J-S05021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ADOPTION OF: E.M.L., A          :   IN THE SUPERIOR COURT OF
 MINOR 2018-0051 IN RE:                 :        PENNSYLVANIA
 ADOPTION OF: M.M.L., A MINOR           :
 2018-0052 IN RE: ADOPTION OF:          :
 N.A.C., A MINOR 2018-0053              :
                                        :
                                        :
 APPEAL OF: J.L.                        :
                                        :   No. 1676 MDA 2019


              Appeal from the Order Entered September 6, 2019,
                in the Court of Common Pleas of York County,
                     Orphans' Court at No(s): 2018-0051,
                           2018-0052, 2018-0053.


BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:           FILED: MARCH 30, 2020

     J.L. (“Father”) appeals from the September 6, 2019 order denying his

request to reinstate his appellate rights nunc pro tunc, which would have

allowed him to challenge the November 2018 decrees terminating his parental

rights to three children: E.M.L, M.M.L., and N.A.C. Upon review, we quash

the appeal.

     We glean from the record the following relevant factual and procedural

history: Following a hearing on petitions filed by the York County Office of

Children, Youth and Families, where Father was represented by counsel, the

orphans’ court involuntarily terminated Father’s parental rights by decree on

November 2, 2018. Father was given notice of the entry of these decrees

pursuant to Pennsylvania Orphans’ Court Rule 4.6, but he did not file an

appeal.
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      On September 6, 2019, ten months after the termination of his parental

rights, Father filed, pro se, a “Petition to Reinstate Appeal Rights Nunc Pro

Tunc.” The trial court denied Father’s request without, as Father highlights,

holding an evidentiary hearing. Father appealed.

      He presents one issue:

           Did the trial court err when it entered an Order denying
           Appellant’s petition to reinstate his appeal rights nunc pro
           tunc?

Father’s Brief at 4.

      Before we may reach the merits of Father’s issue, we must address

Father’s noncompliance with our Rules of Appellate Procedure. On October

11, 2019, Father filed, pro se, a notice of appeal, 35 days after the court

denied his request. Not only was his notice beyond thirty-day appeal period,

Father’s notice of appeal did not include a contemporaneously-filed concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i)

(directing that the “concise statement of errors complained of on appeal shall

be filed and served with the notice of appeal” in children’s fast track matters).

This Court entered an order on October 25, 2019, directing Father’s counsel

to file the concise statement with this Court and the trial court by November

4, 2019.    However, counsel waited until November 5, 2019 to submit the

statement to this Court; counsel did not submit the statement to the trial court

until November 6, 2019 (though counsel explained that the trial court was

closed on November 5 for Election Day).



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      We conclude that these procedural errors alone do not derail Father’s

appeal. First, we note that Father is incarcerated. This Court received a pro

se letter from Father on November 5, 2019, indicating that he delivered his

notice of appeal to the prison authorities on October 4, 2019.       Appellant

included a prison cash slip with his letter, which appears to support his

assertion. The envelope that contained Father’s notice of appeal includes a

postmark indicating a date of October 8, only one day after the thirty-day

appeal period expired. Thus, Father’s appeal from the trial court’s denial of

his nunc pro tunc request appears timely pursuant to the mailbox rule as

stated in Pa.R.A.P. 121(a).

      Second, we address Father’s initial failure to file a contemporaneous

concise statement and the apparent failure to timely remedy this mistake.

Appellant included a pro se concise statement with his pro se docketing

statement filed on November 1, 2019, which is before our imposed November

4, 2019 deadline. Moreover, to the extent that Father’s delay impeded the

trial court’s ability to author a Rule 1925(a) opinion, we acknowledge that the

trial court issued two separate opinions, neither of which addressed the merits

of its denial. As we will become apparent below, this does not impede our

review.

      However, Father committed another error, which proves fatal even if we

overlooked the aforementioned mistakes. Father filed, albeit pro se, only one

notice of appeal from the order denying his petition at three different trial

court docket numbers. Subsequently, Father’s counsel also filed a singular

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notice of appeal in this Court, also referencing three different trial court docket

numbers.    Pennsylvania Rule of Appellate Procedure 341(a) and its Note

require the filing of separate notices of appeal when a single order resolves

issues arising at multiple trial court docket numbers. The Supreme Court of

Pennsylvania has confirmed, prospective to its decision filed on June 1, 2018,

that quashal must result if an appellant fails to comply with Rule 341 and its

Note. See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).                     On

November 19, 2018, this Court directed Father to show cause why this appeal

should not be quashed in light of Walker. Father did not file a response.

      Procedurally, we are bound by Walker, and we are constrained to quash

Father’s appeal. Importantly, we note that even if we did not quash Father’s

appeal, his challenge to the court’s denial of his nunc pro tunc request lacks

merit.

      Father’s Brief accurately states both our abuse of discretion standard,

as well as the criteria by which nunc pro tunc relief may be granted. See

Father’s Brief at 7; see also Criss v. Wise, 781 A.2d 1156, 1159 (Pa. Super.

2001) (stating that in addition to the occurrence of fraud or a breakdown in

the court's operations, nunc pro tunc relief may also be granted “where the

appellant proves that: (1) the appellant's notice of appeal was filed late as a

result of non-negligent circumstances, either as they relate to the appellant

or the appellant's counsel; (2) the appellant filed the notice of appeal shortly

after the expiration date; and (3) the appellee was not prejudiced by the

delay.”).

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       However, Father does not acknowledge that our case law has specifically

held that nunc pro tunc relief will not be granted due to counsel’s negligence.

In re M.S.K., 936 A.2d 103, 106 (Pa. Super. 2007) (footnote omitted). Father

states in his Petition to Reinstate Appeal Rights Nunc Pro Tunc, “the counsel

for [F]ather…was informed during the end of the proceedings that appeals are

an option and a requested by [F]ather [sic].”     The inference is that either

counsel failed to inform him of his right to appeal the termination decrees, or,

that Father did, in fact, inform counsel he wished to appeal, but that counsel

failed to do so.1 Neither of these scenarios qualifies as a breakdown in the

court’s operations; they are, instead, instances of counsel’s negligence, which

does not warrant nunc pro tunc relief. See M.S.K., 936 A.2d at 105 (“Our

Supreme Court has made it clear that the circumstances occasioning the

failure to file an appeal must not stem from counsel’s negligence or from

failure to anticipate foreseeable circumstances.” (citations omitted)). Thus, it

was not necessary for the court to hold a hearing on Father’s petition, because

no relief was due.



____________________________________________


1 The record appears to suggest the latter scenario. We note that Father’s
counsel for the purposes of this appeal is the same individual who represented
him during the termination hearing. We note further that on July 30, 2019 –
prior to Father’s petition to reinstate his appellate rights nunc pro tunc –
Father filed, pro se, a motion for ineffective assistance of counsel, alleging
that “counsel did not file a[n] appeal with[in] ample time given [sic].” He also
alleged that he had not heard from counsel for approximately seven months.
The trial court denied Father’s motion. Father then filed, pro se, the instant
petition.

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      In sum, we quash Father’s appeal for noncompliance with Pa.R.A.P. 341

as contemplated by Walker, supra.        However, even if we did not quash

Father’s appeal, we would have concluded that the trial court did not err when

it failed to schedule a hearing on Father’s petition to reinstate his appellate

rights nunc pro tunc.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020




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