J.E. McDowell v. DHS ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer E. McDowell, :
Appellant :
: No. 809 C.D. 2020
v. : Submitted: July 23, 2021
:
Department of Human Services :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 23, 2021
Jennifer E. McDowell (McDowell), pro se, appeals from an order of
the Philadelphia County Court of Common Pleas (Trial Court), which dismissed her
emergency motion for protection order (Motion)1 against the Department of
Human Services (Department), without prejudice, as procedurally improper.
Because McDowell did not articulate any discernible grounds for appeal, and did
not file a Rule 1925(b) statement in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b), she failed to preserve any issues for appellate review.
Consequently, we dismiss her appeal.
1
McDowell’s Motion consisted of a cover sheet, a sample fill-in-the-blank order and rule
returnable in which she handwrote that it was made under “231 Pa. Code §1905 Emergency
Protection Order Section 2709 -Title 18 Crimes & Offenses,” and a seven-page recitation of
purported harassment and improper surveillance of herself and her children by the Department of
Human Services (Department). See Original Record (O.R.), Item No. 2. She also appended a
“Cease and Desist” letter dated May 21, 2020, pertaining to the alleged harassment.
I. Background
On August 4, 2020, McDowell filed her Motion with the Trial Court,
which was assigned to the motions judge. On the same date, the Trial Court
dismissed the Motion “without prejudice as procedurally improper.” See Original
Record (O.R.), Item No. 1, Docket Entries. On August 12, 2020, McDowell filed a
notice of appeal. By order of the same date, the Trial Court issued an order
directing McDowell to file a statement of errors complained of on appeal pursuant
to Rule 1925(b), Pa.R.A.P. 1925(b) (1925(b) Statement), within 21 days of the
entry of the order on the docket (Order). The Order was docketed on August 18,
2020, and notice of the Order was provided.
McDowell acknowledges she received notice of the Order electronically,
with an attachment entitled “Order” on August 19, 2020. See Appellant’s Br. at 11.
There is no dispute that McDowell did not file or serve a 1925(b) Statement within
21 days of the docketing of the Order, i.e., by September 8, 2020.
The Trial Court issued an opinion on September 11, 2020,
emphasizing McDowell’s failure to file a 1925(b) Statement, and resulting waiver
of any issues for appeal. In addition, the Trial Court noted that McDowell also did
not take any on-the-record actions to preserve her appeal rights.2
2
This Court received several extra-record submissions from McDowell as attachments to
her brief. She included a letter addressed to the Trial Judge entitled “Statement of Errors” dated
September 15, 2020. See Appellant’s Br., Ex. 3. Therein, she acknowledges receiving notice of
the Order directing the filing of the Rule 1925(b) Statement, but she claims she “had issues on
retrieving the actual document.” Id. She advised the Trial Judge that she called the clerk’s
office and spoke with an employee of the office twice on August 19, 2020, the date she received
the notice. She states: “An order directing me to submit a Statement of Errors was never
mentioned.” Id. She also claims she never received a hard copy of the Order by U.S. Mail.
By correspondence dated September 24, 2020, the Prothonotary of this Court advised
McDowell that the Statement shall be filed with the Trial Court and served on the Trial Judge
and other parties. See id., Ex. 5 (Ltr. of M. Krimmel, Prothonotary, 9/24/20). Still, McDowell
did not file a Statement in the Trial Court at any time.
2
On March 9, 2021, this Court issued an order directing the parties to
address the effect of McDowell’s failure to file a timely Rule 1925(b) Statement,
and whether any issues were preserved for appeal. The Department did not file a
brief.3 Based on McDowell’s brief and the limited record, we consider the matter.
II. Discussion
At the outset, this Court examines whether McDowell preserved any
issues for appeal, capable of meaningful review, when she did not file a 1925(b)
Statement. Rule 1925(b) provides in pertinent part:
(b) Direction to file statement of errors complained of on appeal;
instructions to the appellant and the trial court. If the judge entering
the order giving rise to the notice of appeal (“judge”) desires
clarification of the errors complained of on appeal, the judge 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 (“Statement”).
(1) Filing and service. The appellant shall file of record the Statement
and concurrently shall serve the judge. Filing of record shall be as
provided in Pa.R.A.P. 121(a) and, if mail is used, shall be complete on
mailing if the appellant obtains a United States Postal Service Form
3817, Certificate of Mailing, or other similar United States Postal
Service form from which the date of deposit can be verified in
compliance with the requirements set forth in Pa.R.A.P. 1112(c).
