Com. v. Vaughn, G. ( 2014 )

J-S64040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY VAUGHN
Appellant No. 866 WDA 2014
Appeal from the Order February 3, 2014
In the Court of Common Pleas of Cambria County
Civil Division at No(s): 2013-01772
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 06, 2014
Appellant, Gary Vaughn, appeals from the order entered in the
Cambria County Court of Common Pleas, which granted the
Commonwealth’s petition for forfeiture against Appellant. We affirm.
The relevant facts and procedural history of this case are as follows.
On May 11, 2005, federal agents and members of the Pennsylvania State
Police seized thirty-nine (39) teeth-whitening systems, and 402 items of
personal property from Appellant’s store, Gary’s Steals and Deals, and
storage unit in Cambria County. A state police investigation revealed that
Appellant would knowingly purchase stolen retail items from thieves and sell
the items for profit. Appellant pled guilty in federal court to money
laundering and conspiracy, and the federal court sentenced him to seventy-
two (72) months’ imprisonment.
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On May 30, 2013, the Commonwealth filed a petition for forfeiture and
notice to answer against Appellant in civil court for all teeth-whitening
systems and personal property seized on May 11, 2005. The civil court
issued on June 3, 2013, a rule to show cause why the petition should not be
granted, to be answered within thirty (30) days. Appellant opposed the
Commonwealth’s petition in an untimely pro se letter on July 31, 2013; the
letter did not include a “certificate of service.” Appellant filed a second pro
se letter on August 26, 2013, as another limited response to the civil court’s
rule to show cause. This letter, which explained that Appellant’s July 31,
2013 pro se letter was the official answer to the Commonwealth’s petition,
also failed to include a “certificate of service.”
The Commonwealth moved for an order of forfeiture on January 30,
2014, alleging that Appellant had failed to respond to the Commonwealth’s
May 30, 2013 petition and the civil court’s rule to show cause. The civil
court granted forfeiture on February 3, 2014. Appellant timely filed a pro se
notice of appeal on February 26, 2014. The civil court ordered Appellant, on
May 21, 2014, to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), but Appellant failed to comply.
Preliminarily, we observe: “Whenever a trial court orders an appellant
to file a concise statement of [errors] complained of on appeal pursuant to
Rule 1925(b), the appellant must comply in a timely manner.” Greater Erie
Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222,
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225 (Pa.Super. 2014) (en banc) (quoting Hess v. Fox Rothschild, LLP,
925 A.2d 798, 803 (Pa.Super. 2007)). A “failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the
issues raised.” Presque, supra at 224 (emphasis in original).
“[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…therefore, we look first to the
language of that order.” Id. at 225. Pennsylvania Rules of Appellate
Procedure, Rule 1925(b) provides in relevant part:
Rule 1925. Opinions in Support of Order
* * *
(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”).
* * *
(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);
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(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). Moreover, “a failure by the prothonotary to ‘give
written notice of the entry of a court order and to note on the docket that
notice was given’ will prevent waiver….” Presque, supra at 226.
Instantly, on May 21, 2014, the civil court ordered Appellant to file of
record and serve on the judge a Rule 1925(b) statement within twenty-one
(21) days. See Pa.R.A.P. 1925(b)(3)(i)-(iii). The civil court’s order also
stated that any issue not raised in the Rule 1925(b) statement would be
waived. See Pa.R.A.P. 1925(b)(3)(iv). Furthermore, notations on the
docket and on the civil court’s Rule 1925(b) order indicate that Appellant
was given notice of the order on the same day as entry of the order. See
Presque, supra. Thus, the civil court’s order triggered Appellant’s
obligation to file a Rule 1925(b) statement, on or before June 11, 2014.
See id. Nevertheless, Appellant failed to comply with the Rule 1925(b)
order. Therefore, Appellant has waived all issues on appeal. Id.
Moreover, the civil court’s June 3, 2013 rule to show cause ordered
Appellant to file an answer within thirty (30) days. Nonetheless, Appellant
filed his first pro se letter on July 31, 2013, and his second pro se letter on
August 26, 2013. Thus, Appellant did not file a timely answer to the rule to
show cause. Additionally, Appellant failed to file a “certificate of service” for
either letter. See Pa.R.C.P. 206.3(b) (stating: “Each party shall, within five
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(5) days of the filing of any document, file with the prothonotary a separate
document…certifying that service of a complete copy has been made”).
Accordingly, we affirm the civil court’s decision to grant forfeiture.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
____________________________________________
1
Due to our disposition, we deny the Commonwealth’s alternative request to
remand.
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