In the first part of our guide, we provided an overview of the general form and substance requirements for appellate briefs. In part two, we took a closer look at the specific requirements for drafting the required substantive portions of the appellate brief. In this post, we provide an overview of certified record and reproduced record requirements under Chapter 21 of the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P. 2101-2189).

In Pennsylvania appellate practice, the certified record on appeal and the reproduced record each serve distinct purposes. The certified record is the official, complete set of documents from the lower court or tribunal that are transmitted to the appellate court by the clerk/prothonotary for the lower court/tribunal. An appellate court may consider only the facts which have been duly certified in the record on appeal. See, e.g., Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974). By comparison, the reproduced record is a subset of the certified record that is prepared by the appellant (or jointly with the appellee, if so agreed) containing those parts of the certified record that are relevant to the issues on appeal intended to facilitate the appellate court’s review.

The Certified Record on Appeal (Pa.R.A.P. 1921; Pa.R.A.P. 1926)

The record on appeal before a Pennsylvania appellate court consists of:

  • The transcripts of proceedings, if any.
  • The original papers and exhibits filed in the lower court or tribunal.
  • A certified copy of the docket entries prepared by the trial court’s prothonotary.

Pa.R.A.P. 1921.

While the prothonotary/clerk for the trial court/lower tribunal is responsible for preparation and submission of the certified record to the appellate court, “[u]ltimate responsibility for a complete record rests with the party raising an issue that requires appellate court access to record materials. Pa.R.A.P. 1921 (note) (citing Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa. 1998)). If a party notices an error or omission to the record, and a difference arises as to whether the record truly discloses what occurred below, the difference must be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. Pa.R.A.P. 1926(a). However, if anything material to a party is omitted from the record by error, breakdown in processes of the court, or accident or is misstated therein, the omission or misstatement may be corrected either:

  • by the trial court/lower tribunal or the appellate court sua sponte, or
  • by stipulation among the parties, to be filed in the trial court/lower tribunal as well as the appellate court.

Pa.R.A.P. 1926(b). The trial court/lower tribunal is responsible for transmitting any supplemental record required within 14 days of the order or stipulation that requires it. Pa.R.A.P. 1926(c).

Waiver Warning: If the list of items included in the certified record shows that the record transmitted is incomplete, the parties have an obligation to supplement the record pursuant to Pa.R.A.P. 1926 (correction or modification of the record). However, If the list of items included in the certified record shows that the record transmitted is complete, but it is not, the omission cannot be a basis for the appellate court to find waiver. See Pa.R.A.P. 1931(c), (f); see also, Pa.R.A.P. 1921 (note).

Designation of Contents of the Reproduced Record (Pa.R.A.P. 2154)

The first step to preparing the reproduced record occurs 30 days before the due date for the appellant’s brief, at which point the appellant must file with the appellate court and serve on the other parties either:

  • A designation of the parts of the record the appellant intends to reproduce, plus a brief statement of the issues the appellant intends to present for review; or
  • A notice that the appellant intends to proceed under Pa.R.A.P. 2154(b) aka the “Large Record Rule”

If the appellant fails to make a timely filing designating the contents of the reproduced record (or providing notice of an election to proceed with a large record case under a modified briefing schedule), the appellee may move to dismiss the appeal. See Pa.R.A.P. 2188.

Consideration of Matters on the Original Record (Pa.R.A.P. 2151)

A reproduced record is not required:

  • Where the appellant has been granted leave to proceed in forma pauperis
  • In original jurisdiction cases
  • Where the court has granted appellant’s application to excuse preparation of the record pursuant to Pa.R.A.P. 2151(d) (“appellant may within 14 days after taking an appeal file an application to be excused from reproducing the record for the reason that the cost thereof is out of proportion to the amount involved, or for any other sufficient reason. Ordinarily leave to omit reproduction of the record will not be granted in any case where the amount collaterally involved in the appeal is not out of proportion to the reproduction costs.”)

Designation of Contents Under Pa.R.A.P. 2154(a)

A designation of contents of the reproduced record must contain:

  • A list identifying the parts of the record the appellant intends to reproduce
  • A brief statement of the issues the appellant intends to present for review

Notice of Intent to Proceed Under Pa.R.A.P. 2154(b)

A notice of intent to proceed under the modified briefing procedures for large record appeals must contain a statement that appellant:

  • Elects to proceed using the modified briefing procedure for large record appeals set out in Pa.R.A.P. 2154(b).
  • Intends to file a designation of the contents of the reproduced record when filing the appellant’s brief.
  • Defers preparation of the reproduced record until after the parties serve their briefs.

The Reproduced Record

Contents of the Reproduced Record (Pa.R.A.P. 2152 & Pa.R.A.P. 2153)

1. Cover Page (if the reproduced record and brief and separately bound)

2. Table of Contents with page references

3. The relevant docket entries of the court or other tribunal below (or related proceedings) set forth chronologically, in a single column, “consisting of such parts of the docket entries as are necessary to indicate briefly but clearly:”

  • The character of the proceedings.
  • The pleadings or papers upon which the case was tried or heard.
  • The trial or hearing.
  • The order or other determination to be reviewed.
  • All later proceedings pertaining to any of them.
  • All other matters referred to in the statement of questions involved or in the argument.

4. Any relevant portions of the pleadings, charge or findings (see Pa.R.A.P. 2175(b) (order and opinions) which provides for a cross reference note only to orders and opinions reproduced as part of the brief of appellant).

5. Any other parts of the record to which the parties wish to direct the particular attention of the appellate court.

6. The certificate of compliance required by Pa.R.A.P. 127.

Reproduction Separate from Brief (Pa.R.A.P. 2171)

In all cases, the reproduced record may be bound separately from the brief. The Reproduced Record must be bound separately from the brief if:

  1. The reproduced record and the brief together contain more than 100 pages; or
  2. if the reproduced record contains ‘‘Confidential Information’’ or ‘‘Confidential Documents’’, as those terms are defined in the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.

See Pa.R.A.P. 2171(b)

If the reproduced record is bound separately, the reproduced record must contain a cover page titled ‘‘Reproduced Record’’ or ‘‘Supplemental Reproduced Record,’’ as the case may be. Pa.R.A.P. 2172(c).

Pagination (Pa.R.A.P. 2173)

Excluding the cover page and table of contents, the reproduced record must be numbered separately in Arabic figures followed by a small a, (i.e., 1a, 2a, 3a, etc.). Where the reproduced record is bound in more than one volume, pagination should be continuous regardless of the division into volumes.

Supplemental Reproduced Record (Pa.R.A.P. 2156)

When, because of exceptional circumstances, the parties are not able to cooperate on the preparation of the reproduced record as a single document, the appellee may prepare, serve, and file a supplemental reproduced record setting forth the portions of the record designated by the appellee.

Any supplemental reproduced record must be numbered separately in Arabic figures, followed by a small b (i.e., 1b, 2b, 3b, etc.).

This guide is intended to provide practitioners and the public with a general overview of record 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 reproduced records should be directed to the court’s prothonotary.

About the Author:

Melissa Chapaska, attorney at HMS Legal, LLP, represents clients in appellate matters before state agencies and courts.  Her practice focuses primarily on administrative litigation, appeals, and transactional drafting and review.