Lehigh and Northampton Transportation Authority v. J. Cap ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh and Northampton :
Transportation Authority :
:
v. : No. 543 C.D. 2021
: Submitted: December 17, 2021
Joseph Cap, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: May 23, 2022
Joseph Cap (Requester), pro se, appeals an order of the Court of
Common Pleas of Lehigh County (trial court) that affirmed, in part, and overruled,
in part, a final determination of the Office of Open Records (OOR). In doing so, the
trial court held that the Lehigh and Northampton Transportation Authority
(Authority) did not have to provide Requester access to a video recording from an
Authority bus. Because Requester did not file a PA. R.A.P. 1925(b) statement as
ordered by the trial court, he has failed to preserve any issues for appellate review.
For this reason, we affirm the trial court.
On July 13, 2020, Requester sent an email to the Authority seeking to
inspect certain video footage from an Authority bus. The Authority denied his
request for the stated reason that his request was not made on the appropriate form.
Requester appealed to the OOR, which held that the Authority’s restriction on how
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
to make a request violated Section 703 of the Right-to-Know Law.2 The Authority
appealed to the trial court.
Requester did not attend the hearing before the trial court or answer the
Authority’s petition for review. On April 14, 2021, the trial court affirmed, in part,
and overruled, in part, the OOR’s final determination. Ultimately, it ruled that the
Authority need not provide the video recording because the requested footage had
to be manually extracted in order to be preserved and that was not done for the
footage requested. In short, the records did not exist because the video had been
overwritten.
On May 4, 2021, Requester filed a petition for reconsideration, and on
May 13, 2021, he filed a notice of appeal to this Court. On May 17, 2021, the trial
court denied the petition for reconsideration. On the same day, the trial court issued
an order directing Requester to file a statement of errors complained of on appeal
pursuant to Rule 1925(b), PA. R.A.P. 1925(b), within 21 days of the entry of the
order on the docket. Supplemental Reproduced Record at 27a (S.R.R. __).3
Requester did not file the Rule 1925(b) statement. The trial court issued
a PA. R.A.P. 1925(a) opinion on June 9, 2021, stating that Requester’s failure to file
the Rule 1925(b) statement resulted in waiver of any issues for appeal. S.R.R. 28a-
30a.
Before this Court, Requester argues that the Authority presented no
evidence that the videos were exempt from disclosure under the Right-to-Know
2
Act of February 14, 2008, P.L. 6, 65 P.S. §67.703.
3
The Authority’s Supplemental Reproduced Record fails to comply with the Pennsylvania Rules
of Appellate Procedure. See PA. R.A.P. 2173 (any supplemental reproduced record shall be
numbered in Arabic figures followed by a small b, thus 1b, 2b, 3b, etc.). The Authority used a
small “a” instead of a small “b” with its record page numbers. However, for consistency of
reference, the citations herein are as reflected in the Supplemental Reproduced Record.
2
Law; the Authority destroyed the requested public records; the trial court made no
findings in this regard; and the trial court acted in bad faith. Requester states in his
brief, in passing, that he did not receive the trial court’s order directing him to file
the Rule 1925(b) statement. Requester Brief at 7. The Authority responds that
Requester has waived all issues he wishes to raise on appeal and requests this Court
to affirm the trial court.
Pennsylvania Rule of Appellate Procedure 1925(b) and (c) states, in
pertinent part, as follows:
(b) Direction to file statement of errors complained of on appeal;
instructions to the appellant and the trial court. If the judge
entering the order giving rise to the notice of appeal (“judge”)
desires clarification of the errors complained of on appeal, the
judge may enter an order directing the appellant to file of record
in the trial court and serve on the judge a concise statement of
the errors complained of on appeal (“Statement”).
***
(4) Requirements; waiver.
***
(vii) Issues not included in the
Statement and/or not raised in
accordance with the provisions of this
paragraph (b)(4) are waived.
(c) Remand.
(1) An appellate court may remand in either a civil
or criminal case for a determination as to whether
a Statement had been filed and/or served or timely
filed and/or served.
