James M. Beck of Reed Smith.

In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), the Pennsylvania Supreme Court came down hard on a question of appellate procedure that arises fairly frequently: An appellant filing a single notice of appeal that purports to appeal from multiple, separate appealable orders.  Walker involved a quite blatant example of the practice—a single notice from orders in four cases with “four different docket numbers,”—but its reasoning extends to all notices of appeal from different appealable orders.

The Supreme Court affirmed that, where a notice of appeal encompasses multiple orders, the appeal must be quashed. That's right, quashed. Previously, on the rare occasions (three times in a century) where the court mentioned the issue, it only noted that the practice of including multiple orders in the same notice of appeal was “disfavored,” as in Clark v. Clark, 191 A.2d 417, 418 n.2 (Pa. 1963), (“Even though in this instance we render a decision on the merits, taking one appeal from several judgments and orders is not acceptable practice and is discouraged.”).

In Walker, the court decided it had had enough, and ended its indulgence of the disfavored practice, relying on a 2013 amendment to the official note to Pa. R.A.P. 341(a), the general rule governing notices of appeals. While “Rule 341(a) does not … explicitly instruct as to whether a separate appeal must be taken from an order arising on more than one docket,” the 2013 note “set forth a bright line requirement for future cases.”

A party needs to file only a single notice of appeal to secure review of prior nonfinal orders that are made final by the entry of a final order. Where, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.

Relying on the 2013 note, Walker held that an absolute rule requiring separate notices of appeal was necessary to ensure “consistency” with Pa. R.A.P. 512 and 513, dealing with joint and consolidated appeals, respectively. Permitting a single notice of appeal for multiple appealable orders was effectively an end run around the discretionary aspects of these rules. The improper notice “effectively, and improperly, consolidated the appeals … for argument and joint resolution, without either the approval of the Superior Court or the agreement of the opposing side.”

Thus, “the official note to Rule 341 provides a bright line mandatory instruction to practitioners to file separate notices of appeal.” Henceforth, “the proper practice under Rule 341(a) is to file separate appeals from an order that resolves issues arising on more than one docket” and a “failure to do so requires the appellate court to quash the appeal.” Thus, Walker's message to appellate practitioners is clear—file separate notices, or all of the appeals from multiple orders in the same notice will be quashed. Recognizing that this result was a break with past, more permissive, practice, Walker elected to enforce its “bright line” rule only retrospectively.

We will not, however, apply the mandate of the official note in the present circumstance. The amendment to the official note to Rule 341 was contrary to decades of case law from this court and the intermediate appellate courts that, while disapproving of the practice of failing to file multiple appeals, seldom quashed appeals as a result.

However, Walker warned practitioners that “in future cases” appellate courts would “require that … separate notices of appeal must be filed,” and that “failure to do so will result in quashal of the appeal.” The court further ordered the Appellate Procedural Rules Committee to amend Rule 341(a) to make this requirement express in the language of the rule itself, not just the official note.

Having an appeal quashed under Walker for a multifarious notice of appeal is not where any practitioner wants to be. Appellate deadlines can run in the interim, see Commonwealth v. Nichols, ___ A.3d ___ (Pa. Super. April 24, 2019) (appeal quashed under Walker even though “quashal would 'entirely deny' appellate review”). Further, since the Supreme Court has given the bar an explicit warning, it is unlikely that nunc pro tunc deadline extensions will be forthcoming, see my article, “Relief Nunc Pro Tunc, or Is the Appeal Just Sunk?” The Legal Intelligencer (June 4, 2016) (discussing requirement for “nonnegligent” circumstances).

Quashal under the Walker rule was the appellant's fate in In re M.P., ___ A.3d ___ (Pa. Super. Feb. 22, 2019), for filing a single notice of appeal from two parental rights orders involving “discrete challenges to the termination decree and goal change [orders] for each child.” While “until recently, it was common practice for courts of this commonwealth to allow appeals to proceed, even if they failed to comply with Pa. R.A.P. 341,” that was emphatically no longer the rule after Walker. The appeal was quashed even though the trial court had addressed all issues on the merits. In M.P. the Superior Court took the unusual step of adding its own notice to that of the Supreme Court in Walker:

And now, it is ordered that all parties seeking review with the Superior Court shall file notices of appeal as mandated by Pennsylvania Rule of Appellate Procedure 341 and Commonwealth v. Walker, ––– Pa. ––––, 185 A.3d 969 (2018). Failure to comply will result in quashal of the appeal.

M.P. demonstrates that not all practitioners are aware of Walker's alteration of decades of practice, with possible loss of appeal rights being the sanction for such error. (“We remind, advise and emphasize to all litigants who seek appellate review with this court—whether in criminal, civil or family cases—that Walker is the law of the commonwealth”). The Superior Court saw fit to add its voice to the Supreme Court's, explicitly warning the bar of the potentially severe penalty for violating Rule 341(a) in this manner.

Indeed, in addition to M.P., Walker has been cited in 162 different cases since it was decided on June 1, 2018, a rate approaching once every other day. Almost all of those cases, except for M.P., are unpublished, and unpublished cases dated before the May 1, change to Pa. R.A.P. 126, allowing citation to Superior Court unpublished memorandum opinions, remain uncitable. The most common result in those unpublished opinions was that Walker did not apply prospectively to notices of appeal filed before Walker was decided. That window, however is rapidly closing, since Walker is now approaching its first anniversary. Appeals after Walker, that violate its strictures, have uniformly been quashed. “The Supreme Court did not carve out any exceptions [in Walker] and we have no authority to do so,” see Commonwealth v. Schade, (Pa. Super. May 3) (citable).

Appellate practitioners plainly need to change their ways to avoid having appeals unexpectedly quashed, and hopefully this article will contribute to that consciousness raising.

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.