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2020 PA Super 163
COMMONWEALY OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RON LARKIN
Appellant No. 2761 EDA 2018
Appeal from the PCRA Order entered August 20, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0016013-2010,
CP-51-CR-0016014-2010
BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
CONCURRING OPINION BY STABILE, J.: Filed: July 9, 2020
I concur fully in the Majority’s opinion both as to its interpretation of
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), as applied to this
appeal, and in its conclusion that Appellant is not entitled to relief on the
merits of his PCRA claim. I write separately to express my view that the harsh
quashal required due to technical noncompliance with Pa.R.A.P. 341(a) and
Walker, is not necessary, as our court rules provide a remedy to address this
variety of rule noncompliance.
Pennsylvania Rule of Appellate Procedure 902 provides:
An appeal permitted by law as of right from a lower court
to an appellate court shall be taken by filing a notice of
appeal with the clerk of the lower court within the time
allowed by Rule 903 (time for appeal). Failure of an
appellant to take any step other than the timely
filing of a notice of appeal does not affect the
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validity of the appeal, but it is subject to such
action as the appellate court deems appropriate,
which may include but is not limited to, remand of
the matter to the lower court so that the omitted
procedural step may be taken.
Pa.R.A.P. 902 (emphasis added). So long as a litigant timely perfects an
appeal, Rule 902 allows an appellate court to take any appropriate action,
including remand, to allow a party to correct any procedural misstep in a
notice of appeal, excluding of course any defect relating to timeliness. See
also Pa.R.A.P. 105(b) (appellate court may, for good cause shown, enlarge
time prescribed under rules, except for time in which notice of appeal may
be filed). A single notice of appeal referencing more than one docket number
in violation of Walker presents a procedural misstep that easily can be
remedied. A single appeal notice containing more than one court docket
easily can be segregated into separate notices for each docket while the filing
date of the original notice of appeal is preserved. This remedy is not without
precedent when there is Walker noncompliance.
In Commonwealth v. Williams, 106 A.3d 583 (Pa. 2014), our
Supreme Court was presented with the question whether the Commonwealth
timely filed its notice of appeal with the Philadelphia County Clerk of Courts.
On December 30, 2013, the trial court granted appellee PCRA relief in the
nature of a new trial. Thirty days later, on January 29, 2014, the
Commonwealth filed a notice of appeal. The Clerk refrained from time-
stamping the notice on that date. Instead, the following day, the Clerk
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informed the Commonwealth that the notice was defective because it was
missing two docket numbers and/or the Clerk’s office preferred a separate
notice for each of the three docket numbers contained therein. The
Commonwealth filed an amended appeal notice that was time-stamped
January 30, 2014, thirty-one days after the order granting PCRA relief.
Appellee moved to quash the appeal as untimely. The Supreme Court
directed the parties to brief whether the Clerk should have accepted the
Commonwealth’s timely but defective appeal notice filed on January 29,
2014.
The Court prefaced its discussion recognizing that the timeliness of an
appeal and compliance with statutory provisions relating to appeal rights
implicate an appellate court’s jurisdiction and its competency to act. Id. at
587. Absent extraordinary circumstances, the time to appeal may not be
enlarged. Id. (citing Pa.R.A.P. 105). Nonetheless, the Court concluded the
Commonwealth’s appeal notice was timely, because Pa.R.A.P. 902 provides
that the “[f]ailure of an appellant to take any step other than the timely filing
of a notice of appeal does not affect the validity of the appeal[.]” Id.
(alterations in original). Furthermore, the Note to Rule 902 provides that the
Rule “eliminates the trap of failure to perfect an appeal by making timely
notices of appeal self-perfecting.” Id. (citation and internal quotation marks
omitted). Thus, an appellant need only file a notice of appeal with the lower
court clerk within the applicable time to trigger the jurisdiction of the
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appellate court, notwithstanding whether the appeal notice is otherwise
defective. Id. In the event of a defective notice, Rule 902 encourages,
though it does not require, appellate courts to remand the matter to the lower
court so that the procedural defect may be remedied. Id. at 587-88. The
Rule creates a preference for correcting procedurally defective, albeit timely,
appeal notices so that appellate courts may reach the merits of timely
appeals. Id. at 588. Where an appellant fails to take the necessary steps to
correct and identify a defect, dismissal of a defective appeal remains a viable
alternative. Id. The Court held that the Commonwealth’s defective notice
filed on January 29, 2014 perfected the Commonwealth’s appeal, that Rule
902 allowed for correction of defects in the appeal notice, and that a clerk of
courts lacks the authority to reject, as defective, a timely notice of appeal.
