559 Proposed amendment to rule 2116

PART I.  RULES OF APPELLATE PROCEDURE

[210 PA. CODE CH. 21]

Proposed Amendment to Rule 2116

[38 Pa.B. 1446]
[Saturday, March 29, 2008]

   The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rule of Appellate Procedure 2116. The amendments are being submitted to the bench and bar for comments and suggestions prior to their submission to the Supreme Court.

   Proposed new material is in bold while deleted material is bracketed.

   All communications in reference to the proposed amendment should be sent no later than April 28, 2008 to:

Dean R. Phillips, Chief Counsel
D. Alicia Hickok, Deputy Counsel
Scot Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055

or Fax to
717-795-2116

or E-Mail to
[e-mail]

   An Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.

By the Appellate Court
Procedural Rules Committee

HONORABLE JANE CUTLER GREENSPAN,   
Chair

Annex A

TITLE 210.  APPELLATE PROCEDURE

PART I.  RULES OF APPELLATE PROCEDURE

ARTICLE II.  APPELLATE PROCEDURE

CHAPTER 21.  BRIEFS AND REPRODUCED RECORD

CONTENT OF BRIEFS

Rule 2116.  Statement of Questions Involved.

   (a)  General rule.--The statement of the questions involved must [state the question or questions in the briefest and most general terms, without names, dates, amounts or particulate of any kind] set forth concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement shall be no more than two pages and will be deemed to include every subsidiary question fairly comprised therein. [It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point] Mno question will be considered [which] unless it is [not] set forth in the statement of questions involved or is fairly suggested thereby. [Whenever possible each] Each question [must] shall be followed [immediately] by an answer stating simply whether [it was affirmed, negatived, qualified or not answered by the court or government unit below] the court or government unit agreed, disagreed, did not answer, or did not address the question. If a qualified answer was given to the question, appellant shall indicate [, most briefly] the nature of the qualification, or if the question was not answered or addressed and the record shows the reason for such failure, the reason shall be stated briefly in each instance without quoting the court or government unit below. .

*      *      *      *      *

   Note: The 2008 amendments are intended to reinforce the importance placed upon a party's statement of a limited number of concise questions that enable the Court to understand the nature of the legal issue, and in a general way what points it will be called on to decide. Thus, a party should incorporate the pertinent terms and circumstances of the case, but without details such as names, dates, amounts or particulars that are irrelevant to the resolution of the issues presented to the Court.

   Previously, some practitioners violated Pa.R.A.P. 124 to avoid the 15-line and one page restrictions of Pa.R.A.P. 2116 by adjusting fonts, spacing, and margins. Appellate courts may find issues to be waived when they are not set forth in compliance with the Rules of Appellate Procedure. The increase from one to two pages should provide ample space for most parties to articulate their questions in an informative yet concise manner. A party requiring more than two pages for a statement of questions should file an application under Pa.R.A.P. 123 asking for extra pages, explaining why additional pages are needed, and attaching the proposed questions to the application. See Pa.R.A.P. 105.

   The current language of the Rule is consistent with the standard set forth in Pa.R.A.P. 1115(a)(3) for questions presented for review in a Petition for Allowance of Appeal to the Supreme Court.

Explanatory Comment

   The Appellate Procedural Rules Committee is publishing for comment proposed revisions to Pa.R.A.P. 2116. Although other rules, such as Pa.R.A.P. 2118, also have page limits, the Committee did not perceive an impetus to change those rules at this time. Recent opinions reveal a frustration with Pa.R.A.P. 2116 by both the bench and the bar.

   For example, in Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004), appellant filed a Statement of Questions that was in ''italicized type of smaller size, with narrower line spacing and margins than the rest of the brief'' to comply with the single-page requirement.

   At the same time, although there are several opinions in which the Superior Court alludes to the fact that Pa.R.A.P. 2116 is ''in the highest degree mandatory,'' panels of the court have been inconsistent in response to violations. In cases such as In re S. A., 925 A.2d 838, 841 n.6 (Pa. Super. 2007), the Superior Court has refused to address issues that carried over to the second page; see also Commonwealth v. Jarowecki, 923 A.2d 425, 427-28 (Pa. Super. 2007); Commonwealth v. Andrulewicz, 911 A.2d 162, 165 n.7 (Pa. Super. 2006).

   On the other hand, in cases such as Universal Underwriters Ins. Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 689 n.6 (Pa. Super. 2007), the Superior Court recited the violation but did not impose consequences upon the appellant for violating the rule; see also Burgoyne v. Pinecrest Cmty. Ass'n, 924 A.2d 675, 679 n.2 (Pa. Super. 2007); Commonwealth v. Bell, 901 A.2d 1033, 1034 (Pa. Super. 2006) (where Statement of Questions Involved was omitted entirely). In a few instances--where there were violations of multiple rules--the court refused review altogether. See, e.g., Karn v. Quick & Reilly, 912 A.2d 329, 336-37 (Pa. Super. 2006), allowance of appeal denied, 931 A.2d 659 (Pa. 2007); Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006).

   It appears, therefore, that the standard of the rule as enforced may better be viewed as whether the appellant's conduct has impeded meaningful appellate review. Accordingly, the Committee proposes revising Pa.R.A.P. 2116 to remove ''in the highest degree mandatory'' and to substitute ''two pages'' for ''15 lines . . . never exceed[ing] one page.''

   This Recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court for adoption. Proposed new material is in bold, while bold bracketed material is deleted.

[Pa.B. Doc. No. 08-559. Filed for public inspection March 28, 2008, 9:00 a.m.]