K.N.L. v. F.B. ( 2018 )

J-A07021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.N.L. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
F.B. :
:
Appellant : No. 1023 MDA 2017
Appeal from the Order Entered June 13, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
6747 of 2017
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MARCH 16, 2018
Appellant, F.B., appeals from a June 13, 2017 order directing him,
among other things, to avoid contact with K.N.L. for a period of two years
pursuant to the Protection from Abuse Act (PFA), 23 Pa.C.S.A. § 6101 et seq.1
The trial court, in its Pa.R.A.P. 1925(a) opinion, found that Appellant waived
appellate review of his claims because he failed to comply timely with the
court's order to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b). After careful review, we agree and, therefore, affirm.
We may dispense with a lengthy review of the underlying facts and
procedural history since our disposition focuses exclusively upon matters of
issue preservation and the application of Pa.R.A.P. 1925 to the facts of this
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1As this case involves an order under the PFA, and so as to protect the identity
of the victim, we use the parties’ initials. We have amended the caption
accordingly.
____________________________________
* Former Justice specially assigned to the Superior Court.
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case. On June 13, 2017, the trial court entered a final PFA order in which it
directed Appellant to refrain from future conduct with K.N.L. until June 13,
2019, the expiration date of the order. On June 26, 2017, Appellant filed a
timely notice of appeal. The trial court, pursuant to Pa.R.A.P. 1925(b),
thereafter ordered Appellant to file a concise statement of errors complained
of on appeal on July 12, 2017. See Pa.R.A.P. Rule 1925(b) Order, 7/12/17,
at 1. Specifically, the court's order directed Appellant to “file of record the
statement and concurrently [serve the trial court] within thirty (30) days from
the date this [o]rder is entered on the docket. Service shall be made in
accordance with Pennsylvania Rule of Appellate Procedure 1925(b)(1).” Id.
The docket indicates that copies of the court’s order were sent on July 13,
2017. Appellant filed his concise statement on August 15, 2017. See
Appellant's Concise Statement of Errors Complained of on Appeal, 8/15/17, at
1. On September 28, 2017, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) finding that Appellant waived appellate review of his claims
by failing to file his concise statement in a timely manner. See Trial Court
Opinion, 9/28/17, at 1.
Before addressing the merits of Appellant’s claims, we must evaluate
whether Appellant has preserved those issues for our review, as required by
Pa.R.A.P. 1925(b). See Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005) (untimely concise statement waives all claims on appeal);
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“[F]rom this date
forward ... [a]ppellants must comply whenever the trial court orders them to
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file a Statement of [Errors] Complained of on Appeal pursuant to Rule 1925.
Any issues not raised in a 1925(b) statement will be deemed waived.”); see
also Pa.R.A.P. 1925(b)(4)(vii).
Lord operates as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of
the issues raised.” Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa.
2005) (emphasis added); see also Castillo, 888 A.2d at 780. “Given the
automatic nature of this type of waiver, we are required to address the issue
once it comes to our attention.” Greater Erie Industrial Development
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014)
(en banc). “[I]t is no longer within this Court's discretion to ignore the internal
deficiencies of Rule 1925(b) statements.” Id.; Hess v. Fox Rothschild, LLP,
925 A.2d 798, 803 (Pa. Super. 2007) (“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.”).
This Court looks to the terms of the trial court’s Rule 1925(b) order to
determine whether non-compliance with Pa.R.A.P. 1925 waives appellate
review. In re Estate of Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).
Pa.R.A.P. 1925(b) sets forth the following requirements for an order that
directs the filing of a concise statement:
(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
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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.--Appellant shall file of record the Statement
and concurrently shall serve the judge. Filing of record and service
on the judge shall be in person or by mail as provided in Pa.R.A.P.
121(a) and shall be complete on mailing if 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 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.—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 shown, the judge may enlarge the
time period initially specified or permit an amended or
supplemental statement to be filed. 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);
(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).
Here, the order directing Appellant to file a concise statement conformed
to Rule 1925(b). Specifically, the trial court directed Appellant to “file a
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statement of errors complained of on appeal.” See Pa.R.A.P. Rule 1925(b)
Order, 7/12/17, at 1. The court noted that, “[t]he content of said statement
[must] be consistent with the provisions provided in Pennsylvania Rule of
Appellate Procedure 1925(b).” Id. The court further instructed Appellant to
“file of record the statement and concurrently [serve the trial court] within
thirty (30) days from the date this [o]rder is entered on the docket. Service
shall be made in accordance with Pennsylvania Rule of Appellate Procedure
1925(b)(1).” Id. The order also provides that, “[t]he statement shall
concisely identify each ruling or error that the [A]ppellant intends to challenge
with sufficient detail to identify all pertinent issues. Any issue not properly
included in the statement timely filed and served pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b) shall be waived.” Id. at 2. The court
directed the clerk of courts to mail a copy of its Rule 1925(b) order to the
petitioner and all counsel of record pursuant to Pa.R.C.P. 236, and the docket
reflects that said copies were forwarded on July 13, 2017.2 See id. Thus, the
trial court's order conforms with Pa.R.A.P. 1925(b).
We turn now to Appellant’s concise statement since we have confirmed
the propriety of the trial court's initial order, as well as the issuance of notice
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2 While a failure to give written notice of the entry of a court order or a failure
to note on the docket that notice was given will defeat waiver under Pa.R.A.P.
