J

- S61043

- 19

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.
JOHN VOLZ, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 69 5 EDA 2019 Appeal from the PCRA Order Entered February 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0902141

- 1996, CP

- 51

- CR

- 0902151

- 1996, CP

- 51

- CR

- 0902161

- 1996 COMMONWEALTH OF PENNSYLVANIA

v.
JOHN VOLZ, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 69 6 EDA 2019 Appeal from the PCRA Order Entered February 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0902141

- 1996, CP

- 51

- CR

- 0902151

- 1996, CP

- 51

- CR

- 0902161

- 1996 COMMONWEALTH OF PENNSYLVANIA

v.
JOHN VOLZ, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 69 7 EDA 2019 Appeal from the PCRA Order Entered February 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0902141

- 1996,J

- S61043

- 19

- 2

- CP

- 51

- CR

- 0902151

- 1996, CP

- 51

- CR

- 0902161

- 1996

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E. *
DISSENTING MEMORANDUM BY STEVENS, P.J.E.:
FILED FEBR UARY 3 , 2020 The Majority concludes that Appellant filed a “premature” appeal from the February 11, 2019, PCRA 1 court order disposing of all collateral claims , and thus, concludes we lack jurisdiction over the instant appeal. Despite the fact the Clerk of Courts failed to note service of the order on the docket, t he record reveals Appellant filed a notice of appeal within thi rty days of the PCRA court’s order disposing of all claims for collateral relief. Accordingly, there is no impediment to our jurisdiction on this basis , and I respectfully dissent. However, for the reasons discussed infra , I conclude Appellant violated Pennsylvania Rule of Appellate Procedure 341 , as well as our Supreme Court’s holding in Co mmonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018), which requires appellants to file separate notices of appeal from a single order resolving issues arising on m ore than one lower court docket. As this Court has held: Jurisdiction is vested in the Superior Court upon the filing of a timely notice of appeal. “An order granting, denying, dismissing, or otherwise finally disposing of a petition for post

- convictio n collateral relief shall constitute a final order for purposes of

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546.J

- S61043

- 19

- 3

-

appeal.” Pa.R.Crim.P. 910. A final order is one that ends the litigation or disposes of the entire case. An appellant has a period of thirty days after the entry of an order during which an appeal on that order can be taken. Commonwealth v. Jerman , 762 A.2d 366, 368 (Pa.Super. 2000); Pa.R.A.P. 903(a). Commonwealth v. Liebensperger , 904 A.2d 40, 43 (Pa.Super. 2006) (some quotation marks and quotations omitted). As the Majority recognize s, the appeal period does not begin to run until the date the Clerk of Courts notes the date of service on the docket. See Pa.R.Crim.P. 114(c)(2)(c) (docket entries “shall contain” the “date of service of the order”); Pa.R.Crim.P. 907(4) (indicating that an order dism issing a petition without a hearing “shall advise the defendant...of the time limits within which the appeal must be filed.”); Pa.R.A.P. 108(a)(1), (d)(1) (the appeal period only begins running on the date the Clerk “mails or delivers copies of the order to the parties”)

. Accordingly, when there is a docketing failure or lack of notice, this Court will excuse an untimely appeal

. See Jerman , supra ( finding a breakdown in the PCRA court and deeming the PCRA petitioner’s appeal timely where Clerk failed to notify the petitioner of the o rder denying collateral relief); Commonwealth v. Braykovich , 664 A.2d 133 (Pa.Super. 1995) (discussing cases and holding failure of Clerk of Courts to advise the defendant that his post
- sentence motion had been deni ed by operation of law excused late

- filed appeal).J

- S61043

- 19

- 4

-

However, in the case sub judice , despite the Clerk of Court ’s failure to note service on the docket, Appellant obviously received the PCRA court’s February 11, 2019, order since he filed an appeal on Feb ruary 25 , 2019, within thirty days thereof . In fact, Appellant specifically referenced the PCRA court’s February 11, 2019, order in his notice of appeal. Under existing case law, in such a circumstance, this Court does not, as the Majority suggests , quash an appeal as premature; but rather, we routinely

“ regard as done that which ought to have done and treat the appeal

... as timely , i.e. , treat [the] appeal as if the Clerk inscribed the date of service on the docket [as of the date the order was filed]

. ” Com monwealth v. Carter , 122 A .3d 388, 391 (Pa.Super. 2015) (citing Commonwealth v. Howard , 659 A.2d 1018, 1021 n. 12 (Pa.Super. 1995) )

. The logic behind this holding is clear. It is illogical to require appellants, who undisputedly have actual notice of a final order disposing of all collateral claims and appealed within thirty days, to motion the PCRA court to direct the Clerk of Courts to provide notice on the docket before this Court is satisfied it has jurisdiction. Simply put, the issue in this case is not w hether A ppellant received notice of the February 11, 2019, PCRA court’s final order

