Erie Insurance Exchange v. Lutz, M.

Superior Court of Pennsylvania

Erie Insurance Exchange v. Lutz, M.

Superior Court of Pennsylvania·Decided June 20, 2017·No. Erie Insurance Exchange v. Lutz, M. No. 1838 MDA 2016·Unpublished

Opinion

J-A11043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIE INSURANCE EXCHANGE : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MATTHEW LUTZ, KIMBERLEY LUTZ, : DAKOTAH MILLER, AND ANDREW : SVRCEK : No. 1838 MDA 2016 : : APPEAL OF: MATTHEW LUTZ, : KIMBERLEY LUTZ, AND DAKOTAH : MILLER :

Appeal from the Judgment Entered October 7, 2016 In the Court of Common Pleas of Berks County Civil Division at No(s): 15-16318

BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 20, 2017

Appellants Matthew Lutz, Kimberly Lutz, and Dakotah Miller

(hereinafter collectively “Appellants”) appeal the Order entered in the Court

of Common Pleas of Berks County on October 7, 2016, granting the Motion

for Summary Judgment filed by Appellee Erie Insurance Exchange. We

affirm.

The trial court briefly set forth the facts and procedural history herein

as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A11043-17

On October 31, 2012, Defendants Matthew Lutz, Kimberly Lutz and Dakotah Miller a minor, ("Underlying Plaintiffs"), filed suit against Defendant Andrew Svrcek ("Underlying Defendant" or "Insured") for torts arising out of an altercation, ("Altercation") between Defendants Andrew Svrcek and Matthew Lutz and Dakotah Miller. (Berks docket No.: 12-13670). Defendant Svrcek and another individual accosted Defendants Lutz and Miller when they passed each other hunting, and caused physical harm to Defendant Lutz. Defendant Svrcek plead guilty to a criminal charge of Simple Assault arising out of the Altercation. The 2012 underlying tort case (hereinafter "Underlying Case") is still ongoing, and Underlying Plaintiffs allege intentional torts, as well as negligence in failing to exercise proper care to not cause injury to Underlying Plaintiff Matthew Lutz when Defendant Andrew Svrcek assaulted him. At the time of the Altercation, Defendant Andrew Svrcek held a homeowners insurance policy with Plaintiff Erie. In the instant case, Plaintiff Erie seeks declaratory relief ordering that Erie has no duty to defend or indemnify Mr. Svrcek in the Underlying case. Defendants Matthew and Kimberly Lutz and Dakotah Miller filed an Answer to Plaintiff Erie's Complaint, but Defendant Svrcek did not. On June 30, 2016, Plaintiff was awarded a default judgment against Defendant Andrew Svrcek. On July 1, 2016, Plaintiff Erie filed a Motion for Summary Judgment against Defendants Matthew Lutz, Kimberly Lutz, and Dakotah Miller. Following argument, on September 19, 2016, this Court entered an Order granting Summary Judgment against Defendants and in favor of Plaintiff.

Trial Court Opinion, filed December 7, 2016, ay 1-2.

While the trial court’s Order granting Appellee’s Motion for Summary

Judgment was dated September 19, 2016, it was not entered on the docket

until October 7, 2016. Appellants filed a timely notice of appeal on

November 7, 2016, and on November 17, 2016, the trial court directed

Appellants to file and serve upon it a concise statement of the matters

-2- J-A11043-17

complained of on appeal within 21 days.1 Although Appellants timely filed

the same, they did not serve the statement upon the trial court.

Moreover, in contravention of Pa.R.A.P. 1925(b)(4), Appellants’

Concise Statement of Matters Complained of on Appeal is comprised of six

pages, the first five of which are divided into three parts: “Introduction,”

“Procedural History,” and “Applicable Legal Standard and Argument Section.”

See Concise statement of Matters Complained of on Appeal at 5

(unnumbered). The final portion of the concise statement, captioned

“Statement of Errors” asks: “Whether the trial court erred and/or abused its

discretion in granting [Appellee’s] Motion for Summary Judgment.” Id. at 6

(unnumbered). Appellants present the same question for our review in their

appellate brief. See Brief of Appellants at 4.

1 The order reads, as herein relevant, as follows:

AND NOW, this 17th day of NOVEMBER, 2016, [Appellants], [ ], having filed an appeal to the Superior Court, are hereby directed to file of record in the Lower Court and serve upon the undersigned Trial Judge, a Concise Statement of the Errors Complained of [o]n Appeal, no later than twenty-one (21) days after the date of this order in accordance with Pa.R.A.P. 1925(b). Any issue not included in a timely filed and served Statement of Errors Complained of [o]n Appeal shall be deemed waived.

BY THE COURT: /s/[Trial Court Judge ] See Record No. 22.

-3- J-A11043-17

Appellee argues Appellants have waived appellate review for failing to

serve a copy of their concise statement upon the trial court and for filing a

vague and overbroad statement. Therefore, before reaching the merits of

this appeal, we must first determine whether Appellants’ issue has been

properly preserved for our review. See Commonwealth v. Wholaver, 588

Pa. 218, 228-29, 903 A.2d 1178, 1184 (2006), cert. denied, 549 U.S. 1171

(2007) (holding that appellate courts may sua sponte determine whether

issues have been properly preserved on appeal).

As stated previously, a review of the certified record reveals that while

Appellants timely filed their Rule 1925(b) statement, they did not serve it

upon the trial judge as the court had directed. Typically, a failure to comply

with Rule 1925 by filing a Rule 1925(b) statement with the court and

concurrently serving the statement on the trial judge results in waiver of all

issues. See Pa.R.A.P. 1925(b)(1) (“Appellant shall file of record the

Statement and concurrently shall serve the judge.”) (emphasis added); See

also Commonwealth v. Schofield, 585 Pa. 389, 393, 888 A.2d 771, 774

(2005) (“[F]ailure to comply with the minimal requirements of Pa.R.A.P.

1925(b) will result in automatic waiver of the issues raised.”).

As in the instant case, in Forest Highlands Community Ass'n v.

Hammer, 879 A.2d 223 (Pa.Super. 2005), the trial judge issued an order

instructing the appellant “to file, within fourteen (14) days, a concise,

written statement of the matters complained of on appeal, and to serve a

-4- J-A11043-17

copy of the same upon this Court pursuant to Rule 1925(b) of the Rules of

Appellate Procedure.” 879 A.2d at 228 n. 4 (quoting order) (emphasis

added). The appellant filed her 1925(b) statement with the prothonotary,

but did not serve a copy of the statement on the trial court. In ruling that

the appellant waived her issues on appeal, this Court held that Rule 1925(b)

is not satisfied when an appellant simply mails his or her 1925(b) statement

to the presiding judge, nor is the rule satisfied when an appellant merely

files a 1925(b) statement with the prothonotary, as it is not the trial court's

responsibility to search the files of the prothonotary to locate the statement.

Id. at 229.

Similarly, although its decisions are not binding upon this Court, the

Commonwealth Court has found issues waived for an appellant’s failure to

comply with the filing and service requirements of Rule 1925(b). In Egan v.

Stroudsburg School Dist., 928 A.2d 400

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