J-S40018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEFON JOHNSON, JR.                        :
                                               :
                       Appellant               :   No. 1758 WDA 2018

            Appeal from the PCRA Order Entered November 9, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001038-2014,
                           CP-25-CR-0002133-2014


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 31, 2019

        I respectfully dissent from the majority’s holding that this appeal must

be quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa.

2018). The trial court entered its “Final Order” on November 9, 2018. This

single order included a caption referencing two docket numbers, CP-25-CR-

0002133-2014 (2133) and CP-25-CR-0001038-2014 (1038). As the majority

notes, the trial court only filed its Final Order at docket number 1038. The

trial court docket as to docket number 2133 only has entries that refer to the

orders entered at docket number 1038.

        In my view, Walker does not apply under the present facts. First, the

trial court’s failure to file its Final Order at docket number 2133 means that

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S40018-19


there is no appealable order in that case from which Johnson could seek

review. Insofar as Johnson filed a notice of appeal as to that case, the appeal

should be quashed and the case remanded for the trial court to enter a Final

Order in the appropriate docket. Johnson’s 30-day window in which to file a

notice of appeal would not begin to run until the order is duly entered. See

Pa.R.A.P. 301(a) (“[N]o order of a court shall be appealable until it has been

entered upon the appropriate docket in the lower court.”) (Emphasis added).

      Second, the trial court’s inclusion of two docket numbers in one order

also calls into question whether any appealable order was entered at all.

Pa.R.A.P. 301(b) makes an order appealable only if it is “set forth on a

separate document.” This case involves a single Final Order with two docket

numbers, so even though the order was entered at docket number 1038, the

violation of the separate document rule makes the entire order unappealable,

and on that basis, the time to file a notice of appeal as to both of the above

docket numbers has not yet begun to run.

      Third, and finally, I would find Walker inapplicable as to docket

numbers 2133 and 1038 because any defect in Johnson’s notice of appeal

resulted from a breakdown in court operations. The trial court did not just file

the Final Order at only one docket number; the trial court also misadvised

Johnson that a single order resolved both cases, and that a single notice of

appeal would be necessary to invoke appellate jurisdiction.




                                     -2-
J-S40018-19


      The last line of the Final Order reads, “As this represents the Final Order

with respect to this matter, Petitioner is hereby notified that he has thirty (30)

days from the date of this Order to file his Notice of Appeal.” It is difficult to

construe the above line as anything other than an instruction that the single

“Order” resolved a single “matter” which could be reviewed upon the timely

filing of a single “Notice.”

      As we held in Commonwealth v. Stansbury, 303 EDA 2019, at *3

(Pa. Super. September 5, 2019), a party should not be held responsible for a

procedural    error   that     flows   from   a   court’s   misadvice.   See   also

Commonwealth v. Villanueva, 1863 MDA 2018, at *2 (Pa. Super. October

8, 2019) (unpublished memorandum) (“The trial court’s inaccurate statement

that Appellant could file a single appeal from the sentences at three different

dockets constitutes a breakdown of court operations such that the resultant

defect in the notices of appeal may be overlooked.”); Commonwealth v.

Hackley, 1769 MDA 2018, at *2 (Pa. Super. September. 23, 2019)

(unpublished memorandum) (finding Walker inapplicable because “the trial

court essentially told [the defendant] that there was one order, and that he

was entitled to only one appeal.”).

      Thus, under the present facts, Walker should not apply.




                                         -3-
