J

- A20017

- 23

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

PATRICIA DAY

Appellant

v.

GENUINE PARTS COMPANY

v.

SOUTHWORTH PRODUCTS CORPORATION :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1564 MDA 2022

Appeal from the Order Entered October 17, 2022 In the Court of Common Pleas of Northumberland County

Civil Division at CV

- 2018

- 01307

PATRICIA DAY

Appellant

v.

GENUINE PARTS COMPANY

v.

SOUTHWORTH PRODUCTS CORPORATION :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1597 MDA 2022

Appeal from the Order Entered May 13, 2022 In the Court of Common Pleas of Northumberland County

Civil Division at CV

- 2018

- 01307

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. *

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 22, 2023

Patricia Day (Appellant) appeals from t he order granting summary

judgment in favor of Genuine Parts Company (Genuine Part s)
, and dismissing

“all claims and cross claims” with prejudice. Order, 5/13/22. Appellant also

appeals from the order granting summary judgment in favor of Southworth

Products Corporation (Southworth)
, because “there is no direct claim ” by

Appellant

. Order 10/17/22. This Court consolidated the appeals by order

entered March 17, 2023

. Upon review , we conclude Appellant is not entitled

to relief

. Accordingly, we affirm

. 1

The trial court summarized the underlying facts :

This is a products liability action arising out of the explosion of an automotive battery at [Appellant’s] workplace on January 20, 2017. The battery was used to power a lift adja cent to where [Appellant] was standing. [Appellant] sustained a severe lower right leg injury.

Statement in Lieu of Opinion, 2/10/23, at 1.

On October 1, 2018, Appellant filed a c omplaint against Genuine Parts

. 2

According to Appellant, she “suffered serious and permanent injuries to her

right leg ” as the result of the batter y explo s i o n. Complaint, 10/1/18, at 3, ¶

_________________ __________ ______ ____ _______

1 This Court may affirm on any basis

. See , e.g., Clark v. Peugh , 257 A.3d 1260, 1271 n.8 (Pa. Super. 2021) (“We may affirm the trial court ’ s decision ... on any basis that is supported by the record”) (citation omitted).

2 Genuine Parts join ed Southworth as an additional defendant after learning Southworth manufactured the lift. Motion for Leave to Join Additional Defendant, 2/28/20, at 3

- 4 ; Pa.R.C.P. 2252 ; Order, 5/19/20

.J

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-

5

. Appellant raised two counts of products liability (design defect and

negligent design). See id. at 4

- 5. Appellant averred
, inter alia
, that Genuine

Parts “designed and/or manufactured and/or assembled” the battery, “which

was in a defective condition.” Id. at 4, ¶ 12

.
On October 22, 2018, Genuine Parts filed preliminary objections based

on the “factual inspecificity ” of Appellant’s complaint. Preliminary Objections,

10/22/18, at 4. Genuine Parts averred, inter alia
, that Appellant failed to

plead any facts “as to how the batter y [was] ‘defective’ other than the fact

that an explosion incident occurred.” Id. at 4 , ¶ 19.

Genuine Parts correctly observe s that after “some procedural wrangling

not relevant on appeal,” Appellant filed a second amended complaint on

January 8, 201 9
, which Genuine Parts answered on January 28, 2019, “with

general denials and averments of l ack of information.” Genuine Parts ’ Brief at

9. According to Genuine Parts, Appellant “file[d] suit, but t[ook] almost no

discovery.” Id. Genuine Parts states that Appellant “subpoenaed no

documents. And she produced no expert report to support her claims.” Id.

at 10.

L ikewise, Southworth states:

From the onset of this case, Appellant was unresponsive to discovery, which is evidenced by a February 25, 2019 Order compelling d iscovery Responses from Appellant. Appellant only responded to [d] iscovery [d] emands after the [t] rial [c] ourt ordered it.J

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Southworth’s Brief at 3. When “ discovery closed, on August 19, 2021,

Southworth filed a motion for summary judgment.” Id.

The trial court
, understat ing that the “procedural history leading up to

the present appeal is problematic,” detailed the proceedings that followed :

On September 22, 2021, [] Genuine Parts [] , filed a Motion for Summary Judgment on the basis that [Appellant] failed to preserve the battery and charger

... ; there was no evidence as to how the battery was defective, and no expert report was ever obtained to pursue a products liabil ity claim of this nature. [Appellant] failed to file any response to the motion pursuant to Pa.R.Civ.P. 1035.3(d). There was a conference on April 12, 2022
, with the court

... to determine if discovery was complete in relation to the prior discovery deadli ne of March 2, 2022. Following the conference, an order was entered [directing] that affidavits be filed within 30 days as to the events relating to discovery between December 1, 2021, and March 2, 2022. [Appellant] did not file an affidavit, but additio nal Defendant [, Southworth ,] filed an affidavit that no additional discovery was requested until the deadline for completion of all discovery.

