“Well, I can always appeal ….” Or can you?
Litigation clients, when confronted with unfavorable news about a pending matter, will often look to an appeal as a means to alter the course of their case. Adversaries will often respond to mounting evidence that their case has no merit with the same hope. Unfortunately, many people fail to appreciate just what an appeal can and cannot do, or how the process works. Learn more about the appellate process in PA.
Is an appeal a “do over”?
An appeal to a higher court is generally not a “do over” or a second bite at the case. Of course, there are some instances where the right to appeal entitles a party to a second chance, “de novo” in legal terms. From the Latin phrase meaning “from the new,” a de novo hearing allows a case to be tried all over again, with the decision from a prior court being wiped away. This is most often found in the context of an appeal from the decision of a Magisterial District Judge (MDJ) (more on this later). De novo hearings also arise in the context of an appeal from arbitration through the courts. In a de novo matter, new evidence and new witness testimony can both be heard, and previous awards are disregarded. One of the risks of this “do over” is a less favorable outcome than the original ruling from the Court.
However, in most cases, appealing a ruling presents a narrow window to change the outcome of a case.
Common opportunities for appeals 
In the Pennsylvania judicial system, some proceedings, although final in nature, are designed to allow a party to more easily appeal a decision. A common example involves cases tried before an MDJ in Pennsylvania. These courts are akin to “small claims courts,” and have limited jurisdiction up to a set dollar amount. For economic reasons, cases where smaller dollar amounts are at issue can be filed with the local MDJ. A party dissatisfied with the decision of the MDJ can file a “de novo” appeal with the corresponding Court of Common Pleas Court, where the prior decision will be wiped away as if the first trial never happened. However, costs go up, the process in the Court of Common Pleas is more complex, and chances are the result will be the same.
A second example is court-required arbitration, also known as compulsory arbitration. In this situation, the applicable court will send all cases below a certain dollar amount (usually $50,000) to arbitration in the first instance. The purposes are to conserve court resources, allow the parties to test the strength of their case, and encourage early resolution. In compulsory arbitration, there is a right to appeal and, if timely pursued, the arbitration award is of no impact. An appeal would then be heard before a judge, either through a non-jury or jury trial. However, if not timely appealed, the arbitration award will become final and will have the same effect as if there had been a full-blown trial.
Note that compulsory arbitration is not the same as contractual arbitration, in which the parties have agreed in advance to arbitrate a dispute, usually done outside of the courts. In such cases, the parties’ agreement will govern and there may be no right to appeal whatsoever. As such, it is very important to understand what kind of arbitration is involved and what the appeal rights are, if any.
General rules concerning the appellate process in PA
While the right to appeal from a trial court almost always exists, the actual scope of what an appellate court can do is limited. In Pennsylvania, the first-level appellate courts are the Superior Court and the Commonwealth Court. Except in rare cases where they can exercise “original jurisdiction,” these two courts act as “error-fixing courts,” meaning that they have the ability to address errors on appeal, but are unable to re-try the case. A party can potentially appeal the decision of the Superior Court or Commonwealth Court to the Pennsylvania Supreme Court, but only if the Supreme Court grants permission to hear the appeal (more to come on this later).
The scope of review
It is also important to understand that, unlike a de novo trial, an appeal to the Superior Court, Commonwealth Court or Supreme Court (i.e., the Appellate Courts) is not a “do over.” The Appellate Courts have a limited scope of review. This means that on appeal, the Appellate Courts will only consider evidence that is “in the record.” What is in the record is the evidence that was presented at trial. If you “woulda, coulda, shoulda” offered additional evidence at trial, it is generally too late to do so on appeal. This applies to witnesses, documents and even arguments.
The standards of review
As “error fixing” courts, the errors the Appellate Courts can fix are only those made by the lower court. The type of error raised determines the way in which the Appellate Court reviews the possible issue. Errors of the application of the law generally allows the Appellate Court more freedom to review the issue. Conversely, if credibility is an issue, i.e., the trial court should have believed you and not your opponent, it is unlikely that the Appellate Court can fix that kind of “error.”
Even disputed legal issues do not present a clear basis to overturn a decision if the question at trial was within the trial court’s discretion or if the error was harmless. The “abuse of discretion” standard is one favoring the trial court’s decision. A “harmless error” is a mistake, but one that did not significantly impact the outcome or fairness of the trial. If there has not been an abuse of discretion or if an error is harmless, then the trial court decision will most likely be upheld.
Given the standards of review that the Appellate Courts must apply, getting a reversal on appeal is most often an uphill fight.
The scope of relief
In Pennsylvania, over half of the cases on appeal are affirmed. That means that the Appellate Courts agreed with and upheld the trial court most of the time. In terms of what an appellate court can do other than affirm, even a “victory” for the appealing party can seem like half a loaf. If the appellate court disagrees with the trial court on an issue, in many cases, it will “vacate” the decision below, and “remand” to the trial court. For many, this result effectively means going back to the trial court at the point before the error was made. This often means that there will be a new trial (or new findings by the trial court); however, there is no guarantee of a different result the second time around and the parties will pay the costs of a second trial. It is rare for an appellate court to simply reverse the lower court and enter a contrary result.
The appellate process in PA: discretionary review of the Supreme Court
Is there always a higher court? The short answer is “No.” Both the Pennsylvania Supreme Court and United States Supreme Court have the discretion to hear or not to hear appeals in most cases. The aggrieved party must first ask the Supreme Court to hear the case and grant allocatur (Pennsylvania Supreme Court) or certiorari (US Supreme Court) (More Latin! Allocatur means “it is allowed” and “certiorari” means “to be more fully informed” or “to be made more certain”). Only if appellate review is granted will the respective Supreme Court then review the merits of the case.
The United States Supreme Court typically accepts about 1% of the cases for which review is sought, hearing oral arguments in around 80 cases out of the 7,000-8,000 petitions it receives each term. In practical terms, this suggests a party may get only one bite at the appellate apple.
Litigation support in PA
While there is almost always at least one chance to appeal, the better strategy is to get it right the first time. At FLB, our Litigation and Trial Practice attorneys prepare and try our cases to win.
Should there be an adverse ruling, we can handle any appeals, and our attorneys have argued successfully before the Pennsylvania Superior, Commonwealth and Supreme Court. But, at the same time, we know the risks and prefer to be the appellee rather than the appellant whenever possible.
Have questions on the appellate process in PA? Contact Gretchen Petersen, Josh Gildea, or any of our litigation team members today!
