Can You Appeal If You Choose Not to File An Amended Complaint ?
Precedent from this Court points the way for Hionis to resolve this dilemma. In Ayre v. Mountaintop Area Joint Sanitary Authority, 58 Pa. Commw. 510, 427 A.2d 1294 (Pa. Cmwlth. 1981), the Court explained that a plaintiff who chooses not to file an amended complaint may appeal by filing a praecipe with the trial court to dismiss the original complaint with prejudice.
In this way, the plaintiff can convert an interlocutory order into a final and appealable order.
There are sound reasons for requiring this intermediary step, as has been explained:
It should be noted that an order sustaining preliminary objections often grants the plaintiff leave to amend within a time certain or suffer dismissal.
Such an order is interlocutory and never will become appealable, because it is a mere direction that an order be entered at some time in the future, unaccompanied by actual entry of the specified order in the docket.
In order to appeal such an order, the plaintiff must allow the period for amendment specified in the lower court's order to expire, and then praecipe the lower court clerk to enter an order dismissing the complaint. 20 G. RONALD DARLINGTON, ET AL., PENNSYLVANIA APPELLATE PRACTICE 301:19 (2008-2009)