There appearing that no further discovery was directed to the court’s consideration of the Motion for Summary J udgment on behalf of [] , Genuine Parts [] , th [e trial ] court entered an order granting Summary Judgment that was docketed in the Prothonotary ’ s office on May 13, 2022.

Th [e trial] court was not presented with any discovery by [Appellant] as to how she was going to meet her burden of proof at trial.

... The type of product here, an automotive battery, may have exploded for a myriad ... of reasons. [Appellant] cannot simply rely on th e allegations of h [er] pleadings. Pa.R.Civ.P. 1035

. 3(c). She did not counter the manufacturer ’ s Motion for Summary Judgment [by identifying] ev idence essential to meeting theJ

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Tinche r [ v. Omega Flex, Inc.
, 104 A.3d 328 (Pa. 2014) ] requirements

... . 3

The Order granting Summary Judgment in favor of Defendant, Genuine Parts Company, was entered by the Prothonotary on May 13, 2022; however, the docket does not reflect that the Prothonotary provided notice of the entry of this order to each party ’ s attorney of record as required by Pa.R.C.P. 236(a)(2) [

. Appellant] filed on November 10, 2022, a Motion to Reopen the Judgment due to lack of notice of the entry of the order granting Summary Judgment. However, this court did not have any opportunity to consider it
, as [Appellant] filed this appeal to the Superior Court five days later.

On November 30, 2022, an order was entered directing [Appellant] to file of record a concise statement of the matters complained of on appeal within twenty days. Pa.R.A.P. 1925(b). To date none was ever filed of record and served upon the undersigned. Rather, [Appellant ’s counsel ] sent a letter dated December 15, 2022, to chambers [,] where he asserts as a reason for the appeal
, that “ the battery explod[ing] by somebody

_________________ __________ ______ ____ _______

3 The law regarding strict liability is clear. “To demonstrate a breach of duty
in a strict liability matter, a plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition.’” Tincher , 104 A.3d at 384

. The Restatement (Second) of Torts § 402A remains the law of Pennsylvania

... . In Tincher [,

... ] our Supreme Court declined to adopt the Restatement (Third) of Torts, but clarified that a plaintiff could prove defective design in two ways: 1) by showing that the product ’ s danger is unknowable and unacceptable to the average consumer (the consumer exp ectations test); or 2) that a reasonable person would conclude that the probability and gravity of the harm caused by the product outweigh the burden or cost of taking precautions (the risk

- utility standard).

Dunlap v. Fed. Signal Corp. , 194 A.3d 1067, 10 69

– 70 (Pa. Super. 2018) ( citing Tincher
, 104 A.3d at 399 )

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depressing a button to operate a lift ... in and of itself, confirms that there was a malfunction within the batte ry. ”

[Appellant’s] contention appears to be a res ipsa loquitur theory. This would be contrary to the required elements of a products liability case as established in Tincher , supra

. [Appellant] further states in the letter that her position “ is supported by the report and corresponding deposition testimony that infers that fluid within the battery evaporated causing the battery to overcharge. ” Yet, [Appellant] never engaged an expert

or obtaine d an expert report, nor did she ever respond to the Motion for Summary Judgment by pointing to any deposition testimony. Again, there is nothing specific [Appellant] can proffer to meet her burden of proof under Tincher , supra

.

The letter from [Appellant ’s] counsel also references as a reason for appeal this court ’ s grant of Summary Judgment to Defendant, Southworth Products Corporation
, by order dated October 17, 2022. [ Appellant’s] assertion in this regard is that [counsel] was unable to depose a corpo rate representative of Southworth Products Corporation, the manufacturer of the lift.

Statement in Lieu of Opinion, 2/10/23, at 1

- 4 (footnote s omitted , one footnote

added ).

Our review confirms
, inter alia
, that the t rial court directed Appellant
,
“pursuant to Pa.R.A.P. 1925(b)
, ... to file of record within twenty

- one (21)

days of the docket entry of this Order
, and serve on the undersigned
, a concise

statement of the matters complained of on appeal of the Orders dated May

13, 2022, and October 17, 2022.” Order, 11/30/22 (emphasis added)

. The

order advis e s that any issue “not properly included in the concise statementJ

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of the matters complained of on appeal shall be deemed waived.” Id.

