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One particularly useful piece of advice that I received early in my career as a lawyer emphasized the importance of knowing and understanding the operation and intricacies of the rules of procedure that apply in the courts in which you are representing clients.

That is particularly cogent advice for someone who focuses on appellate litigation, where the procedural rules are both complex and often difficult for attorneys who only rarely handle appeals to understand and follow. Further complicating matters is the fact that at the federal appellate level, one must be conversant not only with the Federal Rules of Appellate Procedure, which apply in all of the U.S. Circuit Courts of Appeals, but also with each individual court’s own local rules of procedure.

Of course, sometimes even the best of advice can occasionally present unexpected pitfalls. For example, what happens if your knowledge of a particular appellate court’s rules surpasses the knowledge of that court’s own employees? Sometimes, when attorneys who are ignorant of how a court’s rules will be applied violate those rules, the result is referred to as a “trap for the unwary.” On the other hand, if you know a court’s rules of procedure better than the court itself, you might find yourself caught instead in what I will call a “trap for the wary.”

I had such an experience recently in a case where I was hired to work on a brief in opposition to a petition for allowance of appeal to be filed in the Supreme Court of Pennsylvania. In common with the U.S. Supreme Court, Pennsylvania’s highest court in most cases has discretion whether to accept a case for review on the merits. In the U.S. Supreme Court, the process of requesting review begins with the filing of a petition for writ of certiorari. In the Pennsylvania Supreme Court, the process of requesting review begins with the filing of a petition for allowance of appeal, which was once known as an allocatur petition.

Pennsylvania Rule of Appellate Procedure 1116 is captioned “Brief in Opposition to Petition.” That rule explains that within 14 days after a petition for allowance of appeal is filed in the Pennsylvania Supreme Court, any party wishing to oppose review in that court can file a “brief in opposition” explaining why review should be denied. Under Pennsylvania’s appellate rules, if the petition for allowance of appeal was served on other parties by mail instead of hand delivery, an additional three days are added to the time to respond.

In the case on which I was working, the petition for allowance of appeal was served by mail on all parties on Oct. 5. Thus, the deadline for filing a brief in opposition was Oct. 22. This particular case was pending in the Harrisburg filing office of the Supreme Court, and my office is located in the Philadelphia suburb of Willow Grove, Pa.

Thanks to many years of practice as an appellate attorney in Pennsylvania, I was aware that Pennsylvania Rule of Appellate Procedure 102 defined the term “paperbooks” to mean “briefs and reproduced record.” The definition of “paperbooks” in Rule 102 also goes on to exclude some things from its definition, but a brief in opposition to a petition for allowance of appeal is not among those exclusions.

I was also aware that Pennsylvania Rule of Appellate Procedure 121(a) states, “Paperbooks shall be deemed filed on the day of mailing [to the court] if first class mail is utilized.” Based on these rules, on Oct. 22, I mailed sufficient copies of the brief in opposition to the petition for allowance of appeal to the Supreme Court’s Harrisburg office, together with a cover letter explaining that the documents were being filed in accordance with Rule 121(a) and the definition of “paperbooks” found in Rule 102, thereby preserving Oct. 22 as the filing date.

Fortunately, the briefs in opposition were mailed and served on all other parties from a nearby post office using official postage meter strips provided by the post office’s own counter employee. The very next day, on Oct. 23, the package containing the briefs in opposition arrived at the Harrisburg filing office.

To my great surprise, the Harrisburg filing office decided to treat the briefs in opposition as untimely filed because, according to a notice of defective filing that the court issued, briefs in opposition are not “briefs” for purposes of Rule 102′s definition of “paperbooks,” but rather are more in the nature of a “reply.” The court’s notice went on to say that to preserve Oct. 22 as the filing date, I should have enclosed a post office Form 3817 “proof of mailing” establishing that the package was mailed on Oct. 22.

Being familiar with the Pennsylvania Rules of Appellate Procedure, I knew that the rules that required use of a Form 3817 “proof of mailing” to preserve mailing as the filing date all explicitly referenced that form in their text. Two examples are found in Pennsylvania Rules of Appellate Procedure 1112(c) and 2542(b). By contrast, Rule 1116 governing briefs in opposition to a petition for allowance of appeal contains no reference to or mention of any need to use a Form 3817 “proof of mailing” to preserve the date of mailing as the service date. Moreover, the leading treatise on the Pennsylvania Rules of Appellate Procedure, commonly known as the Darlington and Shuckers treatise, goes out of its way to observe that the Form 3817 “proof of mailing” does not apply to the brief in opposition to a petition for allowance of appeal.

I am pleased to report that this story has a happy ending, in that the Harrisburg filing office of the Supreme Court ultimately accepted the brief in opposition for filing, although that office never officially acknowledged that it had erroneously construed the Pennsylvania Rules of Appellate Procedure in initially rejecting the briefs in opposition as untimely. This particular “trap for the wary” may prove short-lived, as the committee in charge of considering amendments to Pennsylvania’s appellate rules has proposed a change to Rule 1116 that would explicitly cause the date of mailing to the court of a response to a petition for allowance of appeal to serve as the filing date without any need to use a Form 3817 “proof of mailing” certificate.

To be sure, there are many more risks inherent in not knowing a court’s rules of procedures well enough than there are in knowing a court’s rules too well. But knowing a court’s rules too well can sometimes carry its own pitfalls, as my recent experience demonstrates.

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 athttp://howappealing.law.com.

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