In the Matter of: M.P., Appeal of: S.M. ( 2019 )

J-S01019-19
2019 PA Super 55IN THE MATTER OF: M.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L., MOTHER :
:
:
:
:
: No. 1371 MDA 2018
Appeal from the Decree Entered July 20, 2018
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 42-AD-2018,
43-AD-2018, CP-22-DP-295-2016,
CP-22-DP-296-2016
IN THE MATTER OF: M.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.L., MOTHER :
:
:
:
:
: No. 1372 MDA 2018
Appeal from the Order Dated July 20, 2018
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 42-AD-2018,
43-AD-2018, CP-22-DP-0000295-2016,
CP-22-DP-0000296-2016
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
CONCURRING AND DISSENTING OPINION BY PELLEGRINI, J.:
FILED FEBRUARY 22, 2019
On August 18, 2019, S.L. timely filed an appeal from two orders entered
the same day – one terminating her parental rights and the other changing
the permanency goal from reunification to adoption. Pursuant to
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018), the majority
states that quashing of this appeal is required because separate notices from
each order were not filed but then goes on to affirm the trial court. While I
agree with the majority on the merits, I disagree with the majority conclusion
that Walker requires the quashing of appeals for failure to file separate
notices. I would hold that until the Appellate Procedural Rules Committee
amends Pennsylvania Rule of Appellate Procedure 341(a) as our Supreme
Court directed, appeals should not be automatically quashed.
In General Electric Credit Corporation v. Aetna Casualty and
Surety Company, 263 A.2d 448, 453 (Pa. 1970), without citing to any Rule,
our Supreme Court stated that taking one appeal from several judgments was
not favored but held that quashal was unnecessary (1) where the issues raised
as to both final orders were substantially identical; (2) where no objection was
raised as to the improper procedure; and (3) where the period of time in which
to file an appeal had run, barring the appellant from appellate relief in the
event of quashal.
Our Supreme Court changed all that in Walker, where the
Commonwealth filed a single notice of appeal from four suppression orders in
four cases with four different docket numbers. While Rule 341(a) does not
explicitly require that a separate appeal must be taken from an order arising
on more than one docket, the Official Comment to Rule 341(a) suggests that
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separate notices of appeal must be filed from one or more orders resolving
issues concerning multiple docket numbers.
Walker held that to appeal a final order, Rule 341(a), as affected by
the Official Comment to that Rule, required that a separate notice of appeal
be filed for each case, and if not, the appeal will be quashed. In so doing, the
Court noted that the 2013 amendment to the Official Note to Rule 3411 was
contrary to decades of case law from it, this Court, and the Commonwealth
Court in which appeals were seldom quashed on that basis. Walker, 185 A.3d
at 977. It also emphasized that authorities cited in the Rule’s Official
Comment, as well as other published decisions, indicated that the General
Electric factors remained in effect. Id.
To discourage the filing of a single notice of appeal as to multiple docket
numbers but in recognition that was a change in long standing interpretation
of Rule 341(a), our Supreme Court applied its holding in Walker
prospectively, stating:
While we do not quash the present appeal in this instance, in
future cases Rule 341(a) will, in accordance with its Official Note,
require that when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be
filed. The failure to do so will result in quashal of the appeal.
We further direct our Appellate Procedural Rules Committee to
amend the language of the Official Note to Rule 341 in light of this
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1 The 2013 amendment to the Official Comment to Rule 341(a) provides:
"Where ... one or more orders resolves issues arising on more than one docket
or relating to more than one judgment, separate notices of appeals must be
filed."
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Opinion, and to consider further, as an alternative, an amendment
to Rule 341 to state explicitly the requirement that separate
notices of appeal must be filed when a single order resolves issues
arising on more than one lower court docket. The rules relating
to interlocutory appeals (Pa.R.A.P. 311- 313) shall be conformed,
as necessary, to Rule 341 in this regard.
Id. at 977-78 (footnote omitted). The Supreme Court referred the matter to
the Rules Committee so that fair notice is to be given to the bar at large,
especially to the civil bar, who may not be aware that a case involving an
interlocutory appeal as of right in a criminal appeal would have consequences
in the civil area, particularly when the Rule itself does not require a separate
appeal.
Given that our Supreme Court has mandated the Appellate Procedural
Rules Committee to amend either Rule 341(a) or its Official Note to explicitly
require separate notices of appeal, I would hold that Walker only applies once
the Rule or its Official Comment is amended, and that until that time, the
General Electric factors remain in force.
Accordingly, I respectfully dissent to that portion of the majority opinion
that says that quashing is required where a party does not file separate
appeals.
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