Appellant did not file a Rule 1925(b) statement

. 4

Although Appellant did not file a Pa.R.A.P. 1925(b) statement, t he trial

court issued a Statement in Lieu of Opinion explain ing its reasons for granting

summary judgment. Statement in Lieu of Opinion, 2/10/23, at 1

- 5. As quo t ed

above, the trial court sta t ed that no Pa.R.A.P. 1925(b) statement “was ever

filed of record and served upon the undersigned

. ” Id. at 3. The trial court

relayed that Appellant ’s counsel “ sent a letter dated December 15, 2022 , to

chambers [asserting] a reason for the appeal

. ” I d. The re is no December 15,

2022 , correspondence from counsel in the record. On February 17, 2023, the

Northumberland County Prothonotary certified the record and transmitted it

to this Court for re view.

Upon receipt of the cert ified record
, we issued a rule to show cause
,
stating

it appears that Appellant failed to file any opposition to the motions for summary judgment and therefore all issues have been waived. See Devine v. Hutt , 863 A.2d 1160, 1169 (Pa. Super. 2004) (finding issues waived because arguments not raised initially before trial court in opposition to summary judgment cannot be raised for first time on appeal).

Accordingly, Appellant shall show cause, in the form of a letter addressed to the Prothon otary of this Court with a copy to opposing counsel, why the appeals should not be dismissed. The letter shall be transmitted so as to be actually received by the

_________________ __________ ______ ____ _______

4 The record indicates the order directing Appellant’s compliance with Pa.R.A.P. 1925(b) was sent to counsel for Appellant, Genuine Parts, and Southworth.J

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Prothonotary of this Court within ten (10) days from the date of this Order. Failure to com ply with this Order may result in dismissal of the appeals without further notice.

The briefing schedules are SUSPENDED pending further Order of Court.

Order, 3/1/23.

Appellant filed a response stating, inter alia , that “it is inexplicable as to

why the [] responses in oppos i tio n to the su mmary judg ment motions were

not provided to [the Superior] Court ,” and “ there is no ambiguity in

[Appellant’s] position that the same were timely filed and considere d by the

lower court ....” Response to Rule to Show Cause, 3/7/23, at 1

- 2.

T his Court subsequently issued an order discharging the rule to show

cause , consolidating the appeals
, and directing a new briefing schedule

.
Order, 3/17/23. Pertinently, the order stated:

The parties shall note that this Court may consider only the facts which have been duly certified in the record on appeal. See Pa.R.A.P. 1921 and Comments following. To the extent the Appellant avers the record is incomplete, Appellant may seek relief in the trial court to supplement the record. See Pa.R.A.P. 1926. If the trial court grants Appellant the right to supplement the record [,] the trial court shall transmit such supplementation to this Court and such supplementation shall become part of the record on appeal.

Id

.
Appellant did not seek to supplement the certified record. On April 28,

2023, Appellant filed a reproduced record. In response, Genuine Parts filed

an application to strike “non

- record parts of the reproduced record.”

Application to Strike, 5/19/23
, at 1

- 5

. Genuine Par ts a lso requested this CourtJ

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“strike or disregard those parts of Appellant’s Brief that rely on this non

- record

material.” Id. at 1. Genuine Parts
, inter alia , observed that “this Court

already noted de ficiencies in the certified recor d
, ” and provided Appellant

“with explicit instructions on how to supplement the certified record, if

necessary.” Id. at 2. By per curiam order, t his Court denied the application

to strike “without prejudice to the moving party’s right to again raise this issue

....” Order, 5/26/23. The case was subsequently assigned to this panel for

disposition

.
Appellant presents the following issues for review :

WHETHER IT WAS ERROR FOR [THE TRIAL COURT] TO GRANT SUMMARY JUDGMENT WHEN THERE IS SUFFICIENT EVIDENCE OF A MATERIAL ISSUE OF FACT THAT MUST BE PRESENTED TO A JURY IN LIEU OF DISPOSING OF THIS MATTER THROUGH SUMMARY JUDG M ENT [?]

a. IT WAS PRE

- MATURE FOR THE COURT TO GRANT SUMMARY JUDGEMENT PRIOR TO THE FULL COMPLETION OF DISCOVERY [.]

b. APPELLANT HAS A RIGHT TO A TRIAL BY JURY OF HER PEERS [.]

Appellant’s Brief at 3.

