Lynch, T. v. Gerace, M. ( 2018 )

J. S55035/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
THOMAS J. LYNCH, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 2936 EDA 2017
MICHAEL GERACE, G. WORLD, INC., :
AND GERACE ENTERPRISE, INC. :
Appeal from the Judgment Entered October 18, 2017,
in the Court of Common Pleas of Delaware County
Civil Division at No. 15-1092
THOMAS J. LYNCH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL GERACE, G. WORLD, INC., :
AND GERACE ENTERPRISE, INC., : No. 2940 EDA 2017
:
Appellants :
Appeal from the Judgment Entered October 18, 2017,
in the Court of Common Pleas of Delaware County
Civil Division at No. 2015-1092
BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2018
Appellant/cross-appellee Thomas J. Lynch (“Lynch”) and
appellees/cross-appellants Michael Gerace, G. World, Inc., and Gerace
Enterprise, Inc. (collectively, “Gerace”) each appeal from the October 18,
J. S55035/18
2017 judgment entered in favor of Lynch and against G. World, Inc. and
Gerace Enterprise, Inc., in this breach of contract action.1 After careful
review, we affirm on the basis of the comprehensive November 17, 2017
opinions of the Honorable Spiros E. Angelos.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[Lynch] initiated this action with the filing of a
Complaint on February 6, 2015. [Lynch] alleged
claims against [Gerace] in breach of contract and
unjust enrichment. [Lynch] alleged that, pursuant to
an oral agreement between the parties, [Lynch]
performed human resources related consulting
services at the request of Defendant, Michael
Gerace. [Gerace] filed an Answer on November 17,
2015. A bench trial was held on December 6, 2016
and the undersigned Judge entered a Decision and
supporting Findings of Facts and Conclusions of Law
on December 19, 2017 in favor of [Lynch] against
[Gerace] in the amount of Thirty Thousand Dollars
($30,000.00).
[Lynch] filed a post-trial motion to amend the verdict
to include prejudgment interest on December 28,
2016. [Gerace] filed a post-trial motion to vacate
the Trial Court[’]s December 19, 201[6] Decision on
January 20, 2017,[Footnote 1] arguing that
[Defendant Michael] Gerace was not a party to the
alleged oral agreement between the parties. A
hearing was held on [the parties’] post-trial motions
on April 5, 2017. Following said hearing, the
undersigned Judge issued an Amended Order on
1 Both parties purport to appeal from the August 8, 2017 order denying their
respective motions for post-trial relief. “[H]owever, an appeal properly lies
from the entry of judgment, not from the denial of post-trial motions.”
Croyle v. Dellape, 832 A.2d 466, 470 (Pa.Super. 2003) (citation and
internal quotation marks omitted). We have amended the caption
accordingly.
-2-
J. S55035/18
April 12, 2017, finding in favor of [Lynch] and
against two defendants, G World Inc. and Gerace
Enterprise, Inc. in the amount of Thirty Thousand
Dollars ($30,000.00) plus prejudgment interest in
the amount of Five Thousand Eight Hundred Thirty
Seven Dollars and Twelve Cents ($5,837.12).
[Footnote 1] [Gerace’s] Post-Trial Motion
was well past the 10 day period to file a
post-trial motion under Pa.R.C.P.
227.1(c)[.] However, [Lynch’s]
Post-Trial Motion on December 28, 2016
provided a cover-page that incorrectly
stated [Gerace] had twenty (20) days to
respond to [Lynch’s] post-trial motion.
The Trial Court has broad discretion to
dismiss an untimely post-trial motion or
to overlook its untimeliness. See
Kennel v. Thomas, 804 A.2d 667, 668-
[6]69 (Pa.Super. 2002). Due to the
error on the cover-page of [Lynch’s]
post-trial motion, the Trial Court
exercised its discretion and considered
the merits of [Gerace’s] post-trial
motion.
The parties filed post-trial motions on the April 12,
2017 Amended Order, which were denied by Order
on August 7, 2017, docketed August 8, 2017.
[Lynch] and [Gerace] each filed a Notice of Appeal
on September 6, 2017. The Court directed [Lynch]
and [Gerace] to file a Concise Statement of Matters
Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b) on September 8, 2017. [Gerace]
filed [its] 1925(b) statement on September 29, 2017
and served a copy on the undersigned Judge.
