C.Z. v. Z.M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.Z. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
Z.M. :
:
Appellant : No. 947 MDA 2017
Appeal from the Order Entered May 25, 2017
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2017--6444
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 06, 2018
Appellant, Z.M., appeals from the order entered in the Luzerne County
Court of Common Pleas, which granted the petition filed by Appellee, C.Z.,
under the Protection from Abuse (“PFA”) Act, at 23 Pa.C.S.A. §§ 6101-6122.
On May 18, 2017, Appellee filed a petition for a PFA order against Appellant
claiming, inter alia, Appellant followed her and called her incessantly after
Appellee had ended their dating relationship. The court issued a temporary
PFA order that day. Following a PFA hearing on May 25, 2017, the court
entered a final PFA order prohibiting Appellant from contacting Appellee for
three years. The court entered an amended order on June 8, 2017, to fix a
scrivener’s error. Appellant timely filed a notice of appeal on June 9, 2017.
By order entered June 26, 2017, with Pa.R.C.P. 236 notice issued the next
day, the court directed Appellant to file a concise statement of errors per
Pa.R.A.P. 1925(b), within 30 days. Appellant’s Rule 1925(b) statement is
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dated July 19, 2017. The certificate of service and proofs of service indicate
Appellant served opposing counsel and the trial judge on that date. On July
21, 2017, Appellant inadvertently filed his concise statement in the Superior
Court, not the trial court.
Preliminarily, appellants must timely comply whenever the trial court
orders them to file a Rule 1925(b) concise statement. Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306 (1998). Regarding civil cases:
Our Supreme Court intended the holding in Lord to
operate as a bright-line rule, such that failure to comply
with the minimal requirement of Pa.R.A.P. 1925(b) will
result in automatic waiver of the issues raised. Given the
automatic nature of this type of waiver, we are required to
address the issue once it comes to our attention. …
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa.Super. 2014) (en banc) (internal citations and
quotation marks omitted) (emphasis omitted). In addition to filing a concise
statement on the docket, an appellant must concurrently serve the trial
judge. Pa.R.A.P. 1925(b)(1). Failure to serve the trial judge can constitute
waiver of issues on appeal. See Forest Highlands Community Ass’n v.
Hammer, 879 A.2d 223 (Pa.Super. 2005) (explaining Rule 1925(b) imposes
waiver consequences upon appellant who fails to serve trial judge with
concise statement of errors). Nevertheless, upon application of an appellant
for good cause shown, this Court may remand in a civil case for the filing of
an initial, amended or supplemental concise statement and/or a
supplemental trial court opinion. See Pa.R.A.P. 1925(c)(2), Note.
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Instantly, by order entered June 26, 2017, with Rule 236 notice issued
the next day,1 the trial court directed Appellant to file a Rule 1925(b)
statement within 30 days. Thus, Appellant’s concise statement was due
July 27, 2017. Appellant’s Rule 1925(b) statement is dated July 19, 2017.
The certificate of service and proofs of service indicate Appellant served
opposing counsel and the trial judge on that date. On July 21, 2017,
Appellant inadvertently filed his concise statement in the Superior Court, not
the trial court. Nevertheless, the trial court issued a Rule 1925(a) opinion,
stating Appellant had failed to file a Rule 1925(b) statement, constituting
waiver of all issues on appeal. Consequently, the trial court declined to
address any of Appellant’s issues on the merits.
In response, Appellant filed a motion in the trial court for leave to file
his Rule 1925(b) statement nunc pro tunc. Appellant indicated he mailed his
statement on July 19, 2017, to opposing counsel and the trial court.
Appellant attached a copy of the cover letter and concise statement he
served on the trial judge, dated July 19, 2017, and proofs of mailing to
confirm his claims. Appellant also showed that he had inadvertently filed his
concise statement in the Superior Court, which time-stamped it July 21,
2017. Without explanation, the trial court denied Appellant nunc pro tunc
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1See Pa.R.A.P. 108(b) (stating date of entry of order in matter subject to
Pennsylvania Rules of Civil Procedure shall be date on which clerk makes
notation in docket that notice of order has been given per Rule 236).
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relief.
Under these circumstances, Appellant has demonstrated good cause to
allow him to file his Rule 1925(b) statement nunc pro tunc on the trial court
docket. See generally Pa.R.A.P. 751(a) (stating if appeal or other matter is
filed in incorrect court, court shall transfer it to proper court of this
Commonwealth, where appeal or other matter shall be treated as if originally
filed in transferee court on date first filed in incorrect court). Accordingly,
we remand for the trial court to grant Appellant leave to file the same Rule
1925(b) statement nunc pro tunc immediately with the Luzerne County
Prothonotary, and to serve opposing counsel and the trial judge again.2 The
trial court shall have 30 days thereafter to issue a supplemental opinion
addressing the claims and return the certified record including the
supplemental opinion to this Court. See Pa.R.A.P. 1925(c)(2), Note.
Case remanded with instructions. Panel jurisdiction is retained.
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2 Appellant cannot raise any new issues other than those included in the
concise statement he inadvertently filed in the Superior Court on July 21,
2017.
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