Lachina, L. v. Lachina Drapery ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LISA REZZETANO LACHINA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LACHINA DRAPERY & BLIND, LLC, : No. 760 WDA 2022
LEONARD LACHINA, AND MARGARET :
POLLOCK :
Appeal from the Order Entered June 8, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 22-003585
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: May 17, 2023
Lisa Rezzetano Lachina (Wife) appeals from the order, entered in the
Civil Division of the Court of Common Pleas of Allegheny County, sustaining
the preliminary objections of Leonard Lachina (Husband), Lachina Drapery &
Blind, LLC, and Margaret Pollack (collectively, Appellees) and dismissing Wife’s
civil action. Because Wife has waived all issues on appeal for failing to file a
timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, we affirm.
Husband and Wife were married on November 10, 1990. Husband is
the president and 50% owner of Appellee Lachina Drapery & Blind, LLC
(Company). The Company manufactures and sells custom draperies, blinds,
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shades, shutters, and bed coverings.1 Appellee Margaret Pollock is the
remaining 50% owner of the Company. During their marriage, Wife worked
for the Company, ultimately assuming the role of the Company’s Office/Sales
Manager.
On January 12, 2021, Husband filed a complaint in divorce, in the Family
Division of the Court of Common Pleas of Allegheny County, seeking
dissolution of the parties’ marriage and equitable distribution of their marital
estate. On June 10, 2021, the parties entered into a marriage settlement
agreement (Agreement), which was incorporated into the parties’ divorce
decree. The Agreement included provisions for Wife’s future employment with
the Company.2 On July 12, 2021, a divorce decree was entered.
On January 21, 2022, Wife filed a “Petition for Enforcement of Marriage
Settlement Agreement and for Contempt of Court” in the Family Division of
the Court of Common Pleas of Allegheny County. Husband filed a response
and counterclaim. On February 2, 2022, a consent order was entered into by
the parties assigning their claims and counterclaims to a permanent divorce
hearing officer and scheduling a conciliation conference in the Family Division
on April 2, 2022.
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1 The Company currently has two showrooms located in Pittsburgh and
Wexford. Its main office is at the Pittsburgh location. At the time Wife worked
in operations for the Company, there was also a Dormont, Pennsylvania,
location.
2 In light of our disposition, we need not provide a detailed factual summary.
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On April 4, 2022, Wife filed the instant complaint against Appellees in
the Civil Division of the Court of Common Pleas of Allegheny County seeking
enforcement of the portion of the parties’ Agreement relating to Wife’s
employment with the Company. In the complaint, Wife avers that Appellees’
constructively discharged her from the Company by “chang[ing] the terms
and conditions of [Wife’s] employment and the working environment at
Lachina Drapery[,] making [her] continuing in her employment impossible . .
. [and] effectively remov[ing] her from her day-to-day supervisory capacity
at Lachina Drapery.” Plaintiff’s Complaint, 4/4/22, at ¶¶ 38-39. Specifically,
Wife alleges that Husband rehired his niece and placed her in a position in
which she had daily contact with Wife that “infringe[d] upon [Wife’s] duties
and responsibilities as Office/Sales Manager.”3 Id. at ¶ 23.
On April 25, 2022, Appellees filed preliminary objections to Wife’s
complaint alleging that it was filed in the wrong division of the court of
common pleas and that, because Pollock is not a party to the Agreement, the
complaint fails to assert any claims against her. See Pa.R.C.P. 1028(a)(2),
(4); Allegheny County Local Rule 198(1) (actions between family members).
Wife filed a response to Appellees’ preliminary objections. On June 8, 2022,
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3 Prior to their divorce, Wife alleges she had been responsible for all day-to-
day Company operations. However, after the execution of the Agreement,
Wife claims that Husband: instructed her that she was no longer permitted
to make decisions on behalf of the Company; told Wife on multiple occasions
to “stay home;” and, ultimately, changed the terms and conditions of Wife’s
compensation and benefits by reducing her vacation time and the amount of
her yearly minimum discretionary bonus. See id. at ¶¶ 17-27.
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following argument, the trial court sustained Appellees’ preliminary objections
and dismissed Wife’s complaint filed in the civil division.
