RESOLUTION TO ACT AS AMICUS CURIAE IN SUPPORT OF THE APPELLANTS IN
NEWMAN DEVELOPMENT GROUP OF POTTSTOWN, LLC V. GENUARDI'S FAMILY MARKETS, INC., ET AL.

WHEREAS, the right of appeal is an important right for litigants in Pennsylvania courts and is embedded in Article 9, Section 5, of the Pennsylvania Constitution;

WHEREAS, waiver of the right to appeal should occur only in circumstances in which the applicable rules of procedure and relevant published judicial decisions give fair warning to litigants that the failure to take certain action will result in a waiver of appellate rights;

WHEREAS, the unintentional waiver of appellate rights has harsh consequences for litigants and lawyers, including potential malpractice liability;

WHEREAS, the clear delineation of the circumstances under which litigants in Pennsylvania courts must file motions for post-trial relief to prevent waiver of their appellate rights is a matter of compelling interest to the members of the Philadelphia legal community;

WHEREAS, it is a matter of compelling interest to the Philadelphia legal community that, when Pennsylvania courts announce judicially crafted appellate waiver rules that are not evident from the applicable rules of procedure and relevant judicial decisions, those rules be applied prospectively, so as not to create a waiver trap;

WHEREAS, the Superior Court of Pennsylvania, in Newman Development Group of Pottstown, LLC v. Genuardi's Family Market, Inc., et al., 18 A.3d 1182 (Pa. Super 2011) held that the appellants waived their appellate rights – and therefore quashed their appeal from an $18.5 million verdict – by failing to file a motion for post-trial relief following a remand proceeding in which the trial court recalculated contractual damages without taking any additional evidence;

WHEREAS, reasonable legal minds could – and did – differ as to whether Pennsylvania Rule of Civil Procedure 227.1 required the filing of a post-trial motion following the remanded proceeding in Newman;

WHEREAS, by Order dated November 1, 2011, the Supreme Court of Pennsylvania granted allowance of appeal in Newman, 2011 Pa. LEXIS 2637 (Nov. 1, 2011) to decide whether the Superior Court erred by quashing the appeal for failure to file a post-trial motion, where the appeal was from the trial court's recalculation of damages following remand and where no additional evidence was received;

WHEREAS, it is the policy of the Philadelphia Bar Association, established by resolution dated June 22, 1989, to authorize the filing of amicus curiae briefs in cases pending in the highest court of a jurisdiction that raise issues of compelling interest to the Philadelphia legal community;

WHEREAS, the Newman case involves an issue of compelling interest to the Philadelphia legal community that is pending in the Supreme Court of Pennsylvania;

NOW THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association approves and authorizes the participation of the Association as an amicus curiae on behalf of the appellants in Newman, for the purpose of asserting arguments in support of reversing the decision of the Superior Court including: (1) that the Superior Court's order quashing the appeal should be reversed because the remanded proceeding was not a "trial" for purposes of Pa.R.C.P. 227.1; and, alternatively, (2) if the Supreme Court concludes that the proceeding on remand was a "trial," that holding should be applied prospectively, because that result was not evident from Rule 227.1 or decisions construing that rule.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: November 29, 2011