IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Simonton, Jr., :
Appellant :
v. : No. 1888 C.D. 2019
: SUBMITTED: December 4, 2023
Edward L. Arnold, County :
Commissioner, William G. Carpenter, :
County Commissioner, Rose Marie :
Swanger, County Commissioner, :
Jamie A. Wolgemuth, County :
Administrator, Adrienne C. Snelling, :
County Solicitor, Gary Robson, County :
Personnel Director, and Paul D. Zechman, :
Chief County Detective :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: January 17, 2024
In August 2019, Inmate, Terry Simonton, Jr., appealed pro se from a
July 2019 order of the Court of Common Pleas of Lebanon County (1) sustaining
the preliminary objections of Appellees1 to Inmate’s complaint and dismissing the
complaint with prejudice; and (2) denying Inmate’s motion for judgment on the
pleadings. In light of Inmate’s failure to comply with the trial court’s August 2019
order to file a concise statement of errors complained of on appeal, this Court
directed the parties to address in their principal briefs on the merits or in an
1
Appellees, Defendants below, include Edward L. Arnold, County Commissioner, William
G. Carpenter, County Commissioner, Rose Marie Swanger, County Commissioner, Jamie A.
Wolgemuth, County Administrator, Adrienne C. Snelling, County Solicitor, Gary Robson, County
Personnel Director, and Paul D. Zechman, Chief County Detective.
appropriate motion whether Inmate waived all issues on appeal.2 Pennsylvania Rule
of Appellate Procedure 1925(b)(4)(vii) provides: “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)(4)(vii). Upon review, we conclude that the
trial court did not abuse its discretion in denying Inmate’s request to file a concise
statement nunc pro tunc. Accordingly, all issues presented on appeal are waived and
so we must affirm.3
The relevant background is as follows. Inmate’s present action
originated with a 2007 criminal trial in which he was prosecuted and convicted. In
2018, Inmate filed a complaint in Commonwealth Court against Appellees averring
that a county detective gave false testimony regarding his credentials at the 2007
trial resulting in Inmate’s conviction and causing Inmate to sustain damages.
Simonton v. Edward L. Arnold (Pa. Cmwlth., No. 453 M.D. 2018, filed July 5, 2018).
In the 2018 complaint, Inmate asserted negligence by vicarious liability and
negligent infliction of emotional distress. In July 2018, this Court transferred the
case to the trial court.4
2
March 30, 2023 Commonwealth Ct. Order. Inmate did not address the issue in his May 2023
principal brief, despite being granted an extension in which to file that brief. May 2, 2023
Commonwealth Ct. Order. However, Inmate addressed the issue in his August 2023 filing titled
“Traverse to Courts Brief.” Appellees addressed the issue in their June 2023 principal brief.
3
See Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 223 (Pa. Super.
2014) (en banc) (affirming trial court where appellant failed to comply timely with the trial court’s
order to file a concise statement).
4
In pertinent part, the order provided:
[U]pon consideration of [the] Complaint, Tort Action, in which
[Inmate] seeks money damages for alleged negligence, and it
appearing that such actions are properly commenced in the court of
common pleas, . . . , and it further appearing that the alleged cause
(Footnote continued on next page…)
2
In a July 2019 order, the trial court sustained Appellees’ preliminary
objections and dismissed Inmate’s complaint with prejudice. In addition, the trial
court denied Inmate’s motion for judgment on the pleadings. On August 16, 2019,
Inmate filed a notice of appeal in Commonwealth Court from the trial court’s July
2019 order. On August 23, 2019, the trial court issued an order directing Inmate to
file a concise statement within twenty-one days. However, Inmate never responded
to that order.
In January 2023, Appellees filed a motion to dismiss for failure to file
a concise statement and for docket inactivity in excess of two years with the trial
court.5 Approximately four years after the trial court’s August 2019 order directing
Inmate to file a concise statement, he filed a February 2023 response essentially
requesting permission to file a concise statement nunc pro tunc. The trial court
denied Inmate’s request. Feb. 13, 2023 Trial Ct. Order.
Pennsylvania Rule of Appellate Procedure 1925(b)(2), Pa.R.A.P.
