Section 1316. Incorrect Use of Petition for Permission to Appeal or Petition for Review

(a) General Rule. The appellate court shall treat a request for discretionary review of an order which is immediately appealable as a notice of appeal under the following circumstances:

(1) where a party has filed a timely petition for permission to appeal pursuant to Pa.R.A.P. 1311; or

(2) where a party has filed a timely petition for review from a trial court’s refusal of a timely application pursuant to Pa.R.A.P. 1311 to amend the order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b).

(b) Additional Requirements. The appellate court may require any additional actions necessary to perfect the appeal.

Official Note

This Rule requires the appellate court to treat a timely, but erroneous, petition for permission to appeal pursuant to Pa.R.A.P. 1311 from an order which is, in fact, immediately appealable as of right, as a timely notice of appeal. See Commonwealth v. Shull, 811 A.2d 1 (Pa.Super. 2002). This Rule supersedes Thermo-Guard, Inc. v. Cochran, 596 A.2d 188, 192 (Pa. Super. 1991), which stated, as dictum, that ‘‘ . . . in the future, where a petition for permission to appeal seeking review of a final order, appealable as of right, or of an interlocutory order made appealable as of right . . . is filed, this court should simply deny the petition.’’ Also, pursuant to subdivision (a)(2) of this Rule, where the trial court refuses an application to amend an order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b), and that order was in fact appealable as of right, the appellate court shall treat a Chapter 15 petition for review of the trial court’s refusal to amend as a notice of appeal.

Use of the term ‘‘notice of appeal’’ in this Rule is not intended to preclude treatment of the petition for permission to appeal as a petition for review if the proper method of appeal as of right would be a petition for review addressed to the Commonwealth Court’s appellate jurisdiction found at 42 Pa.C.S. § 763.

The provisions of this Rule 1316 adopted December 8, 2004, effective 60 days after adoption, 34 Pa.B. 6764.