Last week, the United States Court of Appeals for the Third Circuit and the Supreme Court of Pennsylvania issued decisions addressing seemingly esoteric matters of appellate procedure. Yet trial and appellate practitioners within the Third Circuit and Pennsylvania should take careful note of the courts' rulings.
First, on May 31, 2018, in United States v. Kalb, No. 17-1333, the Third Circuit addressed whether "a motion for reconsideration, filed after the statutory appeal period elapsed but considered on the merits, nonetheless keeps the appeal period from expiring." The jurisdictional basis for the appeal in Kalb was 18 U.S.C. § 3731, a federal statute conferring on the United States the right to appeal certain rulings in criminal cases. The government in Kalb filed a motion for reconsideration of a trial-court suppression order thirty-nine days after the trial court entered the order. Section 3731, however, requires the government to take an appeal within thirty days. After the trial court denied the motion for reconsideration, the government appealed (within thirty days of that denial), challenging both the original ruling and the denial of the reconsideration motion.
After analyzing Section 3731's "text and structure, recent clarifying opinions from the Supreme Court, and legislative history," the Third Circuit concluded that it lacked jurisdiction over the portion of the appeal challenging the original order. Put simply, the statute required the government to file an appeal or a motion for reconsideration within thirty days of the challenged ruling in order to keep the thirty-day appeal period from expiring. Here, the government did neither, and thus the court of appeals did not have jurisdiction to review the trial court's original order.
Although the court in Kalb interpreted a particular statute that applies only to government appeals in criminal cases, the general principles on which the court relied in determining that the appeal period was jurisdictional and that the government's appeal was untimely have broader application to other statutes governing appeal periods. The obvious lesson for trial and appellate lawyers is to take the necessary steps to preserve the right to appeal within the statutory time period for doing so.
The day after the Third Circuit decided Kalb, the Supreme Court of Pennsylvania issued a decision addressing an even more fundamental appellate jurisdiction question: how many notices of appeal must be filed from a single trial court order entered in multiple cases? In Commonwealth v. Walker, No. 33 MAP 2017, the court held that a separate notice of appeal must be filed in each case in which a trial court order applies, even if the trial court enters only a single order.
Ironically, Walker also involved a government appeal from a suppression order, but in that case, the trial court entered a single order granting four different defendants' suppression motions in four related cases. When the case eventually reached the Supreme Court, that court, relying on a 2013 amendment to the official note to Rule 341 of the Pennsylvania Rules of Appellate Procedure, 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." The court bailed out the government in this particular case, however, holding that its interpretation would apply prospectively only, to new appeals filed after the date of the Walker decision.
The lesson here is obvious as well. Lawyers cannot neglect the specific requirements for filing a notice of appeal, which is most often the vehicle for initiating an appeal. And these requirements may sometimes even include filing multiple notices of appeal.
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