Alder Run v. Lutz, R. ( 2018 )

J. A30037/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ALDER RUN, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD E. LUTZ, TRUSTEE, :
NANCY M. LUTZ, TRUSTEE RHCC, LLC, :
JAMES A. STRAWSER, :
LESTER H. STRAWSER, :
DANIEL D. STRAWSER, :
EARL T. STRAWSER, :
PALMER E. STRAWSER, :
AMOS T. STRAWSER, :
KEVIN O. STRAWSER, :
SHANE A. STRAWSER, :
KEITH A. STRAUSER, :
ELROY D. STRAUSER, :
JOSHUA E. STRAUSER, :
DALE E. GOODLING, :
ANTHONY L. PORTZLINE, :
TERRY L. ARNOLD, :
EDWARD P. VERES, JR., :
ANN F. VERES, RONALD R. SEILER, :
DEBORAH L. CARNS, GARETH O. WICK, :
AND DURVIN Z. WICK :
: No. 797 WDA 2017
APPEAL OF: RICHARD E. LUTZ, :
TRUSTEE :
Appeal from the Judgment, May 10, 2017,
in the Court of Common Pleas of Clearfield County
Civil Division at No. 15-309-CD
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 27, 2018
Appellant, Richard E. Lutz, Trustee (“Lutz”), appeals from the May 10,
2017 judgment following the trial court’s February 21, 2017 order granting
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appellee, Alder Run, LLC (“Alder Run”), an easement by prescription across
the respective properties of the defendants in the underlying action.1 For the
following reasons, we find that Lutz has waived all his issues on appeal by
failing to file a timely Pa.R.A.P. 1925(b) statement. Accordingly, we affirm
the May 10, 2017 judgment.
This matter stems from a longstanding dispute over access to a dirt
roadway intersecting parcels of land owned by neighboring property owners
in rural Clearfield County, Pennsylvania. (Notes of testimony, 12/12/16 at
60-61.) Lutz placed a gate across the roadway in question where it intersected
his property but refused to give Alder Run a key. (Id.) Following a non-jury
trial on December 12, 2016, the trial court filed an opinion and entered an
order on February 21, 2017, granting Alder Run an easement by prescription
across the properties in question “by use of the dirt roadway that is connected
to Township Road 727.” (Trial court opinion and order, 2/21/17 at 10.) On
March 3, 2017, Lutz filed post-trial motions that were denied by opinion and
order of the trial court on May 5, 2017. Judgment was subsequently entered
by Prothonotary on May 10, 2017.
1 Although Lutz is the only named appellant in this matter, he makes several
arguments on behalf of the defendants in the underlying action,
James A. Strawser, Lester H. Strawser, Earl T. Strawser, Palmer E. Strawser,
Amos T. Strawser, Kevin O. Strawser, Shane A. Strawser, Keith A. Strauser,
Elroy D. Strauser, Dale E. Goodling, Anthony L. Portzline, and Terry L. Arnold,
whom he collectively refers to as both “Lutz and Strauser” and “Appellants”
throughout the duration of his brief.
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Instantly, the record reflects that appellant filed a timely notice of appeal
on June 1, 2017. That same day, the trial court directed Lutz to file a concise
statement of errors complained of on appeal, in accordance with Rule 1925(b),
within 21 days. On June 26, 2017, four days after expiration of the 21-day
filing period, Lutz filed his Rule 1925(b) statement. A certificate of service
indicating that Lutz’s Rule 1925(b) statement was served on the trial judge
and opposing counsel on June 16, 2017, is attached to his Rule 1925(b)
statement, but as noted, this statement was time-stamped as filed on
June 26, 2017. Additionally, the record contains no indication that Lutz
sought, or that the trial court granted, an extension of time for filing. The trial
court, presumably because of Lutz’s untimely Rule 1925(b) statement, did not
file a Rule 1925(a) opinion addressing the issues presented therein.
This court has long recognized that “[w]henever a trial court orders an
appellant to file a concise statement of matters complained of on appeal
pursuant to Rule 1925(b), the appellant must comply in a timely manner.
Failure to comply with a Rule 1925(b) order will result in waiver of all issues
raised on appeal.” Hess v. Fox Rothschild, 925 A.2d 798, 803 (Pa.Super.
2007) (citations omitted; emphasis in original), appeal denied, 945 A.2d 171(Pa. 2008). Barring extraordinary circumstances, the untimely filing of a
Rule 1925 statement in a civil case constitutes waiver of all issues on appeal.
See Greater Erie Industrial Development Corp. v. Presque Isle Downs,
Inc., 88 A.3d 222, 224-225 (Pa.Super. 2014) (appellant’s failure to file a
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timely concise statement waived all claims on appeal, despite the fact that the
trial court accepted the untimely statement and addressed claims in opinion);
see also Pa.R.A.P. 1925(b)(3)(iv) (stating, “any issue not properly included
in the Statement timely filed and served pursuant to subdivision (b) shall be
deemed waived.”).
Based on the foregoing, we find all of Lutz’s issues waived because of
his failure to file a timely Rule 1925(b) statement in accordance with the trial
court’s June 1, 2017 order.2
Judgment affirmed.
2 We recognize that in Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002 (Pa.
2010), our supreme court indicated that a trial court’s Pa.R.A.P. 1925 order
should specifically track the language set forth in Subsection (b)(3)(iii) and
(iv). However, we find the analysis in Berg, a plurality of our supreme court,
non-binding and distinguishable. Justice Todd’s rationale in the lead opinion
in Berg was joined, at most, by two other justices (Justice McCaffery and
Justice Saylor). Two justices (Chief Justice Castille and Justice Eakin) filed
separate concurring opinions, specifically not joining in Justice Todd’s
rationale. One justice (Justice Baer) filed a dissenting opinion, and a seventh
justice (former Justice Greenspan) did not participate in the decision. Berg,
6 A.3d at 1012. Moreover, Berg involved consideration of “whether an
appellant’s failure to personally serve on a trial judge a court-ordered
[1925(b) statement], in accordance with Pa.R.A.P. 1925, results in waiver of
all issues, where the court’s order itself does not comply with Rule 1925.[]”
Id. at 1003. Unlike the instant matter, in Berg, personal service of the
Rule 1925(b) statement was attempted on the trial judge, but was ultimately
thwarted by the prothonotary. Id. at 1008-1011. Here, appellant’s
Rule 1925(b) statement was served on the Honorable Frederic J. Ammerman,
albeit four days past the deadline.
In any event, even if Lutz had not waived his claims on appeal, we would
have determined that they lack merit for the reasons set forth in the trial
court’s comprehensive opinion issued in support of its February 21, 2017
order. (See trial court opinion and order, 2/21/17 at 4-10.)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2018
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