Summary
holding that a notice of appeal listing multiple docket numbers does not comply with Walker, even if those notices are included in the records of each case
Summary of this case from Commonwealth v. WongusOpinion
No. 2066 MDA 2018 No. 2067 MDA 2018 No. 2068 MDA 2018 No. 2069 MDA 2018
08-14-2019
COMMONWEALTH of Pennsylvania v. Lawrence Edwin CREESE, Sr., Appellant Commonwealth of Pennsylvania v. Lawrence Edwin Creese, Sr., Appellant Commonwealth of Pennsylvania v. Lawrence Edwin Creese, Sr., Appellant Commonwealth of Pennsylvania v. Lawrence Edwin Creese, Sr., Appellant
Christopher D. Moore, York, for appellant. Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.
Christopher D. Moore, York, for appellant.
Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellee.
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER , J.
Retired Senior Judge assigned to the Superior Court.
OPINION BY MURRAY, J.: Lawrence Edwin Creese, Sr. (Appellant) appeals from the order dismissing as untimely his petition seeking relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. After careful review, we are constrained to quash this appeal.
On December 18, 2018, the PCRA court issued its order denying relief; the order listed four docket numbers. On December 20, 2018, Appellant filed a timely appeal "that included all docket numbers in each related case." Answer to Rule to Show Cause, 1/22/19, at 1. Our review of the record reveals that four separate photocopies of the notice of appeal, each listing all four docket numbers, were entered on the trial court docket, and accordingly, on this Court's docket.
On January 11, 2019, we issued a rule to show cause for Appellant to explain why we should not quash the appeal based on our Supreme Court's decision in Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (Pa. 2018) (holding that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases"). See Order – Rule to Show Cause, 12/11/19.
On January 22, 2019, Appellant filed a response, in which he admitted to filing the notice of appeal that included all four docket numbers, and conceding "counsel was previously unaware of the rule in Commonwealth v. Walker ." Response to Rule to Show Cause, 1/22/19. Appellant further averred that no party would be prejudiced by "this technical error." Id. By order dated January 25, 2019, this Court discharged the rule to show cause and referred the matter to the merits panel.
The Official Note to Rule 341(a) of the Pennsylvania Rules of Appellate Procedure, which was amended in 2013, provides:
Where, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeals must be filed. Commonwealth v. C.M.K. , 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by single notice of appeal from order on remand for consideration under Pa.R.Crim.P. 607 of two persons' judgments of sentence).
Pa.R.A.P. 341, Official Note.
Until recently, it was common for courts of this Commonwealth to allow appeals to proceed, even if they failed to conform with Rule 341. See , e.g. , In the Interest of P.S. , 158 A.3d 643, 648 (Pa. Super. 2017) (noting common practice to allow appeals to proceed if the issues involved are nearly identical, no objection has been raised, and the period for appeal has expired).
In Commonwealth v. Walker , however, our Supreme Court held unequivocally that "prospectively, where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case. " Walker , 185 A.3d at 971 (emphasis added). The Supreme Court observed that the Official Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure "provides a bright-line mandatory instruction to practitioners to file separate notices of appeal," and accordingly, determined that "the failure to do so requires the appellate court to quash the appeal. " Id. at 976-77 (emphasis added). Because this mandate was contrary to decades of case law, the Supreme Court specified that it would apply only to appeals filed after June 1, 2018 , the date Walker was filed. Id.
Recently, this Court stated:
In Walker , our Supreme Court construed the [ Rule 341 ] language as constituting "a bright-line mandatory instruction to practitioners to file separate
notices of appeal." Walker , 185 A.3d at 976-77. Therefore, the Walker Court held that "the proper practice under Rule 341(a) is to file separate appeals from an order that resolves issues arising on more than one docket. The failure to do so requires the appellate court to quash the appeal." Id. at 977.... Accordingly, the Walker Court directed that " in future cases Rule 341 will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal." Id. (emphasis added).
Commonwealth v. Williams , 206 A.3d 573, 575–76 (Pa. Super. 2019) (emphasis in original).
Instantly, we apply Walker because Appellant's notice of appeal was filed after the Walker decision requiring that an appellant file a separate notice of appeal for each lower court docket number. Here, the record contains four identical notices of appeal listing all four docket numbers. After careful consideration, we find that Appellant has not met Walker 's mandate.
Given Appellant's January 22, 2019 response to this Court's rule to show cause, in which counsel states "A timely notice of appeal in this matter was filed ..." and "undersigned counsel was previously unaware of the ruling in Walker ..." (emphasis added), it appears that one notice of appeal listing all four docket numbers was simply photocopied and placed in each record, conceivably by the clerk of courts. It is impossible to be sure whether that occurred, or whether counsel himself filed four copies of the notice of appeal.
We read our Supreme Court's decision in Walker as instructing that we may not accept a notice of appeal listing multiple docket numbers, even if those notices are included in the records of each case. Instead, a notice of appeal may contain only one docket number. We recognize the severity of this application. However, if we consistently apply Walker by quashing any notice of appeal filed after June 1, 2018 that contains more than one docket number, consistent with Walker , and regardless of what occurred in the actual filing of that notice of appeal below, it will ultimately benefit appellants and counsel by providing clear guidance on how to satisfy Walker and Rule 341(a). Conversely, if we create exceptions to Rule 341 and Walker to avoid a harsh result, we will return to a scenario that the amendment to the Official Note and Walker sought to abrogate. In addition, we will do a disservice to appellants and counsel by applying the rule in a manner that is both confusing and inconsistent, the latter of which would be patently unfair.
