When Can I Appeal a Case?

I have discussed appeals before, but some of you may wonder, “when can I appeal a case?” This post attempts to answer that question with as little legalese as possible. A case is appealable at two times: (1) at the final order and disposition of the case, or (2) if it is an order included in the Pennsylvania Rules of Appellate Procedure (P.R.A.P.) Rule 311. Each of these will be discussed in turn.

What is a “final order”?

P.R.A.P. Rule 341 defines a “final order” for us. When the case is over an order is given by the judge. The order is the final order and disposition when it gives a ruling regarding all claims and all parties, or it is expressly defined as a final order. In other words, that order disposes all of the things the court was supposed to address and so it is appealable.

An order may also be a final order if, when there are multiple claims and only one claim has a verdict, and it has appealable issues, and getting a final verdict on that issue will help determine the other claims,then the court will allow the appeal. This strategy would come into play only when there are multiple claims, and is a little more complicated than the other 2 final dispositions.

Discuss with your attorney what orders are final, although it is usually straightforward. If everything appears to be addressed in the order, it is final. If there are claims or parties left in limbo, it is not final. If it is not final, you might still be able to appeal if the appeal will deal with those claims or parties in limbo as well.

What else is appealable?

The other appealable issues arise when someone’s rights are going to be irreversibly affected by the order, but it is definitely not a final order. When an order is appealed but is not a final order, it is called interlocutory.

–          An order refusing to vacate, open, or strike a judgment is immediately appealable because it is an order which affects a judgment of a person.

–          An order to attach, vacating an attachment, or refusing to attach is appealable. An attachment is a lien on property, meaning that if somebody owed you money, you could attach his property and sell it to get the money. Selling property is something that causes irreversible damage.

–          An order to change criminal venue is appealable. This means that if your trial is ordered moved you have the right to appeal that decision because where your trial takes place determines the jury that will be called and that could cause irreversible harm.

–          An order granting, denying or altering an injunction is appealable. An injunction tells a person they may not do something. Because Americans have a liberty interest in being free to do various things, the order can cause irreparable harm.

–          An order determining the validity of a will or trust is appealable so that no distributions will be made from the estate or trust until all issues have been worked out.

It’s a long list, and it is incomplete. Other cases and rules alter this list slightly, but these are the more common instances of appealable issues.

If you think you have an appealable order, and have a reason to appeal it, you should talk to your attorney. Your attorney should be able to inform you of whether your hunch is right and you have an appealable order.

What if I appeal the case, and it turns out it wasn’t appealable yet?

You must meet all procedural requirements of docketing the case and giving the court the trial record. If, after doing that, the court finds that the issue is not ripe for appeal, the Court will then “quash” the appeal. What happens when a court “quashes” an appeal? The judge gets really, REALLY mad and yells at you!

No, no, just kidding.

When a court refuses to hear an appeal, it quashes it. This simply means the court hands the issue back to the trial court. The appeals court will remand the issue so that the trial court can finish its job, whether that be to go to trial, to finalize an order, or some procedural step that was missed such as filing a document. Your case is not prejudiced by being remanded to the trial court, it is just the appeals court explaining that it’s not your turn to be heard.

After the trial court finishes its job, you will be permitted to appeal again.

The Basics of Oil and Gas Leases Part II

For those Pennsylvanians located in the Marcellus Shale area, natural gas and oil reserves are now being tapped. Many land owners want to take advantage of the Marcellus Shale development, and are signing mineral exploitation leases to that effect. Most oil and gas leases are made up of similar clauses, and many drilling companies try to maintain a standard lease. This post explains a few of the common clauses you should be on the lookout for, because they may be good or bad for you depending on the wording or your situation.

