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By Burt Rose

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The Superior Court of Pennsylvania en banc has issued a decision in GREATER ERIE INDUSTRIAL DEVELOPMENT CORPORATION, Appellee v. PRESQUE ISLE DOWNS, INC., Appellant, No. 77 WDA 2012, 2014 WL 930822, 2014 PA Super 50

(March 11, 2014). This was an appeal from an Order Entered in the Court of Common Pleas of Erie County, Civil Division, # 14436–2009. The Judges were BENDERFORD ELLIOTT,BOWES, GANTMAN, DONOHUEALLENLAZARUSOTT and WECHT, who wrote the Opinion.

Presque Isle Downs, Inc. appealed an order entering summary judgment against it and in favor of the Greater Erie Industrial Development Corporation. The Superior Court concluded that Presque Isle had waived all of its claims because it failed to comply timely with the trial court’s order directing it to file a concise statement of errors pursuant to Pa.R.A.P.1925(b).

On January 12, 2012, Presque Isle filed a timely notice of appeal. That same day, the trial court ordered Presque Isle to file a concise statement of errors complained of on appeal pursuant toPa.R.A.P.1925(b). The trial court’s order provided that Presque Isle was to “file of record and serve upon this Court a concise statement … within twenty-one (21) days of the date of this Order.”However, Presque Isle filed its Rule 1925(b) statement on February 6, 2012. Nevertheless, the trial court accepted Presque Isle’s untimely statement and, on February 14, 2012, the trial court issued an opinion pursuant to Pa.R.A.P.1925(a).

Before addressing the merits of Presque Isle’s claims, the Court evaluated whether Presque Isle had properly preserved those issues for review, as required by Pa.R.A.P.1925(b). The PA Supreme Court intended its holding in Lord to operate as a bright-line rule, such that failure to comply with the minimal requirements of Pa.R.A.P.1925(b) will result in automatic waiver of the issues raised. Given the automatic nature of this type of waiver, the Court was required to address the issue once it comes to its attention. The Supreme Court does not countenance anything less than stringent application of waiver pursuant to Rule 1925(b): “A bright-line rule eliminates the potential for inconsistent results that existed prior to Lord, when … appellate courts had discretion to address or to waive issues raised in non-compliant Pa.R.A.P.1925(b) statements. Succinctly put, it is no longer within this Court’s discretion to ignore the internal deficiencies of Rule 1925(b) statements.”

The certified record indicates that the trial court accepted Presque Isle’s untimely Rule 1925(b)statement, and addressed the merits of Presque Isle’s issues. However, the Supreme Court specifically removed the authority to allow such discretionary review; therefore, it is no longer within the Superior 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.Even if a trial court ignores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered waived.

However, strict application of the bright-line rule in Lord necessitates strict interpretation of the rules regarding notice of Rule 1925(b) orders. A failure by the 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 for timeliness pursuant to Pa.R.A.P.1925(b). Instantly, a notation appears in the docket indicating that the prothonotary provided notice of the trial court’s January 12, 2012 order to the parties on January 13, 2012. Additionally, there are hand-written notations on the trial court’s order confirming that notice was given. Based upon all of the above, the trial court’s order complied with the technical requirements of Pa.R.A.P.1925(b). On January 12, 2012, the trial court ordered Presque Isle to file its Rule 1925(b) statement “within twenty-one (21) days of the date of this Order.” Notice of the order was sent to Presque Isle on January 13, 2012, and a notation was placed in the docket. Pursuant to Pa.R.A.P. 108(b), “the date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given.” Pa.R.A.P. 108. Consequently, the date of entry of the trial court’s order was January 13, 2012. In computing the relevant filing deadline, Pa.R.C.P. 106(a) provides: “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.”. Accordingly, the Court excluded January 13, 2012, from its computation, as the “first” date the order was entered, and begin from January 14, 2012.  Judge Wecht calculated that the twenty-first day after the entry of the trial court’s order was February 3, 2012. Presque Isle did not file its Rule 1925(b) statement until February 6, 2012, three days late. The certified record contained no indication that Presque Isle sought, or that the trial court granted, an extension of time for filing. Consequently, Presque Isle’s filing was untimely.

Although the proof of service attached to Presque Isle’s Rule 1925(b) statement was dated February 3, 2012, Pa.R.C.P. 205.1 provides: “Any legal paper not requiring the signature of, or action by, a judge prior to filing may be delivered or mailed to the prothonotary…. A paper sent by mail shall not be deemed filed until received by the appropriate officer. Additionally, Pa.R.A.P. 121 provides: “Filing may be accomplished by mail addressed to the prothonotary, but … filing shall not be timely unless the papers are received by the prothonotary within the time fixed for filing.” Even assuming, arguendo, that Presque Isle mailed a copy of its Rule 1925(b) statement on February 3, 2012, it failed to comply with Pennsylvania statute and case law by failing to file that statement until February 6, 2012, regardless of the date listed on its proof of service.

The date of mailing or service does not necessarily control the timeliness of a Rule 1925(b)statement in the civil context. Pa.R.A.P.1925(b)(1) states: Filing of record and service on the judge shall be in person or by mail … 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.  Instantly, nothing in the certified record indicates that Presque Isle ever obtained any of the required postal forms “to verify the date the statement was mailed to the court so that date could operate as the filing date.” Therefore, Presque Isle’s Rule 1925(b) statement was not filed until February 6, 2012. Thus the Court was constrained to find all of Appellant’s issues waived for failure timely to file its Rule 1925(b) statement.

Finally, Judge Wecht noted that the Pennsylvania Rules of Appellate Procedure provide for limited instances in which appellate courts may remand civil cases to trial courts in order to cure defects in Rule 1925 practice. Appellate courts in civil cases may remand in two circumstances related to the filing of Rule 1925(b) statements: (1) an appellate court may remand in a civil case for a determination as to whether a Rule 1925(b) Statement had been filed and/or served or timely filed and/or served; or (2) upon application of the appellant and for good cause shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a Rule 1925(b) Statement or for amendment or supplementation of a timely filed and served Rule 1925(b) Statement. Neither of these circumstances is applicable to the instant case. With regard to Pa.R.A.P.1925(c)(1), it would be inappropriate for the Court to remand to the trial court for a determination of whether Presque Isle’s Rule 1925(b) statement was timely filed since the record is unequivocal and complete: it establishes the filing date and contents of the trial court’s initial order, as well as the filing date and contents of Presque Isle’s Rule 1925(b) statement. Consequently, the Court would not remand for an initial determination of timeliness by the trial court, inasmuch as such remand would consume additional judicial and litigant resources to no apparent purpose. Remand under Pa.R.A.P.1925(c)(2) was also improvident because Presque Isle had not entered an application for nunc pro tunc filing, nor had it demonstrated, or sought to demonstrate, any “good cause” related to the late filing. Furthermore, the permissive reinstatement of nunc pro tunc appellate rights under Pa.R.A.P.1925(c)(3) applies only in criminal cases. Thus the Court determined that remand was neither proper nor available in this case.


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