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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
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MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 22, 2023

Patricia Day (Appellant) appeals from the order granting summary 

judgment in favor of Genuine Parts Company (Genuine Parts), 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 adjacent 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 complaint against Genuine Parts.

2

 

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

right leg” as the result of the battery explosion. 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 joined 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.
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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 battery [was] ‘defective’ other than the fact 

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

Genuine Parts correctly observes that after “some procedural wrangling 

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

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

general denials and averments of lack 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.

Likewise, Southworth states:

From the onset of this case, Appellant was unresponsive to 

discovery, which is evidenced by a February 25, 2019 Order 

compelling discovery Responses from Appellant. Appellant only 

responded to [d]iscovery [d]emands after the [t]rial [c]ourt 

ordered it.
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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, understating 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 liability 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 deadline 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 additional 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 Judgment 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 the 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] evidence essential to meeting the 
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Tincher [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 expectations 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, 1069–70 (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 battery.”

[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 obtained 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 corporate representative of 

Southworth Products Corporation, the manufacturer of the lift.

Statement in Lieu of Opinion, 2/10/23, at 1-4 (footnotes omitted, one footnote 

added).

Our review confirms, inter alia, that the trial 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 advises that any issue “not properly included in the concise statement 
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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, the trial 

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

summary judgment. Statement in Lieu of Opinion, 2/10/23, at 1-5. As quoted 

above, the trial court stated 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.” Id. There 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 review.

Upon receipt of the certified 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 Prothonotary 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.
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Prothonotary of this Court within ten (10) days from the date of 

this Order. Failure to comply 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 opposition to the summary judgment motions were

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

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

lower court ....” Response to Rule to Show Cause, 3/7/23, at 1-2.

This 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 Parts also requested this Court 
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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 deficiencies in the certified record,” and provided Appellant 

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

necessary.” Id. at 2. By per curiam order, this 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 JUDGMENT[?]

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.
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A trial court properly grants summary 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 Servs.,

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 the 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 [(Pa. 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 there 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 is 
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“unsympathetic,” as defendant did not request discovery in the two years 

since the answer was filed).

Appellant claims the trial court erred in granting summary judgment, 

“as there is sufficient evidence 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 appellees’ 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 response to the various claims by the trial court and Genuine Parts 

regarding Appellant’s procedural missteps, Appellant 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 complained 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 very 
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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 which 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 court 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, Rule 1925 cautions that issues “not included in the Statement 

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 the 
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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 advised that 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 failed to 

file a concise statement of record.

This Court has observed that the “filing requirement is distinct from the 

service requirement in that the filing requirement ensures that the Concise 

Statement becomes part of the certified record.” Everett Cash Mut. Ins.
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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 appellant “indicate[d], at best, that the 

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

the official record.”). We explained:

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 contains 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 documents 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 cured 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-ordered Rule 1925(b) statement. 

This Court has warned:
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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 issues).

Consistent with the record and legal precedent, we affirm the orders 

granting summary judgment in favor of Genuine Parts and Southworth.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2023