Preserving Issues for AppealThe Effect ofMotions for Reconsideration

By Donald J. Martin, Esq.

In the last issue, I wrote about preserv­ing for appeal issues relating to pre-trialrulings in civil cases. The next logicalarticle would be preservation of trial rul­ings, but I recently dealt with a situationthat suggested that I should go out oforder. 'This article will discuss the effectof Motions for Reconsideration onpreservation of issues.

Early this year, a colleague who prac­tices elder law asked me to prepare aPetition for Review from a decision ofthe Pennsylvania Department of PublicWelfare. DPW denied his new client'sapplication for medical assistance fornursing home care. The Department'sHearing Examiner issued an Order,which contained standard language,advising the applicant (fortunatelybefore my friend represented him) thateither party had fifteen days to requestreconsideration by the Secretary of theDepartment and could do so by fillingin a form application, which was sentwith the Order. The Order also statedthat the appropriate parties could takeissue with the adjudication by filing anappeal to the Commonwealth Courtwithin thirty days.

The normal reaction of a lay person tothis is to use the form requesting recon­sideration. After all, it is a handy fill-in­the-blanks form. The Secretary ofPublic Welfare will reconsider the casepersonally, and who wouldn't wantthat? An appeal to the CommonwealthCourt looks like it requires a lawyer.Why spend the money?

The Department's regulations requirethe Secretary to act on Requests forReconsideration within fifteen days. Asmight be expected, the Secretary of PublicWelfare denied Reconsideration.1

The good news is that the regulationsof the Department of Public Welfarespecifically provide that when there is arequest for reconsideration, the thirtydays for appealing the decision to theCommonwealth Court begins on the

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date the Secretary "responds to therequest".2 The bad news is that thisregulation was held invalid as contraryto the Pennsylvania Rules of AppellateProcedure in 19863. Despite that casebeing seventeen years old, the regula­tion remains on the books. Follow it atyour peril.

While the notices contained in theBureau's orders have been held to be acorrect statement of the law4, they donot explain that once thirty days fromthe original order passes, theCommonwealth Court has no jurisdic­tion to consider the merits of the case.The only issue on that appeal iswhether there was an abuse of discre­tion in denying reconsideration.s Aswe know, an agency's exercise of dis­cretion will not be reversed in theabsence of evidence of bad faith, fraud,capricious action or abuse of power.6

In Strobher v. Commonwealth, Departmentof Public Welfare,7 the CommonwealthCourt explained that the "prudentapproach" where reconsideration issought, is also to file an appeal from thedecision on the merits within thirtydays of its entry. In the case of deci­sions of administrative agencies, thedate of mailing is the date of entry.

The applicable principles are thesame in civil, criminal and family court(except the date of entry is different).Under 42 Pa.C.S. §SSOS, courts have theauthority to modify or rescind anyorder within thirty days of its entry, ifno appeal from the order has beentaken. This statute applies to finalorders only. Interlocutory orders maybe modified beyond the thirty-day lim­itation.s This statute was modified byPennsylvania Rule of AppellateProcedure 1701(b)(3), which permitsreconsideration, even if an appeal istaken under specified circumstances.Those are:

(1) an application for reconsidera­tion is filed in the court or agency with­in the time provided by law; and

(2) an order expressly granting

reconsideration must be entered by thetrial court within the time for filing anappeal.

The great number of appellate casesunder this rule suggests how misun­derstood the practice is. The grant ofreconsideration must be express;9 thatis, the order must say "reconsiderationis granted".10 Although the exact lan­guage is not required, an order whichissues a rule to show cause, sets a. hear-ing date, establishes a briefing sched-ule, (or any of these) is not an expressgrant of reconsideration, and will nottoll the time for filing an appeal.ll Anorder granting a stay is insufficient.12

Post-trial motions are not allowed insummary conviction cases, althoughmotions for reconsideration are autho­rized. These, too, must be expresslygranted within the appeal period.l3 TheNote to Pennsylvania Rule of AppellateProcedure 1701(b)(3) explains theprocess. It also makes the suggestion, iJ.7')which appears in the Commonwealth "~U

Court cases regarding Department ofPublic Welfare appeals, that both arequest for reconsideration and noticeof appeal be filed. Your application forreconsideration should have a suggest-ed form of order, which at least states"reconsideration is granted" and,preferably, vacates the underlyingorder. Follow whatever procedure isappropriate in your court for present-ing this as an emergency matter,because 42 Pa.C.S. §SSOS deprives thecourt of authority to act after thirtydays. If you have filed a notice ofappeal, point out Rule 1701(b)(3), lestthe judge think he or she has lostauthority to grant reconsideration.

If reconsideration is expressly grant­ed within the thirty days, there is yetanother trap. Rule 1701(b)(3) also pro­vides that the grant of reconsiderationrenders inoperative any notice ofappeal filed. If, on reconsideration, theoriginal order is reaffirmed, a new noticeof appeal must be filed within the time to i.0appeal the new order. Otherwise, there

Solo and Small Firm Practice NewsSpring 2003

will be nothing before the appellatecourt.l4 The only consolation is Rule1701(b)(3), which exempts the appellantfrom paying another filing fee.

