Chea, D. v. Estate of May, B. ( 2016 )

J-A05029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIANA CHEA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ESTATE OF BLAIR BURNWELL MAY,
DECEASED AND S. BELVELLE MAY,
ADMINISTRATRIX AND CAROLINE M.
HARRIS, ADMINISTRATRIX
Appellee No. 1310 EDA 2015
Appeal from the Order Entered April 1, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-07636-TT
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED MAY 03, 2016
Diana Chea appeals the order entered April 1, 2015, in the Chester
County Court of Common Pleas granting judgment on the pleadings in favor
of the defendants, the Estate of Blair Burnwell May (the “Estate”) and S.
Belvelle May and Caroline M. Harris, administratrices of the Estate
(collectively “administratrices”). On appeal, Chea contends the trial court
erred in finding her claim was either waived, due to her failure to file a
concise statement of errors complained of on appeal, or barred by the
statute of limitations or principles of res judicata. For the reasons that
follow, we affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A05029-16
The facts alleged in Chea’s complaint are as follows.
6. On or about March 4, 2011 [Chea] was working as a home
health aide at [May’s] home while [May] remained alive.
7. As part of [Chea’s] usual course of duties, [she] was
carrying clothes in hand en route to a washing machine located
in the downstairs portion of the [May’s] home. While carrying
clothes, [Chea’s] pants got stuck on a defectively maintained
electric chair, affixed to the real property, and as a result, was
caused to trip, slip and fall down a set of interior stairs due to
the chair being negligently positioned at the top of the ground
floor level, negligently maintained and due to the chair’s
defective state.
Complaint, 8/7/2014, at ¶¶ 6-7. Chea further claimed that, as a result of
the fall, she suffered injuries to her ankle, foot, back, neck and shoulder.
See id. at ¶ 11.
On June 20, 2011, Chea filed a negligence action against May in the
Philadelphia County Court of Common Pleas. The case was later transferred
to the Montgomery County Court of Common Pleas,1 and while that action
was still pending, May died on October 2, 2013. May’s attorney filed a
suggestion of death on October 8, 2013, followed by a motion for summary
judgment, on November 8, 2013, asserting that the Dead Man’s Act 2
“precludes [] Chea from testifying in this case[,]” and, “[a]s a result, [] Chea
does not have sufficient evidence to prove fault by Blair T. May.” Motion of
____________________________________________
1
May’s home, where the accident occurred, was in Montgomery County,
Pennsylvania.
2
See 42 Pa.C.S. § 5930.
-2-
J-A05029-16
Defendant, Blair T. May, for Summary Judgment, 11/8/2013, at ¶10, 12.
The trial court granted the motion for summary judgment on May 14, 2014.
Chea did not appeal the trial court’s order.
Thereafter, on August 7, 2014, Chea filed the present action in the
Chester County Court of Common Pleas, based upon the same incident as
the prior complaint, but naming May’s Estate and its administratrices as
defendants.3 Following the filing of an answer with new matter, and a reply,
the Estate and adminstratices filed a motion for judgment on the pleadings,
asserting Chea’s claims were barred by either the statute of limitations or
principles of res judicata. The trial court granted the motion on April 1,
2015, and dismissed Chea’s negligence action. This timely appeal followed.
Thereafter, on May 12, 2015, the trial court ordered Chea to file a
concise statement of errors complained on of appeal pursuant to Pa.R.A.P.
1925(b). The order explicitly stated:
The Statement must be filed of record. The Statement must be
served upon the undersigned pursuant to Pa.R.A.P. No.
1925(b)(1). The Statement must be filed an served no later
than twenty-one (21) days from the date of the entry on the
docket of this Order. Any issue not properly included in the
Statement timely filed and served pursuant to Pa.R.A.P. No.
1925(b) shall be deemed waived.
Order, 5/12/2015.
____________________________________________
3
The Estate is administered in Chester County, Pennsylvania.
-3-
J-A05029-16
On June 23, 2015, the trial court filed an opinion stating that, while
Chea served a copy of her concise statement on the court’s chambers, “it
does not appear that said Statement of Errors was ever filed of record.”
Trial Court Opinion, 6/23/2015, at 1. For that reason, the court requested
that this Court quash Chea’s appeal. The court further opined that Chea’s
substantive claims were barred by both the statute of limitations and
principles of res judicata.
