Henry, M., Jr. v. Rhoads, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARCUS A. HENRY, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HOLLIE RHOADS, TIM MORRIS AND : No. 317 MDA 2022
DIAKON ADOPTION AND FOSTER :
CARE :
Appeal from the Order Dated January 25, 2022
In the Court of Common Pleas of Berks County Civil Division at No(s):
21-13213
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 24, 2023
Marcus A. Henry, Jr. appeals from the order granting the preliminary
objections of Hollie Rhoads, Tim Morris, and Diakon Adoption and Foster Care1
(“Diakon”) (together, “Appellees”), and dismissing his complaint. We remand
for a determination as to whether Henry filed a timely statement of errors
complained of on appeal. See Pa.R.A.P. 1925(c)(1).
Henry filed a pro se complaint alleging that Diakon had placed his three
biological children in foster care with Rhoads and Morris (“Foster Parents”),
who made false statements about him, including that he had physically abused
the children and violated a Protection from Abuse order. He alleged that
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* Retired Senior Judge assigned to the Superior Court.
1Appellees’ brief states that the party’s name is “Diakon Child, Family, and
Community Ministries.”
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Diakon was negligent for placing the children with Foster Parents. Appellees
filed preliminary objections arguing, among other things, that they are
immune under the Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §
6318(a)(2). The court sustained the preliminary objections and dismissed the
complaint, and Henry appealed.
The court entered an order on March 1, 2022, directing Henry to file a
Rule 1925(b) concise statement of errors complained of on appeal, within 21
days. See Pa.R.A.P. 1925(b).2 The order advised Henry, “Any issue not
included in a timely filed and served Statement of Errors Complained of on
Appeal shall be deemed waived.” Pa.R.A.P. 1925(b) Order, 3/1/22, at 1.
The court did not receive a Rule 1925(b) statement within 21 days —
that is, by March 22, 2022.3 The trial court accordingly authored an opinion
stating that Henry had waived all issues.
Two weeks later, on April 5, 2022, the trial court prothonotary time-
stamped and docketed Henry’s Rule 1925(b) statement. The docket does not
reflect the method of filing, and no mailing envelope is included in the certified
record. Henry signed a proof of service stating that he sent the statement to
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2 The order is dated February 28, 2022, but a March 1, 2022, docket entry
states that the prothonotary provided Rule 236 notice on March 1, 2022. The
order was therefore “entered’” on March 1, 2022. See Pa.R.A.P. 108(b)
(providing order is entered on date clerk notes in docket that notice of order
has been given).
3 See Pa.R.C.P. 106(a) (“When any period of time is referred to in any rule,
such period in all cases . . . shall be so computed as to exclude the first and
include the last day of such period”). March 22, 2022, did not fall on a weekend
or holiday.
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the court via U.S. Mail two days before the deadline, on March 20, 2022.
However, attached to the statement is a receipt from the Berks County
prothonotary, showing an $8.00 payment by check for a “Complaint eFiling
Fee.” See Pa.R.A.P. 1925(b) Statement, at 6 (unpaginated). The receipt bears
the docket number for the instant case and is dated April 5, 2022. Id.
Henry thereafter filed in this Court a “Motion to Clarify Delivery of
Appellant’s Concise Statement of Errors.” In it, Henry alleges he called the
trial court’s prothonotary to see if there was a fee for filing a Rule 1925(b)
statement and was directed to look at the trial court’s website. He claims there
is no filing fee for a concise statement listed on the court’s website. He
provides the website address for the “Prothonotary of Berks County Fee Bill,”
and attaches a copy of the prothonotary’s Fee Schedule, which makes no
reference to a Rule 1925(b) statement.
Henry further alleges that, as he believed that there was no fee required
to file a Rule 1925(b) statement, he mailed the statement to the trial court on
March 20, 2022, two days before the deadline. He claims that the prothonotary
sent it back to him, unfiled, demanding an $8.00 filing fee. He does not allege
the date on which the prothonotary received his statement or the date it
returned it to him. Henry claims he mailed the statement back to the court
with an $8.00 check, on April 2, 2022. He alleges that according to his bank,
the prothonotary deposited his check on April 6, 2022. He attaches an image
of his check, which shows a deposit date of April 6, 2022.
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Henry argues that when a party uses the e-filing system, all amounts
are due at the time of filing, even when they are listed online for the public.
He asserts that on the other hand, when filing by U.S. mail, “any unlisted
charges come as a surprise and at the pace of the mail.” Mot. to Clarify,
4/14/22, at ¶ 13. He argues, “In the same way pro se status confers no special
benefit up on the appellant, it too should hold that pro se status confers no
special disability nor handicap upon the Appellant.” Id. at ¶ 14 (internal
quotation marks omitted).
