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The Risk of Filing a Premature Notice of Appeal

By: Patrick Krenicky

“When should I file a notice of appeal?” is a question lawyers routinely ask themselves following an adverse decision at trial. Lawyers know that a notice of appeal must be filed timely to preserve a client’s appellate rights, but navigating the post-trial and appellate rules can be challenging. A recent non-precedential Superior Court decision underscores these challenges, and the importance of knowing which order to appeal from and when.  In Muir v. Heller, 277 A.3d 1164 (Pa. Super. 2022), the trial court rendered a decision in favor of the plaintiffs following a non-jury trial, and the defendants sought post-trial relief.  Twenty days later, with their post-trial motion scheduled for argument but not yet decided, the defendants filed a notice of appeal from the trial court’s decision. After the trial court heard argument on the defendants’ post-trial motion, the trial court denied the defendants’ request for post-trial relief and entered judgment.  The defendants did not file a notice of appeal from the trial court’s entry of judgment, but instead continued pursuing their appeal from the trial court’s earlier decision. 

The Superior Court panel quashed the defendants’ appeal finding that it lacked jurisdiction.  The Court reasoned that the trial court’s decision from which the defendants appealed was an interlocutory order subject to correction following post-trial motions.  It rejected the defendants’ argument that Pa.R.A.P. 905(a)(5) was applicable, which states that “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”  The Court found that Pa.R.A.P. 905(a)(5) only applies if the notice of appeal is filed after the trial court’s decision on post-trial motions and before the entry of judgment, but does not apply when a notice of appeal is filed prior to the trial court’s decision on post-trial motions.  The Court thus found that the defendants’ failure to appeal timely from the entry of judgment left them without recourse on appeal.

In dissent, Judge Olson argued that the Superior Court’s decision is inconsistent with a prior published decision of the Superior Court in a criminal matter, Commonwealth v. Ratushny, 17 A.3d 1269 (Pa. Super. 2011). There, the Court found that Pa.R.A.P. 905(a)(5) allowed it to consider an appeal even though the notice of appeal was filed after sentencing but before post-sentence motions had been decided by the trial court.  The majority in Muir did not directly address Ratushny and quashed the appeal.

As the Muir decision is non-precedential, it remains unclear whether a different panel of the Superior Court would reach the same conclusion.  However, the outcome is another cautionary tale to lawyers and litigants who seek to appeal an adverse decision following trial.  

Partner Marc Zucker Introduced as Chancellor of the Philadelphia Bar Association

By: Patrick Krenicky

In a ceremony held last month, partner Marc Zucker was introduced as the 96th Chancellor of the Philadelphia Bar Association. As Chancellor of the Bar Association, Marc will lead the Bar Association’s more than 10,000 lawyers, and facilitate the organization’s commitment to serving the legal profession, advancing access to justice and addressing critical needs of the broader Philadelphia community. 

Marc has ambitious plans for the Bar Association in the coming year, including creating and improving skill-building programs for young lawyers, increasing emphasis on pro bono representation, expanding access to justice initiatives, commemorating the 60th anniversary of Gideon v. Wainwright, and further increasing the visibility of the Bar Association’s Judicial Commission and its recommendations for the 2023 primary elections. To learn more about Marc’s background, and his goals for the Bar Association, click on the below link to read Marc’s recent interview with Law360 Pulse.

Law 360 Pulse: New Philly Bar Leader Sets ‘Aggressive’ Agenda for His Term

Partner Alan Yatvin Secures Preliminary Approval of Landmark Settlement That Will Ensure NYC Children with Diabetes Receive Appropriate Care in School

By: Patrick Krenicky

Weir Greenblatt Pierce LLP partner, Alan Yatvin is part of a team that secured a federal court’s preliminary approval of a landmark settlement for New York City children with diabetes. The settlement will ensure that children with diabetes in New York City receive the care they need to fully participate in school and school-related activities. Click here to read the press release and learn more about the terms of this ground-breaking settlement.