Every brief submitted for filing in the Pennsylvania Supreme, Commonwealth, and Superior courts must “comply in substance and form” with the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P.). See Pa. R.A.P. 2101.
In the first part of our guide, we provided an overview of the general form and substance requirements under Chapter 21 of the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P. 2101-2189), including brief length and format requirements. In this post, we take a closer look at the specific requirements for drafting the following required substantive portions of the brief and offer some tips and cautions when drafting these sections:
- Statement of Jurisdiction
- Order or Other Determination in Question
- Statement of the Scope and Standard of Review
- Statement of the Questions Involved
- Statement of the Case
- Summary of Argument
Note: Of the above-listed sections, a respondent/appellee’s brief is only required to include the Summary of Argument and Argument. However, to the extent an appellee/respondent disagrees with the petitioner/appellant’s recitation in its principal brief, the appellee/respondent’s principal brief may also include a Counter-Statement of the Questions Involved and/or Counter-Statement of the Case sections.
An amicus curiae brief need not contain a Statement of the Case and does not need to address jurisdiction or the order or other determinations in question. However, an amicus curiae brief must contain a statement of the interest of amicus curiae, which discloses “the identity of any person or entity other than the amicus curiae, its members, or counsel who (i) paid in whole or in part for the preparation of the amicus curiae brief or (ii) authored in whole or in part the amicus curiae brief.” Pa. R.A.P. 531(b)(2).
Statement of Jurisdiction (Pa. R.A.P. 2114)
The Statement of Jurisdiction section of the brief must contain “a precise citation to the statutory provision, general rule or other authority believed to confer on the appellate court jurisdiction to review the order or other determination in question.” Pa. R.A.P. 2114. Generally, this rule is satisfied by a short sentence citing to the specific section of Chapter 7 of the Judicial Code that generally establishes the jurisdiction of the court. Specifically, the jurisdiction of the Supreme, Superior and Commonwealth courts are set forth in the following sections of the Judicial Code (42 Pa. C.S.):
|Supreme Court||Superior Court||Commonwealth Court|
|§ 721. Original Jurisdiction||§ 741. Original Jurisdiction||§ 761. Original Jurisdiction|
|§ 722. Direct Appeals from Courts of Common Pleas||§ 742. Appeals from Courts of Common Pleas||§ 762. Appeals from Courts of Common Pleas|
|§ 723. Appeals from Commonwealth Court||§ 743. Commerce Court Program||§ 763. Direct Appeals from Government Agencies|
|§ 724. Allowance of Appeals from Superior and Commonwealth Courts||§ 764. Election Contests and Other Matters|
|§ 725. Direct Appeals from Constitutional and Judicial Agencies|
|§ 726. Extraordinary Jurisdiction|
Note: In addition to Chapter 7 of the Judicial Code, jurisdiction may be conferred via other statutory provisions. See, e.g., Pennsylvania Right-to-Know law, 65 P.S. § 67.1301 (providing for Commonwealth Court review of appeals from the Office of Open Records (OOR) relating to decisions of Commonwealth agencies, legislative agencies and judicial agencies), § 67.1302 (providing for court of common pleas review of appeals from OOR relating to decisions of local agencies).
Order or Other Determination in Question (Pa. R.A.P. 2115)
Pa. R.A.P. 2115(a) requires an appellant to set forth the verbatim text of the order or other determination before the court for review. No additional substance beyond the section header and text of the order is necessary to satisfy this rule.
If no order exists because the matter relates to the failure of the trial court or other government unit to act, this section should instead include a statement of that fact and a brief citation of the statute or other authority under which the appellant/petitioner claims such action is required. See Pa. R.A.P. 2115(b).
Note: Any opinion in support of the order must be attached separately as an appendix to the brief; the text of such should not be reproduced in this section of the appellant’s brief.
