Bachman, G. v. Bachman, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GINGER L. BACHMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DEAN T. BACHMAN :
:
Appellee : No. 2998 EDA 2019
Appeal from the Order Entered September 17, 2019
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): No. 2009-FC-0200
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY KING, J.: FILED JULY 21, 2020
Appellant, Ginger L. Bachman (“Wife”), appeals pro se from the order
entered in the Lehigh County Court of Common Pleas, which found Wife in
contempt for violation of the equitable distribution agreement between Wife
and Appellee, Dean T. Bachman (“Husband”). Initially, we observe that the
trial court deemed all of Wife’s issues on appeal waived for failure to comply
with the trial court’s Pa.R.A.P. 1925(b) order.
Pennsylvania law makes clear that appellants must timely comply
whenever the trial court orders them to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Commonwealth v.
Lord, 553 Pa. 415, 719 A.2d 306 (1998). Regarding civil cases:
Our Supreme Court intended the holding in Lord to operate
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* Retired Senior Judge assigned to the Superior Court.
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as a bright-line rule, such that failure to comply with the
minimal requirement of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised. Given the
automatic nature of this type of waiver, we are required to
address the issue once it comes to our attention. …
Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa.Super. 2014) (en banc) (internal citations and quotation
marks omitted) (emphasis in original).
In civil cases, under Rule 1925(b): (1) the trial court must issue an order
directing an appellant to file a concise statement of errors within twenty-
one days of that order; (2) the trial court must file the order with the
prothonotary; (3) the prothonotary must enter the order on the docket; (4)
the prothonotary must give written notice of the entry of the order to each
party, pursuant to Pa.R.C.P. 236; and (5) the prothonotary must record Rule
236 notice on the docket. See Pa.R.A.P. 1925(b); Forest Highlands
Community Ass’n v. Hammer, 879 A.2d 223 (Pa.Super. 2005). If any
procedural step set forth above is not complied with, “[a]ppellant’s failure to
act in accordance with Rule 1925(b) will not result in waiver of the issues
sought to be reviewed on appeal.” Id. at 227.
Instantly, the trial court stated in its Rule 1925(a) opinion:
[Wife] filed a Notice of Appeal on October 16, 2019. On
October 18, 2019, the [c]ourt directed [Wife] to file a
Concise Statement of [Errors] Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) within twenty-one days of the
date of the Order.
To date, [Wife] has failed to file a concise statement.
Consequently, any issues [Wife] sought to raise in her
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appeal are deemed waived by operation of law. [See
Presque Isle, supra]. As a result, the [c]ourt respectfully
recommends that its order dated September 17, 2019 in the
within matter be affirmed and [Wife’s] appeal be dismissed.
(Trial Court Opinion, filed November 14, 2019, at 1). Although the trial court
stated it had ordered Wife to file a concise statement within 21 days, the
court’s Rule 1925(b) order reads as follows:
IT IS ORDERED [Wife] is directed to file a Concise
Statement of [Errors] Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b) and serve a copy of said statement on the
undersigned. Any issue not raised therein is deemed
waived.
(Rule 1925(b) Order, filed October 18, 2019, at 1). Thus, the court’s order
makes clear it did not provide Wife a deadline in which she had to file her
concise statement.
In light of the deficient Rule 1925(b) order, we cannot agree with the
court’s waiver analysis. See Forest Highlands, supra. See also Pa.R.A.P.
1925(b)(3)(i) (requiring that judge’s order directing filing and service of
concise statement shall specify number of days after date of entry of judge’s
order within which appellant must file and serve statement). Accordingly, we
remand for the trial court to issue an amended Rule 1925(b) order directing
Wife to file a concise statement within 21 days, or face waiver of her claims.1
After Wife files her concise statement, the trial court shall issue a supplemental
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1 As Wife has already filed her appellate brief in this case, she must include in
her Rule 1925(b) statement all issues she has raised in this appeal, so that
the trial court has an opportunity to address her claims in the first instance.
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Rule 1925(a) opinion addressing all properly preserved issues.
Case remanded with instructions. Panel jurisdiction is retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/20
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