Thursday, October 22, 2009

custody - fast-track appeals - concise statement of errors - PRAP 905, 1925

In re K.T.E.L. - Superior Court - October 21, 2009

http://origin-www.courts.state.pa.us/OpPosting/Superior/out/S53016_09.pdf

In this case, we address an issue of first impression: the disposition of an appeal in which an appellant in a case involving termination of parental rights fails to comply with Pennsylvania Rules of Appellate Procedure 905(a)(2) and 1925(a)(2), both adopted January 13, 2009.

We hold that henceforth, in all children’s fast track cases, the failure to file a concise statement of errors complained of on appeal with the notice of appeal will result in a defective notice of appeal, to be disposed of on a case by case basis.

The amendments to Rule 905 and 1925, adopted January 13, 2009....included new sub-sections applicable only to children’s fast track cases. Rule 905(a)(2) provides in pertinent part: “If the appeal is a children’s fast track appeal, the concise statement of errors complained of on appeal as described in Rule 1925(a)(2) shall be filed with the notice of appeal and served in accordance with Rule 1925(b)(1).” Pa.R.A.P. 905(a)(2) (emphasis added).

Rule 1925(a)(2)(i) states: “The concise statement of errors complained of on appeal shall be filed and served with the notice of appeal as required by Rule 905. See Pa.R.A.P. 905(a)(2).” Pa.R.A.P. 1925(a)(2)(i) (emphasis added).

While both rules require the contemporaneous filing of a notice of appeal and concise statement, there are no provisions defining the effect on the appellant’s appeal of the failure to comply. We find however, that rule 905(a)(2) is procedural, not jurisdictional; therefore, we are not divested of our jurisdiction by non-compliance. Instead, we find that failure to comply with Rule 905(a)(2) will result in a defective notice of appeal.

“The 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 and when the party [moving for quashal of the appeal] has suffered no prejudice.” Stout v. Universal Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980).

Accordingly, as there is no per se rule requiring quashal or dismissal of a defective notice of appeal, we hold that in the instant case and henceforth, the failure of an appellant in a children’s fast track case to file contemporaneously a concise statement with the notice of appeal pursuant to rules 905(a)(2) and 1925(a)(2), will result in a defective notice of appeal. The disposition of the defective notice of appeal will then be decided on a case by case basis under the guidelines set forth in Stout.

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