1925(b), docket notations such as those that appear in the certified record
before us establish technical conformity with Pa.R.A.P. 1925(b). Presque
Isle, 88 A.3d at 226; In re L.M., 923 A.2d 505, 509–510 (Pa. Super. 2007).
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to the parties. Although the trial court’s order is dated July 12, 2017, the
docket indicates that notice of the order was not disseminated until July 13,
2017. Pursuant to Pa.R.A.P. 108(b), “[t]he date of entry of an order in a
matter subject to the Pennsylvania Rules of Civil Procedure shall be the day
on which the clerk makes the notation in the docket that notice of entry of the
order has been given.” Pa.R.A.P. 108. Accordingly, the date of entry of the
trial court's order is deemed to be July 13, 2017.
We follow Pa.R.C.P. 106 in computing the relevant filing deadline. In
relevant part, Pa.R.C.P. 106 provides: “When any period of time is referred to
in any rule, such period in all cases ... shall be so computed as to exclude the
first and include the last day of such period.” Pa.R.C.P. 106(a). We therefore
exclude July 13, 2017 from our computation and begin with July 14, 2017.
Counting 30 days from July 14, 2017, we calculate that the 30th day following
entry of the trial court's order was Sunday, August 13, 2017. Because the
filing period ended on a Sunday, we omit that day from our computation and
the due date for Appellant’s concise statement becomes Monday, August 14,
2017. See Pa.R.C.P. 106(b). Appellant did not file his concise statement until
August 15, 2017. Because the certified record contains no indication that
Appellant requested or received an extension of time for filing, we conclude
that Appellant’s filing was untimely.
Appellant has not come forward with valid grounds for relief from the
trial court’s determination. Citing Mayor, Town Council of Borough of
Chambersburg v. Keeler, 85 A.3d 603 (Pa. Cmwlth. 2014), Appellant argues
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in his brief that, under Pa.R.A.P. 121, he was entitled to three days for mailing
in addition to the 30-day filing period allowed by the trial court. See
Appellant’s Brief at 13-14. In relevant part, Pa.R.A.P. 121(e) provides:
(e) Additional time after service by mail and commercial
carrier. Whenever a party is required or permitted to do an act
within a prescribed period after service of a paper upon that party
(other than an order of a court or other government unit)
and the paper is served by United States mail or by commercial
carrier, three days shall be added to the prescribed period.
Pa.R.A.P. 121(e) (emphasis added). While Pa.R.A.P. 121(e) adds three days
to a prescribed response period under certain circumstances, the rule makes
clear that it does not apply to orders of court or other governmental entities.
Thus, Pa.R.A.P. 121(e) does not furnish grounds for relief in this case. 3
We also see no reason to remand this matter for further proceedings
before the trial court. In civil cases, appellate courts may remand in two
circumstances related to the filing of Rule 1925(b) statements: (1) “[a]n
appellate court may remand [in a civil case] for a determination as to whether
a [Rule 1925(b)] 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,
an appellate court may remand in a civil case for the filing nunc pro tunc of a
[Rule 1925(b)] Statement or for amendment or supplementation of a timely
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3 While decisions of the Commonwealth Court constitute persuasive authority,
they do not constitute binding authority. Petow v. Warehime, 996 A.2d,
1083, 1088 n.1 (Pa. Super. 2010), appeal denied, 12 A.3d 371 (Pa. 2010).
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filed and served [Rule 1925(b)] Statement....” Pa.R.A.P. 1925(c)(1)-(2);
Presque Isle, 88 A.3d at 226 n.7. Neither of these circumstances is
applicable here. It would be inappropriate to remand for a determination of
whether Appellant's filing was timely since the record clearly establishes the
filing date and contents of the trial court's initial order, as well as the filing
date and contents of Appellant’s concise statement. Also, because Appellant
has not filed an application for nunc pro tunc filing, nor demonstrated “good
cause” for his untimely submission, remand under Pa.R.A.P. 1925(c)(2) is also
improper.
Lastly, Appellant has not asserted that he mailed his concise statement
within the period specified by the trial court and that such mailing satisfied
the requirements of Pa.R.A.P. 1925. In relevant part, Pa.R.A.P. 1925(b)(1)
states: “Filing of record and service on the judge shall be in person or by mail
... and shall be complete on mailing if 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.” Pa.R.A.P.
1925(b)(1). Nothing in the record before us shows that Appellant obtained
the required postal forms to substantiate a timely mailing, and therefore filing,
with the trial court. Moreover, court papers are generally deemed to be filed
when they are received by the appropriate court officer. Pa.R.C.P. 205.1
provides: “A paper sent by mail shall not be deemed filed until received by the
appropriate officer.” Pa.R.C.P. 205.1. Additionally, Pa.R.A.P. 121 provides:
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“Filing may be accomplished by mail addressed to the prothonotary, but ...
filing shall not be timely unless the papers are received by the prothonotary
within the time fixed for filing.” Pa.R.A.P. 121(a). In the absence of contrary
proof, we presume that the August 15, 2017 date stamp that appears on
Appellant’s submission accurately reflects the filing date in this case.4
Because Appellant’s concise statement was untimely, he waived
appellate review of all of his claims. Accordingly, we may not reach the merits
of any issue raised in this appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2018
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4 Appellant did not attach a proof of service form to his concise statement.
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