J. S55035/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THOMAS J. LYNCH, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

: No. 2936 EDA 2017

MICHAEL GERACE, G. WORLD, INC., 

AND GERACE ENTERPRISE, INC.

:

:

Appeal from the Judgment Entered October 18, 2017,

in the Court of Common Pleas of Delaware County

Civil Division at No. 15-1092

THOMAS J. LYNCH :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MICHAEL GERACE, G. WORLD, INC., 

AND GERACE ENTERPRISE, INC.,

:

: No. 2940 EDA 2017

:

 Appellants :

Appeal from the Judgment Entered October 18, 2017,

in the Court of Common Pleas of Delaware County

Civil Division at No. 2015-1092

BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2018

Appellant/cross-appellee Thomas J. Lynch (“Lynch”) and 

appellees/cross-appellants Michael Gerace, G. World, Inc., and Gerace 

Enterprise, Inc. (collectively, “Gerace”) each appeal from the October 18, 
J. S55035/18

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2017 judgment entered in favor of Lynch and against G. World, Inc. and 

Gerace Enterprise, Inc., in this breach of contract action.

1

 After careful 

review, we affirm on the basis of the comprehensive November 17, 2017

opinions of the Honorable Spiros E. Angelos.

The trial court summarized the relevant facts and procedural history of 

this case as follows:

[Lynch] initiated this action with the filing of a 

Complaint on February 6, 2015. [Lynch] alleged 

claims against [Gerace] in breach of contract and 

unjust enrichment. [Lynch] alleged that, pursuant to 

an oral agreement between the parties, [Lynch] 

performed human resources related consulting 

services at the request of Defendant, Michael 

Gerace. [Gerace] filed an Answer on November 17, 

2015. A bench trial was held on December 6, 2016 

and the undersigned Judge entered a Decision and 

supporting Findings of Facts and Conclusions of Law 

on December 19, 2017 in favor of [Lynch] against 

[Gerace] in the amount of Thirty Thousand Dollars 

($30,000.00).

[Lynch] filed a post-trial motion to amend the verdict 

to include prejudgment interest on December 28, 

2016. [Gerace] filed a post-trial motion to vacate 

the Trial Court[’]s December 19, 201[6] Decision on 

January 20, 2017,[Footnote 1] arguing that

[Defendant Michael] Gerace was not a party to the 

alleged oral agreement between the parties. A 

hearing was held on [the parties’] post-trial motions 

on April 5, 2017. Following said hearing, the 

undersigned Judge issued an Amended Order on

 

1 Both parties purport to appeal from the August 8, 2017 order denying their 

respective motions for post-trial relief. “[H]owever, an appeal properly lies 

from the entry of judgment, not from the denial of post-trial motions.” 

Croyle v. Dellape, 832 A.2d 466, 470 (Pa.Super. 2003) (citation and 

internal quotation marks omitted). We have amended the caption 

accordingly.
J. S55035/18

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April 12, 2017, finding in favor of [Lynch] and 

against two defendants, G World Inc. and Gerace 

Enterprise, Inc. in the amount of Thirty Thousand 

Dollars ($30,000.00) plus prejudgment interest in 

the amount of Five Thousand Eight Hundred Thirty 

Seven Dollars and Twelve Cents ($5,837.12).

[Footnote 1] [Gerace’s] Post-Trial Motion

was well past the 10 day period to file a 

post-trial motion under Pa.R.C.P. 

227.1(c)[.] However, [Lynch’s] 

Post-Trial Motion on December 28, 2016 

provided a cover-page that incorrectly 

stated [Gerace] had twenty (20) days to 

respond to [Lynch’s] post-trial motion. 

The Trial Court has broad discretion to 

dismiss an untimely post-trial motion or

to overlook its untimeliness. See 

Kennel v. Thomas, 804 A.2d 667, 668-

[6]69 (Pa.Super. 2002). Due to the 

error on the cover-page of [Lynch’s] 

post-trial motion, the Trial Court 

exercised its discretion and considered 

the merits of [Gerace’s] post-trial 

motion.

