R.L.M. v. E.M.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2016
• Docket: 481 MDA 2016
• Status: Unpublished

Opinion

J-S82009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R.L.M. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

E.M.

Appellant No. 481 MDA 2016

Appeal from the Order Entered February 29, 2016 In the Court of Common Pleas of Centre County Civil Division at No(s): 2013-0031

BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED DECEMBER 30, 2016

E.M. appeals pro se from the order entered February 29, 2016, in the

Court of Common Pleas of Centre County that denied, without a hearing, his

Petition to Enforce. E.M.’s petition to enforce was based upon a provision for

supervised visitation of his children contained in a Protection From Abuse

(PFA) Order entered against him by a different judge on January 29, 2016.

The order presently at issue stated E.M. “may pursue periods of partial

custody through his custody action at No. 2013-0002, but not through this

Protection From Abuse action.” Order, 2/29/2016. E.M. raises the following

question in this appeal: “Did the lower court judge abuse her discretion in

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* Retired Senior Judge assigned to the Superior Court. J-S82009-16

summarily denying to enforce an order issued by another judge in the same

court?” E.M.’s Brief at 2. Finding waiver, we affirm.

The procedural history of this case is as follows. On March 21, 2016,

E.M. filed a notice of appeal from the order denying his petition to enforce,

entered by the Honorable Pamela A. Ruest. On March 24, 2016, Judge

Ruest issued a Pa.R.A.P. 1925(b) order, directing E.M. to file a concise

statement within 21 days of the date of the filing of the order. No timely

concise statement was filed.

Thereafter, on May 20, 2016, the Honorable Jonathan D. Grine issued

an order, asking that this Court consider E.M.’s failure to comply with Judge

Ruest’s order to file a concise statement “as a waiver of all objections to the

Order entered on February 29, 2016, denying [E.M.’s] Petition to Enforce.”

Trial Court Order, 5/20/2016. Subsequently, E.M. filed a Rule 1925(b)

statement on June 7, 2016, with the following note:

Note concerning timeliness of this statement: [E.M.] has two appeals pending under docket number docket 2013-0031. He received two orders for statements of errors complained [of on appeal] but they did not indicate which appeal was being considered. They came from two different judges and, since the presiding judge had changed, [E.M.] assumed both were related to the first (this being the second) appeal filed under this docket number. [E.M.] only became aware of the statement of errors for this particular appeal was due when the common pleas court asked to have it dismissed.

E.M.’s Statement of Errors, 6/7/2016.

On June 13, 2016, Judge Grine authored an “Opinion in Response to

Matters Complained of on Appeal,” pointing out E.M.’s concise statement

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was “untimely,” and further stating the court relied upon the reasoning

provided in the order of February 29, 2016. Trial Court Opinion, 6/13/2016.

Based on our review, we agree with Judge Grine that the Rule 1925(b)

statement is untimely, and conclude E.M. has waived the issue on appeal.

As E.M. indicated in the concise statement he filed in connection with

this appeal, he has two appeals pending in this Court. E.M. first appealed

the January 29, 2016 PFA order, which was entered by Judge Grine at civil

docket number 2013–0031. See R.L.M. v. E.M., 357 MDA 2016, listed at J-

S82008-16. On March 16, 2016, Judge Grine issued an order under the

caption “No. 2013-0031 Protection From Abuse,” directing E.M. to file a

Pa.R.A.P. 1925(b) statement within 21 days of the filing of the order. On

April 1, 2016, E.M. timely complied with Judge Grine’s order, filing his

concise statement under the caption “No. 2013-0031 Protection From

Abuse.”

As already stated, with regard to the present appeal from the order

denying E.M.’s petition to enforce, Judge Ruest’s order directing E.M. to file a

Rule 1925(b) statement was entered on March 24, 2016. The order was

captioned with the docket number “2013-0031.” However, E.M. did not

comply with Judge Ruest’s order until June 7, 2016. According to E.M.’s

note to the concise statement, quoted above, he assumed the two separate

orders he received for concise statements were both related to his first

appeal. This misapprehension does not save E.M.’s claim from waiver.

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It is important to note that “pro se status does not entitle a party to

any particular advantage because of his or her lack of legal training.” First

Union Mortg. Corp. v. Frempong, 744 A.2d 327, 333 (Pa. Super. 1999).

Accordingly, a pro se litigant must comply with the procedural rules set forth

in the Pennsylvania Rules of Court. See Jones v. Rudenstein, 585 A.2d

520 (Pa. Super. 1991).

It is also well settled that “in order to preserve their claims for

appellate review, Appellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to

Pa.R.A.P. 1925. Any issues not raised in a 1925(b) statement will be deemed

waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). See

also In re Estate of Boyle, 77 A.3d 674, 677 (Pa. Super. 2013). “In

determining whether an appellant has waived his issues on appeal based on

non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers

an appellant’s obligation … therefore, we look first to the language of that

order.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88

A.3d 222, 225 (Pa. Super. 2014) (en banc), citing In re Estate of Boyle,

supra, at 676.

Here, Judge Ruest’s March 24, 2016 Rule 1925(b) order, which was

properly filed, docketed, and served, directed E.M. to file a concise

statement within 21 days of the filing of the order, and serve the statement

on the trial court. The order advised that any issue not properly included in

the timely filed statement would be deemed waived. See Order, 3/24/2016.

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Because E.M. did not file his concise statement until June 7, 2016, the

statement was untimely and, consequently, the issues raised therein are

waived. See In re Estate of Boyle, supra at 679 (concluding issues were

waived for failing to file a timely Rule 1925(b) statement). Accordingly, we

affirm.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2016

1 Even if we addressed E.M.’s claim on the merits, we would find no basis upon which to disturb Judge Ruest’s decision since she essentially denied the petition to enforce without prejudice to E.M’s ability to file the petition in his custody action. See Order, 2/29/2016.

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