Pennsylvania appellate practitioners recite like a mantra the necessity of filing post-trial motions prior to an appeal—and not without reason. Pa R. Civ. P. 227.1 requires that post-trial motions be filed within 10 days of the final decision to preserve issues for appeal. If an issue has not been raised in a post-trial motion, it is waived for appeal purposes, e.g., Lane Enterprises v. L.B. Foster, 710 A.2d 54, 54 (Pa. 1998). “Where the trial court has no post-trial motion to consider … the parties have not presented the trial court with issues to deal with in an opinion and waiver occurs,” as in Behar v. Frazier, 724 A.2d 943, 945 (Pa. Super. 1999).
Rule 227.1, however, “does not define the word ‘trial’ nor does it address what proceedings—if any—short of a full-blown jury or bench trial should be deemed to constitute a trial for purposes of the post-trial motion requirement and consequent peril of waiver,” as in Newman Development Group v. Genuardi’s Family Markets, 52 A.3d 1233, 1247 (Pa. 2012). Thus, almost as soon as Rule 227.1 went into effect in 1983, exceptions began being carved into its general rule.
The first exception is a note added to Rule No. 227.1(c) in 1985 to “clarify” that the post-trial motion requirement does not apply “to orders disposing of preliminary objections, motions for judgment on the pleadings or for summary judgment, motions relating to discovery or other proceedings which do not constitute a trial.” Interestingly, the decision the note cited, U.S. National Bank v. Johnson, 487 A.2d 809 (Pa. 1985), was not a Rule 227.1 case, but rather an equity action declaring that “exceptions” to preliminary objections were not recognized by the rules, (orders sustaining preliminary objections “may be appealed as of right … without resort to filing exceptions”). However, all forms of preliminary objections are now considered exempt from Rule 227.1, e.g., In re Mountaintop Area Joint Sanitary Authority, 166 A.3d 553, 560-61 (Pa. Cmwlth. 2017) (eminent domain case).
However, where an equity action survived motion practice and goes to trial, an appeal of a final order requires the filing of post-trial motions under Rule 227.1:
“Under Rule 227.1, a party must file post-trial motions at the conclusion of a trial in any type of action in order to preserve claims that the party wishes to raise on appeal. In other words, a trial court’s order at the conclusion of a trial, whether the action is one at law or in equity, simply cannot become final for purposes of filing an appeal until the court decides any timely post-trial motions,” as in Chalkey v. Roush, 805 A.2d 491, 496-97 (Pa. 2002) (applying Rule 227.1 to equity appeals “prospectively only”) (emphasis original).
Another portion of the note to Rule 227.1(c) exempts cases brought and litigated under petition practice. (“A motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice”), see In re K.L.S., 934 A.2d 1244, 1246-47 (Pa. 2007) (post-trial motions not required to appeal decision on Mental Health Procedures Act petition); Rice v. Compro Distributing, 901 A.2d 570, 573 n.4 (Pa. Cmwlth. 2006) (post-trial motions not required to appeal decision on petition to set aside tax sale). The exception is not absolute. That an action is commenced as a petition does not exempt it Rule 227.1’s post-trial motion requirement if the case does not thereafter actually proceed under petition practice rules, as in Motorists Mutual Insurance v. Pinkerton, 830 A.2d 958, 964 n.6 (Pa. 2003) (declaratory judgment petition had been litigated by complaint and answer, rather than petition and rule).
In 1989, Pa R.C.P. 227.1(g) was added, to specify post-trial motions “may not be filed in an appeal from the final adjudication or determination of a local agency or a commonwealth agency as to which jurisdiction is vested in the Courts of Common Pleas,” e.g., M.C. & E.K. Lees v. Capenos, 119 A.3d 1092, 1098 (Pa. Cmwlth. 2015). Such appeals include involuntary commitment proceedings under the Mental Health Procedures Act, as in In re K.L.S., 934 A.2d 1244, 1247-48 (Pa. 2007). However, where the action against an agency is initiated by a complaint (as opposed to statutory appeal), or seeks mandamus relief, post-trial motions are required, as in Gaughen v. Mechanicsburg Borough Council, 128 A.3d 355, 361 n.3 (Pa. Cmwlth. 2015); M.C., 119 A.3d at 1100.