The parties filed post-trial motions on the April 12, 

2017 Amended Order, which were denied by Order 

on August 7, 2017, docketed August 8, 2017. 

[Lynch] and [Gerace] each filed a Notice of Appeal 

on September 6, 2017. The Court directed [Lynch]

and [Gerace] to file a Concise Statement of Matters

Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b) on September 8, 2017. [Gerace]

filed [its] 1925(b) statement on September 29, 2017 

and served a copy on the undersigned Judge. 

[Lynch] failed to timely file a 1925(b) statement 

within twenty-one (21) days and failed to serve a 

copy on the court,[Footnote 2] as prescribed by the

Trial Court’s September 8, 2017 Order and pursuant 

to Pa.R.A.P. 1925(b).

[Footnote 2] [Lynch’s] failure to serve a 

copy on the trial court is further 
J. S55035/18

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evidenced by the Certification of Service, 

which certifies that a copy was served 

via email and regular mail to [Gerace’s] 

counsel only.

Trial court opinion, 11/7/17 at 1-3 (some citations and footnotes omitted).

On October 18, 2017, the trial court entered judgment in favor of 

Lynch and against G. World, Inc., and Gerace Enterprise, Inc., in the amount 

of $35,837.12. Thereafter, on November 17, 2017, the trial court filed 

separate Rule 1925(a) opinions with respect to the issues raised by Lynch 

and Gerace. 

Lynch raises the following two issues for our review:

I. The trial court had no basis to vacate the

judgment and dismiss Michael Gerace from the 

case via post[-]trial motion.

II. The trial court erred in failing to grant [Lynch] 

leave to correct the designation of [] Gerace 

Enterprise, Inc. to M. Gerace Enterprise, Inc.

Lynch’s brief at 9, 14 (full capitalization and emphasis omitted).

The crux of Gerace’s argument on appeal is that the trial court erred in 

entering judgment in favor of Lynch in the amount $35,837.12 because the 

record did not establish that the parties entered into an oral contract. 

(Gerace’s brief at 8-14.) Gerace further avers that all of Lynch’s claims 

should be dismissed for failure to file a timely Rule 1925(b) statement. (Id.

at 17.) Alternatively, Gerace argues that, 

[t]he trial court correctly denied Lynch’s post-trial 

motion to amend the name of Defendant Gerace 

Enterprise, Inc.[; and]
J. S55035/18

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[t]he trial court . . . correctly determined judgment 

should not be entered . . . against Michael Gerace 

individually.

Id. at 19, 21 (emphasis and unnecessary capitalization omitted).2

Our standard of review in nonjury cases is as follows:

Our appellate role in cases arising from nonjury trial 

verdicts is to determine whether the findings of the 

trial court are supported by competent evidence and 

whether the trial court committed error in any 

application of the law. The findings of fact of the 

trial judge must be given the same weight and effect 

on appeal as the verdict of a jury. We consider the 

evidence in a light most favorable to the verdict 

winner. We will reverse the trial court only if its 

findings of fact are not supported by competent 

evidence in the record or if its findings are premised 

on an error of law. However, where the issue . . . 

concerns a question of law, our scope of review is 

plenary. The trial court’s conclusions of law on 

appeal originating from a non-jury trial are not 

binding on an appellate court because it is the 

appellate court’s duty to determine if the trial court 

correctly applied the law to the facts of the case.

Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 

60-61 (Pa.Super. 2012) (citations and internal quotation marks omitted), 

appeal denied, 69 A.3d 599 (Pa. 2013).

 

2 The record reflects that Gerace waived its claim with regard to the trial 

court’s award of $5,837.12 in prejudgment interest (see Gerace’s brief at 

14-16) by failing to raise this specific issue in his Rule 1925(b) statement. 