[Lynch] failed to timely file a 1925(b) statement
within twenty-one (21) days and failed to serve a
copy on the court,[Footnote 2] as prescribed by the
Trial Court’s September 8, 2017 Order and pursuant
to Pa.R.A.P. 1925(b).
[Footnote 2] [Lynch’s] failure to serve a
copy on the trial court is further
-3-
J. S55035/18
evidenced by the Certification of Service,
which certifies that a copy was served
via email and regular mail to [Gerace’s]
counsel only.
Trial court opinion, 11/7/17 at 1-3 (some citations and footnotes omitted).
On October 18, 2017, the trial court entered judgment in favor of
Lynch and against G. World, Inc., and Gerace Enterprise, Inc., in the amount
of $35,837.12. Thereafter, on November 17, 2017, the trial court filed
separate Rule 1925(a) opinions with respect to the issues raised by Lynch
and Gerace.
Lynch raises the following two issues for our review:
I. The trial court had no basis to vacate the
judgment and dismiss Michael Gerace from the
case via post[-]trial motion.
II. The trial court erred in failing to grant [Lynch]
leave to correct the designation of [] Gerace
Enterprise, Inc. to M. Gerace Enterprise, Inc.
Lynch’s brief at 9, 14 (full capitalization and emphasis omitted).
The crux of Gerace’s argument on appeal is that the trial court erred in
entering judgment in favor of Lynch in the amount $35,837.12 because the
record did not establish that the parties entered into an oral contract.
(Gerace’s brief at 8-14.) Gerace further avers that all of Lynch’s claims
should be dismissed for failure to file a timely Rule 1925(b) statement. (Id.
at 17.) Alternatively, Gerace argues that,
[t]he trial court correctly denied Lynch’s post-trial
motion to amend the name of Defendant Gerace
Enterprise, Inc.[; and]
-4-
J. S55035/18
[t]he trial court . . . correctly determined judgment
should not be entered . . . against Michael Gerace
individually.
Id. at 19, 21 (emphasis and unnecessary capitalization omitted).2
Our standard of review in nonjury cases is as follows:
Our appellate role in cases arising from nonjury trial
verdicts is to determine whether the findings of the
trial court are supported by competent evidence and
whether the trial court committed error in any
application of the law. The findings of fact of the
trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the
evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its
findings of fact are not supported by competent
evidence in the record or if its findings are premised
on an error of law. However, where the issue . . .
concerns a question of law, our scope of review is
plenary. The trial court’s conclusions of law on
appeal originating from a non-jury trial are not
binding on an appellate court because it is the
appellate court’s duty to determine if the trial court
correctly applied the law to the facts of the case.
Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53,
60-61 (Pa.Super. 2012) (citations and internal quotation marks omitted),
appeal denied, 69 A.3d 599 (Pa. 2013).
2 The record reflects that Gerace waived its claim with regard to the trial
court’s award of $5,837.12 in prejudgment interest (see Gerace’s brief at
14-16) by failing to raise this specific issue in his Rule 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an appellant’s
1925(b)] Statement . . . are waived”); see also Hess v. Fox Rothschild,
LLP, 925 A.2d 798, 803 (Pa.Super. 2007) (stating, “any issue not raised in
an appellant’s Rule 1925(b) statement will be deemed waived for purposes
of appellate review[]”), appeal denied, 945 A.2d 171 (Pa. 2008).
-5-
J. S55035/18
Instantly, the trial court found that “[Gerace] failed to prove that the
Trial Court abused its discretion or committed an error of law by finding a
breach of oral agreement between the parties.” (See trial court opinion,
11/7/17 at 1; certified record at 41.) In reaching this decision, the trial
court indicated that it carefully weighed the evidence presented by both
parties at trial and found Lynch’s testimony to be credible. (Id. at 6-8.)
The trial court further noted that “[Lynch] failed to properly preserve all
claims on appeal by failing to timely file and serve on the court a concise
statement of matters complained of on appeal pursuant to [Rule] 1925(b)
and as ordered by the Trial Court.” (See trial court opinion, 11/7/17 at 1;
certified record at 42.)
After a thorough review of the record, as well as the briefs of the
parties and the applicable law, and in light of this court’s scope and standard
of review, we find that the record supports the trial court’s determination
that an oral contract existed between the parties for human
resources-related consulting services and Gerace’s claims to the contrary are
meritless. Moreover, we agree with the trial court that Lynch’s failure to
timely comply with Rule 1925(b) results in waiver of his issues on appeal.
