Erie Insurance Exchange v. Lutz, M. ( 2017 )

J-A11043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIE INSURANCE EXCHANGE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW LUTZ, KIMBERLEY LUTZ, :
DAKOTAH MILLER, AND ANDREW :
SVRCEK : No. 1838 MDA 2016
:
:
APPEAL OF: MATTHEW LUTZ, :
KIMBERLEY LUTZ, AND DAKOTAH :
MILLER :
Appeal from the Judgment Entered October 7, 2016
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-16318
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 20, 2017
Appellants Matthew Lutz, Kimberly Lutz, and Dakotah Miller
(hereinafter collectively “Appellants”) appeal the Order entered in the Court
of Common Pleas of Berks County on October 7, 2016, granting the Motion
for Summary Judgment filed by Appellee Erie Insurance Exchange. We
affirm.
The trial court briefly set forth the facts and procedural history herein
as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On October 31, 2012, Defendants Matthew Lutz, Kimberly
Lutz and Dakotah Miller a minor, ("Underlying Plaintiffs"), filed
suit against Defendant Andrew Svrcek ("Underlying Defendant"
or "Insured") for torts arising out of an altercation,
("Altercation") between Defendants Andrew Svrcek and Matthew
Lutz and Dakotah Miller. (Berks docket No.: 12-13670).
Defendant Svrcek and another individual accosted Defendants
Lutz and Miller when they passed each other hunting, and
caused physical harm to Defendant Lutz. Defendant Svrcek plead
guilty to a criminal charge of Simple Assault arising out of the
Altercation. The 2012 underlying tort case (hereinafter
"Underlying Case") is still ongoing, and Underlying Plaintiffs
allege intentional torts, as well as negligence in failing to
exercise proper care to not cause injury to Underlying Plaintiff
Matthew Lutz when Defendant Andrew Svrcek assaulted him.
At the time of the Altercation, Defendant Andrew Svrcek
held a homeowners insurance policy with Plaintiff Erie. In the
instant case, Plaintiff Erie seeks declaratory relief ordering that
Erie has no duty to defend or indemnify Mr. Svrcek in the
Underlying case. Defendants Matthew and Kimberly Lutz and
Dakotah Miller filed an Answer to Plaintiff Erie's Complaint, but
Defendant Svrcek did not. On June 30, 2016, Plaintiff was
awarded a default judgment against Defendant Andrew Svrcek.
On July 1, 2016, Plaintiff Erie filed a Motion for Summary
Judgment against Defendants Matthew Lutz, Kimberly Lutz, and
Dakotah Miller. Following argument, on September 19, 2016,
this Court entered an Order granting Summary Judgment
against Defendants and in favor of Plaintiff.
Trial Court Opinion, filed December 7, 2016, ay 1-2.
While the trial court’s Order granting Appellee’s Motion for Summary
Judgment was dated September 19, 2016, it was not entered on the docket
until October 7, 2016. Appellants filed a timely notice of appeal on
November 7, 2016, and on November 17, 2016, the trial court directed
Appellants to file and serve upon it a concise statement of the matters
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complained of on appeal within 21 days.1 Although Appellants timely filed
the same, they did not serve the statement upon the trial court.
Moreover, in contravention of Pa.R.A.P. 1925(b)(4), Appellants’
Concise Statement of Matters Complained of on Appeal is comprised of six
pages, the first five of which are divided into three parts: “Introduction,”
“Procedural History,” and “Applicable Legal Standard and Argument Section.”
See Concise statement of Matters Complained of on Appeal at 5
(unnumbered). The final portion of the concise statement, captioned
“Statement of Errors” asks: “Whether the trial court erred and/or abused its
discretion in granting [Appellee’s] Motion for Summary Judgment.” Id. at 6
(unnumbered). Appellants present the same question for our review in their
appellate brief. See Brief of Appellants at 4.
____________________________________________
1
The order reads, as herein relevant, as follows:
AND NOW, this 17th day of NOVEMBER, 2016,
[Appellants], [ ], having filed an appeal to the Superior Court,
are hereby directed to file of record in the Lower Court and serve
upon the undersigned Trial Judge, a Concise Statement of the
Errors Complained of [o]n Appeal, no later than twenty-one (21)
days after the date of this order in accordance with Pa.R.A.P.
1925(b). Any issue not included in a timely filed and served
Statement of Errors Complained of [o]n Appeal shall be deemed
waived.
BY THE COURT:
/s/[Trial Court Judge ]
See Record No. 22.
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Appellee argues Appellants have waived appellate review for failing to
serve a copy of their concise statement upon the trial court and for filing a
vague and overbroad statement. Therefore, before reaching the merits of
this appeal, we must first determine whether Appellants’ issue has been
properly preserved for our review. See Commonwealth v. Wholaver, 588
Pa. 218, 228-29, 903 A.2d 1178, 1184 (2006), cert. denied, 549 U.S. 1171(2007) (holding that appellate courts may sua sponte determine whether
issues have been properly preserved on appeal).
