Guidance on Cross-Appeals and Cross-Petitions (Proposed amendments to Pa. R.A.P. 511)
The Appellate Court Procedural Rules Committee is proposing to amend the Note to Pa. R.A.P. 511 to provide formal guidance concerning when to file a cross-appeal and when to file a cross-petition for allowance of appeal.
As to cross-appeals, the proposed amendment to the Note emphasizes that recent case law has made clear that a party need not (as is discouraged from) filing a cross-appeal if it received all the relief it sought in the lower tribunal, regardless of whether it did not succeed on a particular argument or theory. See Lebanon Valley Farmers Bank v. Com., 83 A.3d 107, 113 (Pa. 2013) (Supreme Court rejected taxpayer appellant’s argument that the Commonwealth waived Uniformity Clause argument for failure to file a cross-appeal even though Commonwealth was prevailing party below: “Protective cross-appeals by a party who received the relief requested are not favored. As such, a successful litigant need not file a protective cross-appeal on pain of waiver.”).
The proposed amendment makes the related point that the need to raise an issue may not even arise until after the intermediate appellate court renders its decision, and that in such cases the issue may be raised for the first time in the Supreme Court. See A. Scott Enterprises, Inc. v. City of Allentown, 142 A.3d 779, 786 (Pa. 2016) (where trial court found that city breached its contract with contractor and withheld payments in bad faith, but declined to award counsel fees and an interest penalty, Commonwealth Court’s reversal of trial court’s failure to award counsel fees and an interest penalty was city’s first opportunity to appeal the imposition of counsel fees and the interest penalty; city did not waive the issue because its claim “did not mature” as to the issues until the intermediate appellate court issued its opinion and reversed the trial court).
As to cross-petitions for allowance of appeal, the proposed amendment to the Note draws the bar’s attention to the unusual situation presented in Meyer Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247 (Pa. 2016), involving a law firm fee dispute, where the predecessor law firm got a judgment in quantum meruit against the successor law firm, but on appeal the Superior Court reversed, ruling that the predecessor law firm was instead entitled to breach of contract damages. On appeal by allowance brought by the successor law firm, the Supreme Court reversed Superior Court and held that the predecessor law firm’s only opportunity for recovery was the quantum meruit claim that the trial court originally awarded; the Supreme Court vacated Superior Court’s contract judgment, but did not reinstate the trial court’s quantum meruit judgment, because the predecessor law firm had not filed a cross-petition for allowance of appeal from the Superior Court order. Hence, the proposed guidance in the Note to Pa. R.A.P. 511: “if an intermediate appellate court decision awards different relief than the trial court or other government unit decision, a party may wish to file a cross-petition for allowance of appeal.”
Proposed amendments to Pa. R.A.P. 511 (47 Pa.B. 4810, August 19, 2017); comments due September 29, 2017.