Nygaard, R. v. Kurtick, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT E. NYGAARD, JR. AND JANET J. IN THE SUPERIOR COURT
NYGAARD, HIS WIFE OF
PENNSYLVANIA
Appellants
v.
JOHN KURTICK AND LOTTIE KURTICK,
HIS WIFE
No. 6 EDA 2017
Appeal from the Order Entered November 21, 2016
In the Court of Common Pleas of Pike County
Civil Division at No(s): 365-CV-1999
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 08, 2017
Robert E. Nygaard, Jr. and Janet J. Nygaard appeal from the November
21, 2016 order of the Pike County Court of Common Pleas denying their
motion for leave to file an amended complaint and ordering the matter closed
due to docket inactivity under Pike County Local Rule 230.2. We affirm.
On July 14, 2016, the Nygaards filed a motion for leave to file an
amended complaint, 17 years after the filing of their initial complaint and 12
years after the last docketed activity in the case. On November 21, 2016, the
trial court denied the Nygaards’ motion and ordered the matter closed. On
December 19, 2016, the Nygaards filed a timely notice of appeal with this
Court.
On December 21, 2016, the trial court ordered the Nygaards to file a
Pennsylvania Rule of Appellate Procedure 1925(b) statement no later than 21
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days after entry of the order. The order also notified the Nygaards that failure
to comply may result in the waiver of issues on appeal. The docket shows
that the Rule 1925(b) notice was mailed to the Nygaards on the same date.
Also on December 21, 2016, the Nygaards filed a petition to open
judgment with the trial court. On January 3, 2017, the trial court entered an
order staying consideration of the petition due to the pending appeal. On
February 6, 2017, the trial court issued a Rule 1925(a) statement, in which it
asked this Court to find all issues waived for the Nygaards’ failure to file a Rule
1925(b) statement.
When a trial court orders an appellant to file a Rule 1925(b) statement,
he or she must comply in a timely manner. Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005). An appellant’s failure to comply with a Rule
1925(b) order will result in waiver of all issues on appeal. Id.; see Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224-25
(Pa.Super. 2014) (en banc); Pa.R.A.P. 1925(b)(4)(vii).
The record shows that on December 21, 2016, the trial court ordered
the Nygaards to file a Rule 1925(b) statement within 21 days and that they
did not file such a statement.1 Because the Nygaards failed to file a Rule
1925(b) statement, we conclude that they have waived all issues on appeal.
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1In their brief, the Nygaards claim that the trial court’s January 3, 2017
order staying the proceedings precluded them from filing a Rule 1925(b)
statement. See Nygaards’ Br. at 11-12. This argument is specious. The trial
court issued the January 3, 2017 order in response to the Nygaards’ filing of
a petition to open judgment, which the trial court lacked jurisdiction to
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Order affirmed.
Judge Lazarus joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
____________________________________________
consider due to the pending appeal. Although the order stated that “any
further action” was stayed, it is evident that the trial court intended to stay
any action relating to the Nygaards’ petition to open judgment, not any action
relating to the appeal.
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