Thomas & Sons Contracting v. NVR, Inc.

J-A06019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS & SONS CONTRACTING LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NVR, INC., SHANNON STALEY & : No. 735 WDA 2019
SONS LLC :
Appeal from the Order Entered April 12, 2019
In the Court of Common Pleas of Butler County
Civil Division at No(s): 18-10115
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: FEBRUARY 25, 2022
Thomas & Sons Contracting LLC (“Thomas”) appeals from the order
dismissing its second amended complaint against NVR, Inc. (“NVR”) and
Shannon Staley & Sons LLC (“Staley”) (collectively “Appellees”). We affirm.
Given this disposition, we briefly summarize the relevant procedural
history. Thomas sued Appellees for tortious interference of existing and
prospective contractual relations, defamation, civil conspiracy, and breach of
contract. Appellees filed preliminary objections to Thomas’s second amended
complaint asserting, in part, that several of Thomas’s claims were legally
insufficient. See Pa.R.Civ.P. 1028(a)(4). In February 2019, the trial court
sustained Appellees’ preliminary objections, but granted Thomas leave to file
a third amended complaint for defamation and civil conspiracy against NVR.
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* Retired Senior Judge assigned to the Superior Court.
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Subsequently, the parties agreed to a final order and judgment dismissing
Thomas’s second amended complaint with prejudice.1 Thomas timely filed a
notice of appeal.
On May 15, 2019, the trial court entered an order for Thomas to file and
serve the trial judge with a Pa.R.A.P. 1925(b) statement within twenty-one
days. Thomas timely filed its Rule 1925(b) statement but did not serve a copy
on the trial judge. On June 24, 2019, the trial court filed a Rule 1925(a)
opinion concluding that Thomas waived all issues for appeal by failing to serve
it with the Rule 1925(b) statement. Thomas filed a petition for leave to file
its Rule 1925(b) statement nunc pro tunc. The trial court held a hearing and
then denied the petition.
NVR filed an application in this Court to dismiss the appeal based on
Thomas’s failure to serve the trial court with its Rule 1925(b) statement. We
denied NVR’s application without prejudice to the parties to raise the issue in
a new application or in their briefs. Order, 8/9/19. Thomas then filed its brief
and requested “the opportunity to respond by reply brief” if NVR again raised
Thomas’s non-compliance with Rule 1925. Thomas’s Brief at 25. NVR filed
its brief raising anew the Rule 1925 issue. NVR’s Brief at 4. Thomas did not
file a reply brief.
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1The trial court dated its order April 11, 2019, and the order was docketed on
April 12, 2019.
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Before we may address the merits of Thomas’s issues, we must
determine whether it preserved its claims for our review.
Our courts have consistently held that in order to preserve
their claims for appellate review, appellants must comply
whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925. In Forest
Highlands Community Ass’n v. Hammer, 879 A.2d 223, 229
(Pa. Super. 2005), this Court found that the appellant waived her
issues on appeal by failing to serve the trial judge with her court-
ordered Rule 1925(b) statement.
Rahn v. Consol. Rail Corp., 254 A.3d 738, 745 (Pa. Super. 2021) (some
citations and quotation marks omitted).
“[I]n determining whether an appellant has waived issues on appeal
based on non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that
triggers an appellant’s obligation . . . therefore, we look first to the language
of that order.” In re Estate of Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).
At the time of the trial court’s order, Rule 1925 stated, in relevant part:
(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
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
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shall be concurrent with filing and shall be by any means of service
specified under Pa.R.A.P. 121(c).
****
(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) (subsequently amended effective Oct. 1, 2019).
If the trial court’s order does not comply with the content requirements
of Rule 1925(b), waiver will not apply. See Berg v. Nationwide Mut. Ins.
Co., Inc., 6 A.3d 1002, 1011 (Pa. 2010) (plurality) (declining to find waiver
because, in part, the trial court did not expressly instruct the appellants to
serve the trial judge with a copy of their Rule 1925(b) statement); Rahn, 254
A.3d at 746 (declining to find waiver when the trial court’s order failed to
specify service on the trial judge and the place for service to occur).
Furthermore, strict application of the waiver provisions of Rule 1925
necessitates strict interpretation of the rules regarding notice of Rule 1925(b)
orders. See Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 226 (Pa. Super. 2014). In particular, the failure by the
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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. See id.Instantly, the trial court’s order for Thomas to file and serve a Rule
1925(b) statement stated:
AND NOW, this 14th day of May, 2019, in light of [Thomas]
having filed a Notice of Appeal to Superior Court in this matter
with respect to the [o]rder of [c]ourt under date of April 11, 2019,
it is hereby ORDERED pursuant to Pennsylvania Rules of Appellate
Procedure, Rule 1925(b), that [Thomas] file of record in the lower
court and serve on the trial judge, a Concise Statement of the
Matters Complained of on Appeal no later than twenty-one (21)
days from the date of this [o]rder of [c]ourt. Any issue not
properly included in the Statement timely filed and served shall
be deemed waived. Said service shall be to the following address
...
Order, 5/15/19. Additionally, a certificate of mailing indicated that the
prothonotary served Thomas’s counsel with the order by first class mail on
May 15, 2019, and the trial court docket reflects the entries on May 15, 2019
for the filing order and service of the order to Thomas’s counsel.
The trial court’s order here, unlike in Berg and Rahn, complied with the
content requirements of Rule 1925(b)(3) by instructing Thomas to serve the
trial judge and specifying the place for service. Furthermore, the record
establishes the prothonotary’s compliance with the service and notice
provisions for the trial court’s order. Accordingly, we discern no breakdown
excusing Thomas’s failure to serve the trial judge with its Rule 1925(b)
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statement,2 and we must conclude that Thomas waived its issues by failing to
serve the trial judge as set forth in the Rule 1925(b) order. See Forest
Highlands, 879 A.2d at 229. Because Thomas has failed to preserve any
issues for appeal, we affirm the April 12, 2019 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2022
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2At the hearing, Thomas’s counsel admitted the failure to serve the trial judge.
N.T., 7/9/19, at 2. Counsel explained that he had not detected a clerical error
omitting the trial judge’s name from the certificate of service before he filed
and served the statement. Id. at 2-3.
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