dissenting.
I must respectfully dissent from so much of a majority opinion as holds that the payment of a filing fee is in the nature of a jurisdictional prerequisite to the filing of a Notice of Appeal and that such payment is a condition precedent to the filing of an appeal.
It is necessary to consider the application of Civil Rules 73.02 and 76.42 in the light of the constitutional judicial amendment expressed in Section 115 mandated by the people in 1975. In this case a timely Notice of Appeal was filed, but the $100 filing fee was not tendered until its absence was discovered by a circuit clerk two days later.
The paramount question is the inherent right of appeal which should not be limited by unreasonable restrictions arising from judicial rules. All such rules must be founded on sound reason and should be intended to facilitate public access to the courts and not to impede or make more complicated the judicial process. As long as there is a timely Notice of Appeal, I believe the principles of substantial compliance should apply to the procedural rules which directly relate to the filing of such a notice so long as the court is not misled and there is no substantial prejudice to the other parties to the appeal, and the orderly judicial process is not unduly disturbed.
The only reasonable policy consideration for the prompt payment of the filing fee is to insure that the fees are in fact paid. This is a matter of effective administration and not in the nature of a jurisdictional requirement of the right to file an appeal.
Civil Rule 73.02(l)(b) provides that the Notice of Appeal shall not be docketed or noted as filed until such payment is made. Read together with CR 79.06(3), it indicates that an appeal cannot proceed until the fee is paid.
The Court of Appeals rendered a widely-split opinion on this same subject, voting 9 *542to 5 to dismiss the present appeal with the minority issuing three separate dissenting opinions. This is not the first time that the Court of Appeals has been severely split on the issue of substantial compliance. In 1978, the Court of Appeals rendered an 8 to 6 en banc decision upholding strict compliance. There were two extensive dissenting opinions in that case. The opinion of the Court of Appeals was originally published in the advance sheets at 576 S.W.2d 255 (1978), but was subsequently withdrawn. The Supreme Court rendered an opinion in Foremost Ins. Co. v. Shepard, Ky., 588 S.W.2d 468 (1979), requiring strict compliance. I would overrule Foremost, supra.
Prior to July 1, 1981, the only reference to the payment of a fee on appeal was found in CR 76.42(2)(a), which provided then, as it does now, for a $100 filing fee to be paid for docketing an appeal in the Court of Appeals. That fee was paid to the Clerk of the Court of Appeals at the time of perfecting the appeal, and the case was then docketed by the appellate clerk.
When CR 73.02(l)(b) went into effect on July 1, 1981, the filing fee required by CR 76.42(2)(a) was henceforth to be paid to the circuit court clerk at the time the Notice of Appeal was filed. This rather simple change of the time for paying the docketing fee has been improperly interpreted as transforming the filing fee from an ancillary procedural step securing the review of the judgment appealed, to a step which affects the validity of the very appeal itself.
If such a dramatic change had been intended by the Supreme Court in 1981, it had only to add language to Secs. (l)(a) of 73.02 and a paragraph (2) of 73.01 to put the legal profession on notice that such a change was being made. Instead Sec. (l)(a), which contained the language consistently referred to in cases in which the issue of a proper appeal is before the Court, remained unchanged after the 1981 amendment, and is essentially unchanged from its original adoption.
The Kentucky Rules of Civil Procedure, when originally introduced in 1952, were based largely on the existing Federal rules. A comparison of the Kentucky rule with the Federal rule indicates that the requirement for paying filing fees is an ancillary procedural step which, although mandatory, is not a jurisdictional condition precedent. Fed.R.Civ.P. 73(a).
In his Commentary on the original Civil Rule 73.02, Commissioner Watson Clay cites federal court decisions interpreting the federal rule which hold that the filing of a Notice of Appeal is jurisdictional but not the ancillary steps. W. Clay, Ky. Prac., 3rd ed., Civil Rule 73; See Daniels v. Goldberg, (D.C.N.Y.1948), 8 F.R.D. 580; W.H. Lailer & Co. v. C.E. Jackson Co., (D.C. Mass.1948), 75 F.Supp. 827.
Gould v. Members of N.J. Div. of Water Policy & Supply, (C.A.3, 1977) 555 F.2d 340, indicates that the late payment of a filing fee did not invalidate a timely Notice of Appeal. I believe Kentucky can logically move from a position of strict compliance with the technical language of the rules to a broader position of substantial compliance as to the procedures in filing an appeal. I would adopt the federal interpretation insofar as a technically deficient Notice should be held effective although incomplete, so long as the Notice of Appeal reflects the true intention of the appellant, is timely filed, does not mislead the court or involve an undue delay in the proceedings and does not result in a substantial prejudice to the other parties to the appeal.
Substantial compliance with the Civil Rules is not a new or revolutionary doctrine. In White v. Hardin Co. Board of Education, Ky., 307 S.W.2d 754 (1957), the then Court of Appeals refused to dismiss an appeal for failure to designate an ap-pealable order or judgment on the grounds that there had been sufficient substantial compliance with the civil rules.
When the examination of the appellant’s documents requires additional attention by the clerk’s office or the court system, then a severe system of penalty, short of dismissal with prejudice, should be established, measured by the amount of judicial *543time needed to analyze and correct the deficiencies in question.
Certainly there must be a proper respect for the civil rules among lawyers. However, the right of appeal is not indigenous to lawyers but directly affects the people. There should not be an inordinate or hyper-technical reliance on so-called “magic words.” Our concern must be for substance and not just legal form. If a lawyer falls into careless practice, I would recommend a severe monetary penalty or other discipline. I believe a dismissal of the client’s claim of appeal, with prejudice, is a totally inappropriate remedy because it punishes the client for selecting a poor lawyer. A dismissal under the present system would burden the client by requiring him to engage new counsel to sue his first lawyer for a possible malpractice. This is a costly and involved procedure which creates additional mistrust and suspicion in the public mind. Moreover malpractice suits adversely reflect on the innocent members of the legal profession unnecessarily and in a disproportionate manner through increased insurance rates. The inept, careless or negligent lawyer should be penalized or disciplined, but his client should not be punished and his fellow professionals should not suffer.
I believe it is our responsibility to improve the appellate process and not to unduly aggravate the public conception of the legal and judicial mystique. This matter could have been concluded in 1981 with a suitable monetary penalty imposed on the lawyer only.
Accordingly, I believe the filing fee is procedural in nature and this Court has wisely chosen not to dismiss the appeal. In any event, the payment of the filing fee is essential to the valid processing of the Notice of Appeal, and therefore this ruling has been correctly applied prospectively.