Rule 301 of the Pennsylvania Rules of Appellate Procedure, titled “Requisites for an Appealable Order,” contains five sections: (a) Entry upon docket below, (b) Separate document required, (c) Nonappealable orders, (d) Entry of appealable orders, and (e) Emergency appeals.
Section 301 (e) contains three necessary elements for emergency appeals:
Where the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action shall not be affected by this subdivision.
This first element requires a crisis that necessitates an immediate appeal and not merely authorizes one.
In Commonwealth v. Gordon, the Pennsylvania Superior Court found that this element was lacking because the trial court had in fact granted Gordon the right to seek admission of evidence at trial, despite the language in its order. 652 A.2d 317 (Pa. Super. Ct. 1994).
The second element requires an actual “adverse action” by the lower court that was not formally entered as an order.
In Township of Concord v. Concord Ranch, the Pennsylvania Commonwealth Court found that this element was missing because the trial court had taken no action on preliminary objections before the township petitioned the prothonotary for an adverse order. 664 A.2d 640 (Pa. Commw. Ct. 1995).
The last element requires that the formal entry of an order from the lower court is impossible to obtain through ordinary methods.
In Commonwealth v. Abdul-Salaam, the Pennsylvania Supreme Court found that this element was absent pointing out that Abdul-Salaam never asked the trial court to enter an order, filed for expedition, asked for a status report on his petition, or sought an order directing the trial court to act. 996 A.2d 482 (Pa. 2010).
The 2010 Abdul-Salaam opinion plainly shows the Pennsylvania appellate courts’ acute awareness of improper procedural maneuvering including the misuse of Rule 301 (e). Practitioners should carefully evaluate the rule and its elements, attempt regular methods before filing an emergency appeal, and know that this vehicle should not be used for addressing decision-making delays by lower courts.