This Court denied the motion per curiam, without prejudice. Appellees
filed a Motion to Dismiss, which we also denied without prejudice. Appellees
again argue for dismissal based on Rule 1925(b) waiver in their brief.
If the court orders an appellant to file a statement of errors complained
of on appeal, and the appellant fails to timely do so, the appellant waives his
issues. See Pa.R.A.P. 1925(b)(4)(vii). We do not have discretion to entertain
issues that were not included in a timely statement. Greater Erie Indus.
Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.Super.
2014) (en banc).
Rule 1925(b) requires the appellant to file the statement “as provided
in Pa.R.A.P. 121(a).” Pa.R.A.P. 1925(b)(1).4 Rule 121(a), in turn, explains that
the filing date is the date of receipt by the prothonotary:
Papers required or permitted to be filed in an appellate court shall
be filed with the prothonotary. Filing may be accomplished by mail
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4 Electronic filing may also be permitted. See Pa.R.A.P. 125.
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addressed to the prothonotary, but except as otherwise provided
by these rules, filing shall not be timely unless the papers are
received by the prothonotary within the time fixed for filing. . . .
Pa.R.A.P. 121(a); see also Pa.R.C.P. 205.1 (“A paper sent by mail shall not
be deemed filed until received by the appropriate officer”).
When a Rule 1925(b) statement is filed by mail, filing “shall be complete
on mailing,” provided that the 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[.]” Pa.R.A.P.
1925(b)(1). When the appellant obtains such a form, the date of mailing is
controlling. See Bank of N.Y. Mellon for Certificate Holders of CWALT,
Inc., Alternative Loan Tr. 2007-HY6 Mortg. Pass-through Certificates
Series 2007-HY6 v. Brooks, 169 A.3d 667, 669 n.1 (Pa.Super. 2017). When
the appellant does not obtain the form, the date of filing is the date the
prothonotary received the statement. See Greater Erie Indus. Dev. Corp.,
88 A.3d at 226 nn.5, 6.
Rule 1925(b) does not mention the payment of a filing fee. Rule of
Appellate Procedure 2701, however, provides that “[a] person upon filing any
paper shall pay any fee therefore prescribed by law.” Pa.R.A.P. 2701(a). The
Rules of Civil Procedure also require payment of fees. See Pa.R.C.P. 205.1
(“Any legal paper not requiring the signature of, or action by, a judge prior to
filing may be delivered or mailed to the prothonotary, sheriff or other
appropriate officer accompanied by the filing fee, if any”). The official note to
Rule 2701 explains that while previous appellate rules “required the payment
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of the fee in advance of filing,” the Rules of Appellate Procedure allow for filing
by mail, and therefore “a limited opportunity is afforded to permit the prompt
correction of the failure to include a check with the letter of transmittal or the
failure to draw the check in the proper amount.” Pa.R.A.P. 2701, Note.
If a prothonotary rejects civil pleadings filed within time limits, based on
an initial failure to pay a filing fee, it does not affect the timeliness of the filing.
Mariano v. Rhodes, 270 A.3d 521, 530 (Pa.Super. 2022). While a
prothonotary may notify the party that a document is defective, permitting
the prothonotary to reject potentially nonconforming documents would “confer
on the prothonotary the power to implement the Rules” and make judicial
timeliness determinations. Id. at 529 (quoting Nagy v. Best Home Services,
Inc., 829 A.2d 1166, 1170 (Pa.Super. 2003)) (internal quotation marks
omitted).
Therefore, an appellant’s failure to initially comply with a fee
requirement will not render a Rule 1925(b) statement untimely. It is the date
the prothonotary receives the document that determines the date of filing; if
a Certificate of Mailing was obtained, the date of filing is the date of mailing.
As Henry did not obtain Certificate of Mailing from the post office, the
operative date is the date the prothonotary first received his statement.
However, we cannot determine that date from the record. We therefore
remand pursuant to Rule 1925(c)(1) for a determination of the date. See
Pa.R.A.P. 1925(c)(1); Bank of New York Mellon v. Brooks, No. 1362 EDA
2016, 2017 WL 1437521, unpublished memorandum at *3 and n.3 (Pa.Super.
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2017) (remanding for determination of when prothonotary received Rule
1925(b) statement, even where prothonotary time-stamped and docketed the
statement after the deadline, where proof of service stated appellant mailed
the statement before the deadline).
The trial court shall determine on remand whether the prothonotary
received and rejected the statement on or before March 22, 2022. It may
conduct such proceedings as necessary to make that determination. If the trial
court finds that Henry filed his statement in a timely manner, it shall issue a
supplemental Rule 1925(a) opinion addressing the issues raised in the
statement. The trial court shall transmit a supplemental record with the court’s
findings within 60 days of this memorandum.
Case remanded with instructions. Jurisdiction retained.
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