Berg v. Nationwide Mutual Insurance

Justice EAKIN,

concurring.

Rule 1925(b) states Appellants “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)....” Pa.R.A.P. 1925(b)(1). Rule 121(a) provides, inter alia, “[pjapers required or permitted to be filed in an appellate court shall be filed with the prothono-tary. Filing may be accomplished by mail addressed to the prothonotary....” Id., 121(a).1 Appellants, by timely filing their Rule 1925(b) statement with the trial court’s prothonotary, complied with Rule 121(a).

Service on the judge, per Rule 1925(b), is also to be done as provided in Rule 121(a) — in contrast, service on the parties shall be under Rule 121(c). Thus, by complying with Rule 121(a), Appellants did comply with the “Filing and Service” requirements in the manner specified by Rule 1925(b).2 Rule 1925(b)(1) could have easily required judges be served pursuant to other rules, but it does not, and one cannot fault Appellants for following the Rule’s choice of service method.

Finding no error in what Appellants did, I would not begin creating “equitable departures” from Rule 1925’s requirements. Likewise, I see no need to opine on any errors in the trial judge’s Rule 1925(a) order.

Thus, I concur with the Opinion Announcing the Judgment of the Court that Appellants’ claims under Rule 1925 are not waived, but do so on distinct grounds.

. At first glance, Rule 121(a) appears inapplicable to filing Rule 1925(b) statements, which must be filed with the trial court, not the appellate court. However, Rule 1925(b)(1) explicitly requires filing of record and service on the trial judge to be pursuant to Rule 121(a) — this is what Appellants were required to comply with. The lead opinion contends filing and service are distinct obligations and this construction would render the service requirement superfluous. Opinion Announcing the Judgment of the Court, slip op. at 10-11 n.9. However, we cannot disregard the method of service designated by Rule 1925’s plain language merely because such method is named "filing” or may render service superfluous. Furthermore, following Rule 1925’s plain language will provide the bench and bar clarity in the proper means of serving a trial judge with a Rule 1925 statement.

. Even if service were controlled by Rule 121(c), service “includes delivery of the copy to a clerk ... at the office of the person served,” Pa.R.A.P. 121(c)(1), which in the case of a judge would seem to include the prothonotary of the court.