McFadden, M. v. 403 Gordon Drive, LLC ( 2022 )

J-A03036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK E. MCFADDEN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
403 GORDON DRIVE, LLC AND PENN : No. 154 EDA 2021
FOUNDATION :
Appeal from the Order Entered December 7, 2020
In the Court of Common Pleas of Chester County Civil Division at No(s):
No. 2020-05835-ML
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
CONCURRING MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 28, 2022
Although I agree with the Majority’s conclusion to affirm, I would do so
on other grounds. Pursuant to the holding in Greater Erie Indus. Dev. Corp.
v. Presque Isle Downs, Inc., 88 A.3d 222, 227 (Pa. Super. 2014) (en banc),
a party who files an untimely Pa.R.A.P. 1925(b) statement has waived all
issues raised on appeal. In the instant case, Appellant untimely filed his Rule
1925(b) Statement1 and, thus, I would find that Appellant waived the issues
raised on appeal and affirm the decision of the trial court on that basis.
In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), the Pennsylvania
Supreme Court created the bright-line rule that any issue not raised in a Rule
1925(b) statement is waived. Id. at 420. See also Commonwealth v.
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1 As explained in the Majority Opinion, Appellant’s Rule 1925(b) statement
was due no later than January 29, 2021. See Majority Op. at 11. Appellant
filed his Rule 1925(b) statement on January 30, 2021, making it untimely. Id.J-A03036-22
Castillo, 888 A.2d 775, 780 (Pa. 2005) (reaffirming the “bright-line rule first
set forth in Lord” and holding that an untimely Rule 1925(b) statement results
in waiver of all issues on appeal). Applying this principle, the en banc panel of
this Court in Presque Isle, 88 A.3d at 224, 227, concluded that “it is no
longer within this Court’s discretion to ignore the internal deficiencies of
1925(b) statements” and held that a party who files an untimely 1925(b)
statement has waived all issues on appeal.2
In this case, the Majority Opinion excuses Appellant’s untimely Rule
1925(b) Statement on the grounds that the trial court’s Rule 1925 Order was
defective because the trial court failed to designate “the place the appellant
can serve the Statement in person and the address to which the appellant can
mail the Statement as required by Subsection (b)(3)(iii).” Majority Op. at 12
(internal quotation marks omitted). In support, the Majority cites Berg v.
Nationwide Mut. Ins. Co., 6 A.3d 1002, 1008 (Pa. 2010) (plurality), in which
our Supreme Court excused the appellants’ failure to serve a copy of its
timely-filed Rule 1925(b) statement on the trial judge because, inter alia,
the trial court’s order did not instruct appellants to serve a copy of their Rule
1925(b) statement on the trial judge and was, thereby, inconsistent with Rule
1925(b)(3)(iii). Id. at 1010-12. Importantly, timeliness was not at issue in
Berg.
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2The en banc panel added that this rule only applied when the prothonotary
properly served the appellant with the Rule 1925 order. In this case, the
docket reflects that the prothonotary served Appellant with the court’s Rule
1925 Order, and Appellant makes no argument to the contrary.
-2-
J-A03036-22
Since Berg does not address an untimely Rule 1925(b) statement, it
does not support the Majority’s holding that a Rule 1925 order that does not
correctly inform the parties about the method and place of service of the Rule
1925(b) statement on the trial judge excuses an untimely Rule 1925(b)
statement. Moreover, it does not follow that a court’s Rule 1925 order—which
is only deficient in its failure to indicate the address at which an appellant can
serve his or her Rule 1925(b) statement, and where the appellant makes no
allegation that the deficiency affected his or her ability to timely file the
statement—should be wholly vitiated to forgive an appellant’s untimely filing
of a Rule 1925(b) statement. Rather, the holding in Presque Isle controls
this case and commands that we find Appellant’s issues waived.
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