J-S54002-19

J-S54003-19

2022 PA Super 130

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

BRENDAN PATRICK YOUNG

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2088 MDA 2018

Appeal from the Order Entered November 21, 2018

In the Court of Common Pleas of Centre County Criminal Division at 

No(s): CP-14-CR-0000784-2018, 

CP-14-CR-0001389-2017, CP-14-CR-0001540-2018

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DANIEL CASEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2089 MDA 2018

Appeal from the Order Entered November 21, 2018

In the Court of Common Pleas of Centre County Criminal Division at 

No(s): CP-14-CR-0000781-2018, 

CP-14-CR-0001377-2017, CP-14-CR-0001536-2018

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

CONCURRING OPINION BY BOWES, J.: FILED AUGUST 03, 2022
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Speaking for myself only, “unconstrained by majority authorship,”1

I note that Pa.R.A.P. 902, the sole basis for our Supreme Court’s 

determination that appeals violative of Walker need not be quashed, does 

not apply to all notices of appeal. I reiterate that the text of the rule is as 

follows:

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 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). Indeed, the entirety of Chapter 9 of the 

Rules of Appellate Procedure, entitled “Appeals From Lower Courts,” governs 

only appeals as of right, such as the appeals filed by the Commonwealth 

herein, and expressly excludes appeals “by permission taken pursuant to 

Pa.R.A.P. 1311.” Pa.R.A.P. 901(2). 

Critically, it was Rule 1311 through which Appellees sought to take their 

interlocutory appeal. The time and manner for pursuing such appeals by 

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1 Commonwealth v. King, 57 A.3d 607, 633 n. 1 (Pa. 2012) (Saylor, J., 

specially concurring) (discussing the precedent for a special concurrence by 

the author of the majority opinion). See also Commonwealth v. Pownall, 

___ A.3d ___, 17 EAP 2021, 2022 WL 2824741, at *17 n.1 (Pa. July 20, 2022)

(Dougherty, J., specially concurring) (“It cannot be suggested that in cases 

where the author is the mere instrument of the Court he must forego 

expression of his own convictions.” (quoting Wheeling Steel Corp. v. 

Glander, 337 U.S. 562, 576 (1949) (Jackson, J., specially concurring)).
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permission is not governed by Rule 903, but rather by Chapter 13. Instead 

of a simple notice of appeal and proof of service, an appeal by permission 

pursuant to Chapter 13 involves a far more complex back-and-forth petition 

practice. See Pa.R.A.P. 1301-1314. This Court has observed that, “[w]here 

an appellant seeking to appeal from an interlocutory order that is not 

appealable as of right fails to adhere to the procedure outlined in the rules, an 

appeal by permission is inappropriate.” Estate of Considine v. Wachovia 

Bank, 966 A.2d 1148, 1153 (Pa.Super. 2009). Significantly, Chapter 13 

contains no functional equivalent of Rule 902. 

Thus, although Walker applied to Appellees’ appeals insofar as they 

were initiated though Rule 312,2 Young’s ruling that Rule 902 provides an 

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2 My esteemed colleagues are of the opinion that the Majority “paints with too 

broad a brush when it states that the Walker rule applies to appeals taken 

pursuant to Rule 312.” Concurring Opinion by Lazarus, J. at 3. They suggest 

that the applicability of Walker to Rule 312 appeals is an open question that

“is best saved for the Supreme Court or the Appellate Procedural Rules 

Committee.” Id. at 4. With all due respect, my colleagues overlook that it is 

not only the law of this case but the law of this commonwealth that Walker

applies to interlocutory appeals by permission pursued through Rule 312. This 

Court expressly so held in disposing of Appellees’ petition for permission to 

appeal in Commonwealth v. Casey, 218 A.3d 429 (Pa.Super. 2019), 

explaining as follows:

The . . . Commonwealth [in Walker] had not presented any 

compelling argument as to why the rules relating to filing multiple 

appeals should differ under Rules 311(d) and 341(a). Consonant 

with this conclusion, the Walker Court further directed its 

Appellate Procedural Rules Committee to amend the language of 

the Official Note to Rule 341 to state explicitly the requirement 

(Footnote Continued Next Page)
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avenue to correct Walker violations does not. Thus, the disparate treatment 

of these parties in the case sub judice is inherent in the Rules of Appellate 

Procedure, such that the High Court’s Rule 902-based decision in Young

would afford Appellees no relief even if their defective Rule 312 appeal had 

post-dated Young. Accordingly, Appellees’ most strident argument against 

granting the Commonwealth relief in these appeals—that it would be unfair 

since they were not afforded the same opportunity—is wholly unpersuasive. 

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that separate notices of appeal must be filed when a single order 

resolves issues arising on more than one lower court docket. It 

also directed that the rules relating to interlocutory appeals 

(Pa.R.A.P. 311-313) be conformed to Rule 341 in this regard. The 

instant petition, as explained above, comes to us pursuant to Rule 

312. We therefore conclude that Walker is controlling here and 

that Petitioners’ failure to file a separate appeal petition for each 

docket number is fatal to their petition for permission to appeal.

Id. at 431 (cleaned up). Thus, the Majority does not unnecessarily opine as 

to an unresolved legal question not at issue in this appeal. Rather, it

addresses the arguments presented by Appellees by reference to precedent 

that is binding on this Court unless and until it is overturned or abrogated by 

a change to the Rules of Appellate Procedure.