Service on the judge shall be at the location specified in the order, and
shall be either in person, by mail, or by any other means specified in
the order. Service on the parties shall be concurrent with filing and
shall be by any means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.
(i) The judge shall allow the appellant at least 21 days from the date of
the order’s entry on the docket for the filing and service of the
Statement. Upon application of the appellant and for good cause
3
Counsel for the City of Philadelphia advised this Court by letter that it did not receive
service of any filings below and so is not participating in the appeal. See Ltr. of K. Diffly, 6/30/21.
3
shown, the judge may enlarge the time period initially specified or
permit an amended or supplemental Statement to be filed. Good cause
includes, but is not limited to, delay in the production of a transcript
necessary to develop the Statement so long as the delay is not
attributable to a lack of diligence in ordering or paying for such
transcript by the party or counsel on appeal. In extraordinary
circumstances, the judge may allow for the filing of a Statement or
amended or supplemental Statement nunc pro tunc.
****
(3) Contents of order. The judge’s order directing the filing and
service of a Statement shall specify:
(i) the number of days after the date of entry of the judge’s order
within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge pursuant to
paragraph (b)(1) and both the place the appellant can serve the
Statement in person and the address to which the appellant can mail
the Statement. In addition, the judge may provide an email, facsimile,
or other alternative means for the appellant to serve the Statement on
the judge; and
(iv) that any issue not properly included in the Statement timely filed
and served pursuant to subdivision (b) shall be deemed waived.
Pa.R.A.P. 1925(b) (emphasis added).
It is well-settled law in Pennsylvania that the failure to file a timely
Rule 1925(b) Statement automatically results in waiver of all issues on appeal,
regardless of the length of the delay in filing. Commonwealth v. Hill, 16 A.3d 484(Pa. 2011); Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). This bright-line
rule of waiver applies regardless of whether the trial court issued an opinion that
permits adequate appellate review.
4
As our Supreme Court explained in Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998), “in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to file a Statement
of [Errors] Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not
raised in a 1925(b) statement will be deemed waived.” Hill, 16 A.3d at 494
(emphasis in original). Our Supreme Court consistently concludes the “‘bright-line
character of [the] strict waiver rule’ is ‘justified by an overarching concern to
uniformity and certainty of result in the event of a failure to comply.’” Id. at 493.
Rule 1925(b) is mandatory. “Pursuant to [Rule 1925(b)], an appellant
must comply whenever the trial court orders the filing of a [Rule] 1925(b)
[S]tatement in order to preserve a claim for appellate review.” Egan v. Stroudsburg
Sch. Dist., 928 A.2d 400, 402 (Pa. Cmwlth. 2007). Absent extraordinary
circumstances, an untimely Statement results in waiver. Castillo. See In re
Clinton Cnty. Tax Claims Bureau Consol. Return, 109 A.3d 331 (Pa. Cmwlth.
2015) (one-day late filing of Rule 1925(b) Statement was barred).
In the instant appeal, the Trial Court’s 1925 Order does not contain an
address to which the Statement may be delivered in person or by mail. As such,
the Order does not comply with the contents part of the Rule, in Rule 1925(b)(3).
Nevertheless, the Order’s noncompliance does not excuse the lack of any recitation
of the basis for McDowell’s appeal.
In a similar case where a trial court’s Rule 1925(b) order did not
comply with the requirements of the Rule, a plurality of our Supreme Court held:
“[I]n determining whether an appellant has waived [her] issues on appeal based on
non[]compliance with [Rule 1925(b)], it is the trial court’s order that triggers an
appellant’s obligation under the rule, and, therefore, we look first to the language
of that order.” Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002, 1007-08 (Pa. 2010)
5
(plurality op.). In Berg, the issue before the Court was “[w]hether the [appellate]
[c]ourt erred in finding waiver of all appellate issues for failing to serve the trial
judge with a [Rule 1925(b) Statement], . . . , when the trial judge’s order directing
a [Rule 1925(b)] Statement . . . to be filed, failed to include language mandated by
paragraphs (b)(3)(iii) and (iv) of [ ] Rule 1925(b)[.]” Id. at 1005. However, the
Court’s holding was limited to its facts as follows:
[The Berg Court] hold[s] that the issues raised in [the a]ppellants’
1925(b) Statement were not waived, despite the fact that the statement
was not personally served on the trial judge, where personal service
was attempted by counsel and thwarted by the prothonotary, and
where the [trial] court’s Rule 1925([b]) order specified “filing” and
not “service.”
