is essential to ensure the motion is filed in a timely fashion. Courts have noted that the date upon which the 10-day period begins to run might differ between Sections (c)(1) and (c)(2) of Rule 227.1, depending on whether the parties know that a decision has been rendered. Section (c)(2) covers the scenario where the trial court’s order granting a nonsuit may be rendered outside of the parties’ presence, and thus the entry of the order on the docket and service of notice on the parties is necessary to ensure that the parties are informed of the court’s decision. See Beltz v. Ethicon Women’s Health & Urology, 2018 WL 6715736, (Pa. Super. Ct. Dec. 21, 2018) (quoting Mammoccio v. 1818 Market Partnership, 734 A.2d 23 (Pa. Super. 1999)). Section (c)(1) covers the scenario where the jury’s verdict is announced at the conclusion of the trial where all parties are put on notice of the verdict, and the 10-day period begins to run when the verdict is announced. While trial courts have discretion to allow untimely motions, resolving such issues may necessitate additional litigation, and the outcome will largely depend on the specific facts of each case. Courts may only grant a nunc pro tunc request for extension of an appellate deadline for extraordinary circumstances. See Lenhart v. Cigna, 824 A.2d 1193 (Pa. Super. 2003). The outcome of a case is generally determined in the trial court rather than the appellate court. Practitioners, of course, should try to resolve their disputes at the trial court without resorting to appeal. Should appeal become necessary, practitioners should carefully review the Rules of Civil and Appellate Procedure, as well as relevant cases, and file post-trial motions when necessary. When in doubt, practitioners should file a post-trial motion to avoid the potential consequences of failing to preserve issues for appeal.
Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.
Reprinted with permission from the July 18, 2024 edition of “The Legal Intelligencer” © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.