The state Superior Court has ruled that a defendant’s appeal has been waived because its statement of errors was filed three days late, even though it had been accepted by the trial court.
A unanimous en banc Superior Court panel agreed March 11 to toss the defendant’s appeal in Greater Erie Industrial Development v. Presque Isle Downs. The panel held that while the courts had previously granted exceptions to the timeliness rule if the statement was accepted by a trial court, that timeliness exception was rejected by the state Supreme Court’s 2005 decision in Commonwealth v. Castillo, because it could lead to inconsistencies depending on whether the trial court accepted the statement or not.
The panel underscored the need for strict adherence to the time requirements in the state courts’ Rules of Appellate Procedure.
“Stated simply, it is no longer within this court’s discretion to review the merits of an untimely Rule 1925(b) statement based solely on the trial court’s decision to address the merits of those untimely raised issues,” said Judge David N. Wecht, who wrote the majority opinion. “Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered waived.”
In a concurring opinion, President Judge Susan Peikes Gantman emphasized that the date of mailing or service appearing on the document is not necessarily definitive for determining the timeliness under the Rule 1925(b) requirement. Judges Christine L. Donohue, Cheryl Lynn Allen and Anne E. Lazarus joined Gantman’s opinion, while Judges John T. Bender, Kate Ford Elliott, Mary Jane Bowes and Paula Francisco Ott joined Wecht’s majority opinion.
According to John J. Hare, chair of the appellate advocacy and post-trial practice group of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, the decision indicates that even though the Rule 1925(b) filing deadline was relaxed from 14 to 21 days as a result of 2007 amendments to the statute, the court will not relax its application of the rules.
“The decision is especially cognizant of past Supreme Court criticism that the Superior Court had been too lenient in creating exceptions to Rule 1925,” Hare said. “The decision reaffirms for practitioners that Rule 1925 must be taken very seriously.”
The case is extremely unusual, he said, because, while the court agreed it could raise the timeliness issue sua sponte, the Rule 1925 defect never surfaced during the history of the case.
Maureen M. McBride of Lamb McErlane said the decision brings precedent previously used in criminal cases into the civil arena. She also agreed that after a period of relaxed 1925(b) rules in the wake of the 2007 amendments, the Greater Erie decision sends a clear message that the deadlines should now be strictly enforced.
“Some would say that [once the trial court accepts the statement] the purpose of the rule was fulfilled. Some would say in those circumstances, where the purpose was fulfilled, it seems unduly harsh,” McBride said. “This is bringing us back to the fact that these rules are going to be strictly enforced. The takeaway for any practitioner is you have to get your 1925(b) statement filed on time.”
McBride also noted that even with a strict rule waiving all appeals with late Rule 1925(b) statements, the trial courts could still create inconsistent rulings regarding the filings.
“While, on the one hand, a bright-line rule makes sense, because it eliminates inconsistent results, it bears noting that a party can seek an enlargement of time before the statement is due and that this, too, carries with it the possibility of inconsistent exercises of trial court discretion,” McBride said.
According to Wecht, Presque Isle Downs agreed to sell property to Greater Erie Industrial Development Corp. in 2005. About four years after the parties closed on the sale, Greater Erie filed a civil suit against Presque Isle, alleging that the company failed to make good on its allegedly contractual obligation to provide clean dirt fill to Greater Erie. The suit alleged $600,000 in damages.
In 2011, the trial court granted summary judgment in favor of Greater Erie, and Presque Isle appealed. On Jan. 12, 2012, Presque Isle was ordered to file a concise statement of errors pursuant to Rule 1925(b). The court required Presque Isle to file the record within 21 days of the date of the order. According to Wecht, while the statement should have been filed Feb. 3, 2012, it was instead filed Feb. 6, 2012.
Despite the untimely filing, the trial court accepted the statement, and on Feb. 14 it issued its Rule 1925(a) opinion.
A three-judge Superior Court panel ruled on the case in April 2013. The panel affirmed the trial court’s decision. Presque Isle applied for reargument en banc, and the Superior Court agreed to re-examine the case; however, before reaching the merits of Presque Isle’s arguments, Wecht found the untimely filed statement waived the appeal.
He cited the state Supreme Court’s 1998 decision in Commonwealth v. Lord, and said the high court’s 2005 decision in Commonwealth v. Schofield indicated that the court intended Lord to create a bright-line rule making it so “failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”
Wecht noted that between the court’s rulings in Lord and Schofield, the court carved out exceptions to the 1925(b) timeliness rule, one of which allowed appeals where the trial court relied on an untimely filed statement. However, according to Wecht, the state Supreme Court’s decision in Castillo was “emphatic” in its disapproval of the exception.
“We briefly endorsed the discretionary view of appeals where trial courts relied upon appellants’ untimely Rule 1925(b) statements and addressed the merits of issues raised therein,” Wecht said. “However, in affirming Lord’s bright line, our Supreme Court specifically removed our authority to allow such discretionary review.”
Presque Isle’s attorneys, Michael Flaherty of Karlowitz Cromer & Flaherty in Pittsburgh, Pa., and Frederick P. Santarelli of Elliott Greenleaf in Blue Bell, Pa., did not return a call for comment. Greater Erie’s attorney, W. Patrick Delaney of MacDonald, Illig, Jones & Britton in Erie, Pa., also did not return a call for comment.
(Copies of the 12-page opinion in Greater Erie Industrial Development v. Presque Isle Downs, PICS No. 14-0374, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •