Thomas & Sons Contracting v. NVR, Inc.
735 WDA 2019
| Pa. Super. Ct. | Feb 25, 2022Background
- Thomas & Sons Contracting LLC sued NVR, Inc. and Shannon Staley & Sons LLC for tortious interference, defamation, civil conspiracy, and breach of contract; defendants filed preliminary objections and several claims were dismissed.
- The trial court sustained preliminary objections to Thomas’s second amended complaint and the parties entered a final order dismissing that complaint with prejudice (order dated April 11/12, 2019).
- Thomas timely appealed; the trial court ordered Thomas to file a Pa.R.A.P. 1925(b) concise statement within 21 days and to serve the trial judge at a specified address.
- Thomas filed the Rule 1925(b) statement but did not serve it on the trial judge; Thomas later petitioned for leave to file the statement nunc pro tunc, which the trial court denied.
- The Superior Court examined whether Thomas waived appellate issues by failing to serve the trial judge, concluded the trial court’s 1925(b) order complied with the rule, found no court or prothonotary breakdown excusing noncompliance, and affirmed dismissal for waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thomas preserved issues for appeal by serving the Rule 1925(b) statement on the trial judge | Thomas argued its statement was timely filed and that any defect (clerical omission of judge’s name on certificate) excused noncompliance | Defendants argued the trial court’s order required service on the judge and Thomas failed to serve, so issues are waived | Held: Waiver — Thomas failed to serve the judge as ordered, so issues are waived |
| Whether the trial court’s Rule 1925(b) order complied with Rule 1925(b) requirements | Thomas implied the order/configuration may not trigger strict waiver due to clerical confusion | Defendants: Order satisfied Rule 1925(b)(3) by specifying filing, service on judge, deadline, and address | Held: Order complied with Rule 1925(b); it properly triggered appellant’s service obligation |
| Whether a procedural breakdown (prothonotary/docket/notice) excused noncompliance | Thomas suggested the certificate of service error and related clerical matters excused the failure to serve | Defendants: Record shows prothonotary served the order and docket entries confirm notice — no breakdown | Held: No breakdown found; prothonotary and docket reflected proper notice and service |
| Whether nunc pro tunc relief was warranted to cure failure to serve | Thomas sought leave to file nunc pro tunc, citing counsel’s oversight/clerical error | Defendants opposed; strict compliance required where order was proper and no breakdown | Held: Trial court denied nunc pro tunc; appellate court affirmed denial and waiver |
Key Cases Cited
- Forest Highlands Community Ass’n v. Hammer, 879 A.2d 223 (Pa. Super. 2005) (failure to serve court-ordered Rule 1925(b) statement results in waiver)
- Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002 (Pa. 2010) (declined to find waiver where trial court’s order did not expressly require service on the judge)
- Rahn v. Consol. Rail Corp., 254 A.3d 738 (Pa. Super. 2021) (declined to find waiver when the trial court’s order failed to specify service on the judge)
- In re Estate of Boyle, 77 A.3d 674 (Pa. Super. 2013) (appellate court looks first to the language of the trial court’s order to determine appellant’s obligations)
- Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222 (Pa. Super. 2014) (prothonotary’s failure to give written notice and note it on the docket can prevent waiver)