There is an exception on which youshould not rely. In Jackson v. Hendrick15,

the trial court stated that reconsidera­tion was being granted; but a writtenorder vacating the original order wasnot filed until more than thirty dayshad passed. In reliance on the oralorder, the appellant withdrew itsappeal. The first order was reaffirmedby the trial court, and an appeal wastaken, both from the original order andthe order on reconsideration.Commonwealth Court held the appealwas untimely because the trial courtlacked the authority to vacate the initialorder after thirty days expired. TheSupreme Court reversed, holding that42 Pa.C.S. §5505 does not require a writ­ten order to grant reconsideration(although Rule 1701(b)(3) does) andstated that courts have the inherentpower to correct their own judgments.This exercise of discretion was proper,because the original appeal had beenwithdrawn in reliance on the oral grantof reconsideration.

The appellant in that case was theCity of Philadelphia, and the order inquestion was one inlposing substantialfinaIlcial penalties for contempt of aconsent decree regarding prison condi­tions. Therefore, do not expect the deci­sion in Jackson v. Hendrick to do you anygood, uruess you represent a large cityfacing a large fine for violating anunpopular order.

Let us get back to my friend and theOrder denying reconsideration of theOrder denying Medicaid benefits fornursing home care. I prepared, and wefiled, a Petition for Review to theCommonwealth Court challenging theSecretary's exercise of discretion indenying reconsideration. It also chal­lenged the merits and asserted that thenotice contained in the Bureau's Orderis misleading.16 My colleague, whohas the respect of DPW's attorneys, wasable to negotiate a settlenlent that pro­vided all the benefits sought. Do notcount on this happening to you either.

One more depressing point. Whilethe denial of reconsideration by an

Solo and Small Firm Practice NewsSpring 2003

administrative agency is reviewable foran abuse of discretion, the decision of acourt not to grant reconsideration is notreviewable on any basis.17

What have we learned? As we dis­cussed in the last issue, if you have anappealable order, file your appeal with­in thirty days. If you do not appeal,you have waived the issue. An excep­tion is: if you file a timely request forreconsideration, which is actuallygranted within the appeal period, usingthe words "reconsideration is granted",and, preferably, vacating the originalorder. Then, the time to appeal beginsagain with the decision on reconsidera­tion.

But, think, why on earth are you ask­ing for reconsideration? Did the judgeor agency really miss sometl1ing? Doyou actually think they did not consid­er their decision right in.the first place?Have you come up with an even better(and now waived) argument?

A request for reconsideration is not aprerequisite to taking an appeal.Unless there is some indication, eitherin an opinion or hint from the Ben.ch,that the court missed something or real­ly got a fact wrong, these motions onlymake the client feel better or spendmore money for your services. In thenormal course, they do nothing but cre­ate a situation that risks waiver fromthe failure to take a timely appeal fromthe original order.

The opinions expressed in this article arethose of the author, and do not reflect theopiniqns of either the Pennsylvania BarAssociation or its Solo and Small FirmPractice Section.

Donald J. Martin, Esq., Chair of theSection, is a solo practitioner. inNorristown, PA, whose practice focuses onthe appellate courts, providing assistance toother attorneys in civil, criminal andadministrative litigation matters. He maybe reached at 610-277-6772, ordjmartin@donaldjmartin.com.

ENDNOTES:

11 do not have statistics on this, but Isuspect requests for reconsideration aredenied in the vast majority of cases. Inmy experience, I have seen reconsider­ation granted once. The Hearing

Examiner reversed a decision made bya Deputy Secretary in the Department,and her immediate superior, theSecretal)T, reinstated the original deci­sion. See Woods Services, Inc. v.Department of Public Welfare, 803 A.2d260 (Pa. Cmwlth. 2002).

2 55 Pa. Code §275.4(h)(4)(iv).

30rmes v. Commonwealth, Department ofWelfare, 98 Pa. Cmwlth. 588, 512 A.2d 87(1986)

4Modzele'lDski v. Commonwealth,Department of Public Welfare, 109 Pa.Cmwlth. 519, 531 A.2d 585 (1987)

5Keith v. Commonwealth, Department ofPublic Welfare, 121 Pa. Cmwlth. 405, 551A.2d 333 (1988)

6Keith, supra, at 337

7125 Pa. Cmwlth. 162, 557A.2d 440 (1989)

8Buehl v. Horn, 728 A.2d 973, 977 (Pa.Cmwlth. 1999); Commonwealth v.Nicodemus, 431 Pa. Super. 342. 636 A.2d1118, allocatur denied, 540 Pa. 580, 655A.2d 512 (1994)

.9Haiko Estate, 799 A.2d 155 (Pa. Super.2002); Pa.R.A.P. 1701(b)(3).

10Schofj v. Richter, 386 Pa. Super. 289,.562 A.2d 912 (1989). This case actuallysays the order must say "reconsidera­tion is expressly granted", althoughIIexpress" would seem to be implied.

11Valentine v. Wooten, 397 Pa. Super.526, 580 A.2d 757 (1990), allocaturdenied, 527 Pa. 650, 593 A.2d 422 (1991)

12Commonwealth v. Gordon, 329 Pa.Super. 42,477 A.2d 1342 (1984)

13Commonwealth v. Moir, 766 A.2d 1253(Pa. Super. 2000)

14Penjerdel Refrigeration Corporation, Inc.v. R.A.C.S., Inc., 296 Pa. Super. 62, 442A.2d 296 (1982)15560 Pa. 468, 746 A.2d 574 (2000)161 have presented, and lost, this issue inCommonwealth Court before. It has notbeen addressed by the Supreme Court.

17Boden v. Tompkins, 306 Pa. Super. 494,452 A.2d 833 (1982); Nalbone v. Boroughof Youngsville, 104 Pa. Cmwlth. 623, 522A.2d 1173 (1987).

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