Berg, 6 A.3d at 1012 (emphasis added). The Court’s conclusion was predicated on
its rationale that the appellants in Berg substantially complied4 with the trial court’s
order in that they attempted to serve the trial judge and the trial judge had a copy of
the Statement in order to prepare an opinion. Id. at 1011 (“where the trial court’s
order is inconsistent with the requirements of Rule 1925(b)(3)(iii), we hold that the
waiver provisions of subsection (b)(4)(vii) do not apply”) (emphasis added).
Similar to this case, in Berg, the trial court’s order did not conform to
Rule 1925(b)(1) regarding the content of the Rule 1925 order because it neglected to
set forth the service requirement. Here, the Trial Court’s order did not conform to
the content criteria because it did not include the address to which the 1925(b)
Statement may be sent or served. It stated, in full:
4
Substantial compliance is the equitable doctrine that allows a court “to overlook a
procedural defect that does not prejudice a party’s rights.” Berg v. Nationwide Mut. Ins. Co., 6
A.3d 1002, 1008 (Pa. 2010) (plurality op.). While the trial court did not satisfy the requirements
for the order language, the purpose of the rule was met in that the trial court had notice of the
appeal grounds. Id. The Court noted that the trial court’s noncompliance with the Rule resulted
in an order containing contradictory instructions.
6
AND NOW, on this 12th day of August, 2020, pursuant to Pa.
R.A.P. 1925(b), [McDowell] in the above-captioned matter is hereby
ORDERED to file a concise Statement of the Errors Complained of
on Appeal. The Statement shall be filed of record and served on the
Trial Judge no later than twenty one (21) days after the entry of this
order upon the docket. Filing of Record and concurrent service upon
the Trial Judge and all other parties shall be done pursuant to Pa.
R.A.P. 1925(b)(1).
Pursuant to Pa.R.A.P. 1925(b)(4)(vii), any issue not properly
included in a timely filed and properly served 1925(b) Statement is
waived. Your non[]compliance with this Order may be deemed by the
Appellate Court as a waiver of all objections to the order, ruling or
other errors complained of.
O.R., Item No. 3.
Appended to the Trial Court’s opinion are copies of the docket entries,
at Exhibit 1, and the Order dated August 12, 2020, directing McDowell to file a Rule
1925(b) Statement. The docket entries show that the Order was docketed on August
18, 2020, and the docket likewise reflects that no 1925(b) Statement was filed of
record. The Trial Court thus reasoned in its opinion that McDowell waived all
issues for appeal. This Court agrees.
Notably, unlike the order in Berg, the Trial Court’s 1925(b) Order
advised that McDowell’s failure to file a Statement would result in a waiver of all
issues. Despite containing that waiver language, McDowell did not file the 1925(b)
Statement of record at all. Further, she did not file anything of record with the Trial
Court regarding her alleged difficulty in reviewing the Order, even after this Court
advised her to do so. As such, there was no attempted compliance with the filing
requirement of the Rule. Thus, unlike Berg, where the Statement was filed of record
and service was attempted, but not performed, the Trial Judge here had nothing from
which to discern its alleged error. Additionally, there is nothing on the docket
indicating McDowell attempted to file or serve a 1925(b) Statement within 21 days.
7
In addition, McDowell did not formally seek an extension for filing a
Rule 1925(b) Statement late or present good cause for her failure to file. In fact,
McDowell did not file a 1925(b) Statement in the Trial Court at all; while she sent
a letter to the Trial Judge entitled “Statement of Errors,” it is not filed of record.5
Moreover, notably, McDowell suffers no prejudice from deeming her
appeal grounds waived on the facts presented. The Trial Court dismissed the
Motion as procedurally improper, without prejudice. Thus, McDowell may refile
an appropriate pleading containing her substantive claims.6 Further, we discern no
extraordinary circumstances to warrant a remand to the Trial Court to permit the
filing of a Rule 1925(b) Statement nunc pro tunc.7
5
McDowell asserts in her brief that she contacted the Trial Court about an email with an
attachment entitled “Order.” She claims that when she contacted the person she identified as the
clerk of court about difficulty with the attachment, she was “led to believe that she needed to
wait for Judges [sic] opinion to be written and that her next steps would [] com[e] from
Commonwealth Court of Pennsylvania. Appellant did not here [sic] about any direction
concerning Statement of Errors Until after September 15, 2020.” Appellant’s Br. at 13.