Statement of the Scope and Standard of Review (Pa. R.A.P. 2111)
In this section of the brief, a petitioner/appellant must identify both the scope of review and standard of review on appeal. As explained in the official note to Pa. R.A.P. 211, scope and standard of review refer to different concepts:
‘‘‘Scope of review’ refers to ‘the confines within which an appellate court must conduct its examination.’ (Citation omitted.) In other words, it refers to the matters (or ‘what’) the appellate court is allowed to examine. In contrast, ‘standard of review’ refers to the manner in which (or ‘how’) that examination is conducted.”
Pa. R.A.P. 2111 (note), quoting Morrison v. Commonwealth, Dept. of Public Welfare, 646 A.2d 565, 570 (Pa. 1994).
Statement of the Questions Involved (Pa. R.A.P. 2116)
The Statement of the Questions Involved section of the brief must:
- State the issues to be resolved, “expressed in the terms and circumstances of the case”;
- State the issues concisely and not include unnecessary detail. See R.A.P. 2116(a) (note); and
- Be followed by an answer stating simply whether the court or government unit agreed, disagreed, did not answer, or did not address the question. If a qualified answer is given to the question, the petitioner/appellant must indicate the nature of the qualification, or if the question was not answered or addressed and the record shows the reason for such failure, the reason shall be stated briefly in each instance without quoting the court or government unit below.
Note: For requirements applicable to criminal appeals challenging discretionary aspects of sentencing, refer to Pa. R.A.P. 2116(b) and 2119(f).
Drafting Tip: Be Concise (and Beware of Waiver)
Pa. R.A.P. 2116(a) advises that no question will be considered “unless it is stated in the statement of questions involved or is fairly suggested thereby.” Thus, failure to include an issue in the Statement of Questions section may be grounds for waiver of that issue. See, e.g., Commonwealth v. Robinson, 245 A.3d 1046 (Pa. Super. 2020), appeal denied, 2021 WL 4540254 (Pa. 2021) (holding that an appellant waived their effectiveness of PCRA counsel claim because “it is not fairly encompassed by Appellant’s statement of the question involved, which speaks to the ineffectiveness of trial counsel, not PCRA counsel.”).
However, loquaciousness is not effectiveness. As emphasized in the note to Pa. R.A.P. 2116, “verbosity” is “discouraged” and the “appellate courts strongly disfavor a statement that is not concise.” In the same spirit, while there is no limit to the number of issues that may be raised in the Statement of Questions, the appellate courts strongly disfavor the identification of an excessive number of separate issues on appeal. See, e.g., Com. v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993) (“the number of claims raised in an appeal is usually in inverse proportion to their merit and … a large number of claims raises the presumption that all are invalid”); Commonwealth v. Snyder , 870 A.2d 336, 340 (Pa. Super. 2005) (“the effectiveness of appellate advocacy may suffer when counsel raises numerous issues, to the point where a presumption arises that there is no merit to any of them.”); City of Bethlehem v. Kanofsky, 175 A.3d 467, 475 n. 9 (Pa. Cmwlth. 2017) (criticizing an appellant’s identification of 60 issues for the court’s review).
Statement of the Case (Pa. R.A.P. 2117)
The statement of the case must contain, in the following order:
- A statement of the form of action, followed by a brief procedural history of the case;
- A brief statement of any prior determination of any court or other government unit in the same case or estate, and a reference to the place where it is reported, if any;
- The names of the judges or other officials whose determinations are to be reviewed;
- A closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found. See R.A.P. 2132 (references in briefs to the record); and
- A brief statement of the order or other determination under review.
Additionally, in cases where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, Pa. R.A.P. 2117(c) requires that the statement of the case further specify:
- The stage of the proceedings in the court of first instance, and in any appellate court below, at which, and the manner in which, the issue sought to be reviewed was raised;
- The method by which the issue was raised (e.g., via a pleading and/or exceptions); and
- The way in which the issue was passed upon by the court.
