J-E01007-20

                             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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