Appellate Practice Tip: Supersedeas & Injunctions
Appealing a trial court’s order will not automatically prevent the other party from enforcing that order. Unless an exception applies, a notice of appeal does not act as a supersedeas or stay of the trial court’s order (Pa.R.A.P. 1701 (3)). In order to prevent an adverse party from enforcing the trial court’s order or judgment, it is necessary to either post bond or file an application for supersedeas or injunction.
Appeals from orders involving only the payment of money will operate as a supersedeas, but only upon filing security, usually a bond, with the clerk of the lower court in the amount of 120% of the amount found due by the trial court within 30 days from the entry of the order appealed from (Pa.R.A.P 1731 (a) and 1735 (a)).
If the order is anything other than payment of money, the appellant must file an application for stay with the trial court (Pa.R.A.P. 1732 (a)) unless application to the lower court is “not practicable” (Pa.R.A.P. 1732 (b)).
Failure to obtain supersedeas or stay may be fatal to the appeal. For example, it is critical to file a bond when appealing a mortgage foreclosure. Without supersedeas, the plaintiff can proceed to have the property sold at sheriff sale. Once the property is sold and the deed exchanged, the appeal becomes moot because the appellate court cannot enter an order that has any legal force or effect. Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574 (Pa. Super. Ct. 2005). The appeal will then be dismissed for being moot.
Failure to obtain supersedeas or stay may also lead to appeals becoming moot in other situations. For example, an appeal from an order permitting the demolition of a structure will become moot if, absent a stay, the structure is demolished.
Accordingly, filing a notice of appeal is only the first step in protecting your client’s rights.
If you have any questions regarding this topic, or civil appeals in general, please feel free to contact Paul Fellman at: (610) 565-1708 ext. 24,
Or by email at email@example.com