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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
BARBARA LADYANSKY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 3373 EDA 2017
ARIA HEALTH SYSTEM & :
TOWNE PARK LTD. :
Appeal from the Judgment Entered November 3, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. January Term, 2016 No. 2550
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 08, 2018
Barbara Ladyansky appeals the November 3, 2017 judgment entered
in favor of Aria Health System (“Aria”) in the Court of Common Pleas of
Philadelphia County. After careful review, we affirm.
The relevant facts and procedural history, as found by the trial court,
are as follows:
This appeal filed, by [appellant], stems from this
Court’s September 12, 2017 denial of [appellant’s]
Amended Post-Trial Motion, after a jury verdict on
July 18, 2017 in favor of [Aria] regarding
[appellant’s] premises liability-based suit, in which
she claimed that Aria’s purportedly negligent
behavior had caused her to suffer injuries. . . .
The relevant facts in this matter are as follows: On
October 13, 2014, [appellant] visited Aria’s Medical
Office Building (“MOB”), located at 3998 Red Lion
Road, Philadelphia, PA, for an appointment with
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Dr. Richmond, who is an ophthalmologist.
Dr. Richmond administered eye drops of some sort
to [appellant] during the course of the checkup,
thereby dilating her pupils in order to facilitate a
proper assessment of her visual acuity. After
Dr. Richmond completed his testing, [appellant] was
given dark, oversized glasses, in order to shield her
sensitive and still-dilated pupils from light, and was
sent on her way. [Appellant] then went outside with
Steven Ladyansky, her then-husband, whereupon a
valet retrieved their vehicle and parked it in the
driveway adjacent to the sidewalk in front of MOB’s
main entrance, near a wheelchair ramp that sloped
downwards from the sidewalk to the driveway below.
As she moved towards the car’s passenger side,
[appellant] incorrectly assumed that she was walking
on the ramp, an error which caused her to step off
the edge of the sidewalk’s curb and fall “hard” to the
ground, fracturing her left ankle and fibula in the
process. Subsequently, [appellant] sued Aria and
Towne Park, Ltd. (“Towne Park”) on January 21,
2016, claiming therein that Aria and Towne Park
were liable for the injuries she had suffered, due to
these entities’ purportedly negligent acts and
omissions pertaining to, respectively, maintenance of
the sidewalk area on which she had fallen, and
operation of the valet service.
....
This matter subsequently proceeded to a jury trial
before this Court, beginning on July 17, 2017 with
Aria as the sole defendant.[Footnote 4] Just prior to
opening arguments, this Court heard oral argument
from the parties regarding the Second MIL, during
the course of which [appellant] maintained that Aria
had violated Pa.R.C.P. 4017 and, in addition, that
she had been prejudiced by the tardy discovery of
the transcript omission, by virtue of her expert
witness’ reliance on the original while creating his
report. Ultimately, this Court denied the Second
MIL. . . .
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[Footnote 4] [Appellant] discontinued her
suit as to Towne Parke via a stipulation
that was submitted on July 13, 2017 and
approved by this Court on July 18, 2017.
Trial court opinion, 11/27/17 at 1-4 (citations to record and all other
footnotes omitted).
On July 18, 2017, the jury returned a verdict in favor of Aria and
against appellant on the basis that Aria had not committed negligence in
connection with appellant’s fall.
On July 27, 2017, appellant filed post-trial motions. She then filed an
amended post-trial motion on July 28, 2017. The trial court denied the
amended post-trial motion on September 12, 2017. Appellant filed a notice
of appeal on October 2, 2017.