See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an appellant’s 

1925(b)] Statement . . . are waived”); see also Hess v. Fox Rothschild, 

LLP, 925 A.2d 798, 803 (Pa.Super. 2007) (stating, “any issue not raised in 

an appellant’s Rule 1925(b) statement will be deemed waived for purposes 

of appellate review[]”), appeal denied, 945 A.2d 171 (Pa. 2008).
J. S55035/18

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Instantly, the trial court found that “[Gerace] failed to prove that the 

Trial Court abused its discretion or committed an error of law by finding a 

breach of oral agreement between the parties.” (See trial court opinion, 

11/7/17 at 1; certified record at 41.) In reaching this decision, the trial 

court indicated that it carefully weighed the evidence presented by both 

parties at trial and found Lynch’s testimony to be credible. (Id. at 6-8.) 

The trial court further noted that “[Lynch] failed to properly preserve all 

claims on appeal by failing to timely file and serve on the court a concise 

statement of matters complained of on appeal pursuant to [Rule] 1925(b) 

and as ordered by the Trial Court.” (See trial court opinion, 11/7/17 at 1; 

certified record at 42.)

After a thorough review of the record, as well as the briefs of the 

parties and the applicable law, and in light of this court’s scope and standard 

of review, we find that the record supports the trial court’s determination 

that an oral contract existed between the parties for human 

resources-related consulting services and Gerace’s claims to the contrary are 

meritless. Moreover, we agree with the trial court that Lynch’s failure to 

timely comply with Rule 1925(b) results in waiver of his issues on appeal. 

Accordingly, we adopt the trial court’s November 7, 2017 Rule 1925(a) 

opinions as our own for purposes of this appellate review.

Judgment affirmed.
J. S55035/18

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/18
Circulated 10/31/2018 12:15 PM

COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

CIVIL ACTION -LAW 

No. 15-1092 

v. 

MIC L GERACE, G WORLD, INC., 

CE ENTERPRISE, INC. 

Kevin R Boyle, Esquire - Counsel for Appellants/Defendants 

Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants 

Eric Ma thew Hurwitz, Esquire - Counsel for Appellants/Defendants 

David Avedissian, Esquire - Counsel for Cross-Appellant/Plaintiff 

DATE: 

OPINION 

November 6, 2017 

pell-ants/Defendants, Michael Gerace, G World, Inc., and Gerace 

Enterpri e, Inc., appeal from the August 7, 2017 Order, docketed August 8, 2017, 

denying their motion for post-trial relief in the instant breach of contract action. 

Appella ts failed to prove that the Trial Court abused its discretion or committed 

an erro of law by finding a breach of oral agreement between the parties. The 

Trial C urt's findings are based upon competent evidence and therefore, the 

August , 217 Order, docketed August 8, 2017, should not be disturbed. 

PROCEDURAL AND FACTUAL HISTORY 

Pl intiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this 

action 'th the filing of a Complaint on February 6, 2015. Plaintiff alleged claims 

against efendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in 

1 
breach of contract and unjust enrichment. See Amended Complaint. Plaintiff 

alleged that, pursuant to an oral agreement between the parties, Plaintiff performed 

human resources related consulting services at the request of Defendant, Michael 

Gerace ("Mr. Gerace"). Id. at ,r 5. Defendants filed an Answer on November 17, 

2015. bench trial was held on December 6, 2016 and the undersigned Judge 

entered a Decision and supporting Findings of Facts and Conclusions of Law on 

Decem er 19, 2017 in favor of Plaintiff against all Defendants in the amount of 

laintiff filed a post-trial motion to amend the verdict to include 

prejud ent interest on December 28, 2016. Defendants filed a post-trial motion to 

vacate e Trial Courts December 19, 2017 Decision on January 20, 2017,

1 arguing 

that Mr Gerace was not a party to the alleged oral agreement between the parties. 

