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COMMONWEALTH PENNSYLVANIA v. GARY ALLEN (06/20/80)

filed: June 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY ALLEN, APPELLANT



No. 297 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Div., at Nos. CC-7504840 and CC-7505230.

COUNSEL

Helen R. Kotler, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 278 Pa. Super. Page 503]

This is an appeal from an order denying relief under the Post Conviction Hearing Act. 19 P.S. ยงยง 1180-1 et seq. (1979-80 Supp.).

On August 28, 1975, appellant pleaded guilty to theft and receiving stolen goods, as charged by Indictment No. CC-7504840, and to theft, receiving stolen property, and possession of instruments of crime, as charged by Indictment No. CC-7505230. On October 14, 1975, he was sentenced to a term of imprisonment of not less than six months nor more than two years for the offenses charged in the first indictment, and to a term of not less than two nor more than five years for the offenses charged in the second indictment, the sentences to run consecutively. Appellant did not petition to withdraw his pleas, and no direct appeal was filed. On October 17, 1977, appellant filed pro se a PCHA petition alleging, inter alia, that his guilty pleas had been unlawfully induced, that the colloquy preceding the pleas had been inadequate, and that he had been denied effective assistance of counsel. On July 5, 1978, counsel was appointed to represent appellant, and on November 15, 1978, a hearing on the petition was held.*fn1 On November 17, the lower court denied the petition. The court's order was noted on the backs of the indictments, and was set forth in a separate document, as required by Pa.R.A.P. 301(b). The order, however, was not entered upon the lower court's docket, as required by Pa.R.A.P. 301(a), nor, at least so far as the record shows, was notice of the order mailed or delivered to appellant or his counsel until December 14, 1978, the day the hearing judge wrote to appellant's counsel informing her of the order. Appellant's counsel represents in her brief that until she received the court's letter, she was unaware that the court had denied the petition. After receiving the letter, she consulted appellant, and notice of appeal was filed

[ 278 Pa. Super. Page 504]

    on December 26, 1978, the day the notice was received and stamped by the clerk of the lower court. Pa.R.A.P. 905(a).

As an initial matter, we reject the Commonwealth's assertion that this appeal must be quashed because more than thirty days elapsed after the lower court's denial of appellant's PCHA petition before appellant filed notice of appeal. See Pa.R.A.P. 105(b), 903(a). Pa.R.A.P. 108(a) provides in pertinent part:

Except as otherwise provided in this rule, in computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit mails or delivers copies of the order to the parties, or if such delivery is not otherwise required by law, the day the clerk or office of the government unit makes such copies public.

There is no evidence that the lower court made copies of its order public, and indeed, to have attempted to serve notice in this manner upon appellant would have been inappropriate.*fn2 Thus, under this provision, the lower court's order could not have been entered before December 14, the day the lower court mailed notice of the order to appellant's counsel. Since appellant filed his notice of appeal within the 30 days of that date, the appeal was timely. See generally Purdy's Estate, 447 Pa. 439, 291 A.2d 93 (1972); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Sharpe v. Unemployment Comp. ...


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