On June 29, 2022, Wife filed a timely notice of appeal. On June 30,
2022, the trial court ordered Wife to file a Rule 1925(b) statement “no later
than 21 days from entry of this order on the docket.” Order, 6/30/22. On
August 12, 2022, Wife’s counsel filed a Rule 1925(b)4 statement. In her
appellate brief, Wife presents the following issues for our consideration:
(1) Whether [Wife] properly filed her complaint in the Allegheny
County Civil Division[.]
(2) Whether Margaret Pollock was properly named as a
Defendant[.]
Appellant’s Brief, at 5 (unnecessary capitalization omitted).
Before reviewing Wife’s issues on appeal, we must first address the
apparent untimely filing of her Rule 1925(b) statement. Wife was ordered to
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4 Wife’s statement, which is incorrectly captioned as a “Statement of Errors
Complained of on Appeal Pursuant to P[a].R.A[.]P. 1925(D),” includes the
following issues:
(1) With respect to the first issue, plaintiff contends that the
trial court committed error because plaintiff has a
constitutional right to a jury trial for plaintiff’s breach of
contract claim which is not guaranteed in the Family Division
of the Court of Common Pleas of Allegheny County.
Pennsylvania Constitution, Article I, § 6.
(2) Further, plaintiff’s claim against Margaret Pollock as one of
two members of defendant, Lachina Drapery & Blind
Factory, LLC, is appropriate as she is a principal of the
plaintiff’s former employer.
Pa.R.A.P. 1925(b) Statement, 8/12/22, at 2.
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file her statement within 21 days of the trial court’s Rule 1925(b) order, which
was entered on the docket on June 30, 2022. See Civil/Family Division Docket
Report, at 2 (6/30/22 order of court entry indicating “Plaintiff shall file and
serve [Rule 1925(b)] statement no later than 21 days from entry of this
order”). Moreover, the order designated “[a]s per Rule 236 Notice, copies
[were] sent to all parties 06/30/2022.” Order, 6/30/22. Wife’s statement
was filed on August 12, 2022, 43 days later.
The Pennsylvania Supreme Court has held that “[w]henever a trial court
orders an appellant to file a concise statement of matters complained of on
appeal pursuant to Rule 1926(b), the appellant must comply in a timely
manner.” See Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super.
2007) (emphasis in original), citing Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005). “Failure to [timely] comply with a Rule 1925(b) order
will result in waiver of all issues raised on appeal.” Hess, supra at 803(citations omitted).
There are limited exceptions to the general rule that untimely Rule
1925(b) statements result in waiver of all issues on appeal. Those exceptions
occur when: (1) the trial court’s Rule 1925(b) order does not comply with the
requirements of Rule 1925; (2) the record does not indicate when order was
sent to appellant; (3) the appellant applies and is granted, for good cause
shown, enlargement of time to file the statement or for amendment or
supplementation of timely-filed statement; (4) the appellant requests and is
granted an extension of the deadline to file a statement until 21 days following
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the date that a necessary transcript(s) is/are entered on the docket; and (5)
in extraordinary circumstances, the court gives permission for the filing of a
nunc pro tunc statement, amendment of the statement, or supplementation
of timely-filed and served statement. See Pa.R.A.P. 1925(b)(2)(i)-(ii), (b)(3),
(c)(1)-(2); Pa.R.C.P. 236(a)(2)(b). Moreover, the fact that the trial court
addresses the merits of issues raised in an untimely Rule 1925(b) statement
is of no moment. See also Greater Erie Indus. Dev. Corp. v. Presque
Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (“Stated
simply, it is no longer within this Court’s discretion to review the merits of an
untimely Rule 1925(b) statement based solely on the trial court’s decision to
address the merits of those untimely raised issues.”).
The record does not reflect and Wife does not claim that counsel
petitioned for an extension within which to file her statement or applied to file
a nunc pro tunc statement. See Pa.R.A.P. 1925(b)(2). Moreover, the trial
court’s Rule 1925(b) order complies with the rule’s requirements, see
Pa.R.A.P. 1925(b)(3), including an indication on the docket that Rule 236
notice was sent to all parties on 6/30/22. Because no exception to the general
rule that a Rule 1925(b) statement must be timely filed or the appellant will
suffer waiver of all claims exists in the instant case, we conclude that Wife has
waived all issues on appeal. Greater Erie, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2023
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