6
McDowell asserted the Department is engaging in institutional racism against her as a
minority in violation of the Fourth, Thirteenth, and Fourteenth Amendments of the U.S.
Constitution, see U.S. Const. amends. IV, XIII, and XIV. See Appellant’s Br. at 14.
7
Although Rule 1925(c) allows for a remand for a hearing on the circumstances related to
good cause for an untimely Statement in certain circumstances, none of those circumstances are
present here. Rule 1925(c)(2) provides: “Upon application of the appellant and for good cause
shown, an appellate court may remand in a civil case for the filing nunc pro tunc of the
Statement or for amendment or supplementation of a timely filed and served Statement and for a
concurrent supplemental opinion.” Pa.R.A.P. 1925(c)(2). This Court holds: “[A]ppellate courts
may remand civil cases to trial courts in order to cure defects in [Rule] 1925 practice . . . in two
circumstances related to the filing of Rule 1925(b) Statements: (1) . . . ‘for a determination as to
whether a Statement had been filed and/or served or timely filed and/or served; or (2) ‘[u]pon
application of the appellant and for good cause shown . . . .’” See In re Condemnation by Mercer
Area Sch. Dist. (Pa. Cmwlth., No. 58 C.D. 2016, filed Dec. 15, 2016), slip op. at 9, 2016 WL
7241472 (unreported), appeal denied, (Pa., No. 98 WAL 2017, Aug. 30, 2017). When there is
no dispute as to failure to file or untimeliness, as in this case, it is a waste of judicial resources to
remand for a hearing as to those facts. As to the second ground for remand, here, McDowell did
not make an application for remand or present good cause for failing to file a Statement in an
(Footnote continued on next page…)
8
Regardless, we ultimately discern waiver because McDowell did not
identify any errors by the Trial Court when it dismissed her Motion without
prejudice as procedurally improper.8 Her primary complaint is that the Trial Court
did not address the merits. See Appellant’s Br. at 14. Significantly, McDowell did
not challenge the conclusion that the Motion was procedurally improper. As our
sister appellate court reasoned: “When a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review.” Karn v. Quick &
Reilly Inc., 912 A.2d 329, 335 (Pa. Super. 2006) (citation omitted). Absent an
assignment of error to the Trial Court, there is insufficient information for this
Court to engage in appellate review.
While we recognize that McDowell handled this entire case without
legal representation, her pro se status does not insulate her from compliance with the
rules of court. “While this court is willing to liberally construe materials filed by a
pro se litigant, we note that [the] appellant is not entitled to any particular advantage
because she lacks legal training.” Branch Banking & Tr. v. Gesiorski, 904 A.2d 939,
942 (Pa. Super. 2006) (citation omitted). Indeed, this Court will not “become [an]
appellant’s counsel” and develop an appellate argument on her behalf. Id.(continued…)
appropriate application. In light of the circumstances, this Court declines to remand the matter to
the Trial Court sua sponte.
8
Critically, McDowell does not contend that she did not file a Statement because she was
unaware of an address to which to direct it. Indeed, the extra-record submissions reflect that she
mailed a letter to the Trial Judge. As such, the Trial Court’s noncompliance with Rule 1925(b),
i.e., not including an address for service, was immaterial. Also, the nonconformity of the Trial
Court’s 1925(b) Order does not preclude this Court from finding waiver on other grounds.
9
III. Conclusion
In sum, because McDowell did not identify any basis for appealing
the Trial Court’s order on the merits, in a Rule 1925(b) Statement or otherwise,
this Court is precluded from conducting meaningful review. Accordingly, the
appeal is dismissed.
______________________________
J. ANDREW CROMPTON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jennifer E. McDowell, :
Appellant :
: No. 809 C.D. 2020
v. :
:
Department of Human Services :
ORDER
AND NOW, this 23rd day of September 2021, the appeal of the
August 4, 2020, order of the Philadelphia County Court of Common Pleas is
DISMISSED for failure to articulate appeal grounds capable of meaningful review.
______________________________
J. ANDREW CROMPTON, Judge