In the Interest of: A.L.D., Appeal of: L.R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.R., MOTHER :
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: No. 43 MDA 2018
Appeal from the Decree Entered October 27, 2017
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-8600
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IN THE INTEREST OF: A.G.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.R., MOTHER :
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: No. 48 MDA 2018
Appeal from the Decree Entered October 27, 2017
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-8601
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 9, 2018
L.R. (Mother) appeals from the trial court’s decrees involuntarily
terminating her parental rights to her minor children, A.L.D. (born 10/2013)
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and A.G.R. (born 9/2011) (collectively, Children). After careful consideration,
we quash the appeals.1
On August 8, 2017, Luzerne County Children and Youth (CYS) filed
petitions to terminate Mother’s parental rights to Children. After a termination
hearing held on October 25, 2017, the trial court entered decrees two days
later involuntarily terminating Mother’s parental rights to Children under 23
Pa.C.S. § 2511(a)(9)(ii).2 On December 27, 2017, Mother filed notices of
appeal from those termination decrees, with a concurrent Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal raising issues related
solely to the termination of her parental rights. On that same date, Mother
filed a motion requesting leave to file nunc pro tunc appeals. In her motion,
counsel indicated, in relevant part:
 Natural mother’s rights were terminated pursuant to Title 23, Section
2511(a)(9) of the Pennsylvania Code.
 An appeal to the Superior Court of Pennsylvania would have been due
November 26th, 2017.
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1 We have consolidated these appeals sua sponte. See Pa.R.A.P. 513.
2 See 23 Pa.C.S. § 2511(a)(9)(ii) (rights of parent may be terminated where
parent has been convicted of felony of aggravated assault, in which victim was
child of parent). In June 2016, Mother pled guilty to simple assault, 18 Pa.C.S.
§ 2701, for physical injuries to A.G.R. In March 2017, Mother was found guilty
of aggravated assault, simple assault, endangering the welfare of children, 18
Pa.C.S. § 4302, and recklessly endangering another person (REAP), 18
Pa.C.S. § 2705, for physical injuries she caused to A.L.D. She was sentenced
to 10-20 years’ imprisonment for the aggravated and simple assault charges,
18 months in prison for child endangerment, 1-2 months’ incarceration for
REAP, plus 5 years of probation.
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 The courts were closed from November 23, until the 27 th of 2017, due
to the Thanksgiving Holiday.
 This puts the appeal date at November 27th.
 On November 28, 2017, Daniel Hunter attempted to file appeals with
respect to both termination [decrees].
 In his discretion, Attorney Hunter decided that it would be best to simply
file this motion requesting leave to file nunc pro tunc.
Motion for Leave to File Nunc Pro Tunc, 12/27/17, at ¶¶ 6-11. On December
28, 2017, the trial court denied Mother’s motion for leave to file nunc pro tunc
appeals to our Court.3
On appeal, Mother presents the following issue for our consideration:
Whether the trial court committed reversible error by involuntarily
terminating the natural mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(9)(ii), where such determinations were not
supported by clear and convincing evidence establishing the
grounds for such, when the sentence of the Natural Mother was,
at the time, under the review and consideration by an appellate
court, and further, that a petition under the Post Conviction Relief
Act of Pennsylvania had not been addressed by any court.
Appellant’s Brief, at 4.
Before addressing the merits of Mother’s appeal, we must first raise the
issue of whether her notices of appeal were timely filed. We must make this
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3 On March 20, 2018, our Court issued an order directing the trial court to hold
a hearing to determine whether counsel had abandoned Mother on appeal and
to take any necessary action to protect her appeal rights. The trial court
complied, found that counsel had not in fact abandoned his client, and ordered
counsel to file a docketing statement with our Court on or before April 13,
2018, and to submit his brief on or before April 30, 2018. On August 21,
2018, the trial court held another hearing noting that counsel had been late
with the filing of his docketing statement and brief, but still concluding that
counsel had not abandoned his client. N.T. Hearing, 8/21/18, at 6.
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inquiry because our Court is without jurisdiction to excuse a failure to file a
timely notice of appeal. Valley Forge Center Assoc. v. Rib-It/K.P., Inc.,
693 A.2d 242 (Pa. Super. 1997).4
Pursuant to Pennsylvania Rule of Appellate Procedure 903, a notice of
appeal must be filed within 30 days after the entry of the order from which
the appeal is taken. Pa.R.A.P. 903(a). The 30-day appeal period must be
strictly construed. Valley Forge Center, supra. Under Pennsylvania Rule
of Appellate Procedure 108(b), the date of entry of an order is the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b). See Pa.R.A.P. 108(b).
An order is not appealable until it is entered on the docket with the required
notation that appropriate notice has been given. In re L.M., 923 A.2d 505
(Pa. Super. 2007). Where there is no indication on the docket that Rule 236(b)
notice has been given, then the appeal period has not started to run. Id. This
is a bright-line rule, to be interpreted strictly. Id.
Here, the docket clearly indicates that Rule 236(b) notice was given to
Mother, regarding the entry of the termination decrees, on October 27, 2017.
As counsel acknowledges, in order for Mother’s appeals to have been timely
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4 We note that Mother has not appealed from the order denying her motion
for leave to file a nunc pro tunc appeal. Rather, her notices of appeal are from
the decrees terminating her appellate rights; her appellate issues and
arguments solely concern termination.
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filed, they must have been filed with the trial court by November 27, 2017.5
Counsel admits he did not “attempt[] to file appeals with respect to both
termination [decrees]” until November 28, 2017,6 when they would have
already been one day late under Rule 903. See N.T. Nunc Pro Tunc Hearing,
12/22/18, at 3. Moreover, “in his discretion,” counsel decided that it “would
be best to simply file [a motion seeking nunc pro tunc appeal rights] on
December 27, 2017,” one month after the appeal period expired. Motion for
Leave to File Nunc Pro Tunc, 12/27/17, at 1-2. The trial court denied the
motion.7 Unfortunately for counsel, this does not cure the untimeliness of his
appeals.8 Because an untimely appeal divests this Court of jurisdiction, we
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5While November 26, 2017, was technically the 30th day for purposes of Rule
903, the 26th fell on a Sunday. Thus, the 30th day, for purposes of computation
of the appeal period, fell on Monday, November 27, 2017. See Pa.R.C.P. 106
(whenever last day of any time period computed under Rule 903 falls on
Saturday, Sunday, or any legal holiday, such day shall be omitted from
computation).
6 Counsel never actually filed the notices of appeal on November 28th.
7 Cleverly, counsel styled his notices of appeal as “notices of appeal nunc pro
tunc.” Simply naming the filings as nunc pro tunc do not make them operate
as such.
8 Rather than delay the case with a nunc pro tunc motion, counsel should
have been mindful of the fact that, as a termination case, time is of the
essence due to the Children’s need for permanency. Moreover, counsel’s
explanation that he filed the appeals late because he was “booked up in private
matters that whole week,” hardly meets the requirements for nunc pro tunc
relief, which is granted primarily only where the right to appeal has been lost
due to certain extraordinary circumstances or a breakdown in the court
process. See Fischer v. UPMMC Nw., 34 A.3d 115 (Pa. Super. 2011); see
also Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001) (Supreme Court held
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must quash the appeals. Cheathem v. Temple University Hosp., 743 A.2d
518, 521 (Pa. Super. 1999).
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2018
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that nunc pro tunc relief granted where appellant proves: (1) notice of appeal
was filed late as result of non-negligent circumstances, either as they relate
to appellant or appellant's counsel; (2) appellant filed notice of appeal shortly
after expiration date; and (3) appellee was not prejudiced by delay).
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