CIVIL PROCEDURE

Pa.R.App.P. 1925(b) Statement • Timeliness • Waiver

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., PICS Case No. 14-0374 (Pa. Super. March 11, 2014) Wecht, J. (14 pages).

Appellant waived all issues by failing to timely file its Rule 1925(b) statement. Affirmed.

After appellant sold real property to plaintiff, plaintiff filed a complaint alleging $600,000 in damages related to appellant’s non-performance of an alleged contractual obligation to provided clean fill dirt to plaintiff as part of the transaction. The trial court granted plaintiff summary judgment.

On Jan. 12, 2012, appellant filed a timely notice of appeal. That same day, the trial court ordered appellant to file and serve upon the court a concise statement of errors complained of on appeal pursuant to Pa.R.App.P. 1925(b) within 21 days of the date of the order. Appellant untimely filed its Rule 1925(b) statement on Feb. 6, 2012. Nevertheless, the trial court accepted the untimely statement and, on Feb. 14, 2012, issued an opinion pursuant to Pa.R.App.P. 1925(a).

The superior court unanimously affirmed. Appellant filed an application for reargument before a panel of the superior court. The superior court affirmed.

Appellant failed to properly preserve its issues challenging the trial court’s grant of summary judgment. Failure to comply with the minimal requirements of Rule 1925(b) results in automatic waiver of the issues that were raised on appeal. Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (establishing bright-line rule mandating automatic waiver), aff’d, Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). Thus, although in the past, the superior court could hear appeals where, as here, the trial court accepted a late appeal statement and issued an opinion, it is no longer within the Superior Court’s discretion to do so. Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and address the merits, those claims still must be considered waived.

Moreover, the trial court’s order—which triggers an appellant’s obligation—was valid in its form and content. On Jan. 12, 2012, the trial court ordered appellant to file a Rule 1925(b) statement within 21 days of the order. It also specifically provided that any issue not properly included in a timely filed statement would be deemed to be waived. A notation appeared in the docket indicating that the prothonotary provided notice of the trial court’s order to the parties on Jan. 13, 2012. Hand-written notations on the order confirmed that notice was given. Thus, the trial court’s order complied with the technical requirements of Rule 1925(b).

Additionally, appellant’s filing was untimely. The court entered its order on Jan. 13, 2012, and directed appellant to file its statement within 21 days. Appellant did not file its statement until Feb. 6, 2012.

Gantman, J., concurred, emphasizing the majority’s point that the date of mailing or service appearing on appellant’s 1925(b) statement itself is not necessarily definitive of the filing date for purposes of timeliness of the Rule 1925(b) statement in the civil context.