Bryant v. Glazier Supermarkets, Inc.

823 A.2d 154

• Court: Superior Court of Pennsylvania
• Decided: April 4, 2003
• Status: Published

Opinions

OPINION BY DEL SOLE, P.J.:

¶ 1 This is an appeal from a judgment entered for $100,000 plus delay damages following a jury verdict in favor of Appel-lees and against Appellant-supermarket. Appellees, husband and wife, brought an action seeking to recovery for injury sustained after Appellee-wife was struck on her foot by canned goods which were part of a display but fell. There was testimony offered at trial that Appellee-wife suffered a chronic diabetic foot abscess as a result of the incident which, despite daily intravenous treatments, developed into gangrene and resulted in the amputation of two toes.

¶ 2 Appellant raises five issues and two sub-issues on appeal. The trial court in its opinion writes that “the appeal should be dismissed pursuant to Appellate Rules of Procedure § 1925(b).” According to the trial court it ordered Appellant to file a Statement of Matters Complained of on Appeal within fourteen days of the court’s order, yet it was not timely filed. The trial court wrote: “The failure to file a timely 1925(b) statement renders all appellate issues moot. No issue is preserved for appellate review in such a circumstance. Commonwealth v. Overby, 744 A.2d 797 (Pa.Super.2000).” Trial Court Opinion, 7/2/01, at 1. The court then went on and discussed four issues as an “alternative” and found that the assertions were meritless.

¶3 A review of the record includes a notation on the docket that the trial court ordered Appellant to file a statement in compliance with Rule 1925. The order itself, dated December 19, 2001, is included in the record and advises Appellant that it shall have 14 days after the entry of the order to comply and that a failure to comply will be considered a waiver. Absent from the record is Appellant’s statement. The docketing statement does not indicate that a Statement of Matters Complained of on Appeal was ever filed. Included in the reproduced record is a copy of such a statement, but it contains no time stamp and no indication that it was ever filed of record. R.R. 1371a-1377a. As evidence of its late filing Appellees have included as part of their brief a copy of the cover letter from Appellant’s counsel advising that enclosed could be found a copy of the Statement of Matters Complained of on Appeal. The letter is dated January 2, 2002. The letter also includes a notation that via “HAND DELIVERY” a copy was delivered to the trial judge. Appellees’ Brief at 19.

¶ 4 Handing a copy of a motion to a judge in the courtroom or elsewhere, does not constitute a filing. Wiegand v. Wiegand, 363 Pa.Super. 169, 525 A.2d 772 (1987); Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983.) Accordingly, Appellant’s Statement of Matters Complained of on Appeal was never “filed” and, therefore, never became part of the record on appeal. See Pa.R.A.P. 1921. Since the statement is not of record, we are unable to determine if the issues raised by Appellant on appeal were included as grounds in his Statement, nor are we able to make any conclusion regarding the trial court’s finding of waiver based upon a late receipt of the Statement. See and compare: Commonwealth v. Alsop, 799 A.2d 129 (Pa.Super.2002) and Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002).

¶ 5 In reference to the failure to file a Statement of record this Court has held:

[W]e conclude that Appellant’s issues are waived for faffing to file a Concise Statement and for failing to ensure that the Concise Statement was made part of the certified record. “[I]t is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Hrinkevich v. Hrinkevich, 450 Pa.Super. 405, 676 A.2d 237, 240 (1996) (citation omitted). “Under our Rules of Appellate Procedure, those documents which are not part of the ‘official record’ forwarded to this Court are considered to be non-existent.” D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 326 (Pa.Super.1998) (citation omitted), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998). “These deficiencies may not be remedied by inclusion in a brief in the form of a reproduced record.” Id. Similarly, these deficiencies cannot be cured by indicating that the relevant document was simply mailed to the office of the trial judge but not filed of record.

Everett Cash Mutual Insurance Company v. T.H.E. Insurance Company, 804 A.2d 31, 34 (Pa.Super.2002).

¶ 6 Because Appellant never filed a Statement of Matters Complained of on Appeal, as evidenced by the docket and a review of the record, Appellant’s issues are waived.

¶ 7 Judgment affirmed.

¶ 8 KLEIN, J. files a dissenting opinion.