J-A07012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H&H MANUFACTURING COMPANY, : IN THE SUPERIOR COURT OF
INC. AND VINCENT H. TOMEI : PENNSYLVANIA
:
:
v. :
:
:
THOMAS R. TOMEI AND JEANETTE M. :
TOMEI : No. 1198 EDA 2018
:
:
v. :
:
:
JAMES F. FLANDREAU, ESQUIRE, :
EXECUTOR AD LITEM FOR THE :
ESTATE OF MARIE L. TOMEI, :
DECEASED :
:
:
APPEAL OF: ESTATE OF MARIE L. :
TOMEI, DECEASED :
Appeal from the Judgment Entered on April 20, 2018
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2013-05775
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MAY 22, 2019
Appellant, James F. Flandreau, Esquire, Executor ad Litem for the Estate
of Marie L. Tomei, Deceased, appeals from the judgment entered on April 20,
2018.1 As is relevant to the current appeal, the judgment was: in favor of
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1Appellant purports to appeal from the trial court’s order dated April 18, 2018,
which ruled upon the defendants’ motion for post-trial relief. See Notice of
Appeal, 4/23/18. “Orders denying post-trial motions, however, are not
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* Former Justice specially assigned to the Superior Court.
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Defendants Thomas R. Tomei and Jeanette M. Tomei (hereinafter, collectively,
“Defendants”) and against Appellant, on all of Appellant’s claims against
Defendants; and, in favor of Appellant and against Thomas Tomei, on all of
Thomas Tomei’s counterclaims against Appellant. We affirm.
On June 11, 2013, Plaintiffs, H&H Manufacturing Company and Vincent
H. Tomei (hereinafter “Plaintiffs”), instituted the current action by filing a writ
of summons. Within Plaintiffs’ third amended complaint, Plaintiffs levied 12
claims against Defendants. See Plaintiffs’ Third Amended Complaint,
5/18/16, at 1-16.
After Defendants answered the original complaint, Appellant was
granted permission to intervene in the proceedings; Appellant later filed a
complaint against Defendants. See Trial Court Order, 7/18/16, at 1;
Appellant’s Complaint, 8/1/16, at 1-9. Jeanette Tomei answered Appellant’s
complaint and denied liability; Thomas Tomei answered Appellant’s complaint,
denied liability, and filed counterclaims against Appellant. See Plaintiffs’
Answer to Appellant’s Complaint, 10/4/16, at ¶¶ 1-48; Jeanette Tomei’s
Answer and New Matter to Appellant’s Complaint, 1/3/17, at 1-13; Thomas
Tomei’s Answer, New Matter, and Counterclaim to Appellant’s Complaint,
1/3/17, at 1-38.
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appealable. Rather, it is the subsequent judgment that is the appealable order
when a trial has occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d
523, 524, n.1 (Pa. Super. 2006) (internal citation omitted). Judgment was
entered on April 20, 2018. Thus, we treat the appeal as from the entry of
judgment and have amended the caption accordingly. See Pa.R.A.P.
905(a)(5).
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The case proceeded to an eight-day bench trial and, on November 30,
2017, the trial court entered its findings of fact, conclusions of law, and
decision in the matter. As is relevant to the current appeal, the trial court
found in favor of Defendants and against Appellant, on all of Appellant’s claims
against Defendants; and, in favor of Appellant and against Thomas Tomei, on
all of Thomas Tomei’s counterclaims against Appellant. Trial Court Decision,
11/30/17, at 1-3. On April 19, 2018, the trial court denied Appellant’s
post-trial motion and, on April 20, 2018, judgment was entered on the trial
court’s decision.
Appellant filed a timely notice of appeal. Appellant’s Notice of Appeal,
4/23/18, at 1. In an order dated April 30, 2018 and entered May 22, 2018,
the trial court directed that Appellant file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and serve a copy of the concise statement upon the trial
court. The order reads:
AND NOW, this 30th day of April 2018, it is hereby ORDERED
AND DECREED that Intervenor, the Estate of Marie Tomei,
through her executor ad litem, James Flandreau, Esquire and
counsel to the Estate, pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, shall file a
Concise Statement of Matters Complained of on Appeal no
later than twenty-one (21) days after entry of this Order and
serve a copy on this Court pursuant to Pa.R.A.P. 1925(b)(1).
