In the Int. of: K.M.W., Appeal of K.W.R.

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2020 Pa. Super. 200
IN THE INT. OF: K.M.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.W.R., MOTHER :
:
:
:
:
: No. 1537 MDA 2019
Appeal from the Decree Entered August 23, 2019
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 13-AD-2019,
CP-22-DP-98-2016
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J.,
NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and
McCAFFERY, J.
CONCURRING STATEMENT BY MURRAY, J.: FILED AUGUST 18, 2020
I agree with the Majority that this case should not be quashed based on
Walker1 and that the trial court did not abuse its discretion in terminating
Mother’s parental rights and changing the goal from reunification to adoption.
However, I disagree with the Majority’s reliance on this Court’s decision in
Larkin and Stansbury as its basis for an exception to the bright-line rule set
forth by our Supreme Court in Walker.
In Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019),
this Court declined to quash under Walker due to a “breakdown in court
operations” – the breakdown being the PCRA court’s statement to the
appellant that he could file a singular notice of appeal, rather than plural
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1 See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
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notices of appeal because the order contained multiple docket numbers.
Stansbury, 219 A.3d at 159-60 (“we may overlook the defective nature of
Appellant’s timely notice of appeal rather than quash pursuant to Walker”);
see also Commonwealth v. Larkin, __ A.3d __, 2020 WL 3869710, at *6
(Pa. Super. 2020) (en banc) (same). This Court has frequently cited and
relied upon Stansbury because it affords appellants a reprieve from the
“bright-line” rule of Walker, and a popular means for this Court to circumvent
Walker when the trial judge advises a defendant of the right to file a notice
of appeal rather than notices, when the order or judgment contains more than
one docket number — resulting in a “breakdown in court operations.”
Instead, I would base my decision not to quash Mother’s appeal on the
reasoning recited in In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009), which I
find much more persuasive than Stansbury. As the Majority points out, in
K.T.E.L., the appellant failed to file a concise statement of matters complained
of on appeal contemporaneously with her notice of appeal as required by
Pa.R.A.P. 905(a)(2) and 1925(a)(2), and thus rendered the appellant’s notice
of appeal procedurally defective. See K.T.E.L., 983 A.2d at 747 (holding that
an appellant’s failure to file a simultaneous concise statement and notice of
appeal violated Pa.R.A.P. 905(a)(2) and 1925(a)(2) and, as such, is
defective). K.T.E.L., however, declined to adopt a per se rule requiring
automatic quashal or dismissal of children’s fast track cases for such a failure.
Id. Rather, we held that a disposition must be “decided on a case-by-case
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basis” because Rules 905(a)(2) and 1925(a)(2) are “procedural, not
jurisdictional.” Id.
Likewise, I view an appellant’s non-compliance with Rule 341 to be a
procedural, not jurisdictional, defect. See also Walker, 185 A.3d at 976
(describing Rule 341 as a “[p]rocedural rule,” which “should be construed to
give effect to all their provisions. . . .”). We are not divested of jurisdiction
by non-compliance; failure to comply with Rule 341 results in a defective
notice of appeal. Further, because this is a children’s fast track case, “[t]he
extreme action of dismissal should be imposed by an appellate court sparingly,
and clearly would be inappropriate when there has been substantial
compliance with the rules. . . .” K.T.E.L., 983 A.2d at 747. Accordingly, I
respectfully concur.
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