The trial court explained the subsequent procedural history:
Pursuant to Pa.R.A.P. 1925(b), this Court then
docketed an order on October 5, 2017, directing
[appellant] “to file of record with the First Judicial
District’s Office of Judicial Records, and serve upon
this Court and all parties in interest, a concise and
itemized Statement of Errors Complained of not late
[sic] than twenty-one (21) days after the date of this
order’s docketing,” cautioning her in this order that
“any issue that is not included in a timely filed and
served, concise and itemized statement shall be
deemed waived.”[Footnote 8] Thus, [appellant] had
until October 26, 2017 to fully comply with this
order. Despite this, and though it appears that
[appellant] did electronically docket her Statement of
Errors on October 6, 2017 with the First Judicial
District’s Office of Judicial Records, she neglected to
contemporaneously serve a copy of this Statement
upon this Court and subsequently did not remedy her
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noncompliance, thus failing to fulfill the explicit
requirements of this Court’s October 3, 2017 order.
[Footnote 8] This Court issued this order
on October 3, 2017; however, for
reasons unknown, it was not docketed
until two days later.
Trial court opinion, 11/27/17 at 6-7.
Appellant raises the following issues for this court’s review:
1. Should [a]ppellant’s [a]ppeal be quashed
pursuant to the [trial c]ourt’s October 3, 2017
Order?
2. Did the [t]rial [c]ourt err in denying
[appellant’s] Second Motion in Limine,
thereby admitting evidence of a “corrected”
deposition transcript when under
Pa.R.Civ.P. 4017(b), [Aria] waived its objection
to the correctness of the original transcript?
3. Did the [t]rial [c]ourt err in permitting Counsel
for [Aria] to play a portion of the audio
recording of [appellant’s] deposition testimony
during cross-examination?
Appellant’s brief at 4.
Initially, appellant argues that her appeal should not be quashed
because she substantially complied with the order to serve the concise
statement of errors complained of on appeal with the trial judge because she
filed a copy with the Court of Common Pleas of Philadelphia County and
because she had earlier served a supplemental brief with the trial judge on
August 21, 2017, which also placed the trial judge on notice of the issues on
appeal.
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First, this court does not agree that a supplemental brief in support of
a post-trial motion filed over a month before the trial judge ordered that he
be served with a copy of the concise statement of errors complained of on
appeal substantially complies with the order.
Second, this court does not agree that appellant substantially complied
with the order. Pa.R.A.P. 1925(b) provides, in relevant part, as follows:
(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 shall be
concurrent with filing and shall be
by any means of service specified
under Pa.R.A.P. 121(c).
....
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(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)(1) and (3).
Preliminarily, in order for waiver to be found, the trial court must issue
a Rule 1925(b) order that directs the appellant to file a response within the
21 days specified in the rule. Second, the order must be filed with the
prothonotary. Third, the prothonotary must docket the order and record on
the docket the date it was made. Fourth, the prothonotary shall give written
notice of the entry of the order to each party’s attorney of the record, and
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the giving of notice shall be recorded on the docket. Forest Highlands
Community Ass’n v. Hammer, 879 A.2d 223, 227 (Pa.Super. 2005).1
Here, the trial judge and prothonotary complied with these
requirements. In Forest Highlands, the trial court in its Rule 1925(b)
order directed Nancy Hammer (“Hammer”), the appellant, to serve a copy
upon the presiding judge pursuant to Rule 1925(b). Hammer did not do so.
As in the present case, Hammer argued that because a copy was filed with
the prothonotary, the trial judge could find the concise statement on his
own. This court determined that it was not the trial court’s role to manually
search the files of the prothonotary or to surf the internet to locate the
website of the prothonotary. Id. at 229. This court determined that
Hammer’s failure to comply with the service requirements of Rule 1925(b)
resulted in waiver of her complaints on appeal. This court affirmed. Id. at
229-230.
Similarly, here, appellant was directed to serve the trial judge with a
copy of the statement of errors and failed to do so. Although the trial judge
asks that the appeal be quashed, this court shall follow Forest Highlands
and find that appellant has waived all issues on appeal.
Judgment affirmed.
1 In Forest Highlands, this court stated that the trial court was required to
direct an appellant to file a response within 14 days. At the time, that was
the time period specified in Rule 1925(b). The time limit was changed to
21 days in 2007.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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