The best answer is “maybe.” Better seek permission as well.
The courts often have treated orders denying intervention as collateral orders, and thus immediately appealable. See, e.g., Markham v. Wolf, 136 A.3d 134, 138 n. 4 (Pa. 2016); K.C. v. L.A., 128 A.3d 774 (Pa. 2015). So much so, in fact, that it could be tempting to assume that the courts have adopted a category-wide approach to denials of intervention, treating all as collateral orders in the way that the Pennsylvania Supreme Court has come to treat orders compelling discovery over a privilege objection. See Com. v. Williams, 86 A.3d 771, 780 (Pa. 2014) (Supreme Court recognized that it “has moved towards a category-wide exception to [the finality rule for] discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or the work-product doctrine” but that in cases where the propriety of an appeal invoking a privilege is “contested in good faith, it is prudent to require the appealing party to establish that Rule 313(b) is satisfied.”).
Do not be tempted. In AES Compassionate Care, LLC v. Levine, 187 A.3d 987 (Pa. 2018), the would-be appellant that was denied intervention in an original jurisdiction case before the Commonwealth Court simply filed a direct appeal with the Supreme Court, maintaining in its jurisdictional statement that the denial of intervention was a collateral order. The Supreme Court quashed the appeal in a terse per curiam order: “The appellant fails to demonstrate that the order denying its application to intervene involves a right too important to be denied review. See Pa.R.A.P. 313(b); see also, In re Barnes Found., 871 A.2d 792, 794 (Pa. 2005) (“Pennsylvania law does allow for an appeal as of right from an order denying intervention in circumstances that meet the requirements of the collateral order doctrine as imbodied in [Rule 313].”).
Would-be appellants from intervention denials therefore should file both a direct appeal (standing ready to meet the collateral order doctrine’s three-prong test), and also a petition for permission to appeal (or, in the event the trial court refuses to amend its order to include the statement required by 42 Pa. C.S. § 702 to permit the filing of a petition for permission to appeal, a petition for review).
For additional context and commentary see Pennsylvania Appellate Practice (2018-2019) § 313:19.3 and our previous post addressing the appealability of collateral orders.
About the Author:
Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.