Interlocutory Appeals as of Right and Waiver of Issues
The Pennsylvania Rules of Appellate Procedure permit litigants to appeal certain orders even though the order has not disposed of all claims and of all parties. In other words, under certain circumstances you can take an appeal from a non-final order. Orders falling under this exception to the rule of finality are called “interlocutory orders.” Failure to immediately appeal some interlocutory orders can result in a waiver of the issue.
An appeal may be taken as of right from certain interlocutory orders identified by Pa.R.A.P. 311. These include: (1) orders affecting judgments, (2) orders affecting attachments, (3) orders changing venue or venire in a criminal proceeding, (4) orders relating to certain injunctions, (5) orders granting peremptory mandamus, (6) orders awarding a new trial, (7) orders directing partition, and (8) orders made final or appealable by statute or general rule.
Pa.R.A.P. 311 also allows immediate appeal from: (1) orders sustaining venue or person or in rem jurisdiction, (2) an order changing, transferring, or refusing to transfer venue, (3) orders overruling preliminary objections in eminent domain cases, and (4) certain orders remanding a matter to an administrative agency or hearing officer.
Generally, failure to file an appeal of an interlocutory order does not waive any objections to the interlocutory order. However, failure to file an appeal of the following orders shall constitute a waiver of all objections to the order:
- An order sustaining venue or personal or in rem jurisdiction if the plaintiff, petitioner, or other party benefitting from the order has filed of record within 10 days after entry of the order an election that the order shall be deemed final, or the court states in the order that a substantial issue of venue or jurisdiction is presented;
- An order changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles;
- Orders overruling preliminary objections in eminent domain cases;
- Orders refusing to compel arbitration, appealable under 42 Pa.C.S. § 7320(a)(1); and
- Orders which are made final or appealable by statute or general rule.
As referenced by Pa.R.A.P. 311(a)(8), certain orders are made final and appealable by statute or general rule and must be appealed or the issue will be waived. These types of orders are not identified by any comprehensive list, but include orders denying recognition of the defense of immunity from civil liability under 27 Pa.C.S.A. § 8301 et seq., relating to environmental laws and regulations, and orders relating to arbitration under 42 Pa.C.S. § 7320.
Rule 311(a)(8) applies also to rules made final by general rule. This includes collateral orders pursuant to Pa.R.A.P. 313. See In re Estate of Petro, 694 A.2d 627, 631 (Pa. Super. Ct. 1997). A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Examples include the following: an order relating to disclosure of privileged materials; an order granting a motion to stay proceedings; an order appointing a guardian ad litem to represent a minor daughter in negligence action; order denying motion to disqualify law firm; order denying class certification; certain orders denying intervention, and others.
In summary, it is important at all stages in the lower court to correctly identify an order as final or interlocutory. If interlocutory, you should then determine whether it is appealable as of right, and if so, whether it needs to be immediately appealed in order to preserve your client’s claims.
If you have any questions regarding this topic, or civil appeals in general, please feel free to contact Paul Fellman at
ext. 24, or by email at firstname.lastname@example.org.