J-S54002-19
J-S54003-19
2022 PA Super 130
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRENDAN PATRICK YOUNG : No. 2088 MDA 2018
Appeal from the Order Entered November 21, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000784-2018,
CP-14-CR-0001389-2017, CP-14-CR-0001540-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DANIEL CASEY : No. 2089 MDA 2018
Appeal from the Order Entered November 21, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000781-2018,
CP-14-CR-0001377-2017, CP-14-CR-0001536-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
CONCURRING OPINION BY BOWES, J.: FILED AUGUST 03, 2022
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Speaking for myself only, “unconstrained by majority authorship,”1
I note that Pa.R.A.P. 902, the sole basis for our Supreme Court’s
determination that appeals violative of Walker need not be quashed, does
not apply to all notices of appeal. I reiterate that the text of the rule is as
follows:
An appeal permitted by law as of right from a lower court to an
appellate court shall be taken by filing a notice of appeal with the
clerk of the lower court within the time allowed by Rule 903 (time
for appeal). Failure of an appellant to take any step other than
the timely filing of a notice of appeal does not affect the validity
of the appeal, but it is subject to such action as the appellate court
deems appropriate, which may include, but is not limited to,
remand of the matter to the lower court so that the omitted
procedural step may be taken.
Pa.R.A.P. 902 (emphasis added). Indeed, the entirety of Chapter 9 of the
Rules of Appellate Procedure, entitled “Appeals From Lower Courts,” governs
only appeals as of right, such as the appeals filed by the Commonwealth
herein, and expressly excludes appeals “by permission taken pursuant to
Pa.R.A.P. 1311.” Pa.R.A.P. 901(2).
Critically, it was Rule 1311 through which Appellees sought to take their
interlocutory appeal. The time and manner for pursuing such appeals by
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1 Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J.,
specially concurring) (discussing the precedent for a special concurrence by
the author of the majority opinion). See also Commonwealth v. Pownall,
___ A.3d ___, 17 EAP 2021,
2022 WL 2824741, at *17 n.1 (Pa. July 20, 2022)
(Dougherty, J., specially concurring) (“It cannot be suggested that in cases
where the author is the mere instrument of the Court he must forego
expression of his own convictions.” (quoting Wheeling Steel Corp. v.
Glander,
337 U.S. 562, 576 (1949) (Jackson, J., specially concurring)).
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permission is not governed by Rule 903, but rather by Chapter 13. Instead
of a simple notice of appeal and proof of service, an appeal by permission
pursuant to Chapter 13 involves a far more complex back-and-forth petition
practice. See Pa.R.A.P. 1301-1314. This Court has observed that, “[w]here
an appellant seeking to appeal from an interlocutory order that is not
appealable as of right fails to adhere to the procedure outlined in the rules, an
appeal by permission is inappropriate.” Estate of Considine v. Wachovia
Bank, 966 A.2d 1148, 1153 (Pa.Super. 2009). Significantly, Chapter 13
contains no functional equivalent of Rule 902.
Thus, although Walker applied to Appellees’ appeals insofar as they
were initiated though Rule 312,2 Young’s ruling that Rule 902 provides an
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2 My esteemed colleagues are of the opinion that the Majority “paints with too
broad a brush when it states that the Walker rule applies to appeals taken
pursuant to Rule 312.” Concurring Opinion by Lazarus, J. at 3. They suggest
that the applicability of Walker to Rule 312 appeals is an open question that
“is best saved for the Supreme Court or the Appellate Procedural Rules
Committee.” Id. at 4. With all due respect, my colleagues overlook that it is
not only the law of this case but the law of this commonwealth that Walker
applies to interlocutory appeals by permission pursued through Rule 312. This
Court expressly so held in disposing of Appellees’ petition for permission to
appeal in Commonwealth v. Casey, 218 A.3d 429 (Pa.Super. 2019),
explaining as follows:
The . . . Commonwealth [in Walker] had not presented any
compelling argument as to why the rules relating to filing multiple
appeals should differ under Rules 311(d) and 341(a). Consonant
with this conclusion, the Walker Court further directed its
Appellate Procedural Rules Committee to amend the language of
the Official Note to Rule 341 to state explicitly the requirement
(Footnote Continued Next Page)
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avenue to correct Walker violations does not. Thus, the disparate treatment
of these parties in the case sub judice is inherent in the Rules of Appellate
Procedure, such that the High Court’s Rule 902-based decision in Young
would afford Appellees no relief even if their defective Rule 312 appeal had
post-dated Young. Accordingly, Appellees’ most strident argument against
granting the Commonwealth relief in these appeals—that it would be unfair
since they were not afforded the same opportunity—is wholly unpersuasive.
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that separate notices of appeal must be filed when a single order
resolves issues arising on more than one lower court docket. It
also directed that the rules relating to interlocutory appeals
(Pa.R.A.P. 311-313) be conformed to Rule 341 in this regard. The
instant petition, as explained above, comes to us pursuant to Rule
312. We therefore conclude that Walker is controlling here and
that Petitioners’ failure to file a separate appeal petition for each
docket number is fatal to their petition for permission to appeal.
Id. at 431 (cleaned up). Thus, the Majority does not unnecessarily opine as
to an unresolved legal question not at issue in this appeal. Rather, it
addresses the arguments presented by Appellees by reference to precedent
that is binding on this Court unless and until it is overturned or abrogated by
a change to the Rules of Appellate Procedure.
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