The power wielded by a clerk of courts, like those of a prothonotary, are
purely ministerial in nature. Id. The Court also rejected the suggestion that
the nature of the notice defect be considered before deciding quashal. The
nature of a defect is of no consequence, as Rule 902 pertains to the failure of
an appellant to take “any step” other than the timely filing of an appeal notice.
Id. At 590.
Although Walker had not been decided at the time Williams issued, it
is clear that the procedural defect in Walker was the same defect that existed
in Williams: the failure to file a separate notice of appeal from each docket
number. In light of Williams and the plain language of Rule 902, I now reach
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the conclusion that it has been and is unnecessary to dismiss appeal notices
with Walker defects where a timely appeal can be preserved and the defect
remedied through a simple remand.1 We cannot forget that our rules are to
be liberally construed to secure the just, speedy, and inexpensive
determination of every matter to which they are applicable. Pa.R.A.P. 105(a).
Every Commonwealth citizen has a state constitutional right to an appeal.
Pa. Const. art. 5, § 9.2 This right should not and cannot be lost through
technical traps in our rules.
Since the advent of Walker in 2018, this Court has witnessed the
unfortunate dismissal and quashal of countless appeals due to Walker
technical violations. Parties have lost their day in court and cases have not
been heard on their merits. In defense, this jurist can well appreciate the
necessity found by our Supreme Court in drawing a bright line rule to force
compliance with Pa.R.A.P. 341. Too often the work of our Court, and others,
is stymied by counsel’s nonchalant noncompliance with our rules and the
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1 The applicability of Pa.R.A.P. 902 was not raised in Walker.
2 Article 5, Section 9 of the Pennsylvania Constitution provides in full:
There shall be a right of appeal in all cases to a court of record
from a court not of record; and there shall also be a right of appeal
from a court of record or from an administrative agency to a court
of record or to an appellate court, the selection of such court to
be as provided by law; and there shall be such other rights of
appeal as may be provided by law.
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expectation that the courts will remedy these failures and complete counsel’s
work. I hasten to add that this is not the general practice, as we routinely
witness excellent advocacy and genuine zealous representation by counsel on
behalf of clients. Nonetheless, the failure to comply with rules designed to
efficiently move cases through our court system happens often enough that
the ability to decide cases promptly is delayed, so it is understandable our
Supreme Court must from time to time take steps to force compliance.
Walker however, many times presents a different situation, since Rule 341,
on its face, does not adequately clue counsel in to its procedural nuance when
multiple appeal notices must be filed. This problem is exacerbated by trial
courts that advise litigants that they may file “a” notice of appeal from a court
order that addresses multiple dockets. See Commonwealth v. Stansbury,
219 A.3d 157 (Pa. Super. 2019) (appeal not quashed when appellant acted
in accord with trial court instruction). Irony enters the picture in our own
Court when we receive multiple appeal notices from the same appellant, but
each is filed separately for each appealed docket in accord with Rule 341 and
Walker. We will often times , sua sponte, consolidate these multiple appeal
notices, thus putting the parties and Court back in the same position as if a
single notice of appeal was filed containing multiple docket entries, which if
filed by an appellant, would violate Rule 341 and Walker.
I am aware that in Walker, our Supreme Court expressed its concern
that when multiple dockets are combined under a single appeal notice, it is
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problematic for a court to go behind an appeal notice to determine if the same
facts and issues apply to all parties. The legal issues may be different. While
the point certainly is well-taken, it also is the case that clarification on parties
and issues is vetted through docketing statement review and the briefs of the
parties. It also is not uncommon in consolidated cases for a court to discuss
applicable law and then separately apply those principles to each case within
a decision identified by each docket number. No one size fits all and
therefore, by necessity, our rules must leave appropriate discretion to
address these issues to case administration. However, citizens should not
lose their constitutionally protected appeal rights where technical
noncompliance can be corrected without affecting a court’s jurisdiction to
hear a matter.
For the foregoing reasons, I concur fully in the Majority’s opinion, but
offer the suggestion that our rules be utilized fully to remedy technical defects
when allowed.
Judges Dubow, King and McCaffery join the Concurring Opinion.
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