The 2010 Superior Court case J.P. vs. S.P. is a reminder of the importance of complying with a court order directing the filing of a Rule 1925(b) Concise Statement of Errors Complained of on Appeal. As held by the Superior Court in the present case, failure to follow such an order will result in a waiver of all matters complained of on appeal, which will, in essence, close the court's doors in such an appeal, leaving the appellant on the outside looking in with no relief.

The facts in J.P. , generally, are as follows: Approximately one year after the parties' first child was born, S.P., the mother, enlisted in the U.S. Army in August 2002. In May 2007, S.P. was deployed toIraq until July 2008 as part of the "Surge Buildup." According to the opinion, the parties agreed, when S.P. learned of her pending deployment, that J.P., the father, would remain inGeorgia, where the parties lived, and his mother would move toGeorgia to help raise the parties' three daughters. However, the opinion said, in March 2007, J.P. "decided to move back toNew Castle,Pennsylvania, as his mother did not want to move toGeorgia. The plan was that [J.P.] would move to his aunt's house, two (2) doors away from his mother's house."

In October 2007, J.P. suspected that S.P. was having an affair. In November 2007, when S.P. returned toIraqafter an 18-day leave from her deployment, S.P. believed that the parties would be working on their marriage. In April 2008, "[J.P.] informed [S.P.] via e-mail that he wanted a divorce, that he wanted to settle the issue, and that he wanted custody of the three girls," the opinion said.

On July 18, 2008, J.P. filed a custody complaint and obtained an ex parte order on Aug. 12, 2008, "granting him primary physical custody of the children until October 21, 2008, and prohibiting either party from removing the children from the trial court's jurisdiction." According to the opinion, the trial court entered an interim custody order on Nov. 4, 2008, awarding J.P. temporary primary physical custody pending a final custody determination. The court also ordered a custody evaluation, drug and alcohol evaluations and home studies. A custody trial was conducted on Feb. 6, April 15, and April 16, 2009.

The trial court entered a final custody order on June 25, 2009, awarding shared legal custody of the children to the parties and primary physical custody of the children to J.P., the father. S.P. filed a timely notice of appeal on July 21, 2009. "On July 22, 2009, the trial court entered an order directing S.P. to file a court-ordered concise statement of errors complained of on appeal pursuant toPa.R.A.P. 1925(b)," the opinion said. S.P. filed her 1925(b) statement "one day beyond the Court ordered twenty-one-day period" on Aug. 13, 2009. S.P. raised 20 allegations of trial court error in her 1925(b) Statement, according to the Superior Court.

Interestingly, S.P. mailed her 1925(b) Statement on Aug. 11, 2009, which is before the court-ordered 21-day period expired. However, it was not received by the court until Aug. 13, 2009, which was one day late. Pursuant toPennsylvania Rule of Civil Procedure 205.1, the controlling date to determine "timeliness" is the date that the trial court receives the Rule 1925(b) Statement and not the date it was mailed. Pursuant to Rule 205.1: "A paper sent by mail shall not be deemed filed until received by the appropriate officer."

In J.P. , the Superior Court noted that S.P. failed to comply with two aspects of Appellate Rule 1925. "First, [S.P.] failed to file a concise statement of errors complained of on appeal concurrently with her notice of appeal." Under the newly enacted Children's Fast Track Appeals under Rule 1925(a)(2)(i): "The concise statement of errors complained of on appeal shall be filed and served with the Notice of Appeal required by Rule 905."

However, this error by S.P. was not fatal. The Superior Court indicated that in their recent case of In re K.T.E.L., they addressed "a similar issue and declined to extend the bright-line waiver rule the Supreme Court adopted in Commonwealth vs. Castillo to deem the appellant's issues waived in a Children's Fast Track case for failing to comply with the amended rule strictly." The Superior Court stated that they distinguished between a court-ordered Rule 1925(b) Statement and "one mandated by a procedural rule." The Superior Court stated that "the disposition of the defective notice of appeal will … be decided on a case by case basis under the guidelines set forth in Stout vs. Universal Underwriters Ins. Co. "

In light of the holding in K.T.E.L., the Superior Court held that S.P.'s issues raised on appeal were not waived "merely for violating the procedural rules outlined inPa.R.A.P. 1925(a)(2)(i)."

S.P.'s fatal flaw in her appeal was failing to comply with the trial court's order to file a Rule 1925(b) Statement within 21 days of the date of the order. The trial court's order was pursuant to 1925(b). The Superior Court stated: "Unlike the reasoning underlying our rationale in K.T.E.L. , relating to violations of procedural rules, an appellant's failure to comply with an order to file a Rule 1925(b) Statement in a timely manner constitutes waiver of all objections to the order, ruling or other matter complained of on appeal."

In citing its decision in Forest Highlands Community Ass'n. vs. Hammer , the Superior Court stated: "In civil cases, Rule 1925(b) implicates the notice procedure set inPa.R.C.P. 236, which involves the following steps: (1) the court must order the Rule 1925(b) Statement; (2) the order must be filed with the prothonotary; (3) upon receipt of an order from a judge, the prothonotary must immediately docket the order and record in the docket the date it was made; and (4) the prothonotary must furnish a copy of the order to each party or attorney and must record in the docket the giving of a notice. If any one of these procedural steps is missing, the appellant's failure to comply with Rule 1925(b) will not result in waiver of the issues raised." In the present case, the four steps were met.

Therefore, the Superior Court found that S.P. waived her issues complained of on appeal by failing to timely file a 1925(b) Statement pursuant to the trial court's order.

The Superior Court also stated that had S.P. timely filed her Rule 1925(b) Statement, "she would not have been entitled to relief," as the Superior Court concluded that the trial court did not commit an abuse of discretion and that S.P. was "simply seeking for this court to render factual determinations different from those made by the trial court, and to make different credibility and weight decisions."

This case is a loud reminder to all practitioners that if a trial court orders that a 1925(b) Statement be filed, and the 1925(b) Statement is not received by the prothonotary within the required time period, the appellant's matters complained of on appeal will be deemed waived. Also, this case is a good reminder that under the new Children's Fast Track Appeals, the concise statement of errors complained of on appeal "shall be filed and served with the Notice of Appeal required by Rule 905."


MICHAEL E. BERTIN is a partner in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-chairman of the custody committee and secretary of the family law section of the Philadelphia Bar Association, and a member of council and past member of the executive committee of the family law section of the Pennsylvania Bar Association. 

This article is reprinted with permission from the June 7, 2010, issue of The Legal Intelligencer. © 2010 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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