Our Court will then assign an appellate docket number to each case, and either consolidate the appeals by per curiam order, or assign them consecutive journal numbers, at which point the panel may then consolidate the appeals if it so chooses. The four captions in this appeal, which were generated administratively, do not cure the Walker violation. The clerk of courts have purely ministerial powers. See In re Administrative Order , 594 Pa. 346, 936 A.2d 1, 9 (2007) ("It is ‘well settled’ in the intermediate appellate courts of this Commonwealth that the role of the Prothonotary of the court of common pleas, while vitally important, is purely ministerial .... Further, as ‘[t]he Prothonotary is merely the clerk of the court of Common Pleas[,] [h]e has no judicial powers, nor does he have power to act as attorney for others by virtue of his office .’ " (emphasis added)).
Consistent with the foregoing, we are constrained to quash the appeal.
Appeal quashed.
Judge Lazarus joins the Opinion.
Judge Strassburger files a Dissenting Opinion.
DISSENTING OPINION BY STRASSBURGER, J.: Because Appellant has complied with Pa.R.A.P. 341 and Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (Pa. 2018), I would not quash his appeals. Accordingly, I respectfully dissent.
I am persuaded by the following three decisions of this Court, which all involve the same factual scenario as the instant matter, and none of which has quashed the appeals under Walker .
Unpublished non-precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
In Commonwealth v. Williams , 2019 WL 3384926 (Pa. Super. July 26, 2019) (non-precedential decision), this Court held that Williams complied with Walker where he filed three copies of the notice of appeal for each of the three docket numbers. In so holding, this Court explained as follows.
This Court issued a Rule to Show Cause directing Williams to explain why his appeal should not be quashed in light of Pa.R.A.P. 341 and [ ] Walker [ ] (holding "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases"). Williams responded, explaining that although he styled the notice of appeal as a single document referencing the three docket numbers he sought to appeal, he filed a separate copy of the notice of appeal upon each of the trial court dockets. Our review of the record reflects that Williams filed a separate copy of the notice of appeal upon each trial court docket. As Williams effectively filed three notices of appeal rather than one, we are satisfied that he has complied with Rule 341 and Walker .
Williams , supra (non-precedential decision at 2 n.3).
Similarly, in Commonwealth v. Anderson , 2019 WL 3064860 (Pa. Super. July 12, 2019) (non-precedential decision), this Court concluded that Anderson technically complied with the requirements of Pa.R.A.P. 341's Note by filing three notices of appeal, each containing all three lower court docket numbers, explaining as follows.
On July 2[, 2018], Anderson filed a notice of appeal at each docket bearing all three trial court docket numbers. On July 30, 2018, this Court issued a rule directing Anderson to show cause why her appeal should not be quashed in light of our Supreme Court's decision in [ ] Walker [ ] (holding Pa.R.A.P 341's Note requires the filing of separate notice[s] of appeal for separate docket numbers; the failure to file separate notices requires quashal of the appeal). [Anderson] filed a response indicating that her case was distinguishable from Walker . We agree. While the inclusion of the three docket numbers on each notice of appeal confuses the issue, Anderson technically complied with the dictates of Pa.R.A.P. 341's Note by filing a notice of appeal at each docket court number. Accordingly, we conclude that Walker is inapplicable here.
Anderson , supra (non-precedential decision at 3 n.1).
Likewise, in Commonwealth v. Dealbertis , 2019 WL 2308047 (Pa. Super. May 29, 2019) (non-precedential decision), this Court determined that quashal was not required under Walker because Dealbertis filed two separate notices of appeal, each containing both trial court docket numbers, with two different time stamps.
[T]he record reflects that [Dealbertis] filed two separate notices of appeal, each containing both trial court docket numbers.
Indeed, the trial court's docket sheets for both docket numbers reflect that [Dealbertis] filed a notice of appeal. As noted by [Dealbertis] in his response to our order to show cause, the notices of appeal also contain two different time stamps. ( See [Dealbertis's] answer to rule to show cause, 8/1/18 at 2, ¶¶ 3-4.) Based on our review of the record, we find that [Dealbertis] has complied with Walker 's mandate that separate notices of appeal be filed in cases where a single order resolves issues on more than one lower court docket. Now that we have determined that quashal is not required under Walker , we turn to the merits of appellant's appeal.
Dealbertis , supra (non-precedential decision at 5) (footnote omitted).
In the instant case, as in the cases noted supra , Appellant complied with Pa.R.A.P. 341 and Walker . Our review of the record shows that Appellant filed a separate notice of appeal at each of the four trial court dockets which bore all four trial court docket numbers. Each notice of appeal contains a highlighter marking a different trial court docket number, and the notices contain different time stamps in different locations on the paper. The trial court's docket sheets for all four docket numbers reflect that Appellant filed a notice of appeal at each docket. Accordingly, four appellate docket numbers were assigned in this Court, 2066, 2067, 2068, and 2069 MDA 2018, and were subsequently consolidated by this Court sua sponte. Nothing in Walker requires a notice of appeal to contain only one docket number. Rather, Walker 's mandate is that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case." 185 A.3d at 971. As Appellant filed four notices of appeal rather than one, he complied with Pa.R.A.P. 341 and Walker . Accordingly, I would proceed to the merits of Appellant's appeals.
I recognize that counsel for Appellant has filed a petition to withdraw pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley , 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ). Because the Majority Opinion quashes the appeals, it should also deny counsel's petition to withdraw as moot. However, because I would not quash the appeals and would reach the merits, I offer no opinion as to the disposition of counsel's petition.