
    Anthony WILSON, II, a minor by and through his mother Christina Wilhelm as parent and natural guardian, Appellant v. Geraldina SEPULVEDA, principal, in her official capacity, and individually; Reuben Flores, superintendent, in his official capacity and individually; the Reading School District; the Reading School District of Education.
    No. 04-2618.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit L.A.R. 34.1(a) July 15, 2005.
    Decided July 20, 2005.
    Kathleen D. Dautrich, Reading, PA, for Appellant.
    Dexter R. Hamilton, Cozen & O’Connor, Philadelphia, PA, for Geraldina Sepulveda, principal, in her official capacity, and individually; Reuben Flores, superintendent, in his official capacity and individually; the Reading School District; the Reading School District of Education.
    Before: SLOVITER, MCKEE and WEIS, Circuit Judges.
   OPINION

WEIS, Circuit Judge.

The District Court granted the defendant’s motion for summary judgment on April 27, 2004. On May 27, 2004, the plaintiff filed a timely notice of appeal in the District Court. Through error, the notice was addressed to the Superior Court of Pennsylvania rather than to this Court. Nevertheless, we docketed the appeal on June 1, 2004 and assigned it No. 04-2526.

Apparently in an attempt to correct the erroneous designation of the appellate court, plaintiff filed an “Amended” Notice of Appeal in the District Court on June 7, 2004. This Court docketed the “Amended” notice on June 10, 2004 assigning it No. 04-2618. This appeal was beyond the 80-day limitation and accordingly, was untimely. However, we note that the briefing submitted by the parties bears docket No. 04-2618. Because appeal No. 04-2618 was untimely, we must dismiss it for lack of jurisdiction.

If the “Amended” notice of appeal is considered as surplusage and hence not controlling as to the original appeal, we must then consider the effect of No. 04-2526, the timely filed case.

The docket at No. 04-2526 shows that on June 10, 2004, the clerk sent a letter to plaintiffs counsel requesting a number of documents including a statement of facts and issues, appearance form, disclosure statement, information statement, as well as a transcript purchase order. The clerk sent a follow-up letter on July 14, 2004 requesting those same documents and advising that the appeal could be dismissed for failure to prosecute. On August 5, 2004, the clerk ordered that the appeal be dismissed.

On August 17, 2004, plaintiff moved to reopen and filed the documents requested in the letters from the clerk. These papers were numbered 04-2526. Plaintiff faded to call the Court’s attention to the fact that the same litigation was docketed under two case numbers. On September 22, 2004, a panel of this Court denied the plaintiffs motion to reopen at docket No. 04-2526.

On this record, therefore, it would appear that both appeals were properly dismissed but for two separate reasons — untimeliness and failure to prosecute. However, there is another factor to consider. On July 6, 2004, plaintiff did file a statement of facts and other documents in response to the clerk’s request, but under the docket No. 04-2618 (the amended untimely appeal). This response would have been timely, but because of plaintiff’s error, was filed under the wrong docket number. The matter could easily have been resolved had the plaintiffs counsel consolidated the appeals or requested the clerk’s office to file the documents under both docket numbers.

The plaintiffs failure to follow applicable procedures has resulted in an unnecessarily confusing record that raises questions about our jurisdiction in this case. However, we choose to err on the side of the plaintiffs appellate rights and have decided that we have authority to consider the appeal. Therefore, assuming arguendo that we have jurisdiction, we have carefully read the record and reviewed the case on the merits. We find no error in the District Court’s decision to grant summary judgment.

Accordingly, the judgment of the District Court will be affirmed.  