A hear g was held on Plaintiff and Defendants' post-trial motions on April 5, 

Bowing said hearing, the undersigned Judge issued an Amended Order on 

April 1 , 2017, finding in favor of Plaintiff and against two defendants, G World 

Gerace Enterprise, Inc, in the amount of Thirty Thousand Dollars 

1 Defend ts Post-Trial Motion was well past the l O day period to file a post-trial motion under 

Pa.R.C.P 227.l(c) However, Plaintiffs Post-Trial Motion on December 28, 2016 provided a 

cover-pa e that incorrectly stated Defendants had twenty (20) days to respond to Plaintiffs 

post-trial motion. The TriaJ Court has broad discretion to dismiss an untimely post-trial motion 

or to ove look its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002). 

Due to error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its 

discretio and considered the merits of Defendants post-trial motion. 

2 
($30,0 0 . .00) plus prejudgment interest in the amount of Five Thousand Eight 

Hundr d Thirty Seven Dollars and Twelve Cents ($5,837.12). 

he parties filed post-trial motions on the April 12, 2017 Amended Order, 

which ere denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff 

and De endants each filed a Notice of Appeal on September 6, 2017. The Court 

Plaintiff and Defendants to file a Concise Statement of Matters 

Compl ined of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017. 

Defend nts filed their l 925(b) statement on September 29, 2017 and served a copy 

on the ndersigned Judge. Plaintiff failed to timely file a l 925(b) statement within 

twenty- ne (21) days and failed to serve a copy on the court', as prescribed by the 

Trial C urt's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b).

3 

TATEMENT OF MATTERS COMPLAINED OF ON APPEAL 

e issues raised in Defendants' Statement of Matters Complained of on 

re as follows:" 

2 Plaintif s failure to serve a copy on the trial court is further evidenced by the Certification of 

Service, hich certifies that a copy was served via email and regular mail to Defendants' counsel 

only. 

3 In dete ining whether an Appellant has waived issues on appeal based on non-compliance 

with Pa. .A.P. 1925, the trial court's order triggers Appellant's obligation under the rule. See In 

re Estate f Boyle, 77 A.3d 674, 676 (Pa. Super. 2013). Failure to comply with the service 

requirem nts and verified admission ofreceiving notice of the same has been found sufficient to 

find waiv r of issues on appeal. See Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223 

�Pa. Supe . 2005). 

Defend ts' Concise Statement of Matters Complained of on Appeal is anything but concise. A 

Rule 192 (b) "statement must be 'concise' and coherent as to permit the trial court to 

the specific issues being raised on appeal." Jiricko v. Geico Ins. Co., 947 A.2d 206, 

3 
The Court erred in entering judgment against Defendants G World, 

Inc. and Gerace Enterprise, Inc. because additional facts were elicited 

at trial but were not mentioned or discussed in the Court's Findings of 

Fact and Conclusions of Law; and 

The Court erred in finding the formation of an oral contract between 

the parties. 

DISCUSSION 

he decision of the trial court in a non-jury trial will be reversed only where 

the tria court has abused its discretion or if its findings are premised on an error of 

law. A erikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa. 

Super. t. 2004). The trial court does not abuse its discretion where there is a mere 

differen e of opinion regarding an interpretation of the facts. See Viener v. Jacobs, 

834 A. d 546, 556 (Pa. Super. Ct. 2003. Rather, an abuse of discretion is found 

only in flagrant' cases where there is no reasonable ground for a difference of 

opinion. See Miller v. Krug, 386 A.2d 124, 127 (Pa. Super. Ct. 1978). Thus, the 

trial co 's findings are controlling and will not be reversed unless those findings 

are not ased upon competent evidence. Viener, 834 A.2d at 554. 

211 (Pa. uper. 2008). Appellants' Statement consists of a recitation of facts interwoven with 

what the rial Court can only discern as possible errors. Therefore, the Trial Court has 

thorough] read through Defendants' Statement and discerned the basis for Appellants' appeal as 

numerate above. 