Any issue not properly included in the Statement, timely filed
and served, shall be waived.
Trial Court Order, 5/22/18, at 1 (some emphasis omitted).
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The docket states that, in accordance with Pennsylvania Rule of Civil
Procedure 236, notice of the Rule 1925(b) order was given to Appellant on
May 22, 2018. See Docket Entry, at 5/22/18.
The certified record contains no Rule 1925(b) statement, the docket
does not reflect that Appellant ever filed a Rule 1925(b) statement, and the
trial court stated in its opinion that, although Appellant “sent the [trial] court
a copy of” her Rule 1925(b) statement, the Rule 1925(b) statement was
“never filed pursuant to the [trial] court’s April 30, 2018 order.” Trial Court
Opinion, 7/10/18, at 5 (some capitalization omitted).
We are constrained to conclude that Appellant’s claims on appeal are
waived, as Appellant failed to comply with Pennsylvania Rule of Appellate
Procedure 1925(b). In relevant part, Rule 1925(b) declares:
(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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(2) Time for filing and service.--The judge shall allow the
appellant at least 21 days from the date of the order's entry
on the docket for the filing and service of the Statement. ...
(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.
(4) Requirements; waiver.
...
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph
(b)(4) are waived.
Pa.R.A.P. 1925(b).
As we have explained:
In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998),
our Supreme Court held that in order to preserve claims for
appellate review, an appellant must comply with a trial court
order to file a Statement of Matters Complained of on Appeal,
pursuant to Pa.R.A.P. 1925(b). Our Supreme Court recently
reiterated the bright-line rule established in Lord, holding
that “failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised [on appeal].” Commonwealth v. Schofield, 888
A.2d 771, 774 (Pa. 2005); see also Commonwealth v.
Castillo, 888 A.2d 775 (Pa. 2005) (same). If an appellant
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does not comply with an order to file a Rule 1925(b)
statement, all issues on appeal are waived—even if the
Rule 1925(b) statement was served on the trial judge
who subsequently addressed in an opinion the issues
raised in the Rule 1925(b) statement. Although
recognizing that such a strict application of the Rule may be
harsh, our Supreme Court stressed that failure to file the Rule
1925(b) statement “results in the inability of the appellate
courts to determine which issues were presented to the trial
court, and thus preserved for appeal, and whether the trial
court received the statement within the required time
period.” [Schofield,] 888 A.2d at 774-775.
In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (some citations omitted)
(emphasis added); see also Schofield, 888 A.2d at 771-775 (the
Pennsylvania Supreme Court held that the appellant’s failure to file her Rule
1925(b) statement resulted in the “automatic waiver of the issues raised” on
appeal, even though the trial court received the appellant’s Rule 1925(b)
statement and addressed the issues in an opinion); Greater Erie Indus. Dev.
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014)
(en banc) (“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”).
In the case at bar, the trial court’s concise statement order fully
complied with Rule 1925(b). It informed Appellant: that she was required to
file her concise statement within 21 days; that she was required to serve a
copy of the statement on the court pursuant to Rule 1925(b)(1); and, that
failure to comply with the order would result in waiver. Trial Court Order,
5/22/18, at 1; see also Pa.R.A.P. 1925(b)(3). The concise statement order
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was entered on the docket and the docket reflects that notice of the order was
sent to Appellant on May 22, 2018. See Docket Entry, at 5/22/18.
Appellant, however, failed to file her Rule 1925(b) statement, as
required by the trial court’s order and Rule 1925(b)(1). This results in the
automatic wavier of Appellant’s claims on appeal. Schofield, 888 A.2d at
774. Moreover, although Appellant apparently “sent the [trial] court a copy
of” her Rule 1925(b) statement and the trial court addressed the issues
contained in the statement, waiver is nevertheless mandatory under the rule
and our Supreme Court’s precedent. Schofield, 888 A.2d at 774-775; see
also Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017) (“our
review is limited to those facts which are contained in the certified record and
what is not contained in the certified record does not exist for purposes of our
review”) (quotations and citations omitted).
Thus, since Appellant waived all issues on appeal, we affirm the
judgment entered in this case.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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