Accordingly, we adopt the trial court’s November 7, 2017 Rule 1925(a)
opinions as our own for purposes of this appellate review.
Judgment affirmed.
-6-
J. S55035/18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
-7-
Circulated 10/31/2018 12:15 PM
COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
No. 15-1092
v.
MIC L GERACE, G WORLD, INC.,
CE ENTERPRISE, INC.
Kevin R Boyle, Esquire - Counsel for Appellants/Defendants
Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants
Eric Ma thew Hurwitz, Esquire - Counsel for Appellants/Defendants
David Avedissian, Esquire - Counsel for Cross-Appellant/Plaintiff
DATE: November 6, 2017
OPINION
pell-ants/Defendants, Michael Gerace, G World, Inc., and Gerace
Enterpri e, Inc., appeal from the August 7, 2017 Order, docketed August 8, 2017,
denying their motion for post-trial relief in the instant breach of contract action.
Appella ts failed to prove that the Trial Court abused its discretion or committed
an erro of law by finding a breach of oral agreement between the parties. The
Trial C urt's findings are based upon competent evidence and therefore, the
August , 217 Order, docketed August 8, 2017, should not be disturbed.
PROCEDURAL AND FACTUAL HISTORY
Pl intiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this
action 'th the filing of a Complaint on February 6, 2015. Plaintiff alleged claims
against efendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in
1
breach of contract and unjust enrichment. See Amended Complaint. Plaintiff
alleged that, pursuant to an oral agreement between the parties, Plaintiff performed
human resources related consulting services at the request of Defendant, Michael
Gerace ("Mr. Gerace"). Id. at ,r 5. Defendants filed an Answer on November 17,
2015. bench trial was held on December 6, 2016 and the undersigned Judge
entered a Decision and supporting Findings of Facts and Conclusions of Law on
Decem er 19, 2017 in favor of Plaintiff against all Defendants in the amount of
laintiff filed a post-trial motion to amend the verdict to include
prejud ent interest on December 28, 2016. Defendants filed a post-trial motion to
vacate e Trial Courts December 19, 2017 Decision on January 20, 2017,1 arguing
that Mr Gerace was not a party to the alleged oral agreement between the parties.
A hear g was held on Plaintiff and Defendants' post-trial motions on April 5,
Bowing said hearing, the undersigned Judge issued an Amended Order on
April 1 , 2017, finding in favor of Plaintiff and against two defendants, G World
Gerace Enterprise, Inc, in the amount of Thirty Thousand Dollars
1
Defend ts Post-Trial Motion was well past the l O day period to file a post-trial motion under
Pa.R.C.P 227.l(c) However, Plaintiffs Post-Trial Motion on December 28, 2016 provided a
cover-pa e that incorrectly stated Defendants had twenty (20) days to respond to Plaintiffs
post-trial motion. The TriaJ Court has broad discretion to dismiss an untimely post-trial motion
or to ove look its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002).
Due to error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its
discretio and considered the merits of Defendants post-trial motion.
2
($30,0 0 . .00) plus prejudgment interest in the amount of Five Thousand Eight
Hundr d Thirty Seven Dollars and Twelve Cents ($5,837.12).
he parties filed post-trial motions on the April 12, 2017 Amended Order,
which ere denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff
and De endants each filed a Notice of Appeal on September 6, 2017. The Court
Plaintiff and Defendants to file a Concise Statement of Matters
Compl ined of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017.
Defend nts filed their l 925(b) statement on September 29, 2017 and served a copy
on the ndersigned Judge. Plaintiff failed to timely file a l 925(b) statement within
twenty- ne (21) days and failed to serve a copy on the court', as prescribed by the
Trial C urt's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b).3
TATEMENT OF MATTERS COMPLAINED OF ON APPEAL
e issues raised in Defendants' Statement of Matters Complained of on
re as follows:"
2
Plaintif s failure to serve a copy on the trial court is further evidenced by the Certification of
Service, hich certifies that a copy was served via email and regular mail to Defendants' counsel
only.
3
In dete ining whether an Appellant has waived issues on appeal based on non-compliance
with Pa. .A.P. 1925, the trial court's order triggers Appellant's obligation under the rule. See In
re Estate fBoyle, 77 A.3d 674, 676 (Pa. Super. 2013). Failure to comply with the service
requirem nts and verified admission ofreceiving notice of the same has been found sufficient to
find waiv r of issues on appeal. See Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223
�Pa. Supe . 2005).
