Delaware Station v. Exelon Generation ( 2020 )

J-A04002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DELAWARE STATION LLC, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EXELON GENERATION CO. LLC : No. 1262 EDA 2019
Appeal from the Order Entered March 28, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 190302922
BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*
JUDGMENT ORDER BY PANELLA, P.J.: FILED FEBRUARY 06, 2020
Delaware Station, LLC appeals from the order, filed on March 29, 2019,
in the Court of Common Pleas of Philadelphia County, granting the motion
filed by Appellee, Exelon Generation Co., LLC, for a preliminary injunction.
Based on our review, we strike this matter from the argument list and remand.
On March 29, 2019, the trial court entered a preliminary injunction in
this matter. On April 2, 2019, Appellant filed a notice of appeal. On June 13,
2019, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not
comply. On September 3, 2019, the trial court filed an opinion that did not
address Appellant’s failure to file the Rule 1925(b) statement.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellee subsequently filed two applications asking we quash this
appeal. In response, Appellant filed two applications for relief, acknowledging
it failed to file a Rule 1925(b) statement, but claiming the trial court did not
serve it with a copy of the Rule 1925 order, and seeking remand to file a Rule
1925(b) statement nunc pro tunc. Specifically, Appellant asserts that due to
a virus, the Philadelphia electronic filing system was not functioning properly
when the trial court entered its June 13 order. As a result, Appellant denies
that it ever received electronic or physical notice of the entry of the June 13
order.
On October 17, 2019, this Court denied the applications subject to their
renewal before the merits panel. In its brief, Appellee again asks us to quash
this appeal because of Appellant’s failure to comply with Pa.R.A.P. 1925(b).
Generally, in civil cases, the appellant’s failure to comply with the
minimal requirements of Rule 1925(b) will result in automatic waiver of the
issues raised on appeal. Greater Erie Indus. Development Corp. v.
Presque Isle Downs, Inc., 88 A.3d 222, 224-25 (Pa. Super. 2014) (en banc)
(holding appellant waived all issues on appeal where appellant submitted
court-ordered Rule 1925(b) statement three days late, without court-ordered
extension). Nevertheless, Rule 1925 allows this Court to remand in civil cases
to cure defects in Rule 1925 practice, “upon application of the appellant and
for good cause shown ... for the filing nunc pro tunc of a Statement or for
amendment or supplementation of a timely filed and served Statement and
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for a concurrent supplemental opinion.” See Pa.R.A.P. 1925(c)(2). However,
“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 for
timeliness pursuant to Pa.R.A.P. 1925(b).” Presque Isle, 88 A.3d at 226.
In the present case, we are unable to determine from the record before
us whether Appellant has shown good cause for its failure to file a Rule
1925(b) statement. However, in the interest of justice, we believe Appellant
should have the opportunity to present evidence to the trial court regarding
its alleged failure to serve the 1925 order. It may be Appellant will be able to
demonstrate there was a breakdown in the process and the trial court did not
properly serve the order upon it, in which case it should be given an
opportunity to file a nunc pro tunc statement and the trial court should file a
supplemental opinion. It may be Appellant cannot not show such a breakdown,
in which case Appellant will have waived all issues on appeal.
As it cannot be determined on the record before us if Appellant has
shown good cause for the failure to file a Rule 1925(b) statement, we hereby
strike the case from the argument list and remand it to the trial court to hold
an evidentiary hearing to determine whether Appellant has shown good cause
for the failure to file a Rule 1925(b) statement.
Case stricken from the argument list and remanded for proceedings
consistent with this judgment order. Trial court to provide all necessary
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findings and conclusions within ninety (90) days of the date of this decision.
Panel jurisdiction relinquished. Court jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/20
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