Boyle, E. v. Main Line Health

J-A27022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIN BOYLE AND STEPHEN BOYLE, : IN THE SUPERIOR COURT OF
PARENTS AND NATURAL GUARDIANS : PENNSYLVANIA
OF BB, A MINOR, AND IN THEIR :
OWN RIGHT :
:
Appellant :
:
:
v. : No. 728 EDA 2021
:
:
MAIN LINE HEALTH, INC., MAIN LINE :
HOSPITALS, INC., MAIN LINE :
HEALTHCARE, AND SCOTT BAILEY, :
MD :
Appeal from the Order Entered March 16, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2019-15082
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
DISSENTING STATEMENT BY DUBOW, J.: FILED JANUARY 10, 2022
Although I agree with the Majority’s analysis of the psychiatrist-patient
privilege, I respectfully dissent because the Majority Opinion fails to follow the
holding in Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222 (Pa. Super. 2014) (en banc), that a party who files an untimely
Pa.R.A.P. 1925(b) statement has waived all issues raised on appeal. Id. at
227. In this case, it is undisputed that Appellants filed an untimely Rule
1925(b) statement, and thus, I would find that Appellants waived the issues
raised on appeal and affirm the decision of the trial court.
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In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), the Supreme
Court created the bright-line rule that any issue not raised in a Rule 1925(b)
statement is waived. Id. at 420. See also Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005) (reaffirming the “bright-line rule first set forth in
Lord” and holding that an untimely Rule 1925(b) statement results in waiver
of all issues on appeal). Applying this principle, the en banc panel of this Court
in Presque Isle concluded that “it is no longer within this Court’s discretion
to ignore the internal deficiencies of 1925(b) statements” and held that a party
who files an untimely 1925(b) statement has waived all issues on appeal. 88
A.3d at 224, 227.1
In this case, the Majority Opinion excuses Appellant’s untimely Rule
1925(b) statement on the grounds that the trial court’s Rule 1925 Order was
defective because the trial court failed to designate “the place the appellant
can serve the Statement in person and the address to which the appellant can
mail the Statement as required by Subsection (b)(3)(iii).” See Majority Op.
at 11 (internal quotation marks omitted). To support its newly created
exception to the timeliness requirement, the Majority relies on Rahn v.
Consol. Rail. Corp., 254 A.3d 738 (Pa. Super. 2021), and Berg v.
Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002 (Pa. 2010) (plurality). Those
cases, however, are inapposite because they do not involve an appellant who
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1The en banc panel added that this rule only applied when the prothonotary
properly served the appellant with the Rule 1925 Order. In this case, it is
undisputed that the prothonotary properly served Appellants with the Rule
1925 Order.
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filed an untimely Rule 1925(b) statement; rather, they involve appellants who
did not properly serve the trial judge with a copy of the statement.
In Rahn, the appellant timely filed his Rule 1925(b) statement in the
lower court. He did not, however, simultaneously serve it on the trial judge.
This Court excused the appellant’s imperfect service because the courts’ Rule
1925 order “did not specifically instruct [the appellant] to serve the trial judge
with his 1925(b) statement and did not contain certain information required
by Pa.R.A.P. 1925(b)(3)(iii). Rahn, 254 A.3d at 744. We, thus, overlooked
appellant’s improper service because the trial court’s Rule 1925 order did not
strictly comply with Rule 1925(b)(3)(iii). Timeliness was not an issue in Rahn.
Similarly, in Berg, the appellants timely filed their court-ordered Rule
1925(b) statement but did not serve a copy on the trial judge. 6 A.3d at
1004. The Supreme Court, applying the equitable doctrine of substantial
compliance, excused the appellants’ failure to serve the trial judge with a copy
of their Rule 1925(b) statement because appellants’ efforts “substantially
complied with the court’s order to file with the [c]ourt and a copy with the trial
judge their 1925(b) Statement.” Id. at 1008, 1010. The Supreme Court also
declined to find waiver because the trial court’s order did not instruct
appellants to serve a copy of their Rule 1925(b) statement on the trial judge
and was, thereby, inconsistent with Rule 1925(b)(3)(iii). Id. at 1010-12.
Timeliness was not at issue in Berg.
Since these cases do not address an untimely Rule 1925(b) statement,
they do not support the Majority’s holding that a Rule 1925 Order that does
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not correctly inform the parties about the method and place of service of the
Rule 1925(b) statement on the trial judge excuses an untimely Rule 1925(b)
statement. Rather, the holding in Presque Isle controls this case. I am,
therefore, constrained, to dissent and find that Appellants failed to preserve
their issues on appeal.
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