Greater Erie Industrial Development Corp. v. Presque Isle Downs, Inc.
88 A.3d 222
Pa. Super. Ct.2014Background
- Presque Isle sold real property to GEIDC in 2005; GEIDC later sued (2009) alleging $600,000 damages for breach related to fill dirt obligations.
- Trial court granted summary judgment for GEIDC on December 14, 2011.
- Presque Isle filed a timely notice of appeal on January 12, 2012; the trial court ordered a Pa.R.A.P. 1925(b) concise statement within 21 days.
- The trial court’s 1925(b) order was entered on the docket with notice on January 13, 2012; the deadline (21 days) expired on February 3, 2012.
- Presque Isle filed its 1925(b) statement on February 6, 2012 (stamped filed), and did not obtain USPS Form 3817 or otherwise secure proof that would make mailing the operative filing date.
- The Superior Court (en banc) held Presque Isle’s 1925(b) statement untimely and therefore found all appellate issues waived; summary judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Presque Isle’s Rule 1925(b) statement was timely | The filing was effectively made on Feb 3 (proof of service) and should be considered timely | The statement was not filed of record until Feb 6; no verified certificate of mailing; thus it was untimely | Untimely — filing date is Feb 6; deadline Feb 3; issues waived |
| Whether the trial court’s 1925(b) order complied with Rule 1925(b) | N/A (Presque Isle did not challenge order language) | The order met Rule 1925(b) requirements and notice was given | Order complied with Rule 1925(b); notice shown on docket and order notations |
| Whether the court may reach the merits despite untimeliness because trial court addressed the issues | Presque Isle relied on the trial court having accepted and opined on the late statement | GEIDC and the court argued that under Supreme Court precedent appellate courts lack discretion to excuse untimeliness | No — under Lord/Schofield/Castillo, appellate courts cannot review untimely 1925(b) statements even if trial court addresses them |
| Whether remand for nunc pro tunc filing or further factfinding is appropriate | Presque Isle implicitly sought consideration of its issues; proof of mailing suggests earlier service | No application for nunc pro tunc or good cause was made; record is complete and unequivocal | No remand; remand unnecessary and not warranted without an application showing good cause |
Key Cases Cited
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (established bright-line rule that noncompliant Rule 1925(b) matters are waived)
- Commonwealth v. Schofield, 888 A.2d 771 (Pa. 2005) (reaffirmed strict automatic waiver for Rule 1925(b) noncompliance)
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (disapproved intermediate-court exceptions and emphasized elimination of discretionary timeliness rules)
- Hess v. Fox Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007) (explains appellant must timely comply with trial court Rule 1925(b) orders)
- In re L.M., 923 A.2d 505 (Pa. Super. 2007) (failure of prothonotary to give docketed notice can prevent waiver for timeliness)
- Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002 (Pa. 2010) (addresses trial court order language triggering Rule 1925(b) obligations)