4 
ennsylvania Rule of Civil Procedure l 03 8 states: "The decision of the trial 

judge ay consist only of general findings as to all parties but shall dispose of all 

claims for relief. The trial judge may include as part of the decision specific 

of fact and conclusions of law with appropriate discussion." The trial 

court, hen hearing a case without a jury, is not required to separately list 

subsidi ry and ancillary facts to support the judgment, but need only find the 

materia facts controlling issues raised. Singer v. Redevelopment Auth. of City of 

Oil Ci , 261 A.2d 594, 602 (Pa. 1970), citing First National Bank v. Jones' Estate, 

6 A.2d 73 (Pa. 1939). 

efendants' alleged error by the Trial Court in failing to include additional 

facts e icited at trial but not included in the Court's Findings of Fact and 

Conclu ions of Law is without merit. The December 19, 2016 Findings of Fact and 

Conclu ions of Law included material facts related to the Decision in the case. The 

urt need not list every fact elicited at trial, only those material facts related 

to the ecision in the case. Here, the Trial Court referred to testimony that was 

y both Plaintiff and Mr. Gerace and, after considering all of the testimony 

and evi ence presented at trial, the undersigned Judge carefully made a decision 

based n the weight of that testimony and included Findings of Facts and 

Conclus ons of Law that supported said decision. 

5 
o the extent that Defendants' further argue the Trial Court erred in finding 

the fo ation of an oral contract between the parties, Defendants' argument is 

agam ithout merit. The trial court, siting as the trier of fact in a bench trial, is the 

sole ju ge of credib.ility and conflicts in the evidence. See Miller v. Brass Rail 

Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. Ct. 1997); See also Mackay v. 

Macka , 984 A.2d 529, 533 (Pa. Super. Ct. 2009) ("The weight afforded to the 

testimo y of the witnesses as well as credibility determinations are within the 

exclusi e province of the trial court"). Therefore, "[t)he findings of fact of the trial 

judge ust be given the same weight and effect on appeal as the verdict of a jury." 

Amerik hl, 860 A.2d at 549-50. 

e Trial Court found that an oral contract existed between the parties for 

human esources related consulting services. See December 19, 2016 Findings of 

Fact an Conclusions of Law, 1 40-47. This finding was based on the testimony 

and ev dence elicited at trial. Plaintiff testified that he met Mr. Gerace in 

March/ pril 2013 to discuss human resources policies and procedures for Mr. 

Gerace s business, but they did not discuss the cost of said services at this meeting. 

N.T. D c. 6, 2016, pp. 13, 18. In May 2013, Plaintiff prepared a written proposal 

for Mr. Gerace, which included support for regulatory posters to be placed at 

locatio s for Mr. Gerace 's business, a new hire checklist for all new employees, 

and a p licies and procedures manual. N.T. Dec. 6, 2016, pp. 19-22; Exhibit P-1. 

6 
Plainti testified that at the May 2013 meeting, he informed Mr. Gerace that his 

service would cost Thirty Thousand Dollars ($30,000.00) .and that Mr. Gerace 

agreed. N.T. Dec. 6, 2016, pp. 22. Mr, Gerace testified that he never agreed to pay 

any su to Plaintiff. N.T. Dec. 6, 2016, p. 120. However, Plaintiff testified that he 

provid Mr. Gerace with two finished products, created specifically for his 

compa y, in July or August 2013, and then asked for payment for his services. 

N.T. D c. 6, 2016, pp. 31-32. Plaintiff further testified that he emailed Mr.Gerace 

on mu tiple occasions asking for compensation, and Mr. Gerace eventually 

respon ed stating that he was "real1y tied up" and "tied up with year end." N.T. 

Dec. 6, 2016, pp. 37, 52-63; Exhibit P-8. Mr. Gerace did not object to, protest, or 

deny in any emails where he was asked by Plaintiff for compensation that he did 

not agr e to pay Plaintiff for his services. 

e Trial Court found the testimony of Plaintiff to be credible. See 

er 19, 2016 Findings of Fact and Conc1usions of Law, ,r 39. The Trial 

Court rther found that Plaintiff and Mr. Gerace agreed upon services to be 

by Plaintiff and Plaintiff did in fact provide those services to Mr. Gerace. 