We review the grant of summary judgment in the context of the entire

record , and in the light most favorable to the non

- moving party. Matthews

v. Prospect Crozer, LLC , 243 A.3d 226, 228 ( Pa. Super. 2020)

. We may

reverse a grant of summary judgment only if the trial court committed an

error of law or an abuse of discretion. Id. at 228

– 29.J

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A trial court properly grants s ummary judgment “if, after the completion

of discovery relevant to the motion ... an adverse party who will bear the

burden of proof at trial has failed to produce evidence of facts essential to the

cause of action or defense[.]” Id. at 228 (citing H & R Block E. Tax Se rvs.,

Inc. v. Zarilla , 69 A.3d 246, 248 (Pa. Super. 2013); Pa.R.C.P. 1035.2(2) )

.
Motions for summary judgment necessarily and directly implicate the plaintiff ’ s proof of the elements of her cause of action. Grandelli v. Methodist Hosp. , 777 A.2d 1138, 1145 n.7 (Pa. Super. 2001).

... In other words, “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and th e moving party is entitled to judgment as a matter of law,” summary judgment is appropriate. Id. ; Abbott v. Schnader
, Harrison, Segal & Lewis, LLP , 805 A.2d 547, 552 (Pa. Super. 2002), appeal denied
, 573 Pa. 708, 827 A.2d 1200 (2003). Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Grandelli
, [ v. Methodist Hosp. , 777 A.2d 1138 ,] 1143 [(P a. Super. 2001) ] (citing Pa.R.C.P. 1035.2 Note).

Chenot v. A.P. Green Servs., Inc. , 895 A.2d 55, 61 ( Pa. Super. 2006)

. “Therefore, where a motion for summary judgment has been made and

properly supported, parties seeking to avoid the imposition of summary

judgment must show by specific facts in their depositions, answers to

interrogatories, admissions or affidavits that th ere is a genuine issue for trial.”

Marks v. Tasman , 589 A.2d 205, 206 (Pa. 1991). See also First Wisconsin

Trust Co. v. Strausser , 653 A.2d 688, 695 (Pa. Super. 1995) (holding

defendant ’ s argument that lack of discovery bars summary judgment isJ

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“unsympathetic,” as defendant did not request discovery in the two years

since the a nswer was filed).

Appellant claims the trial court erred in granting summary judgment,

“as there is sufficient ev idence that a material issue of fact exists in this

matter.” Appellant’s Brief at 10. Appellant asserts that discovery was not

complete. Id. at 11. According to Appellant, “the record ... was not fully

developed” because the trial court “failed to compel the deposition of

witnesses” from Genuine Parts and Southworth. Id.

Genuine Parts argues Appellant “cannot prove her case on the merits.”

Genuine Parts’ Brief at 15. However, Genuine Parts initially argues:

First , the Court could dismiss the appeal or affirm, because the certified record lacks any response to the appelle es’ motions for summary judgment or a Rule 1925(b) statement, and [Appellant]’s Brief and Reproduced Record contain substantial defects. Effective appellate review requires issue preservation, creation of a supporting record, and briefing of those issues. [Appellant] fails on all three points.

Id. (emphasis in original); see also id. at 17

- 20.

In r espon se to the vari ous claims by the trial court and Genuine Parts

regarding Appellant’s procedural missteps, Appellan t states:

The [trial court] infers in [the] Statement in Lieu of Opinion, that Counsel for the Appellant failed to provide an affidavit that was requested by order dated April 12, 2022. Likewise, the [trial court] indicates that this counsel failed to file a concise statement of the matter co mplained of on appeal. Further, upon appeal we learned that the [trial court] failed to include the Appellant’s Response and Response Briefs to the Motions for Summary Judgment in the certified record. However, the Appellant has consistently provided to the [ trial c]ourt all documents required by hand delivery and/or overnight mail. However, it is now veryJ

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apparent that none of those documents were properly docketed by the [ trial c]ourt upon receipt [,] over which the Appellant has no control and for whic h we take issue[,] as we have consistently complied with all required filings.

Appellant’s Brief at 9

- 10 n.1.

The above claim is specious. Appellant disregards the trial court’s order

directing compliance with Pa.R.A.P. 1925(b)
, as well as the express language

of Rule 1925. The trial court ordered Appellant , “pursuant to Pa.R.A.P.

1925(b), ... to file of record within twenty

- one (21) days of the docket entry

of this Order, and serve on the undersigned, a concise statement of the

matters complained of on appeal of the Orders dated May 13, 2022, and

October 17, 2022.” Order, 11/30/22 (emphasis added).

