Taylor, J. v. Tchabo, C.

J-A11034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES TAYLOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHRISTOPHER JOHN TCHABO AND THE
SCHOOL AT CHURCH FARM
Appellees No. 2903 EDA 2014
Appeal from the Judgment Entered on January 2, 2015
In the Court of Common Pleas of Chester County
Civil Division at No.: 11-08060-TT
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.
JUDGMENT ORDER BY WECHT, J.: FILED JULY 14, 2015
James Taylor appeals from the judgment entered on January 2, 2015
in favor of Christopher John Tchabo.1 Based upon an untimely-filed
Pa.R.A.P. 1925(b) concise statement, Taylor has waived his issues on
appeal, and we are constrained to affirm.
Because of our disposition, a recitation of the facts of this case is
unnecessary. On January 28, 2011, Taylor commenced this negligence
action against Tchabo and the School at Church Farm (“CFS”). On May 20,
2014, a jury found in favor of Tchabo. The jury found that CFS and Taylor
both were negligent, but that seventy percent of the negligence was
attributable to Taylor. Therefore, no damages were awarded. On May 29,
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1
Taylor settled with the School at Church Farm prior to trial.
J-A11034-15
2014, Taylor filed post-trial motions, which the trial court denied on
September 9, 2014.
On October 6, 2014, Taylor filed his notice of appeal from the order
denying his motion.2 On October 7, 2014, the trial court ordered Taylor to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within twenty-one days. On the order, there is a notation
that it was sent on October 8, 2014. Taylor’s concise statement, which was
docketed on October 30, 2014, was therefore filed one day after it was due.
Consequently, it is untimely and we are constrained to find his issues
waived. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).
Rule 1925 provides that the date of filing for a concise statement is the
date it is mailed, but only when that appellant obtains “a 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 indicates that Taylor obtained
or submitted such a form. Taylor’s certificate of service, which is dated
October 27, 2014, is not sufficient to verify the mailing date. In fact, the
certificate does not even state whether service was by mail or otherwise.
Therefore, we are constrained to use the docketing date as the date that
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2
An order denying post-trial motions is not appealable, and the appeal
properly lies from the judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2
(Pa. Super. 2005). However, when the final judgment is entered during the
pendency of an appeal, appellate jurisdiction is perfected. Id. Because
judgment was entered on January 2, 2015, we have jurisdiction and the
caption has been amended accordingly.
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Taylor filed the concise statement, and deem it untimely. See In re Estate
of Boyle, 77 A.3d 674, 675, 679 (Pa. Super. 2013) (holding issues waived
for failure to file timely concise statement when certificate of service was
dated one day prior to deadline, but the statement was docketed ten days
later).
Although the trial court addressed the merits of Taylor’s appeal, this
Court has no “discretion to review the merits of an untimely Rule 1925(b)
statement based solely on the trial court’s decision to address the
merits. . . . Under current precedent, even if a trial court ignores the
untimeliness of a Rule 1925(b) statement . . ., those claims still must be
considered waived.” Greater Erie Indus. Dev. Corp., v. Presque Isle
Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc). Therefore, we
are constrained to find that Taylor’s issues are waived and affirm the
judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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