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On July 31, a three-judge panel of the Superior Court issued a five-page decision in an appeal captioned Commonwealth of Pennsylvania v. C.M.K.

In that case, a husband and wife had appealed from their criminal convictions, following a joint trial at which they were co-defendants, on charges of endangering the welfare of a child and simple assault. Their trial-court attorney began the appellate process by filing a single, timely notice of appeal that contained the captions and docket numbers of both defendants’ consolidated cases.

The notice of appeal stated, in full: “Notice is given that [M.W.K.] and [C.M.K.], Defendants above named, hereby appeal to the Superior Court of Pennsylvania from: the Order of Court entered May 27, 2004, on defendants’ renewed motion to dismiss witness as incompetent; the order of court entered June 21, 2004, on the commonwealth’s motions in limine; the conviction entered on June 22, 2004, in the Centre County Court of Common Pleas; the opinion and order of court entered March 16, 2006, denying defendant’s post-trial motions; the Orders of sentence entered on May 26, 2006, by Judge Thomas King Kistler of the Centre County Court of Common Pleas. These orders have been entered on the docket as evidenced by the attached copy of the docket entry.”

After trial counsel filed that notice of appeal, the Court of Common Pleas of Centre County docketed the notice of appeal separately in each consolidated case. Next, the Superior Court docketed the appeal, noting as appellants both husband and wife. The trial court soon thereafter issued an order under Pennsylvania Rule of Appellate Procedure 1925(b) requiring counsel for the appellants to file a statement of matters complained of on appeal. After receiving that statement in a timely manner, the trial judge issued a post-appeal opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) addressing on the merits the issues raised in the statement.

Eventually, the Superior Court issued a briefing schedule, and thereafter counsel for the husband and wife filed a single brief for appellants addressing the issues raised on appeal. Thereafter, the case was submitted without oral argument for disposition before a three-judge panel of the Superior Court.

At no time before the Superior Court issued its ruling on July 31 had anyone suggested that the appeal was procedurally flawed because counsel for the co-defendants had filed only a single notice of appeal on behalf of both of his clients. The commonwealth of Pennsylvania, in its role as appellee, had not made any such argument.

The trial court, in either its Rule 1925(b) order or Rule 1925(a) post-appeal opinion, had not mentioned any such supposed procedural flaw. And the Superior Court, in processing the appeal, had never once sought any input from the parties on the issue of whether each defendant had to file his or her own separate notice of appeal and, if so, what consequences should follow from the filing, instead, of a single joint notice of appeal.

Nevertheless, on July 31, the Superior Court issued a precedential opinion holding that the appeal of the husband and wife had to be quashed because their joint notice of appeal was supposedly a “legal nullity.”

According to the Superior Court’s opinion, “On June 23, 2006, appellants filed one joint notice of appeal from their judgments of sentence. This joint notice was improper. Appellants were co-defendants at trial, but were convicted individually of different charges and sentenced individually to different sentences. . . . Appellants were required to file separate notices of appeal.”

In so ruling, the Superior Court panel relied on three sources of authority: Rule 512 of the Pennsylvania Rules of Appellate Procedure, a decision of the Supreme Court of Pennsylvania and an earlier Superior Court decision.

Rule 512 states, in full: “Parties interested jointly, severally or otherwise in any order in the same matter or in joint matters or in matters consolidated for the purposes of trial or argument, may join as appellants or be joined as appellees in a single appeal where the grounds for appeal are similar, or any one or more of them may appeal separately or any two or more may join in an appeal.”

Rule 512 is far from a model of clarity, and it is difficult to ascertain from the plain language of the rule whether the rule intends to require that co-defendants file separate notices of appeal when they are appealing from separate judgments entered in a single consolidated case. In any event, as the Superior Court recognized in its opinion issued July 31, “This rule has never been utilized in a published criminal case in this commonwealth.”

The Superior Court’s opinion from late last month also relied on two earlier rulings. The first ruling was the Supreme Court’s decision in General Electric Credit Corp. v. Aetna Casualty & Surety Co. In that case, GE had sought to recover for breach of contract on seven fire insurance policies, each issued by a different insurance company. After a trial that produced a verdict of $50,000 in favor of GE against five defendant insurance companies and a verdict finding the remaining two insurance companies not liable, GE appealed, seeking a new trial as to all seven defendants.

In its decision, the Supreme Court first held that GE’s appeal from the decision against the five insurance companies found liable by the jury was premature because final judgments had not yet been entered against those five defendants. The Supreme Court held that final judgments did exist against the other two defendants, which the jury found were not liable to GE. The Supreme Court then noted that GE had filed but one notice of appeal from those two final judgments, writing that “[t]aking one appeal from several judgments is not acceptable practice and is discouraged.”

Yet, after explaining that it possessed the power to quash GE’s appeal from the separate final judgments entered against those two co-defendants as improper, the Supreme Court went on to hold that it would not do so in that case: “Under the circumstances, we shall consider the appeal from these two judgments on the merits, but making special note of our disapproval of this procedure.” Thus, in the General Electric case, the taking of a single appeal from two separate judgments did not result in the quashing of the appeal.

The other decision on which the Superior Court relied last month in quashing the appeal in C.M.K. was the Superior Court’s earlier ruling in Egenrieder v. Ohio Casualty Group. The Egenrieder case involved a class action that had been decertified due to the lack of a proper representative class plaintiff. Before the trial court decertified the class, it denied petitions to intervene filed by various members of the plaintiff class who were seeking to serve as replacement class representative.

According to the Superior Court’s decision in Egenrieder, although “[t]he trial court entered separate orders denying each petitioner-appellant’s motion to intervene on different grounds,” “[c]ounsel for appellants filed only one notice of appeal” on behalf of the various proposed intervenors.

According to footnote three of the Egenrieder opinion, “A separate appeal was required to be filed by each petitioner-appellant. . . . However, we refrain from quashing on the basis of this defect on our own discretion.” Thus, in neither Egenrieder nor General Electric was an appeal quashed due to the appellants’ failure to file separate notices of appeal.

Indeed, last month’s Superior Court ruling in C.M.K. appears to be the first and only time that an appeal has ever been quashed due to the failure of parties appealing from separate judgments to utilize separate notices of appeal. For this unprecedented result to have occurred in a criminal appeal, where the liberty of two defendants is at stake, may strike some as particularly outrageous.

It is commonly recognized that there are three essential requisites to any notice of appeal. A notice of appeal, to be effective, must identify which party or parties are appealing; which decisions are being appealed from; and which court is being appealed to. The notice of appeal filed in C.M.K., quoted above, appears to satisfy each of these requisites. The Superior Court’s dismissal of the appeals filed in C.M.K. also appears to run afoul of Pennsylvania Rule of Appellate Procedure 902, which provides in pertinent part that “[f]ailure 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.”

In the interest of full disclosure, I have recently been retained to file an application for re-argument on behalf of the appellants in C.M.K., so it is possible that the Superior Court could yet recognize that its dismissal in that case should be withdrawn.

But unless and until that dismissal is withdrawn, parties seeking to appeal should remain cognizant of the fact that the Pennsylvania appellate courts appear to take a dim view of joint appeals, and thus separate notices of appeals should be utilized where separate parties are appealing or separate judgments are being appealed.

HOWARD J. BASHMAN operates an appellate litigation boutique in Willow Grove, Pa. and can be reached by telephone at 215-830-1458 and via e-mail at [email protected]. You can access his appellate Web log at http://howappealing.law.com .

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