J-E01013-20

                                  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

____________________________________________


1   See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).
J-E01013-20



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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