Cross-appeals are a unique area of Pennsylvania appellate practice, both in terms of how they proceed under the rules and the practical aspects of drafting briefs and organizing the reproduced record. Pa. R.A.P. 2136 covers cross-appeals, sets forth the designation of the parties and provides a general guide of the contents of each brief.
The first question arising in cross-appeals is determining which party files first. Since each party is both an appellant and appellee, the common misperception is that the first party to file a notice of appeal automatically files first. Under Pa. R.A.P. 2136(a), however, it is the plaintiff in the lower court who is designated as the appellant/cross-appellee, with the defendant as the appellee/cross-appellant. The rule does permit the parties to agree and for the appellate court to direct otherwise, but the underlying plaintiff should assume they will file first.
Pa. R.A.P. 2136(b) sets forth the basic structure of briefing in cross-appeals as follows:
- The deemed or designated appellant files their principal brief on the merits (standard limit of 14,000 words);
- The deemed or designated appellee then files a brief consisting of both a response to the appellant’s argument and the merits of their own cross-appeal (limit of 16,500 words);
- The appellant then responds with a brief that includes both their reply argument to the appellee’s response and their response to the appellee’s issues on appeal (limit of 16,500 words); and
- The appellee can then file their reply brief (standard limit of 7,000 words).
More so than normally, the reproduced record necessitates greater cooperation between the parties in cross-appeals. Though there are no special rules regarding the designation of the reproduced record beyond Pa. R.A.P. 2154, courts have shown a strong preference for a single reproduced record agreed to by both parties. For this reason, it is advisable for all parties to follow the rule conclusively.
In short, a little extra attention to detail goes a long way in putting forth an effective argument.