C.Z. v. Z.M.

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2018
• Docket: 947 MDA 2017
• Status: Unpublished

Opinion

J-S01045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.Z. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : Z.M. : : Appellant : No. 947 MDA 2017

Appeal from the Order Entered May 25, 2017 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2017--6444

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 06, 2018

Appellant, Z.M., appeals from the order entered in the Luzerne County

Court of Common Pleas, which granted the petition filed by Appellee, C.Z.,

under the Protection from Abuse (“PFA”) Act, at 23 Pa.C.S.A. §§ 6101-6122.

On May 18, 2017, Appellee filed a petition for a PFA order against Appellant

claiming, inter alia, Appellant followed her and called her incessantly after

Appellee had ended their dating relationship. The court issued a temporary

PFA order that day. Following a PFA hearing on May 25, 2017, the court

entered a final PFA order prohibiting Appellant from contacting Appellee for

three years. The court entered an amended order on June 8, 2017, to fix a

scrivener’s error. Appellant timely filed a notice of appeal on June 9, 2017.

By order entered June 26, 2017, with Pa.R.C.P. 236 notice issued the next

day, the court directed Appellant to file a concise statement of errors per

Pa.R.A.P. 1925(b), within 30 days. Appellant’s Rule 1925(b) statement is J-S01045-18

dated July 19, 2017. The certificate of service and proofs of service indicate

Appellant served opposing counsel and the trial judge on that date. On July

21, 2017, Appellant inadvertently filed his concise statement in the Superior

Court, not the trial court.

Preliminarily, appellants must timely comply whenever the trial court

orders them to file a Rule 1925(b) concise statement. Commonwealth v.

Lord, 553 Pa. 415, 719 A.2d 306 (1998). Regarding civil cases:

Our Supreme Court intended the holding in Lord to operate as a bright-line rule, such that failure to comply with the minimal requirement of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised. Given the automatic nature of this type of waiver, we are required to address the issue once it comes to our attention. …

Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,

88 A.3d 222, 224 (Pa.Super. 2014) (en banc) (internal citations and

quotation marks omitted) (emphasis omitted). In addition to filing a concise

statement on the docket, an appellant must concurrently serve the trial

judge. Pa.R.A.P. 1925(b)(1). Failure to serve the trial judge can constitute

waiver of issues on appeal. See Forest Highlands Community Ass’n v.

Hammer, 879 A.2d 223 (Pa.Super. 2005) (explaining Rule 1925(b) imposes

waiver consequences upon appellant who fails to serve trial judge with

concise statement of errors). Nevertheless, upon application of an appellant

for good cause shown, this Court may remand in a civil case for the filing of

an initial, amended or supplemental concise statement and/or a

supplemental trial court opinion. See Pa.R.A.P. 1925(c)(2), Note.

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Instantly, by order entered June 26, 2017, with Rule 236 notice issued

the next day,1 the trial court directed Appellant to file a Rule 1925(b)

statement within 30 days. Thus, Appellant’s concise statement was due

July 27, 2017. Appellant’s Rule 1925(b) statement is dated July 19, 2017.

The certificate of service and proofs of service indicate Appellant served

opposing counsel and the trial judge on that date. On July 21, 2017,

Appellant inadvertently filed his concise statement in the Superior Court, not

the trial court. Nevertheless, the trial court issued a Rule 1925(a) opinion,

stating Appellant had failed to file a Rule 1925(b) statement, constituting

waiver of all issues on appeal. Consequently, the trial court declined to

address any of Appellant’s issues on the merits.

In response, Appellant filed a motion in the trial court for leave to file

his Rule 1925(b) statement nunc pro tunc. Appellant indicated he mailed his

statement on July 19, 2017, to opposing counsel and the trial court.

Appellant attached a copy of the cover letter and concise statement he

served on the trial judge, dated July 19, 2017, and proofs of mailing to

confirm his claims. Appellant also showed that he had inadvertently filed his

concise statement in the Superior Court, which time-stamped it July 21,

2017. Without explanation, the trial court denied Appellant nunc pro tunc

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1See Pa.R.A.P. 108(b) (stating date of entry of order in matter subject to Pennsylvania Rules of Civil Procedure shall be date on which clerk makes notation in docket that notice of order has been given per Rule 236).

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relief.

Under these circumstances, Appellant has demonstrated good cause to

allow him to file his Rule 1925(b) statement nunc pro tunc on the trial court

docket. See generally Pa.R.A.P. 751(a) (stating if appeal or other matter is

filed in incorrect court, court shall transfer it to proper court of this

Commonwealth, where appeal or other matter shall be treated as if originally

filed in transferee court on date first filed in incorrect court). Accordingly,

we remand for the trial court to grant Appellant leave to file the same Rule

1925(b) statement nunc pro tunc immediately with the Luzerne County

Prothonotary, and to serve opposing counsel and the trial judge again.2 The

trial court shall have 30 days thereafter to issue a supplemental opinion

addressing the claims and return the certified record including the

supplemental opinion to this Court. See Pa.R.A.P. 1925(c)(2), Note.

Case remanded with instructions. Panel jurisdiction is retained.

2 Appellant cannot raise any new issues other than those included in the concise statement he inadvertently filed in the Superior Court on July 21, 2017.

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