Henry, M., Jr. v. Rhoads, H.

Opinion

J-A27020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MARCUS A. HENRY, JR. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HOLLIE RHOADS, TIM MORRIS AND : No. 317 MDA 2022 DIAKON ADOPTION AND FOSTER : CARE :

Appeal from the Order Dated January 25, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 21-13213

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 2, 2023

Marcus A. Henry, Jr. appeals from the order granting the preliminary

objections of Hollie Rhoads, Tim Morris, and Diakon Adoption and Foster Care1

(“Diakon”) (together, “Appellees”), and dismissing his complaint. Henry has

waived all issues by failing to file a timely Rule 1925(b) statement. See

Pa.R.A.P. 1925(b)(4)(vii). We therefore dismiss the appeal.

Henry filed a pro se complaint alleging that Diakon placed his three

biological children in foster care with Rhoads and Morris (“Foster Parents”),

who made false statements about him, including that he had physically abused

the children and violated a Protection from Abuse order. He alleged that ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellees’ brief states that the party’s name is “Diakon Child, Family, and

Community Ministries.” J-A27020-22

Diakon was negligent for placing the children with Foster Parents. Appellees

filed preliminary objections arguing, among other things, that they are

immune under the Child Protective Services Law (“CPSL”), 23 Pa.C.S.A. §

6318(a)(2). The court sustained the preliminary objections and dismissed the

complaint, and Henry appealed.

The court entered an order on March 1, 2022, directing Henry to file a

Rule 1925(b) concise statement of errors complained of on appeal, within 21

days. See Pa.R.A.P. 1925(b).2 The order advised Henry, “Any issue not

included in a timely filed and served Statement of Errors Complained of on

Appeal shall be deemed waived.” Pa.R.A.P. 1925(b) Order, 3/1/22, at 1; see

Pa.R.A.P. 1925(b)(3)(iv). The court did not receive Henry’s statement within

21 days — that is, by March 22, 2022.3 The trial court accordingly authored

an opinion stating that Henry had waived all issues.

Two weeks later, on April 5, 2022, the trial court’s prothonotary time-

stamped and docketed Henry’s Rule 1925(b) statement. The proof of service

indicated Henry sent the statement to the court via U.S. Mail two days before

the deadline, on March 20, 2022. Henry filed a “Motion to Clarify Delivery of ____________________________________________

2 The order is dated February 28, 2022, but a March 1, 2022, docket entry

states that the prothonotary provided Rule 236 notice on March 1, 2022. The order was therefore “entered’” on March 1, 2022. See Pa.R.A.P. 108(b) (providing order is entered on date clerk notes in docket that notice of order has been given).

3 See Pa.R.C.P. 106(a) (“When any period of time is referred to in any rule,

such period in all cases . . . shall be so computed as to exclude the first and include the last day of such period”). March 22, 2022, did not fall on a weekend or holiday.

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Appellant’s Concise Statement of Errors” in this Court. He alleged that he first

mailed the statement to the trial court on March 20, 2022, two days before

the deadline, but the prothonotary sent it back to him, unfiled, demanding an

$8.00 filing fee. Henry claimed he then returned the statement with the fee.4

Appellees argued for dismissal of the appeal based on Henry’s untimely

Rule 1925(b) statement. However, we determined that the date Henry filed

the statement was the date it was first received by the prothonotary,5 and

that the resolution of this operative factual issue was not apparent on the face

of the record. We therefore remanded the case to the trial court to determine

whether the prothonotary had received and rejected the statement prior to

the March 22 filing deadline. See Pa.R.A.P. 1925(c)(1); Bank of New York

Mellon v. Brooks, No. 1362 EDA 2016, 2017 WL 1437521, unpublished

memorandum at *3 and n.3 (Pa.Super. 2017) (remanding for determination

of when prothonotary received Rule 1925(b) statement, even where

prothonotary time-stamped and docketed the statement after the deadline,

where proof of service stated appellant mailed the statement before the

deadline). We retained jurisdiction.

____________________________________________

4 We denied the motion without prejudice.

5 See Mariano v. Rhodes, 270 A.3d 521, 530 (Pa.Super. 2022) (if a prothonotary rejects civil pleadings filed within time limits, based on an initial failure to pay a filing fee, it does not affect the timeliness of the filing); see also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 226 nn.5, 6 (Pa.Super. 2014) (en banc) (when the appellant does not obtain a certificate of mailing, the date of filing is the date the prothonotary received the statement).

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The trial court has since responded. It issued an order stating that it

held a hearing at which the deputy prothonotary for the trial court testified

and at which Henry had an opportunity to present rebuttal evidence. The court

found that the prothonotary’s office first received Henry’s statement on March

23, 2022. See Order, 5/25/23, at 1.

We do not have discretion to entertain issues that were not included in

a timely statement. Greater Erie Indus. Dev. Corp., 88 A.3d at 225. There

is no exception to Rule 1925(b) for pro se litigants who miss the deadline by

even one day. See Commonwealth v. Boniella, 158 A.3d 162, 164

(Pa.Super. 2017). As the prothonotary of the trial court received Henry’s

statement one day after the March 22, 2022, deadline, it is untimely, and all

issues are waived. See Pa.R.A.P. 1925(b)(4)(vii). We accordingly dismiss the

appeal.

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2023

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