1925(b)(2), expressly empowers trial courts to grant nunc pro tunc relief for concise
statements where it perceives a breakdown in the process that constitutes
extraordinary circumstances. Rule 1925(b)(2) provides:
of action arose in Lebanon County and that venue may lie in that
county, this case is hereby transferred to the Court of Common Pleas
of Lebanon County.
July 5, 2018 Commonwealth Ct. Order, Simonton (Pa. Cmwlth., No. 453 M.D. 2018, filed July 5,
2018).
5
With regard to the docket inactivity, absent an opinion rendered pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), there should have been no docket activity
in Lebanon County following the 2019 notice of appeal to this Court. Consequently, it would have
been improper to dismiss Inmate’s action for lack of docket activity.
3
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. Upon application of the
appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. Good
cause includes, but is not limited to, delay in the
production of a transcript necessary to develop the
Statement so long as the delay is not attributable to a lack
of diligence in ordering or paying for such transcript by
the party or counsel on appeal. In extraordinary
circumstances, the judge may allow for the filing of a
Statement or amended or supplemental Statement nunc
pro tunc.
Pa.R.A.P. 1925(b)(2) (emphasis added).
In Inmate’s February 2023 response and request not to have his case
deemed abandoned, Inmate represented to the trial court:
[Inmate] argues that his legal aide was transfered [sic] to
another [Department of Corrections] and wasn’t able to
continue contact and was unawhere [sic] that a concise
statement was never filed.
[Inmate] argues that he wasn’t given any notice that the
concise statement was never filed, until 30 months or so
had passed and was to assume it was dismissed.
[Inmate] argues that this case should not be deemed
abandoned and had he been notified by the courts, a
response would have been filed well within the 14 days
allowed.
Inmate’s Feb. 8, 2023 Response at 1-2.
Before this Court, Inmate averred that he never received the trial court’s
August 2019 order directing him to file a concise statement. This is different from
his representation to the trial court that he was unaware that a concise statement had
never been filed. Inmate’s Aug. 7, 2023 Traverse Br. at 1. In any event, Inmate
4
averred that when the failure to file a concise statement was brought to his attention
in February 2023, he immediately made a request of the trial court for permission to
file one.
Notwithstanding Inmate’s representations that he never received the
trial court’s August 2019 order directing him to file a concise statement, the record
reflects that Inmate was served with that order. See Aug. 23, 2019 Trial Ct. Order,
Cert. of Serv. The address on the certificate of service is the same one that Inmate
used in an October 2023 filing with this Court: Terry Simonton, Jr., #HH1155, S.C.I.
Rockview, 1 Rockview Place, Bellefonte, PA 16823. Under these circumstances,
we conclude that the trial court did not abuse its discretion in denying Inmate’s
request to file a concise statement nunc pro tunc6 and thus that all issues on appeal
are waived.
Accordingly, we affirm.
6
To the extent that the trial court entered orders after Inmate filed his 2019 notice of appeal,
it lacked jurisdiction to act but for rendering an opinion pursuant to Pa.R.A.P. 1925(a). See
Pa.R.A.P. 1701(a) (after an appeal is filed, the trial court may no longer proceed in a matter). In
addition, anything filed with the trial court after the August 2019 notice of appeal, including any
purported notices of appeal, is not pertinent to the instant appeal and, therefore, void and/or moot.
To be clear, however, there is no relief for Inmate on the merits. Among other things, his claims
are barred by the two-year statute of limitations for negligence actions because the actions
complained of took place in 2007. See Section 5524(7) of the Judicial Code, 42 Pa.C.S. § 5524(7).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Terry Simonton, Jr., :
Appellant :
v. : No. 1888 C.D. 2019
:
Edward L. Arnold, County :
Commissioner, William G. Carpenter, :
County Commissioner, Rose Marie :
Swanger, County Commissioner, :
Jamie A. Wolgemuth, County :
Administrator, Adrienne C. Snelling, :
County Solicitor, Gary Robson, County :
Personnel Director, and Paul D. Zechman, :
Chief County Detective :
PER CURIAM ORDER
AND NOW, this 17th day of January, 2024, the order of the Court of
Common Pleas of Lebanon County is hereby AFFIRMED.