Defend ts' Concise Statement of Matters Complained of on Appeal is anything but concise. A
Rule 192 (b) "statement must be 'concise' and coherent as to permit the trial court to
the specific issues being raised on appeal." Jiricko v. Geico Ins. Co., 947 A.2d 206,
3
The Court erred in entering judgment against Defendants G World,
Inc. and Gerace Enterprise, Inc. because additional facts were elicited
at trial but were not mentioned or discussed in the Court's Findings of
Fact and Conclusions of Law; and
The Court erred in finding the formation of an oral contract between
the parties.
DISCUSSION
he decision of the trial court in a non-jury trial will be reversed only where
the tria court has abused its discretion or if its findings are premised on an error of
law. A erikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa.
Super. t. 2004). The trial court does not abuse its discretion where there is a mere
differen e of opinion regarding an interpretation of the facts. See Viener v. Jacobs,
834 A. d 546, 556 (Pa. Super. Ct. 2003. Rather, an abuse of discretion is found
only in flagrant' cases where there is no reasonable ground for a difference of
opinion. See Miller v. Krug, 386 A.2d 124, 127 (Pa. Super. Ct. 1978). Thus, the
trial co 's findings are controlling and will not be reversed unless those findings
are not ased upon competent evidence. Viener, 834 A.2d at 554.
211 (Pa. uper. 2008). Appellants' Statement consists of a recitation of facts interwoven with
what the rial Court can only discern as possible errors. Therefore, the Trial Court has
thorough] read through Defendants' Statement and discerned the basis for Appellants' appeal as
numerate above.
4
ennsylvania Rule of Civil Procedure l 03 8 states: "The decision of the trial
judge ay consist only of general findings as to all parties but shall dispose of all
claims for relief. The trial judge may include as part of the decision specific
of fact and conclusions of law with appropriate discussion." The trial
court, hen hearing a case without a jury, is not required to separately list
subsidi ry and ancillary facts to support the judgment, but need only find the
materia facts controlling issues raised. Singer v. Redevelopment Auth. of City of
Oil Ci , 261 A.2d 594, 602 (Pa. 1970), citing First National Bank v. Jones' Estate,
6 A.2d 73 (Pa. 1939).
efendants' alleged error by the Trial Court in failing to include additional
facts e icited at trial but not included in the Court's Findings of Fact and
Conclu ions of Law is without merit. The December 19, 2016 Findings of Fact and
Conclu ions of Law included material facts related to the Decision in the case. The
urt need not list every fact elicited at trial, only those material facts related
to the ecision in the case. Here, the Trial Court referred to testimony that was
y both Plaintiff and Mr. Gerace and, after considering all of the testimony
and evi ence presented at trial, the undersigned Judge carefully made a decision
based n the weight of that testimony and included Findings of Facts and
Conclus ons of Law that supported said decision.
5
o the extent that Defendants' further argue the Trial Court erred in finding
the fo ation of an oral contract between the parties, Defendants' argument is
agam ithout merit. The trial court, siting as the trier of fact in a bench trial, is the
sole ju ge of credib.ility and conflicts in the evidence. See Miller v. Brass Rail
Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. Ct. 1997); See also Mackay v.
Macka , 984 A.2d 529, 533 (Pa. Super. Ct. 2009) ("The weight afforded to the
testimo y of the witnesses as well as credibility determinations are within the
exclusi e province of the trial court"). Therefore, "[t)he findings of fact of the trial
judge ust be given the same weight and effect on appeal as the verdict of a jury."
Amerik hl, 860 A.2d at 549-50.
e Trial Court found that an oral contract existed between the parties for
human esources related consulting services. See December 19, 2016 Findings of
Fact an Conclusions of Law, 1 40-47. This finding was based on the testimony
and ev dence elicited at trial. Plaintiff testified that he met Mr. Gerace in
March/ pril 2013 to discuss human resources policies and procedures for Mr.
Gerace s business, but they did not discuss the cost of said services at this meeting.
N.T. D c. 6, 2016, pp. 13, 18. In May 2013, Plaintiff prepared a written proposal
for Mr. Gerace, which included support for regulatory posters to be placed at
locatio s for Mr. Gerace 's business, a new hire checklist for all new employees,
and a p licies and procedures manual. N.T. Dec. 6, 2016, pp. 19-22; Exhibit P-1.