(2) Upon application of the appellant and for good
cause shown, an appellate court may remand in a
civil case for the filing nunc pro tunc of a Statement
or for amendment or supplementation of a timely
3
filed and served Statement and for a concurrent
supplemental opinion. If an appellant has a statutory
or rule-based right to counsel, good cause shown
includes a failure by counsel to file a Statement
timely or at all.
PA. R.A.P. 1925(b), (c) (emphasis added).
Failure to file a Rule 1925(b) statement results in waiver of all issues
on appeal, Commonwealth v. Hill, 16 A.3d 484, 493 (Pa. 2011), and this waiver rule
applies regardless of whether the trial court has issued an opinion. As our Supreme
Court explained in Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), “in order
to preserve their claims for appellate review, [a]ppellants must comply whenever the
trial court orders them to file a Statement of [Errors] Complained of on Appeal
pursuant to [PA. R.A.P.] 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” (emphasis added).
Here, the record shows that the trial court issued an order directing
Requester to file the Rule 1925(b) statement and that the prothonotary mailed a
notice of the entry of the order to Requester’s residential address pursuant to
PA.R.Civ.P. 2364 and noted so in the docket. S.R.R. 27a. Because Requester did
4
It states, in pertinent part, as follows:
(a) The prothonotary shall immediately give written notice of the entry of
***
(2) any other order or judgment to each party’s attorney of record
or, if unrepresented, to each party. The notice shall include a copy
of the order or judgment.
(b) The prothonotary shall note in the docket the giving of the notice and, when a
judgment by confession is entered, the mailing of the required notice and
documents.
***
(d) The prothonotary may give the notice required by subdivision (a) or notice of
other matters by facsimile transmission or other electronic means if the party to
whom the notice is to be given or the party’s attorney has filed a written request for
4
not file the Rule 1925(b) statement, he has waived all issues raised on appeal.5
Further, Requester did not request that the trial court or this Court grant him nunc
pro tunc relief under PA. R.A.P. 1925(c)(2). He asserted that he did not receive the
trial court’s order directing him to file the Rule 1925(b) statement, but this does not
warrant nunc pro tunc relief. Ercolani v. Commonwealth, 922 A.2d 1034, 1037 (Pa.
Cmwlth. 2007) (appellant’s “single, and legally inadequate” assertion that he did not
receive agency notice does not authorize nunc pro tunc relief). Rather, the appellant
must demonstrate extraordinary circumstances involving fraud or a breakdown in
the administrative or judicial process to justify the grant of nunc pro tunc relief. Id.That was not done here.
Because Requester did not file a Rule 1925(b) statement, he has waived
all issues on appeal. Hill, 16 A.3d at 493. Accordingly, we affirm the trial court.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
such method of notification or has included a facsimile or other electronic address
on a prior legal paper filed in the action.
PA.R.Civ.P. 236.
5
The trial court’s order to Requester did not contain an address to which the Rule 1925(b)
statement may be delivered in person or by mail, as required by PA. R.A.P. 1925(b)(3)(iii) (“The
judge’s order directing the filing and serving of a Statement shall specify: … (iii) that the Statement
shall be served on the judge pursuant to paragraph (b)(1) and both the place the appellant can serve
the Statement in person and the address to which the appellant can mail the Statement.”) This
omission does not excuse Requester’s failure to file the Rule 1925(b) Statement. See McDowell
v. Department of Human Services (Pa. Cmwlth., No. 809 C.D. 2020, filed September 23, 2021)
(unreported) (the trial court’s order directing appellant to file a Rule 1925(b) statement, without
an address to which the statement may be delivered in person or by mail, did not excuse the
appellant from filing Rule 1925(b) statement). An unreported opinion of this Court issued after
January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh and Northampton :
Transportation Authority :
:
v. : No. 543 C.D. 2021
:
Joseph Cap, :
Appellant :
ORDER
AND NOW, this 23rd day of May, 2022, the April 14, 2021, order of
the Court of Common Pleas of Lehigh County, in the above-captioned matter, is
AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita