Melissa is an attorney in the Litigation Department, focusing her practice on restrictive covenant and trade secret cases, commercial litigation, and appellate matters. In her position, Melissa has worked to secure preliminary...Read More by Author
Appealing to the Justices: Five Mistakes to Avoid When Petitioning the Supreme Court of Pennsylvania for Allowance of Appeal
Securing permission to appeal to the Supreme Court of Pennsylvania is not easy. In 2021, the Court granted only 6 percent of the petitions for allowance of appeal it received. Given the volume of petitions filed each year, the Court is able to accept only those that stand out as well considered and carefully prepared.
Preparing a successful petition for allowance of appeal usually requires experienced appellate attorneys who appreciate the need to dig deep into the record developed in the specific case, identify the issues worthy of consideration, and market the issues in a way that appeals to a unique audience: the Justices of the Pennsylvania Supreme Court.
Many appeal-worthy cases are denied for violating spoken and unspoken rules that attorneys experienced in petitioning the Court know to follow. While this blog will not identify each of those mistakes—there are too many—it will highlight five, common errors that may cause otherwise appeal-worthy issues to be denied permission to appeal.
1. Failing to Cite or Implicate the Appeal Criteria
Pennsylvania Rule of Appellate Procedure 1114 is the single most important rule in preparing a petition for allowance of appeal, as it outlines what is commonly known as the “allocatur criteria,” or the standards the Court applies in deciding whether to grant an appeal.
Despite the importance of this rule, many petitions presented to the Court fail entirely to cite to the Rule, let alone meaningfully explain how and why the allocatur criteria are implicated in the specific case. A major culprit of this mistake is practitioners’ reliance on their Superior Court or Commonwealth Court (or, worse, trial court) briefs as their petition. Reliance on these briefs is misplaced, however, because petitions for allowance of appeal have a different purpose: they are not meant to win a reversal but, rather, to convince the justices of the Pennsylvania Supreme Court that the issue sought to be appealed is “special and important” to warrant their attention.
An attorney experienced in petitioning the Pennsylvania Supreme Court knows how to avoid this common mistake and will be intentional in framing the petition around the allocatur criteria. Failing to do so can result in the rejection of an otherwise appellate-worthy case.
2. Citing the Wrong Appeal Criteria
Another common error petitioners make is incorrectly relying on the Rules 1114(b)(1) or (b)(2), both of which require that the holding at issue “conflict with” either another intermediate appellate court opinion or a holding of the Pennsylvania Supreme Court or the United States Supreme Court on the same legal question.
Although many petitions attempt to do so, most petitions do not actually implicate these criteria. Often, petitions identify errors in the intermediate court’s application of settled law, rather than true, jurisprudential conflicts. A “true” jurisprudential conflict exists where the holding in one case is directly opposed to the holding in another case. A true conflict would exist, for example, if a Pennsylvania intermediate court holds that a dog is a “pet” within the context of a particular statute, even though the Pennsylvania Supreme Court previously held that a dog is not a pet within the context of that same statute.
It is no secret that credibility is critical in the legal profession. The appellate process is no different. Indeed, credibility is even more critical in the appellate arena, because appellate courts lean on litigants to accurately argue questions of law against the backdrop of a specific set of facts. Reliance on the wrong allocatur criteria shows unfamiliarity with Pennsylvania’s Rules of Appellate Procedure and might result in a loss of credibility. Appellate attorneys who understand the intricacies of the allocatur criteria can highlight their trustworthiness through masterfully crafted petitions, which benefits parties’ images before the Court.
3. Drafting the Question Presented Around the Appeal Criteria
Many petitions for allowance of appeal are denied because the question presented for appeal is centered on the allocatur criteria, rather than on the merits issue. The reason for denial on this basis is simple: the Court’s eventual analysis is confined to the issue on appeal. Thus, if the question presented is whether a certain issue is one of first impression, the Court cannot opine on anything beyond the scope of that allocatur-focused question.
Experienced appellate attorneys appreciate the difference between the question presented and the reasons relied upon for appeal. Failure to understand the distinction can be the difference between a grant and a denial of appeal.
4. Focusing on the Intermediate Court’s Case-Specific Error
It cannot be overstated that the Pennsylvania Supreme Court is not an “error-correcting” court. And yet, too many petitions focus on the intermediate court’s case-specific error, rather than on a broader legal principle and, thus, suffer denial of appeal as a result.
Attorneys experienced in petitioning the Pennsylvania Supreme Court for appeal understand how to locate the appellate issues in an otherwise fact-specific case. Among other things, the attorneys know how to analyze the record as developed in the trial and intermediate courts and isolate the issue most likely to garner the Supreme Court’s attention. Well-versed appellate attorneys focus on, among other things, the impact the case might have across Pennsylvania.
5. Failing to Do Enough Research
At times, parties are unfortunately discouraged from filing a petition for allowance of appeal because the intermediate court opinion at issue is unpublished, or because the case is heavily fact-specific. Such discouragement misunderstands Pennsylvania’s allocatur process.
As one example only, a party might have a meritorious appeal if the intermediate court’s unpublished, fact-specific decision is premised on a legal principle that has become inadvertently changed following a court’s use of shorthand. Given the volume of cases the intermediate courts are required to resolve on a yearly basis, the courts sometimes employ shorthand to describe legal precepts. Typically, the shorthand is not intended to change the result of the case or articulate a new legal principle. But as other courts and practitioners begin to quote the shorthand version, this version inadvertently morphs into a new principle of law that is now outcome determinative. A party whose case is impacted by the use of shorthand might have a meritorious reason to ask the Pennsylvania Supreme Court for appeal: the initial use of shorthand had the unintended consequence of changing the application of the legal principle more broadly, which will cause further error unless promptly and definitively clarified by the Court.
Failure to consider all the various appellate avenues can cause a party to forego an otherwise viable appeal to the Supreme Court of Pennsylvania. Appellate attorneys experienced in digging through a record to isolate the issues most likely to be attractive to the Court know the various items to consider and places to look. Even more, they know how to use the issues to craft a petition that places the party in the best position to secure an appeal.
Even where a petition for allowance of appeal to the Pennsylvania Supreme Court involves an appellate-worthy issue, the petition might nonetheless be denied purely on mistakes made in drafting the petition. If you are considering filing a petition for allowance of appeal to the Pennsylvania Supreme Court, contact Obermayer appellate attorneys Melissa M. Blanco and Mathieu J. Shapiro.
Melissa M. Blanco is an attorney with a breadth of appellate knowledge. Before joining Obermayer, Melissa clerked for Chief Justice Thomas G. Saylor of the Supreme Court of Pennsylvania. Since joining the firm, Melissa has been successful on 2 of the 3 petitions she drafted. Given her experience, Melissa understands how to isolate appellate issues and frame those issues in a way that highlights the need for a discretionary appeal.
Mathieu J. Shapiro is an experienced appellate attorney who has appeared before many state and federal appellate courts. In his two decades of experience, Mathieu has filed various petitions to the Pennsylvania Supreme Court, including petitions for allowance of appeal and King’s Bench petitions, and has had wide success in doing so. Mathieu appreciates the difference between fact-specific issues and overarching legal problems, as well as the necessary political considerations underlying appellate work.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.