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COMMONWEALTH v. HORNER (11/20/72)

decided: November 20, 1972.

COMMONWEALTH, APPELLANT
v.
HORNER



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1960, Nos. 1144 to 1146, inclusive, in case of Commonwealth of Pennsylvania v. Felix Wade Horner.

COUNSEL

James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones took no part in the consideration or decision of this case.

Author: Manderino

[ 449 Pa. Page 323]

The appellee, Felix Wade Horner, has moved to quash an appeal by the Commonwealth which was not filed within 30 days of the lower court's final order granting a new trial to the appellee, who had filed a PCHA petition. Appellee had been convicted of first degree murder and was serving a life sentence.

On September 30, 1971, the lower court filed an opinion and order granting a new trial. The order was dated September 30, 1971, the same day the opinion and order were filed. The order was signed by two of the three judges who heard Horner's PCHA petition. The order filed also contained an indication that the third judge dissented.

On October 15, 1971, or shortly thereafter, the Commonwealth was served with a copy of the lower court's majority opinion and a copy of the dissenting opinion. Both the majority and dissenting opinions received by the Commonwealth were dated October 14, 1971. This date appeared as part of the order at the end of the majority opinion and also appeared at the end of the dissenting opinion. The order read "And now to wit, this 14th day of October, 1971, defendant's motion for new trial is hereby granted."

Prior to receiving the above-described copies of the majority opinion and order and the dissenting opinion, the Commonwealth had not received any notice of the filing which had taken place on September 30, 1971.

The Commonwealth, relying on the date in the order received, concluded that the 30-day appeal period began on October 14, 1971 and filed its appeal on November 10, 1971, which was less than 30 days after October 14,

[ 449 Pa. Page 3241971]

. There is no explanation for the difference in dates between the original order and the copy of the order received by the Commonwealth from court offices.

The time for taking an appeal cannot be extended as a matter of grace. Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970). The time for appeal can be extended only when there is fraud or some breakdown in the court's operation. Purdy Estate, 447 Pa. 439, ...


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