Rule 1925(b) is unequivocal :

(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court. If the judge entering the order giving rise to the notice of appeal (“judge”) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial c ourt and serve on the judge a concise statement of the errors complained of on appeal (“Statement”).

Pa.R.A.P. 1925(b) (bold emphasis in original, underline added). Like the trial

court’s order, R ule 1925 cautions that issues “not included in the Stateme nt

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.” Pa.R.A.P. 1925(b)(4)(vii).

This Court has repeatedly held that “ ‘failure to comply with the minimal

requirements of Pa.R.A.P. 1925 ( b ) will result in automatic waiver of theJ

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issues raised.’” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs,

Inc. , 88 A.3d 222, 224 (Pa. Super. 2014) ( en banc ) (emphasis in original)

(quoting Commonwealth v. Schofield
, 888 A.2d 771, 774 ( Pa. 2005) )

. “Whenever a trial court orders an appellant to file a concise statement of

[errors] complained of on appeal pursuant to Rule 1925(b), the appellant must

comply in a timely manner.” Greater Erie Indus. Dev. Corp , 88 A.3d at 225

( italics in original, citations omitted).

“[I]n determining whether an appellant has waived 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.” U.S. Bank, N.A. for Certificateholders of LXS 2007

- 7N Tr.

Fund v. Hua , 193 A.3d 994, 997 ( Pa. Super. 2018) (citation omitted). As

discussed above
, the trial court ordered Appellant, “pursuant to Pa.R.A.P.

1925(b), ... to file of record within twenty

- one (21) days of the docket entry

of this Order, and serve on the undersigned, a concise statement of the

matters complained of on appeal
, ” and advis ed tha t any issue “not properly

included in the concise statement of the matters complained of on appeal shall

be deemed waived.” Order, 11/30/22 (emphasis added)

. Appellant fail ed to

file a concise statement of record

.

This Court has observ ed that t he “ filing requirement is distinct from the

service requirement in that the filing requirement ensures that the Concise

Statement becomes part of the certified record. ” E verett Cash Mut. Ins.J

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Co. v. T.H.E. Ins. Co. , 804 A.2d 31, 34 (Pa. Super. 2002) (citation omitted)

(finding appellant waived issues where a ppellant “ indicate [d] , at best, that the

Concise Statement was served on the trial judge but never filed as part of

the official record. ”). We explain ed:

It remains undisputed that these documents were not made part of the certified record on appeal [] and were never listed on the trial docket.

...

***

... [W] e conclude that Appellant ’ s issues are waived for failing to file a Concise Statement and for failing to ensure that the Concise Statement was made part of the certified record. “It is the obligation of the appellant to make sure that the record forwarded to an appellate court con tains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Hrinkevich v. Hrinkevich
, 450 Pa.Super. 405, 676 A.2d 237, 240 (1996) (citation omitted). “Under our Rules of Appellate Procedure, those document s which are not part of the ‘official record’ forwarded to this Court are considered to be non

- existent.” D ’ Ardenne v. Strawbridge & Clothier, Inc. , 712 A.2d 318, 326 (Pa.Super.1998) (citation omitted), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998). “[T]hese deficiencies may not be remedied by inclusion in a brief in the form of a reproduced record.” Id. Similarly, these deficiencies cannot be cur ed by indicating that the relevant document was simply mailed to the office of the trial judge but not filed of record.

...

Everett Cash Mut. Ins. Co.
, 804 A.2d at 33

- 34 (emphasis added)

.
After careful review, we conclude Appellant has waived all issues by

failing to properly file and serve the court

- order ed Rule 1925(b) statement

.

T his Court has warned :J

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[O]ur Supreme Court does not countenance anything less than stringent application of waiver pursuant to Rule 1925(b): “[A] bright

- line rule eliminates the potential for inconsistent results ... Succinctly put, it is no longer within this Court’s discretion to ignore the internal deficiencies of Rule 1925(b) statements.

Greater Erie Indus. Dev. Corp. , 88 A.3d 224.

We have further opined that to “ hold otherwise would invite abuse. Such

a ruling would provide litigants with an opportunity to salvage appeals

otherwise waived or improperly preserved by procedural error ....” U.S. Bank,

N.A. , 193 A.3d at 998 ( concluding appellants waived all i ssues)

.

Consistent with the record and legal precedent
, we a ffirm the ord ers

granting summary judgment in favor of Genuine Parts and Southworth

.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9 / 22 /2023