. Rather, the issue is whether Appellant co mplied with our Supreme Court’s mandate in Walker , supra , and its progeny. It is undisputed Appellant filed a single notice of appeal listing all three lower court docket numbers and presenting issues that relate to the th reeJ

- S61043

- 19

- 5

-

lower court docket numbers. 2 The Official Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure provides:

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. 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

_________________ __________ ______ ____ _______ 2 Although each of the lower court records contain a copy of the notice of appeal, as well as a corresponding docket entry, Appella nt admits he filed a single notice of appeal in which he listed all three lower court docket numbers. Accordingly, presumably, the Clerk of C ourts copied the original notice of appeal and filed it separately at each docket number. This does not constitute compliance with Walker

. See Commonwealth v. Creese , 2 16 A.3d 1142 (Pa.Super. 2019) (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 ). T his Court h as accepted for en banc consideration the following issues, which are pertinent to this case: Whether (1) Appellant’s inclusion of multiple court of common pleas docket numbers on his notices of appeal violates Pa.R.A.P. 341 and Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018); and (2) if so, whether such violation necessitates quashal by this Court? Commonwealth v. Johnson , No. 2063 EDA 2018 (filed 10/4/19) ( en banc order). However, the Superior Court has “long held that as long as the [precedential] d ecision has not been overturned by the Supreme Court, a decision by our Court remains binding precedent .” See Marks v. Nationwide Ins. Co. , 762 A.2d 1098, 1101 (Pa. Super. 2000) . Accordingly, unless or until an en ban c panel of this Court, or the Supreme Court, overrules Creese , it remains binding precedent upon this C ourt, and in fact, this Court has been consistently applying Creese

. See e.g., Commonwealth v. Dickson , 2019 WL 5847274 , at *1

- 2 (Pa.Super . 11/7/19) (unpublished memorandum) (quashing appeal because “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 num ber.”); Commonwealth v. Keefer , 2019 WL 5491362 (Pa.Super. 10/25/19) (unpublished memorandum) (same)

.J

- S61043

- 19

- 6

- consideration under Pa.R.Crim.P. 607 of two [defendants’] judgments of sentence).
Pa.R.A.P. 341 , Official Note.
In Walker , ou r Supreme Court found the above language constituted “a bright

- line mandatory instruction

... to file separate notices of appeal.” Walker , supra , 185 A.3d at 976

- 77

. Accordingly, 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 (emphasis added). However, the Court made its holding prospective, recognizing that “[t]he amendment to the Official Note to Rule 341 was contrary to decades of case law from this Co urt and the intermediate appellate courts that, while disapproving of the practice of failing to file multiple appeals, seldom quashed appeals as a result.” Id. T he 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.” I

d. (emphasis added). Walker was filed on June 1, 2018. Appellant’s notice of appeal listing all three lower court docket numbers was filed on February 25, 2019. Under current precedent, our Supreme Court mandates that Appellant was to file aJ

- S61043

- 19

- 7

-

separate no tice of appeal for each lower court docket number. 3 Consequently, I would quash the instant appeal on this basis

. See Commonwealth v. Nichols , 208 A.3d 1087 (Pa.Super. 2019) (quashing appeal based on noncompliance with Rule 341 and Walker ); Commonwealth v. Williams , 206 A.3d 573 (Pa.Super. 2019) (same).
A s indicated supra , respectfully, we should not quash this appeal on the basis Appellant has appealed from a non

- final, non

- appealable order. Rather, this Court’s controlling precedent establishes that, in such a case, this Court “will regard as done that which ought to have been done” and treat the appeal as if it were timely filed from the date the order was entered. Carter , supra . Th erefore , I respectfully dissent.

_________________ __________ ______ ____ _______ 3 As the Honorable Mary Jane Bowes concluded in Commonwealth v. Stansbury , 219 A.3d 157 (Pa.Super. 2019) , this Court discussed Walker and declined to q uash an appeal where an appellant filed one notice of appeal listing two docket numbers. Id. at 161. In that case, the PCRA court advised the appellant “he could appeal the dismissal of his PCRA petition by filing within thirty days a notice of appeal from its o rder.” Id. (emphasis in original). This Court concluded the PCRA court’s order, which utilized the singular “a” with regard to the filing of a notice of appeal, amounted to a “breakdown in the court system [,] ” and therefore, we excused the appellant’ s la ck of compliance with Walker

. Id. Instantly, the PCRA court did not direct Appellant to file “a” notice of appeal. Furthermore, Appellant has not made any representations to this Court indicating that he was misled or misinformed. Moreover, it is noteworthy that a review of the certified record s in Stansbury reveals that, similar to the case sub judice , the Clerk of Courts in the Philadelphia Court of Common Pleas did not note on the certified docket entries that notice of the PCRA court’s final order was provided to the appellant , who appealed within thirty days of the entry of the order

. However, this Court did n ot quash the appeal as premature in Stansbury . Rather, after overlooking the Walker defect, this Court addressed t he merits of the case.