6
Plainti testified that at the May 2013 meeting, he informed Mr. Gerace that his
service would cost Thirty Thousand Dollars ($30,000.00) .and that Mr. Gerace
agreed. N.T. Dec. 6, 2016, pp. 22. Mr, Gerace testified that he never agreed to pay
any su to Plaintiff. N.T. Dec. 6, 2016, p. 120. However, Plaintiff testified that he
provid Mr. Gerace with two finished products, created specifically for his
compa y, in July or August 2013, and then asked for payment for his services.
N.T. D c. 6, 2016, pp. 31-32. Plaintiff further testified that he emailed Mr.Gerace
on mu tiple occasions asking for compensation, and Mr. Gerace eventually
respon ed stating that he was "real1y tied up" and "tied up with year end." N.T.
Dec. 6, 2016, pp. 37, 52-63; Exhibit P-8. Mr. Gerace did not object to, protest, or
deny in any emails where he was asked by Plaintiff for compensation that he did
not agr e to pay Plaintiff for his services.
e Trial Court found the testimony of Plaintiff to be credible. See
er 19, 2016 Findings of Fact and Conc1usions of Law, ,r 39. The Trial
Court rther found that Plaintiff and Mr. Gerace agreed upon services to be
by Plaintiff and Plaintiff did in fact provide those services to Mr. Gerace.
Further the testimony of Plaintiff, along with multiple e-mails and Demand
Letters, established: the parties agreed to the amount of the oral contract in the
amount of Thirty Thousand Dollars ($30,000.00), the parties agreed that payment
for Pla tiffs services would take place at the completion of the project by
7
Plainti , and Plaintiff completed the agreed upon work for Defendants. Acting as
the trie of fact in this case, the undersigned Judge listened to the testimony and
eviden e presented at trial and carefully weighed the weight of the testimony and
eviden e. As the trier of fact is in the best position to judge the credibility of
witness s, the Trial Court's December 19, 2016 Decision should not be disturbed.
8
Circulated 10/31/2018 12:15 PM
IN THE COURT OF COMMON PLEAS OF DELAVVARE COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
THOMAS J. LYNCH No. 15-1092
v.
MICHAEL GERACE, G WORLD, INC.,
and GERACE ENTERPRISE, INC.
Kevin R. Boyle, Esquire - Counsel for Appellants/Defendants
Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants
Eric Matthew Hurwitz, Esquire - Counsel for Appellants/Defendants
David A. Avedissian, Esquire-Counsel for Cross-Appellant/Plaintiff
ANGELOS,J. DATE: November 6, 2017
OPINION
Cross-Appellant/Plaintiff, Thomas J. Lynch, appeals from the August 7,
2017 Order, docketed August 8, 2017, denying his motion for post-trial relief in
the instant breach of contract action. Plaintiff failed to properly preserve all claims
on appeal by failing to timely file and serve on the court a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) and as ordered by
the Trial Court. Therefore, Plaintiffs Appeal should be dismissed.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this
action with the filing of a Complaint on February 6, 2015. Plaintiff alleged claims
against Defendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in
breach of contract and unjust enrichment. See Amended Complaint. Plaintiff
1
alleged that, pursuant to an oral agreement between the parties, Plaintiff performed
human resources related consulting services at the request of Defendant, Michael
Gerace ("Mr. Gerace"). Id. at� 5. Defendants filed an Answer on November 17,
20 l 5. A bench trial was held on December 6, 2016 and the undersigned Judge
entered a Decision and supporting Findings of Facts and Conclusions of Law on
December 19, 2017 in favor of Plaintiff against all Defendants in the amount of
Thirty Thousand Dollars ($30,000.00).
Plaintiff filed a post-triaJ motion to amend the verdict to include
prejudgment interest on December 28, 2016. Defendants filed a post-trial motion to
vacate the Trial Courts December 19, 2017 Decision on January 20, 2017,1 arguing
that Mr. Gerace was not a party to the alleged oral agreement between the parties.
A hearing was held on Plaintiff and Defendants' post-trial motions on April 5,
2017. Foilowing said hearing, the undersigned Judge issued an Amended Order on
April 12, 2017, finding in favor of Plaintiff and against two defendants, G World
Inc. and Gerace Enterprise, Inc. in the amount o.f Thirty Thousand Dollars
($30,000.00) plus prejudgment interest in the amount of Five Thousand Eight
Hundred Thirty Seven Dollars and Twelve Cents ($5,837.12).
