Rego, M. v. Rego, C. ( 2015 )

J-A21036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY K. REGO, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CARMINE REGO,
Appellee No. 2811 EDA 2014
Appeal from the Order entered August 26, 2014,
in the Court of Common Pleas of Delaware County,
Domestic Relations, at No(s): 9703274F
BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 10, 2015
The parties are Mary K. Rego (“Appellant”) and Carmine Rego
(“Appellee”), who are the parents of one child. Appellant appeals from the
child support order entered August 26, 2014.1
Appellant filed her notice of appeal on September 26, 2014. On
October 9, 2014, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal within twenty-one (21)
days. The order indicates that notice pursuant to Rule 236 was mailed on
October 9, 2014, and specifies that the statement “must be served upon the
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1
The order was entered after the trial court granted reconsideration and
heard evidence, testimony and arguments, and thereafter affirmed the July
28, 2010 order which provided that Appellant’s child support obligation is
$186.36 per month, with Appellant to pay 54%, and Appellee to pay 46% of
the child’s private school tuition.
*Former Justice specially assigned to Superior Court.
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court pursuant to 1925(b)(1) and must also be filed of record.” The order
states that any issue “not properly included in this statement timely
filed and served pursuant to Pa.R.A.P. 1925(b) shall be deemed
waived.” (Emphasis added).
On December 9, 2014, the trial court issued an opinion explaining that
Appellant’s appeal should be quashed due to the late filing of Appellant’s
concise statement of matters complained of on appeal. The trial court
detailed the language of Pa.R.A.P. 1925(b) and Pa.R.A.P. 121, and cited
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005), Greater Erie
Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 227 (Pa.
Super. 2014) (en banc) and In re Estate of Boyle, 77 A.3d 674, 676 (Pa.
Super. 2013).
Upon review, we agree with the trial court. Our review of the certified
record reveals no Pa.R.A.P. 1925(b) statement, although the certified docket
entries on November 6, 2014 state “received statement of matters on appeal
filed in DRO”.2
Appellant concedes that the concise statement “was to be filed on or
before October 30, 2014.” Appellant’s Brief at 20. Counsel for Appellant
provides a narrative regarding the attempts of his legal secretary to fax the
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2
Appellant has included a statement of matters on appeal in her brief (RR-
6A), but unlike the opinion and order included in Appellant’s brief, the
statement is not time-stamped as being filed with either the trial court or the
Domestic Relations Section of Delaware County.
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statement to the trial court after 4:00 p.m. on October 30, 2014, and email
the statement to the trial court at 9:57 a.m. on October 31, 2014. Id.Counsel for Appellant has appended to Appellant’s brief a notarized affidavit
from his legal secretary averring that she mailed the statement to Domestic
Relations on November 3, 2014. Id. at 30.
Appellant asserts that the case law cited by the trial court is
distinguishable because the appellants in those cases did not “request to
extend the time to file the statement and made no application for a nunc pro
tunc submission.” Id. at 22. Appellant further asserts that counsel
“believed in good faith that [counsel] had gotten the statement to the court
in a timely manner.” Id. at 21. Appellant bases this assertion on alleged
communications – which are not of record – between counsel’s legal
secretary and an unspecified party in trial court chambers. See id. at 20-
22. It is black letter law that an appellate court cannot consider anything
which is not a part of the record in the case. Smith v. Smith, 637 A.2d
622, 623 (Pa. Super. 1993)
Here, as in our recent en banc decision in Greater Erie Indus. Dev.
Corp. v. Presque Isle Downs, Inc., supra, the certified record indicates
that waiver is warranted where Appellant did not comply with the trial
court’s clear Pa.R.A.P. 1925(b) directive, nor did Appellant seek, or the trial
court grant, an extension of time for filing of the Pa.R.A.P. 1925(b)
statement. The trial court further noted that “even if counsel did retain a
Postal Service proof that he mailed a copy to chambers on October 30,
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2014, he would not have filed it in a timely manner. The rule requires that it
be filed in the office of the court clerk by October 30, 2014.” Trial Court
Opinion, 12/9/14, at 3, n3. Again, our review of the certified record does
not contain Appellant’s concise statement, although the certified docket
entries indicate “received statement of matters on appeal filed in DRO” on
November 6, 2014.
In sum, we are constrained to quash this appeal. Although in In re
Estate of Boyle we remanded for an evidentiary hearing on the Pa.R.A.P.
1925(b) statement-filing date, which in the present case is not at issue, we
nonetheless stated:
Our application of Rule 1925(b) today may be harsh.
Nevertheless, our disposition is consistent with Rule 1925(b) and
decisional authority.
In re Estate of Boyle, 77 A.3d at 679. As we are bound by both the rules
of this Court and precedential case law, we quash this appeal.
Appeal quashed. Case stricken from the argument list. Jurisdiction
relinquished.
Judge Mundy joins the Memorandum. Justice Fitzgerald concurs in the
result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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J-A21036-15
Date: 7/10/2015
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