62 Years Since Appeal of Pennsylvania R. Co., a Key Case on Leave to Appeal

On this date in 1956, the Supreme Court issued its opinion in In re Pennsylvania R. Co., 20 N.J. 398 (1956).  Along with Romano v. Maglio, 41 N.J. Super. 561 (App. Div. 1956), discussed here, this opinion remains a leading authority regarding motions for leave to appeal.

The case involved a discovery dispute, specifically, the denial of a motion to quash a discovery subpoena.  An appeal as of right was taken to the Appellate Division, and when a motion was made to dismiss the appeal as interlocutory, that court granted the motion while determining, on the merits, that the subpoena was not improper.  An appeal as of right was then taken to the Supreme Court.  That court dismissed the appeal, but granted a petition for certification that led to the opinion that was issue on January 16, 1956.

That opinion, written by Justice Jacobs for a unanimous Court, began by recognizing that “[t]here are two obviously competing forces—one lays its stress upon the inconvenience and expense of piecemeal reviews and the strong public interest in favor of a single and complete trial with a single and complete review—the other lays its stress upon the dangers of individual injustices which may result from the denial of any appellate review until after final judgment at the trial level.”  New York and some other states, Justice Jacobs observed, allowed interlocutory appeals as of right from “most interlocutory orders.”  The federal courts, in contrast, denied appeals as of right from “most interlocutory orders.”  The English Judicature Act, and statutes in some states, took a middle position, state that interlocutory appeals “may be entertained with leave of the appellate court.”  And prior to the 1947 Constitution, New Jersey’s own practice allowed interlocutory appeals in Chancery but not at law.

The delegates to the 1947 Constitutional Convention (one of whom was Justice Jacobs) decided to leave the issue of interlocutory appeals to a court rule.  The rule promulgated largely followed the federal practice, Justice Jacobs noted, limiting appeals as of right to final judgments, except in certain limited, specified instances.  “[A]ctual experience” under the court rule, Justice Jacobs said, supported the belief that careful exercise of appellate courts’ discretion would “enable preliminary appeals in the exceptional cases where, on a balance of interests, justice suggests the need for a review in advance of final judgment; and it should not in any significant measure entail the delay, expense and calendar congestion which are said to prevail in jurisdictions where interlocutory appeals are indiscriminately available as a matter of right.”

Ultimately, the Court affirmed the dismissal of the appeal as interlocutory, but not before agreeing with the Appellate Division about the merits.  So even though the purported appeal as of right was improper, the Court reached the discovery issue presented and affirmed the decision below.  But this opinion continues to be cited as authority for the Court’s restrictive view of interlocutory appeals, a perspective that continues today despite an increase in the number of otherwise interlocutory decisions that can be appealed as of right, such as orders granting or denying arbitration, as discussed here.