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When must the party that won in the trial court file a cross-appeal to ensure that issues decided adversely to that party will be subject to review on appeal? The traditional answer to that question is that if the party that prevailed in the trial court seeks to enlarge its rights in the trial court’s judgment, then the prevailing party must file a cross-appeal in order to do so. Let’s start with a relatively straightforward application of the cross-appeal rule. Assume that the plaintiff sued the defendant for breach of contract and obtained a judgment awarding damages. Assume further, however, that the plaintiff asked the trial court to award prejudgment interest, but the trial court refused to do so. Under these facts, if the defendant appeals from the judgment finding the defendant liable for breach of contract and awarding damages to the plaintiff, the plaintiff must file a cross-appeal in order to be able to achieve appellate reversal of the trial court’s denial of prejudgment interest. In this first hypothetical, of course, the plaintiff could appeal even if the defendant had not appealed. Or, the plaintiff could appeal first to seek prejudgment interest, and then the defendant could cross-appeal to challenge the adverse breach of contract judgment. But the need for the plaintiff to file an appeal or a cross-appeal in order to obtain prejudgment interest on appeal is clear, because obtaining prejudgment interest serves to increase the plaintiff’s rights in the judgment. A second hypothetical produces similar results. Assume that a plaintiff sues a defendant on a tort claim and recovers compensatory damages. Assume further, however, that the trial court rejects plaintiff’s argument that plaintiff should be able to seek punitive damages in addition to compensatory damages. Under these facts, if the defendant appeals from the judgment against it on plaintiff’s tort claim, the plaintiff must file a cross-appeal to challenge the trial court’s refusal to allow punitive damages. By contrast, a cross-appeal is not ordinarily required in order for the party that prevailed in the trial court to seek affirmance on appeal based on alternative grounds that the prevailing party argued in the trial court but the trial court did not address. For example, assume that a defendant sought summary judgment in the trial court based on five separate grounds. The trial court may decide that ground two has merit, and therefore it is unnecessary for the trial court to examine the merits of ground one or grounds three through five. If the plaintiff appeals from the entry of summary judgment, the defendant is allowed to argue on appeal, without having filed a cross-appeal, that the trial court’s entry of summary judgment should be affirmed based on any of the five grounds for summary judgment originally asserted in the trial court, even though the trial court only addressed one of those grounds in its ruling. The reason a cross-appeal is not required for the prevailing party to argue alternative grounds for affirmance on appeal is that the prevailing party is not seeking to enlarge its rights in the judgment but rather merely to retain the judgment. The scenarios I have described thus far have been relatively easy to understand and decide. But frequently, more difficult applications of the cross-appeal rule arise. For example, assume that a case has been tried to a jury, and the jury has returned a verdict in favor of the plaintiff. Assume next that the defendant filed a post-trial motion for judgment notwithstanding the verdict (or judgment as a matter of law, as the federal court system now calls it). In the motion, the defendant also sought a new trial in the alternative. Assume finally that the trial court overturned the jury’s verdict, entered judgment in favor of the defendant and yet conditionally denied the defendant’s request for a new trial. Under this hypothetical involving the trial court’s grant of a defendant’s motion for judgment notwithstanding the verdict, but conditional denial of a defendant’s motion for a new trial, is it necessary for the defendant to cross-appeal from the conditional denial of a new trial if the plaintiff has appealed from the trial court’s entry of JNOV? In the federal court system, at least, the answer is relatively easy, because Federal Rule of Civil Procedure 50(c)(2) states that “[i]f the motion for a new trial is conditionally denied, the Appellee may assert error in that denial.” Thus, in the federal system, it does not appear that a cross-appeal is necessary for the defendant to argue that its new trial motion should be granted if the appellate court reverses the trial court’s entry of judgment notwithstanding the verdict in favor of the defendant. In Pennsylvania’s state court system, by contrast, no procedural rule discusses whether a cross-appeal is necessary for a defendant to challenge the denial of the defendant’s conditional motion for a new trial if the appellate court overturns the trial court’s entry of JNOV in favor of the defendant. Thus, good practice would suggest that the defendant should file a cross-appeal in these circumstances, if the case is pending in a Pennsylvania state court. When cross-appeals are needed is an issue that both the U.S. Supreme Court and the Supreme Court of Pennsylvania are devoting attention to. Fewer than two months ago, June 23, the U.S. Supreme Court examined whether a federal appellate court could order an increase in a criminal defendant’s prison sentence in the absence of a cross-appeal seeking that relief from the federal prosecutors. In Greenlaw v. United States, the court held that the defendant’s sentence could not be increased given the federal government’s failure to file a cross-appeal. And, in March 2008, the Supreme Court of Pennsylvania agreed to consider on the merits a case captioned Basile v. H&R Block Inc. The case began as a putative class action lawsuit asserting various tort and statutory claims arising from the tax preparer’s “Rapid Refund” program. Some seven months after issuing an order that certified the case as a class action, the trial court granted the defendant’s motion for summary judgment. Plaintiffs then appealed the entry of summary judgment, but H&R Block did not cross-appeal from the trial court’s class certification order. Plaintiffs’ appeal resulted in the overturning of the summary judgment order in favor of H&R Block and the remand of the case to the trial court for further proceedings. On remand, H&R Block asked the trial court to decertify the class, and the trial court agreed, entering an order decertifying the class. At issue on plaintiffs’ appeal from the trial court’s order decertifying the class is whether H&R Block’s failure to cross appeal from the class certification order in response to the plaintiffs’ original appeal from the trial court’s entry of summary judgment in favor of H&R Block waived H&R Block’s ability to seek decertification of the class on remand. Surprisingly, in my view, the en banc Superior Court, in June 2007, ruled by a margin of 6-2 that H&R Block had forfeited its ability to challenge the class certification order when H&R Block failed to cross-appeal from the class certification order in response to the plaintiffs’ appeal from the trial court’s entry of summary judgment in favor of H&R Block. Most recently, on March 25, the Supreme Court of Pennsylvania issued an order granting review to decide “[w]hether the Superior Court misapplied the aggrieved party doctrine by requiring petitioners to cross-appeal from an earlier class certification order even though summary judgment was entered in petitioners’ favor.” I anticipate that the Supreme Court of Pennsylvania will hold that H&R Block did not forfeit its ability to seek decertification of the class on remand by failing to cross-appeal the class certification order in response to plaintiffs’ original appeal from the entry of summary judgment. I agree that H&R Block could have filed a cross-appeal at that juncture to challenge the class certification order, but it certainly was not mandatory on pain of forfeiting any later ability to challenge class certification. If H&R Block had filed such a cross-appeal, the appropriate reaction of the appellate court would have been to decline to address that issue given that the case was once again in an interlocutory posture, due to the reversal of the entry of summary judgment against the plaintiffs. Moreover, because the trial court remains free up until the time of final judgment to reconsider the issue of class certification, the appellate court likely would have deferred to the trial court’s power and discretion to reconsider had H&R Block filed such a cross-appeal. My main piece of advice, however, is that when a party that prevailed in part in the trial court is in doubt over whether a cross-appeal is necessary to ensure appellate review, the better practice is to file a protective cross-appeal, thereby ensuring an entitlement to appellate review, instead of failing to file a cross-appeal, and thereby possibly forfeiting any right to appellate review. In other words, when in doubt, file a notice of cross-appeal. • Howard J. Bashman operates an appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via e-mail at [email protected]. You can access his appellate Web log at http://howappealing.law.com.

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