- Pertinent quotations of specific portions of the record, or a summary thereof, including specific citation to the record where the issue appears (e.g., the opinion, order, and/or exceptions), which show that the question was timely and properly raised below and thus preserved for appeal.
A petitioner/appellant’s statement of the case cannot include any argument, and must provide the court with “a balanced presentation of the history of the proceedings and the respective contentions of the parties.” Pa. R.A.P. 2117(b).
Note: In an appeal from an order on a case submitted on stipulated facts, the statement of the case may consist of the facts as stipulated by the parties. Pa. R.A.P. 2117(d).
Summary of Argument (Pa. R.A.P. 2118)
Pa. R.A.P. 2118 requires that this section of the brief contain a “concise, but accurate, summary of the arguments presented in support of the issues in the statement of questions involved.”
Drafting Tip: Be Thorough, but Concise (and Beware of Waiver)
The Summary of Argument should serve as a roadmap of the issues and argument before the court for review. As such, this section should focus on clearly addressing each of the issues identified in the Statement of Questions section, and keeping in mind the scope of the court’s review. See, e.g., Norman v. Pennsylvania Pub. Util. Comm’n, 252 A.3d 698 (Pa. Cmwlth.), reconsideration denied (Apr. 20, 2021) (unreported), appeal denied, 265 A.3d 200 (Pa. 2021) (finding that an appellant’s Summary of Argument section “plainly violates our appellate rules” because it did not address the issues raised in the Petition for Review or the Statement of Questions section of the brief, but rather attempted to “re-litigate the factual matters” of a previously decided agency action and appeal.).
As with the Statement of Questions Involved section, “verbosity” in the Summary of Argument section is likewise “discouraged” as the “appellate courts strongly disfavor a summary that is not concise.” Pa. R.A.P. 2118 (note). But note, failure to address an issue in the summary of the argument may support a finding of waiver. See, e.g., Commonwealth v. Robinson, 245 A.3d 1046 (Pa. Super. 2020), appeal denied, 2021 WL 4540254 (Pa. 2021) (explaining that, in addition to appellant’s failure to raise the issue in the Statement of Questions section, the appellant’s failure to address the effectiveness of their PCRA counsel in the Summary of Argument section of the brief resulted in waiver of that claim).
Argument (Pa. R.A.P. 2119)
The Argument section of the brief must be divided into separate parts with “distinctive” headers for each issue listed in the Statement of the Questions involved.
Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the argument must include or contain in a footnote, either a specific citation to the page or pages of the statement of the case which set forth the information relating thereto as required by Pa. R.A.P. 2117(c), or substantially the same information. See Pa. R.A.P. 2119(e).
Note: Poor organization, failure to include adequate citations to the record and applicable case law, and/or a lack of legal analysis in this Section may hinder the court’s ability to provide meaningful review. See, e.g., Moyer v. Moyer, 1861 EDA 2020 (Pa. Cmwlth. Jun. 8, 2021) (unreported) (concluding that an appellant’s brief deprived the court of the ability to conduct a meaningful review where the Argument section of the brief was comprised of “a series of conclusory sentences with no citation to the record, no citation to relevant case law, and no legal analysis in violation of Rule 2119.”)
This guide is intended to provide practitioners and the public with a general overview of briefing requirements as set forth in Chapter 21 of the Pennsylvania Rules of Appellate Procedure (Pa. R.A.P. 2101-2189), in addition to practice tips. You should always consult any applicable briefing orders issued by the court, as well as the Pennsylvania Rules of Appellate Procedure for rule amendments prior to filing. Specific questions regarding the preparation and filing of briefs should be directed to the court’s prothonotary.
About the Author:
Melissa Chapaska, attorney at Hawke, McKeon & Sniscak, LLP, represents clients in appellate matters before state agencies and courts. Her practice focuses primarily on administrative litigation, appeals, and transactional drafting. Prior to joining the firm, Melissa interned with the United States Department of Justice and Pennsylvania Department of Labor & Industry.