  • Clauses to begin work:Cessation of Production Clause- specifies what the driller must do to maintain his end of the lease in the event that production ceases.
    • Granting Clause- states that the person signing the lease has the right to grant use of the estate, i.e. is the rightful owner of the estate.
    • Habendum Clause- indicates the extent of the ownership rights that the owner intended to give the lessor. The right to drill, the right to extract, if so how much, how much does the lessor have to pay, etc.
    • Reworking Clause- This benefits the owner of the land, it means that if the driller fails to find oil or gas on the first try, he or she may re-drill to find a production hole. It also means that multiple areas of your land may be drilled on, something some landowners are not amenable to.
    • Delay Clauses (clauses that allow the driller to delay work and still be in compliance with the lease):
      • Unless Clause- states that the lease terminates on a fixed date UNLESS the driller puts in a well or  pays a predetermined rental fee.
      • Or Clause- the driller must drill OR pay rental fees. This is different from the “unless clause” because the driller must then surrender the lease if there is no drilling and no rental paid. There is no set date to end the lease.
      • Savings Clauses (protects the individual leasing the rights, so that they may continue work)
        • Dry Hole Clause- allows the driller to continue drilling or reworking after a dry hole is drilled.
        • Continuous Operations Clause- gives the individual leasing the mineral estate the opportunity to continue working for as long as oil or gas production continues on the land.
          • Some leases allow this and the drilling of additional wells to show continuous operation
          • Some leases allow the driller to complete whatever work on a well has been done in order to see if there can be exercise of the continuous operations clause
  • Pooling Clause- combines small tracts of land and the mineral leases to drill a single well for production. This allows smaller land owners to use oil and gas leases, and also makes the drilling more efficient and (hopefully) easier on the environment. The variations on the pooling clause are:
    • Pugh Clause- modifies the pooling clause so that where possible, a driller must put in a well that would not be pooled with other lands, and therefore that landowner can have more oil or gas produced on his or her lands.
    • Unitization Clause- this clause attempts to combine the use of multiple wells and leases so that an entire field can be worked on without damaging the rights of others (landowners or producers)
    • Entirety Clause- provides apportionment of royalties if the owner of property anticipates a subdivision of the mineral lease (the driller allows others to take over drilling on part of the property) and this protects the owners royalties.
    • Force Majeure Clause- relieves the driller of complying with the terms of the lease if the failure to perform occurs because of some natural disaster, inability to work, or other destructive force. The approved forces are listed in this clause.

These are some of the most common clauses found in oil and gas leases. When looking at your lease, be aware of how subtle shifts in wording can change a clause that normally favors you, into a clause that favors the other party. Leases should be carefully drafted by experienced attorneys and should reflect the desires of both parties. Do not sign a lease without consulting an attorney.

For more reading on the mineral estate, see my post here. Contact Shannon K. McDonald to have your lease reviewed or to begin a discussion of how to utilize the oil and natural gas deposits you may have on your land. Also, next in this series is a discussion of royalties and production, what the words mean and how they will affect you.

Pennsylvania’s Post Conviction Relief Act (PCRA)

The PCRA is an indirect method of appeal in criminal cases. A direct appeal is when a criminal case is appealed from the Court of Common Pleas, where the accused lost the case, and wants to challenge some aspect of it. For more on direct appeals, read my post here. An indirect appeal in a PCRA allows the person to have the case reconsidered when a direct appeal to the Superior Court has been denied.

The PCRA must be filed within one year of the denial of the final direct appeal, or after the conviction if the defendant chooses not to use direct appeals. The one year rule does have some exceptions. The basic exceptions include: where counsel effectively abandons the defendant in the PCRA process, where the petition is an extension of a previously filed petition that was within the one year limit, where the government blocked the petition in some manner, where the new evidence could not have been known within the one year limit, and finally, where the court has determined that constitutional rights are such that the extension must be given.

PCRA is limited on its grounds for appeal. The full text of the act can be read here, but I will summarize it briefly. Under 42 Pa.C.S.A. § 9541 et seq, you may only begin the process for the PCRA if your conviction or sentence resulted from:

  • A violation of the Constitution of Pennsylvania or of the United states, or of the laws of the United States, and the violation occurred under circumstances which so undermined the process that no reliable adjudication of truth could have taken place
  • There was ineffective assistance of counsel such that no reliable determination of truth could have taken place
  • A plea of guilty was gotten under circumstances which make it likely that the defendant was induced to falsely make the statement and the defendant is innocent
  • Government officials wrongly obstructed the defendant’s right to appeal where an issue for appeal was present and capable of being appealed
  • New evidence has come to light which would have changed the outcome of the trial
  • A sentence was imposed which was greater than the lawful maximum
  • The court proceeding took place in a tribunal which did not have jurisdiction

Additionally, the statute requires that the allegation in the petition has not been previously litigated in court (it is a new issue) and it has not been waived by a failure to raise the issue (you didn’t bring it up and you were only permitted to bring it up at a certain point of the proceeding). The failure to litigate the issue cannot be the result of a rational or strategic move by the defendant’s attorney at trial.

You may notice the phrase “reliable adjudication of the truth” or “reliable determination of the truth.” These phrases are synonymous and mean that, because of what happened at trial, the facts or process was so distorted that no one could have discovered the truth. The courts have stated that the issue must go directly to the truth-determining process. (Commonwealth v. Bennett, 2007).

Another thing to mention is the process that a person must be given for the court to have properly reviewed the PCRA claim. Although the amount of due process required is less stringent than at trial, a defendant who petitions is still entitled to present his or her claims in a meaningful time and have them considered in a meaningful manner.

A petition for post-conviction relief must conform to certain processes and is subject to parameters defined by statute and the court. When you consider a PCRA, you also need to consider what attorney you will hire, and find one with the experience and the dedication to see the petition through. Failure to obtain the right counsel can result in the denial of your petition.

Call Shannon K. McDonald to discuss your potential PCRA petition today.