I
Defendants Post-Trial Motion was well past the 10 day period to file a post-trial motion under
Pa.R.C.P. 227. l(c) However, Plaintiff's Post-Trial Motion on December 28, 2016 provided a
cover-page that incorrectly stated Defendants had twenty (ZO) days to respond to Plaintiff's post-
triaJ motion. The Trial Court has broad discretion to dismiss an untimely post-trial motion or to
overlook its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002). Due to
the error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its discretion
and considered the merits of Defendants post-trial motion,
2
The parties filed post-trial motions on the April 12, 2017 Amended Order,
which were denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff
and Defendants each filed a Notice of Appeal on September 6,. 2017. The Court
directed Plaintiff and Defendants to file. a Concise Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017.
Defendants filed their 192S(b) statement on September 29, 2.017 and served a copy
on the undersigned Judge. Plaintiff failed to timely file a 1925(b) statement within
twenty-one (21) days and failed to serve a copy on the court', as prescribed by the
Court's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b).
DISCUSSION
Pursuant to Pa.R.A.P. 1925(b), a judge entering an order giving rise to a
notice of appeal "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." Appellants must comply when a trial court orders them to file a
concise statement and any matters not included in a timely filing are deemed
waived. Com. v. Lord, 719 A.2d 306, 309 (Pa. 1998).3
2
Plaintiff's failure to serve a copy on the trial court is further evidenced by the Certification of
Service, which certifies that a copy was served via email and regular mail to Defendants' counsel
onlv. ·
3 Although Lord is a criminal case, the principles enunciated therein are equally applicable in
civil cases since the Rules of Appellate Procedure apply to both criminal and civil cases.
Mc Keeman v Corestates Bank, NA., 751 A.2d 655, 658 (Pa.Super. 2000).
3
Our Supreme Court has recognized that their ruling in Lord was intended to
be a bright-line rule requiring that all issues not included in a timely statement of
matters be automatically deemed waived in order to provide "clear rules regarding
what is necessary for compliance and certainty of result for failure to comply.
Com. v. Castillo, 888 A.2d 775, 779-80 (Pa. 2005). The Superior Court has
recently recognized that the Supreme Court requires "stringent application of
waiver pursuant to Rule l 925(b )" and that "it is no longer within [the Superior
Court's] discretion to ignore the internal deficiencies of Rule 1925(b) statements."
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224
(Pa.Super . .2014). See also Com. v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding that
the provisions of 1925(b) "are not subject to ad hoc exceptions or selective
enforcement").
In determining whether an Appellant has waived his issues on appeal based
on non-compliance with Pa.R.A.P. 1925,. it is the trial court's order that triggers.
appellant's obligation under the rule. See In re Estate of Boyle, 77 A.3d 674, 676
(Pa. Super. 2013). Accordingly, the language of the order should be examined to
determine whether the court complied with Rule 1925. Berg v. Nationwide Mutual
Insurance Company, Inc., 6 A.3d 1002, 1007-08 (Pa. 2010). Here, the Trial
Court's l 925(b) order was consistent with all the requirements of Pa.R.A.P.
l 925(b )(3). The Trial Courts order specified (I) the number of days within which
4
Plaintiff was to file a statement of errors; (2) that the 'statement must be filed; (3)
that the statement must be served on the court; and ( 4) that any issue not properly
included in the statement, timely filed and served, would be deemed waived.· See
,
Pa.R.A.P. 1925(b)(3)(i)-(iv); Berg, 6 A.3d at 1008; Order 9/8/17. Further, an
examination of the Certification of Service of Plaintiff's Statement indicates that it
was served up.on Defendants' counsel, but not upon the trial court. See Plaintiffs
10/4/17 1925(b) Statement.
Although Plaintiff filed his Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, he failed to file it in a timely manner as ordered by the
Court and pursuant to Pa.R.A.P. 1925(b) and he failed to serve his statement on the
Trial Court per its Order of September 8, 2017.4 Therefore, Plaintiff failed to
properly preserve any claims on appeal and the subject Appeal should be
dismissed.
4
See, e.g., Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223 (Pa. Super. 2005) (finding
Appellant's failure to comply with service requirements and verified admission to receiving
notice of the same sufficient to find waiver); see also Commonwealth of Pennsylvania v. $766
US. Currency, 948 A.2d 912, 915 (Pa. Commw. 2008) (holding that failure to serve a 1925(b)
statement on the trial court judge constitutes a fatal defect which results in the waiver of issues
and quashal of the appeal).
5