In 1995 Rule 227.1 was further amended to add section 227.1(h), requiring motions for post-trial relief “following a trial upon an appeal from the decision of viewers pursuant to the Eminent Domain Code,” see Steen v. Pennsylvania Turnpike Commission, 3 A.3d 747, 750 (Pa. Cmwlth. 2010). This section establishes that eminent domain actions are to proceed differently than statutory agency appeals to which Rule 227.1(g) applies, eliminating complex disputes over appealability and waiver such as that in Shapiro v. Center Township, 632 A.2d 994, 997-99 (Pa. Cmwlth. 1993) (ultimately classifying eminent domain action as “a statutory appeal … to which the Rules of Civil Procedure do not apply”).
Most recently, in 2015, Rule 227.1 was amended to add subsection 227.1(i), which created another exception to the post-trial motion requirement for situations where “an appellate court has remanded a case for further proceedings.” Appeals from post-remand proceedings do not require motions, unless involving “a complete or partial new trial” or the trial court expressly requires post-trial motions. This amendment resulted from a referral to the Civil Procedural Rules Committee in the aftermath of Newman Development, 52 A.3d 1233, holding that a post-remand appeal from a proceeding did not require a new set of post-trial motions after a “proceeding upon remand which amounts to less than an actual trial.”
Also, although not addressed by Rule 227.1, post-trial motions are not strictly required for appeals from judgments of non pros. Where a case has been non prossed, filing a petition to open judgment under Pa. R. Civ. P. 3051 “serves the same function as a post-trial motion,” as in Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1000 (Pa. 2001).
Finally, Rule 227.1, considers late post-trial motions better than never filing at all. The rule’s 10-day time period has been treated as procedural rather than jurisdictional. Thus, trial courts have considerable discretion either to strike untimely motions or to allow them, upon request, and in the absence of objection by or prejudice to the opposing party, as in Compare D.L. Forrey & Associates v. Fuel City Truck Stop, 71 A.3d 915, 922 (Pa. Super. 2013) (four-month delay could not be excused), with, Arches Condominium Association v. Robinson, 131 A.3d 122, 129 (Pa. Cmwlth. 2015) (excusing 13-day delay where opposing party did not object, but rather addressed merits of belated motions). To be heard, an untimely motion must be filed prior to any appeal being taken. Otherwise, the appeal defeats jurisdiction, e.g., D.L. Forrey, 71 A.3d at 920-21. Where failure to file post-trial motions results in dismissal of the appeal, or a finding of waiver, a subsequent nunc pro tunc request for leave to file may be granted only for “extraordinary circumstances,” see Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); Lenhart v. Cigna, 824 A.2d 1193, 1198 (Pa. Super. 2003). Such circumstances are limited to fraud, breakdown in court operations, and not much else. See J. Beck, “Relief Nunc Pro Tunc, Or Is The Appeal Just Sunk?” The Legal Intelligencer, June 4, 2016).
Although failing to file post-trial motions will result in waiver, and thus failure of the appeal, in most situations, improvidently filed motions create their own problems. Both improper post-trial motions and any decisions adjudicating them are “nullities,” as in Vietri v. Delaware Valley High School, 63 A.3d 1281, 1286 (Pa. Super. 2013). On one hand, an appeal from such a nullity is subject to being quashed, while on the other, these nullities do not toll the 30-day window for noticing an appeal, and thus can result in forfeiture of existing appeal rights. Practitioners thus should take care to understand when the civil rules require post-trial motions as a prerequisite to appeal, and when they do not.
James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.