Further the testimony of Plaintiff, along with multiple e-mails and Demand 

Letters, established: the parties agreed to the amount of the oral contract in the 

amount of Thirty Thousand Dollars ($30,000.00), the parties agreed that payment 

for Pla tiffs services would take place at the completion of the project by 

7 
Plainti , and Plaintiff completed the agreed upon work for Defendants. Acting as 

the trie of fact in this case, the undersigned Judge listened to the testimony and 

eviden e presented at trial and carefully weighed the weight of the testimony and 

eviden e. As the trier of fact is in the best position to judge the credibility of 

witness s, the Trial Court's December 19, 2016 Decision should not be disturbed. 

8 
Circulated 10/31/2018 12:15 PM

IN THE COURT OF COMMON PLEAS OF DELAVVARE COUNTY, PENNSYLVANIA 

CIVIL ACTION - LAW 

THOMAS J. LYNCH 

v. 

MICHAEL GERACE, G WORLD, INC., 

and GERACE ENTERPRISE, INC. 

No. 15-1092 

Kevin R. Boyle, Esquire - Counsel for Appellants/Defendants 

Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants 

Eric Matthew Hurwitz, Esquire - Counsel for Appellants/Defendants 

David A. Avedissian, Esquire-Counsel for Cross-Appellant/Plaintiff 

ANGELOS,J. 

OPINION 

DATE: November 6, 2017 

Cross-Appellant/Plaintiff, Thomas J. Lynch, appeals from the August 7, 

2017 Order, docketed August 8, 2017, denying his motion for post-trial relief in 

the instant breach of contract action. Plaintiff failed to properly preserve all claims 

on appeal by failing to timely file and serve on the court a concise statement of 

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) and as ordered by 

the Trial Court. Therefore, Plaintiffs Appeal should be dismissed. 

PROCEDURAL AND FACTUAL HISTORY 

Plaintiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this 

action with the filing of a Complaint on February 6, 2015. Plaintiff alleged claims 

against Defendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in 

breach of contract and unjust enrichment. See Amended Complaint. Plaintiff 

1 
alleged that, pursuant to an oral agreement between the parties, Plaintiff performed 

human resources related consulting services at the request of Defendant, Michael 

Gerace ("Mr. Gerace"). Id. at� 5. Defendants filed an Answer on November 17, 

20 l 5. A bench trial was held on December 6, 2016 and the undersigned Judge 

entered a Decision and supporting Findings of Facts and Conclusions of Law on 

December 19, 2017 in favor of Plaintiff against all Defendants in the amount of 

Thirty Thousand Dollars ($30,000.00). 

Plaintiff filed a post-triaJ motion to amend the verdict to include 

prejudgment interest on December 28, 2016. Defendants filed a post-trial motion to 

vacate the Trial Courts December 19, 2017 Decision on January 20, 2017,1 arguing 

that Mr. Gerace was not a party to the alleged oral agreement between the parties. 

A hearing was held on Plaintiff and Defendants' post-trial motions on April 5, 

2017. Foilowing said hearing, the undersigned Judge issued an Amended Order on 

April 12, 2017, finding in favor of Plaintiff and against two defendants, G World 

Inc. and Gerace Enterprise, Inc. in the amount o.f Thirty Thousand Dollars 

($30,000.00) plus prejudgment interest in the amount of Five Thousand Eight 

Hundred Thirty Seven Dollars and Twelve Cents ($5,837.12). 

I Defendants Post-Trial Motion was well past the 10 day period to file a post-trial motion under 

Pa.R.C.P. 227. l(c) However, Plaintiff's Post-Trial Motion on December 28, 2016 provided a 

cover-page that incorrectly stated Defendants had twenty (ZO) days to respond to Plaintiff's posttriaJ motion. The Trial Court has broad discretion to dismiss an untimely post-trial motion or to 

overlook its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002). Due to 

the error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its discretion 

and considered the merits of Defendants post-trial motion, 

2 
The parties filed post-trial motions on the April 12, 2017 Amended Order, 

which were denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff 

and Defendants each filed a Notice of Appeal on September 6,. 2017. The Court 

directed Plaintiff and Defendants to file. a Concise Statement of Matters 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017. 

