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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MIKE MURPHY AND MIKE MURPHY : IN THE SUPERIOR COURT OF
RENTALS, INC. PENNSYLVANIA
v.
MARK HOOVER AND JEFFREY D.
SERVIN, ESQ. No. 1445 MDA 2018
APPEAL OF: JEFFREY D. SERVIN
Appeal from the Judgment Entered August 3, 2018
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2016-06899
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 23, 2019
Appellant Jeffrey D. Servin, Esq., appeals from the judgment entered in
the Court of Common Pleas of Cumberland County on August 3, 2018,
following the filing of a Motion for Imposition of Sanctions and Motion to Make
Rule Absolute by Appellees Mike Murphy and Mike Murphy Rentals, Inc. We
affirm.
On December 12, 2016, Appellees filed a Dragonettil/abuse of process
action against Appellant and his former client, Mark Hoover following a
1 The Dragonetti Act created the following cause of action:
(a) Elements of action. --A person who takes part in the
procurement, initiation or continuation of civil proceedings against
Former Justice specially assigned to the Superior Court.
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frivolous lawsuit filed by Appellant on behalf of Hoover in the Cumberland
County Court of Common Pleas at Docket No. 2016-00934 which had been
dismissed with prejudice on August 18, 2016. Appellant filed Preliminary
Objections thereto on February 14, 2017, and in its Order filed on May 12,
2017, the trial court overruled those objections and directed Hoover to file an
answer to Appellees Complaint within twenty (20) days of the receipt of the
Order. In its Order dated May 30, 2017, the trial court also ruled upon and
denied Appellant's "Motion to Vacate Order by Stipulation" that had been filed
on May 26, 2017, in connection with the trial court's May 12, 2017, Order.
Hoover ultimately filed his Answer on June 9, 2017.
On May 29, 2018, the trial court granted Appellees' Motion to Compel
Discovery Responses ordered Hoover to complete and verify the outstanding
request for production of and produce all response documents for the benefit
Appellees within twenty (20) days or face sanctions. When Hoover and
another is subject to liability to the other for wrongful use of civil
proceedings:
(1) he acts in a grossly negligent manner or without
probable cause and primarily for a purpose other than
that of securing the proper discovery, joinder of parties
or adjudication of the claim in which the proceedings are
based; and
(2) the proceedings have terminated in favor of the
person against whom they are brought.
42 Pa.C.S.A. § 8351(a).
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Appellant still had not complied with the trial court's Order thirty (30) days
later, on June 29, 2018, Appellees filed a Motion for Special Relief requesting
that sanctions be imposed upon them.
The trial court issued a Rule to Show Cause upon Hoover and Servin on
July 3, 2018, giving them ten (10) days from the date of service of the Order
in which to respond as to why the requested relief should not be granted.
Appellees served the Rule to Show Cause upon Hoover and Servin via email
and U.S. mail on July 9, 2018, and provided proof of service for the same.
When they received no response, Appellees filed their Motion to Make Rule
Absolute, and the trial court granted the Motion on July 27, 2018, at which
time Hoover and Appellant were sanctioned $350.00 in attorney's fees,
ordered to produce the requested discovery within five days, and warned that
their failure to do so would result in judgment being entered in favor of
Appellees. Upon their failure to comply, the trial court entered judgment in
favor of Appellees on August 3, 2018.
On August 30, 2018, Appellant purported to file a Notice of Appeal from
the Orders entered on July 27, 2018, and August 8, 2018.2 On September
2 "It is well -established that [a]ppeals to this Court are usually permitted only
after entry of a final judgment .... [a]n appeal to this Court can only lie from
judgments entered subsequent to the trial court's disposition of post -verdict
motions, not from the order denying post -trial motions." McEwing v. Lititz
Mut. Ins. Co., 77 A.3d 639, 645 (Pa.Super. 2013) (citation omitted).
Appellees had judgment entered on August 3, 2018; the trial court did not
enter an Order on August 8, 2018.
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5, 2018, the trial court directed Appellant to file a concise statement of the
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
filed what he titled "Appellants' Pa.R.A.P. 1925(b) Statement of Matters
Complained of on Appeal" on September 24, 2019.
In his brief, Appellant presents the following question for this Court's
review:
Whether a motion to compel production of documents could
violate the attorney/client privilege, as so asserted by Mark
Hoover, should the Appellant, so as not to violate said privilege
transmit those documents to the trial judge, to assess and review
whether their disclosure would so violate said privilege in order
for Appellant not to violate the rules of professional responsibility
for an attorney and subject said attorney to disciplinary action.
Brief for Appellant at 1 (unnecessary capitalization omitted).
In its Statement in Lieu of 1925(a) Opinion filed on December 27, 2018,
the trial court states, inter alia, the following:
[Appellant] an attorney licensed to practice in Pennsylvania, has
filed Appellants' Pa.R.A.P. 1925(b) Statement of Matters
Complained of on Appeal that does not comply with Pennsylvania
Rules of Appellate Procedure 1925; consequently all issues should
be deemed waived, and the appeal should be denied. The
Statement of Matters amounts to a general, unsubstantiated claim
of error. Importantly, [Appellant] has failed to concisely state any
specific error made by this court which makes a direct and detailed
response to the appeal nearly impossible. [Appellant's]
Statement of Matters does not identify any cognizable error of law,
and consists of mere argument and a self-serving conclusion of
law claiming his actions should be excused under the attorney -
client privilege and for reasons of personal hardship.
Statement in Lieu of 1925(a) Opinion, filed 12/27/18, at 1.
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Therefore, prior to reaching the merits of Appellant's issue, we must
address whether he has preserved it for our review. In this regard, this Court
recently observed that:
Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal "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')." Rule 1925 also states that "[i]ssues 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)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719
A.2d 306 (1998), our Supreme Court held that "from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived." Lord, 719 A.2d at 309; see also
Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780
(2005) (stating any issues not raised in a Rule 1925(b) statement
are deemed waived). This Court has held that "[o]ur Supreme
Court intended the 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.' " Greater Erie Indus. Dev. Corp. v. Presque Isle
Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc)
(emphasis in original) (quoting Commonwealth v. Schofield,
585 Pa. 389,888 A.2d 771,774 (2005).
U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua,
193 A.3d 994,996-97 (Pa.Super. 2018).
Here, the day after Appellant filed his notice of appeal, the trial court
directed him to file a concise statement of errors complained of on appeal
within twenty-one (21) days. That statement consists of ten individually
numbered paragraphs followed by a wherefore clause which reads like a
narrative. In fact, when the "concise statement" is compared with the
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appellate brief Appellant has presented for this Court's review, it is evident
that the documents read verbatim, except for the numbers one (1) through
ten (10) which are placed in front of the various paragraphs in the concise
statement. For this reason, we agree with the trial court that Appellant has
waived his claim on appeal by failing to adequately specify the nature of that
claim in his Rule 1925(b) statement. See Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa.Super. 2006) ("If a Rule 1925(b) statement is too vague, the
trial judge may find waiver and disregard any argument"), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
In light of the foregoing, we cannot reach the merits of Appellant's
claim.
Judgment Affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/23/2019
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