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March 17, 2023

The Risk of Filing a Premature Notice of Appeal

By: Patrick Krenicky

“When should I file a notice of appeal?” is a question lawyers routinely ask themselves following an adverse decision at trial. Lawyers know that a notice of appeal must be filed timely to preserve a client’s appellate rights, but navigating the post-trial and appellate rules can be challenging. A recent non-precedential Superior Court decision underscores these challenges, and the importance of knowing which order to appeal from and when.  In Muir v. Heller, 277 A.3d 1164 (Pa. Super. 2022), the trial court rendered a decision in favor of the plaintiffs following a non-jury trial, and the defendants sought post-trial relief.  Twenty days later, with their post-trial motion scheduled for argument but not yet decided, the defendants filed a notice of appeal from the trial court’s decision. After the trial court heard argument on the defendants’ post-trial motion, the trial court denied the defendants’ request for post-trial relief and entered judgment.  The defendants did not file a notice of appeal from the trial court’s entry of judgment, but instead continued pursuing their appeal from the trial court’s earlier decision. 

The Superior Court panel quashed the defendants’ appeal finding that it lacked jurisdiction.  The Court reasoned that the trial court’s decision from which the defendants appealed was an interlocutory order subject to correction following post-trial motions.  It rejected the defendants’ argument that Pa.R.A.P. 905(a)(5) was applicable, which states that “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”  The Court found that Pa.R.A.P. 905(a)(5) only applies if the notice of appeal is filed after the trial court’s decision on post-trial motions and before the entry of judgment, but does not apply when a notice of appeal is filed prior to the trial court’s decision on post-trial motions.  The Court thus found that the defendants’ failure to appeal timely from the entry of judgment left them without recourse on appeal.

In dissent, Judge Olson argued that the Superior Court’s decision is inconsistent with a prior published decision of the Superior Court in a criminal matter, Commonwealth v. Ratushny, 17 A.3d 1269 (Pa. Super. 2011). There, the Court found that Pa.R.A.P. 905(a)(5) allowed it to consider an appeal even though the notice of appeal was filed after sentencing but before post-sentence motions had been decided by the trial court.  The majority in Muir did not directly address Ratushny and quashed the appeal.

As the Muir decision is non-precedential, it remains unclear whether a different panel of the Superior Court would reach the same conclusion.  However, the outcome is another cautionary tale to lawyers and litigants who seek to appeal an adverse decision following trial.  

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