Defendants filed their 192S(b) statement on September 29, 2.017 and served a copy 

on the undersigned Judge. Plaintiff failed to timely file a 1925(b) statement within 

twenty-one (21) days and failed to serve a copy on the court', as prescribed by the 

Court's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b). 

DISCUSSION 

Pursuant to Pa.R.A.P. 1925(b), a judge entering an order giving rise to a 

notice of appeal "may enter an order directing the appellant to file of record in the 

trial court and serve on the judge a concise statement of the errors complained of 

on appeal." Appellants must comply when a trial court orders them to file a 

concise statement and any matters not included in a timely filing are deemed 

waived. Com. v. Lord, 719 A.2d 306, 309 (Pa. 1998).

3 

2 Plaintiff's failure to serve a copy on the trial court is further evidenced by the Certification of 

Service, which certifies that a copy was served via email and regular mail to Defendants' counsel 

onlv. · 

3 Although Lord is a criminal case, the principles enunciated therein are equally applicable in 

civil cases since the Rules of Appellate Procedure apply to both criminal and civil cases. 

Mc Keeman v Corestates Bank, NA., 751 A.2d 655, 658 (Pa.Super. 2000). 

3 
Our Supreme Court has recognized that their ruling in Lord was intended to 

be a bright-line rule requiring that all issues not included in a timely statement of 

matters be automatically deemed waived in order to provide "clear rules regarding 

what is necessary for compliance and certainty of result for failure to comply. 

Com. v. Castillo, 888 A.2d 775, 779-80 (Pa. 2005). The Superior Court has 

recently recognized that the Supreme Court requires "stringent application of 

waiver pursuant to Rule l 925(b )" and that "it is no longer within [the Superior 

Court's] discretion to ignore the internal deficiencies of Rule 1925(b) statements." 

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 

(Pa.Super . .2014). See also Com. v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding that 

the provisions of 1925(b) "are not subject to ad hoc exceptions or selective 

enforcement"). 

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. 

appellant's obligation under the rule. See In re Estate of Boyle, 77 A.3d 674, 676 

(Pa. Super. 2013). Accordingly, the language of the order should be examined to 

determine whether the court complied with Rule 1925. Berg v. Nationwide Mutual 

Insurance Company, Inc., 6 A.3d 1002, 1007-08 (Pa. 2010). Here, the Trial 

Court's l 925(b) order was consistent with all the requirements of Pa.R.A.P. 

l 925(b )(3). The Trial Courts order specified (I) the number of days within which 

4 
Plaintiff was to file a statement of errors; (2) that the 'statement must be filed; (3) 

that the statement must be served on the court; and ( 4) that any issue not properly 

included in the statement, timely filed and served, would be deemed waived.· See 

, 

Pa.R.A.P. 1925(b)(3)(i)-(iv); Berg, 6 A.3d at 1008; Order 9/8/17. Further, an 

examination of the Certification of Service of Plaintiff's Statement indicates that it 

was served up.on Defendants' counsel, but not upon the trial court. See Plaintiffs 

10/4/17 1925(b) Statement. 

Although Plaintiff filed his Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal, he failed to file it in a timely manner as ordered by the 

Court and pursuant to Pa.R.A.P. 1925(b) and he failed to serve his statement on the 

Trial Court per its Order of September 8, 2017.

4 Therefore, Plaintiff failed to 

properly preserve any claims on appeal and the subject Appeal should be 

dismissed. 

4 See, e.g., Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223 (Pa. Super. 2005) (finding 

Appellant's failure to comply with service requirements and verified admission to receiving 

notice of the same sufficient to find waiver); see also Commonwealth of Pennsylvania v. $766 

US. Currency, 948 A.2d 912, 915 (Pa. Commw. 2008) (holding that failure to serve a 1925(b) 

statement on the trial court judge constitutes a fatal defect which results in the waiver of issues 

and quashal of the appeal). 

5