As stated previously, a review of the certified record reveals that while
Appellants timely filed their Rule 1925(b) statement, they did not serve it
upon the trial judge as the court had directed. Typically, a failure to comply
with Rule 1925 by filing a Rule 1925(b) statement with the court and
concurrently serving the statement on the trial judge results in waiver of all
issues. See Pa.R.A.P. 1925(b)(1) (“Appellant shall file of record the
Statement and concurrently shall serve the judge.”) (emphasis added); See
also Commonwealth v. Schofield, 585 Pa. 389, 393, 888 A.2d 771, 774
(2005) (“[F]ailure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised.”).
As in the instant case, in Forest Highlands Community Ass'n v.
Hammer, 879 A.2d 223 (Pa.Super. 2005), the trial judge issued an order
instructing the appellant “to file, within fourteen (14) days, a concise,
written statement of the matters complained of on appeal, and to serve a
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copy of the same upon this Court pursuant to Rule 1925(b) of the Rules of
Appellate Procedure.” 879 A.2d at 228 n. 4 (quoting order) (emphasis
added). The appellant filed her 1925(b) statement with the prothonotary,
but did not serve a copy of the statement on the trial court. In ruling that
the appellant waived her issues on appeal, this Court held that Rule 1925(b)
is not satisfied when an appellant simply mails his or her 1925(b) statement
to the presiding judge, nor is the rule satisfied when an appellant merely
files a 1925(b) statement with the prothonotary, as it is not the trial court's
responsibility to search the files of the prothonotary to locate the statement.
Id. at 229.
Similarly, although its decisions are not binding upon this Court, the
Commonwealth Court has found issues waived for an appellant’s failure to
comply with the filing and service requirements of Rule 1925(b). In Egan v.
Stroudsburg School Dist., 928 A.2d 400, 401 (Pa.Cmwlth. 2007) the trial
court directed the appellant “to file a Pa.R.A.P. 1925(b) statement of matters
complained of on appeal within fourteen days, and serve a copy on the trial
court.” (emphasis added). The appellant timely filed a 1925(b) statement
with the prothonotary, but did not serve it on the trial court. Citing Forest
Highlands with approval, the Commonwealth Court determined that the
appellant had waived all issues on appeal for her failure to serve the trial
court with her 1925(b) statement as instructed. See also Commonwealth
v. $766.00 U.S. Currency, 948 A.2d 912, 913 (Pa.Cmwlth. 2008)
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(appellant's failure to serve his Rule 1925(b) statement on the trial judge
where order directed appellant “to file of record and concurrently serve upon
this court a concise statement of errors complained of on appeal” resulted in
waiver of issues on appeal under newly amended Rule 1925(b)).
This Court has stressed that:
[I]n 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 an appellant's obligation under
the rule, and, therefore, we look first to the language of that
order.” Berg [v. Nationwide Mutual Ins. Co., 607 Pa. 341, 6
A.3d 1002], 1007–08 [(opinion announcing the judgement of the
court]. Rule 1925(b)(3) sets forth the contents of a 1925(b)
order:
(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);
(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)(3)(i)-(iv).
In re Estate of Boyle, 77 A.3d 674, 676–77 (Pa.Super. 2013). Upon
noting that our application of Rule 1925(b) may be harsh, this Court,
nevertheless, determined our decision to affirm on the basis of an untimely
Rule 1925(b) statement was consistent with Rule 1925(b) and decisional
authority. Id. at 679.
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Herein, the record is clear that Appellants timely filed their Rule
1925(b) statement, although they failed to serve it concurrently upon the
trial court, despite the court’s express instruction to do so. Therefore,
Appellants have waived their issue on appeal.
Even had the statement properly been served upon the trial court, we
would find Appellant’s issue waived due to vagueness. It is well-settled that
issues not included in an appellant’s statement of questions involved and
concise statement of errors complained of on appeal are waived. Krebs v.
United Refining Co. of Pa., 893 A.2d 776, 797 (Pa.Super. 2006). With
respect to issues not included in a concise statement, our Supreme Court
has instructed that this Court has no discretion in choosing whether to find
waiver. Waiver is mandatory, and this Court may not craft ad hoc
exceptions or engage in selective enforcement. City of Philadelphia v.
Lerner, ___ Pa. ____, 151 A.3d 1020, 1024 (2016) (quoting
Commonwealth v. Hill, 609 Pa. 410, 426, 16 A.3d 484, 494 (2011).
While Appellants precede their concise statement with a five page
discussion and argument, their ultimate statement “announced a very
general proposition; namely, that the trial court erred when it granted
[Appellee’s] summary judgment motion.” Lineberger v. Wyeth, 894 A.2d
141, 148-49 (Pa.Super. 2006). Because Appellants failed to include the
specific challenges they present in their appellate brief in their statement of
errors, we would find those issues waived for that reason as well. See
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Commonwealth v. Dowling, 778 A.2d 683, 686-87 (stating a concise
statement that is too vague to permit the trial court to identify issues raised
on appeal is the functional equivalent of no concise statement at all).
Order affirmed. 2
Judge Shogan joins the memorandum.
Judge Moulton files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
____________________________________________
2
This Court may affirm the trial court’s order on any valid basis. Plasticert,
Inc. v. Westfield Ins. Co., 923 A.2d 489 (Pa.Super. 2007).
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