Before we may address Chea’s substantive issues, we must first
determine whether she has preserved her claims for our review. It is well-
settled that “[w]henever a trial court orders an appellant to file a concise
statement of matters complained of on appeal pursuant to Rule 1925(b), the
appellant must comply in a timely manner.” Feingold v. Hendrzak, 15
A.3d 937, 940 (Pa. Super. 2011) (quotation omitted and emphasis in
original). The failure to comply with the court’s order results in the waiver of
all issues on appeal. See Greater Erie Indus. Dev. Corp. v. Presque Isle
Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (appellant’s failure to file
a timely concise statement waived all claims on appeal, despite the fact that
trial court accepted the untimely statement and addressed claims in
opinion).
Our review of the record in the present case reveals that, while Chea
purportedly delivered a copy of her concise statement to the trial judge’s
chambers, she never filed her concise statement in the trial court. It is
-4-
J-A05029-16
well-settled that “[t]he filing requirement is distinct from the service
requirement in that the filing requirement ensures that the Concise
Statement becomes part of the certified record.” Everett Cash Mut. Ins.
Co. v. T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa. Super. 2002). Moreover, this
Court had held that “[h]anding a copy of a motion to a judge in the
courtroom or elsewhere, does not constitute a filing.” Bryant v. Glazier
Supermarkets, Inc., 823 A.2d 154, 156 (2003), appeal denied, 843 A.2d
1236 (Pa. 2004).
Here, Chea’s concise statement is not docketed, and does not appear
in the certified record.4 Therefore, it does not exist for purposes of our
review. See Everett Cash Mut. Ins. Co., supra, 804 A.2d at 34(explaining that under appellate rules, documents not included in the
certified record are “non-existent”).
Chea asserts, however, that she “brought to the attention of” this
Court the three issues raised in her concise statement, when she filed her
Civil Docketing Statement. Chea’s Brief at 18. Furthermore, she argues:
Therefore, neither the lower court nor this Superior Court
were prejudiced or impaired in their ability to understand the
reasons for the present appeal, and any failure to comply strictly
____________________________________________
4
We note Chea claims that “upon learning of this oversight, [her] attorney
did file with this Superior Court a copy of that 1925(b) statement filed with
the lower court.” Chea’s Brief at 18. However, our review of the certified
record, as well as the Superior Court docket, reveals no such filing.
-5-
J-A05029-16
with the Rules of Appellate Procedure were de minimus and
would not require the draconian sanction of dismissal.
Id.However, this Court has held that the fact a trial court chooses to
address claims in an untimely filed concise statement is irrelevant to our
waiver analysis:
Stated simply, it is no longer within this Court’s discretion to
review the merits of an untimely Rule 1925(b) statement based
solely on the trial court’s decision to address the merits of those
untimely raised issues. Under current precedent, even if a trial
court ignores the untimeliness of a Rule 1925(b) statement and
addresses the merits, those claims still must be considered
waived: “Whenever a trial court orders an appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b), the appellant must comply in a timely manner.”
Greater Erie Indus. Dev. Corp., supra, 88 A.3d at 225 (citations
omitted). We find the same is true when, as here, an appellant fails to file
the statement in the trial court. See Bryant, supra, (finding appellant’s
issues waived when appellant failed to file concise statement in court,
regardless of the fact the court discussed several of the claims on appeal in
its opinion). Indeed, the trial court’s Rule 1925 order could not have been
more explicit, and Chea provides no support for her assertion that her failure
to file the concise statement in the trial court was de minimus.
-6-
J-A05029-16
Accordingly, because Chea failed to timely file in the trial court a copy
of her concise statement, her substantive claims are waived for our review.5
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
____________________________________________
5
We note that, even if we were permitted to overlook Chea’s failure to
follow Rule 1925(b), we would conclude she is entitled to no relief. Chea’s
primary claim appears to be that the trial court in the first action wrongly
applied the Dead Man’s Act to preclude her testimony. See Chea’s Brief at
11-13. However, Chea never appealed the grant of summary judgment in
that action. Accordingly, we would affirm the judgment on the basis of the
trial court’s succinct opinion. See Trial Court Opinion, 6/23/2015, at 2-3
(concluding (1) Chea’s second complaint was filed after the two-year statute
of limitations expired, and rejecting Chea’s claims that (a) the period was
tolled from the initiation of the first action until the filing of the second
action, or (b) the action was timely filed within one year of May’s death; and
(2) the second action was barred by res judicata because the defendants are
in privity with the decedent, who was the defendant in the first action).
-7-