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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
Appellant :
v. :
:
:
MADHI DALI : No. 3677 EDA 2018
:
Appeal from the Order Entered December 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001906-2017,
CP-51-CR-0003042-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY McCAFFERY, J.:
FILED NOVEMBER 17, 2020
Although I agree with the learned majority that the Commonwealth has
made a procedural error, for the reasons explained below, I respectfully
dissent. I would hold that the Commonwealth’s single notice of appeal, which
was timely and properly filed, preserves the Commonwealth’s ability to
proceed with one of the cases listed thereon.
On June 1, 2018, our Supreme Court clarified in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), that litigants must file separate and distinct
notices of appeal in cases where a single appealable order is entered as of
more than one docket number, per Pa.R.A.P. 341. Id. at 976; see also
Pa.R.A.P. 341, note (“Where, however, one or more orders resolves issues
arising on more than one docket or relating to more than one judgment,
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separate notices of appeal must be filed.”) (citations omitted). Prior to
Walker, it had been common in some judicial districts to file one notice of
appeal where, for instance, a criminal defendant was convicted under two
distinct, but related, docket numbers that were consolidated for trial.
On March 5, 2019, this Court entered a show cause order requesting the
Commonwealth to demonstrate why its notice of appeal should not be quashed
for failing to file separate notices of appeal at each docket pursuant to Walker.
On March 13th, the Commonwealth filed its response, in which it
acknowledged an “inadvertent clerical oversight” in filing a single notice of
appeal and asked that it be permitted to proceed with its appeal as to “the
lead docket number,” CP-51-CR-0001906-2017. Commonwealth’s Response,
3/13/19, at 2.
Although I largely agree with the learned majority’s discussion of
Walker, I see nothing in our decisional law that would forbid this; indeed, as
I read Walker, this result is as consistent with that case and Rule 341 as
quashal of both appeals would be. Walker does not explicitly mention this
result, but it also does not mandate total quashal where appellants use a single
notice of appeal for multiple related appeals arising from the same order. The
Walker Court, of course, declined to quash, making application of its rule
prospective. Walker, 185 A.3d at 977. 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
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requires the appellate court to quash the appeal.” Id. at 977 (emphasis
added). While Walker has occasioned some confusion for litigants, it is
perhaps best described as standing for the principle that one notice of appeal
creates one, and only one, appeal.
The Official Note to Pa.R.A.P. 341 reads in relevant part as follows:
Where . . . 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. Malanchuk v. Tsimura, 137
A.3d 1283, 1288 (Pa. 2016) (“[C]omplete consolidation (or
merger or fusion of actions) does not occur absent a complete
identity of parties and claims; separate actions lacking such
overlap retain their separate identities and require distinct
judgments”); 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, note.
When interpreting statutory language, appellate courts must “ascertain
and effectuate the intention of the General Assembly.” Koken v. Reliance
Ins. Co., 893 A.2d 70, 80-81 (Pa. 2006), citing 1 Pa.C.S. § 1921(a).1 If the
language is not ambiguous, we must apply it and not disregard its letter in
pursuit of its spirit. 1 Pa.C.S. § 1921(b). Under Rule 341 and Walker, we
must quash “the appeal” and we should do so. But there are two appeals at
issue here, and we can hew to the law and give Rule 341 teeth without
1 The rules of statutory construction recorded in Chapter 19 of Title 1 of the
Pennsylvania Consolidated Statutes are applicable to the Rules of Appellate
Procedure; see Pa.R.A.P. 107.
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quashing both of them. If there were not two appeals, there would be no
Walker issue, so it is almost true to the point of tautology that there are two
appeals.
As a matter of logic, the defect that Rule 341 proscribes and that afflicts
the Commonwealth’s case is a procedural requirement that each trial court
docket number should have its own notice of appeal to present the case
properly to the appellate court. Thus, it appears that the failure does not
necessarily mar both appeals; the Commonwealth filed a notice of appeal that
was proper as to one docket number, although it listed a surplus docket
number on that notice. It did not file a notice of appeal as to the second
docket number, and thus there can be no proper appeal as to that matter.
This case is distinguishable from the ones cited in the Comment to Rule
341. In C.M.K., the appellants, co-defendants at trial, filed a single, joint
notice of appeal from two distinct judgments of sentence. C.M.K., 932 A.2d
at 112. Malanchuk presents the question of “whether an order awarding
summary judgment in one of two civil cases consolidated for purposes of
discovery and trial was appealable immediately as of right.” Malanchuk, 137
A.3d at 1284.
Neither addresses the more common scenario arising under Walker,
where a single defendant faces charges at multiple trial court docket numbers.
See, e.g., Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa. Super.
2019) (PCRA court dismissed petition with single order, where two convictions
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resulted from consolidated trial; PCRA court’s instruction that appellant could
file “an appeal” was breakdown in court operations, so this Court declined to
quash); Commonwealth v. Jerome Johnson, ___ A.3d ___, 1620 EDA
2018, 2020 WL 3869723, at *4 (Pa. Super. July 9, 2020) (en banc) (declining
to quash where appellant filed four notices of appeal which contained all four
trial court docket numbers; “Rule 341 and Walker make no mention of case
numbers on a notice of appeal. . . . We should not invalidate an otherwise
timely appeal based on the inclusion of multiple docket numbers, a practice
that the Rules themselves do not expressly forbid.”); Commonwealth v.
Rebecca Johnson, ___ A.3d ___, 2063 EDA 2018, 2020 WL 4211747, at *1
(Pa. Super. July 23, 2020) (en banc) (no Walker violation where appellant
filed three notices of appeal, each listing all three trial court docket numbers).
The Johnson cases support the Commonwealth’s position. This Court
determined that there is no violation of Walker, or Rule 341, where a notice
of appeal contains multiple docket numbers. Under that reasoning, the
Commonwealth’s notice of appeal as to its lead case is not defective. It simply
neglected to file a second notice of appeal, and has therefore failed to preserve
an appeal as to the second matter. Thus, accepting the Commonwealth’s
notice of appeal would seem to be appropriate under both Johnson cases.
Fundamentally, total quashal in this case, in service of quashing “the
appeal” under Walker, appears to further the same procedural glitch that
Rule 341 intends to avoid: treating two or more cases as if they are one case,
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and thereby effectively “consolidating” them without consideration of the
relevant features of the cases. Consolidation is largely the prerogative of the
courts. See Pa.R.A.P. 513 (under certain circumstances “the appellate court
may, in its discretion, order [multiple appeals] to be argued together in all
particulars as if but a single appeal”). In my view, the Commonwealth’s
proposed action is consistent both with Rule 341 and its spirit, and therefore,
to the extent that the Majority quashes both cases rather than accepting the
notice of appeal as to the lead case, I respectfully dissent.
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