J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

BRYAN MELLINGER

v.

LAUREL M. CLARK

- BARLOCK A/K/A

LAUREL M. BARLOCK AND MOISES

DOLCE

Appellants :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 925 WDA 2021

Appeal from the Order Entered August 9 , 2021

In the Court of Common Pleas of Westmoreland County

Civil Division at No(s): 316 of 2020

BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J. *

MEMORANDUM BY SULLIVAN, J.: FILED: MARCH 4 , 2022

Laurel M. Clark

- Barlock a/k/a Laurel M. Barlock (“Barlock”) and Moses

Dolz (“D olz ”) 1 (collectively “Appellants”) appeal from the order denying the

petition to strike the default judgment entered against them and in favor of

Bryan Mellinger (“Appellee”). We affirm

.

The relevant factual and procedural background of this matter can be

summarized as follows. On January 16, 2021

, Appellee filed a complaint

against Appellants

. Christopher Urbano, Esquire, entered his appearance on

behalf of Appellants and filed an answer to the complaint

. Appellee filed a

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 Appellant Dolz is incorrectly identified in the caption as “ Moises Dolce. ”J

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motion for judgment on the pleadings which the T rial C ourt denied

. Appellee

thereaft er filed an amended complaint. Appellants did not respond to the

amended complaint and on April 6, 2021

, Appellee obtained a default

judgment. Appellants filed a motion to open the default judgment, along with

an answer and new matter relative to the ame nded complaint. The T rial C ourt

scheduled a hearing on the motion; however, Attorney Urbano did not attend

the hearing and could not be reached by telephone. A s neither Attorney

Urbano nor Appellants attended the hearing, the T rial C ourt denied the motion

to open the default judgment with prejudice on May 21, 2021

.

Approximately two months later, Sharon Wigle, Esquire, entered her

appearance for Dolz and filed a petition to strike the d efault judgment. On

August 9, 2021, the T rial C ourt entered an order denying the petition to strike.

On that same date, Attorney Wigle entered her appearance for Barlock.

Appellants timely appealed the order denying the petition to strike the default

judgment

.

On August 23, 2021, the T rial C ourt entered an O rder directing

Appellants to file a Pa.R.A.P . 1925(b) concise statement of errors complained

of on appeal within twenty

- one days. In its Rule 1925(a) opinion, entered on

September 22, 202 1, the T rial C ourt noted that although Appellants had

served a copy of the concise statement on the trial court judge, no concise

statement had been filed with the court as of that date. The trial court

acknowledged that, under current Rule 1925(b) preced ent, Appellants’ issuesJ

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were waived. Nevertheless, the trial court addressed the issues in its Rule

1925(a) opinion in the event that waiver was inapplicable. On September 27,

2021, Appellants filed their concise statement with the court.

Appellants raise the following issues for our review:

1. Whether the motion to strike or open judgment should have

been denied when Attorney . . . Urbano did not originally attend

hearing to open judgment and [Appellants] were told by

Attorney . . . Urbano t hey did not have to . . . attend this

hearing and as a result the original motion to open judgment

was denied with prejudice?

2. Whether the motion to strike or open judgment should have

been denied when [Appellants] did not have the right to be

heard when t he original motion to strike or open judgment was

denied with prejudice?

Appellants’ Brief at 4. 2

Before we may address the merits of Appellants’ issues, we must first

determine whether they preserved their claims for our review. It is well

settled that whenever a trial court orders an appellant to file a concise

statement pursuant to Rule 1925(b), the appellant must comply in a timely

manner. See Feingold v. Hendrzak , 15 A.3d 937, 940 (Pa. Super. 2011);

see also Commonwealth v. Lord

, 719 A.2d 306, 309 (Pa. 1998) (holding

that if an appellant is directed to file a concise statement of matters to be

raised on appeal pursuant to Rule 1925(b), any issues not raised in that

_________________ __________ ______ ____ _______

2 At first glance, Appellants’ issues purport to challenge both the May 21, 2021

order denying the motion to open and the August 9, 2021 order denying the

motion to strike. However, further review indicates that both issues pertain

solely to the May 21, 20 21 order denying the motion to open.J

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statement are waived). An appellant’s failur e to comply with the minimal

requirements of Rule 1925(b) will result in automatic waiver of the issues

raised. See Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.

,

88 A.3d 222, 224 (Pa. Super. 2014) ( en banc ) (holding that all issues raised

in an untimely concise statement were waived).

At one time, “this Court purported to carve out a number of exceptions

to Rule 1925(b) waiver,” such as “ endors [ ing ] the discretionary review of

appeals where trial courts relied upon appellants’ unt imely Rule 1925(b)

statements and addressed the merits of issues raised therein.” Id

.

Nevertheless, “in affirming Lord ’s bright line, our Supreme Court specifically

removed our authority to allow such discretionary review.” Id

. “Stated

simply, it is no longer within this Court’s discretion to review the merits of an

untimely Rule 1925(b) statement based solely on the trial court’s decision to

address the merits of those untimely raised issues.” Id

. at 225. Thus,

“[u] nder current precedent, even if a trial court ignores the untimeliness of a

Rule 1925(b) statement and addresses the merits, those claims still must be

considered waived.” Id

.

Notwithstanding the above, in determining whether an appellant has

waived his or her issues on appeal based o n non

- compliance with Rule 1925,

we look first to the language of the Trial Court’s 1925(b) O rder triggering

appellant’s obligation s in order to determine whether the O rder meets theJ

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requirements set forth in Rule 1925(b). Id

. Those requirements are as

follows :

(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 ” )

.

* * * *

(2) Time for filing and service.

(1) The judge shall allow the appellant at least 21 days from

the date of the order ’ s entry on the docket for the filing and

service of the Statement. Upon application of the appellant

and for good cause shown, the judge may enlarge the time

period initially specified or permit an amended or

supplemental Statement to be filed. Good cause includes,

but is not limited to, delay in the production of a transcript

necessary to develop the Statement so lo ng as the delay is

not attributable to a lack of diligence in ordering or paying

for such transcript by the party or counsel on appeal. In

extraordinary circumstances, the judge may allow for the

filing of a Statement or amended or supplemental

Statement nunc pro tunc

.

* * * *

(3) Contents of order. The judge’s order directing the filing

and service of a Statement shall specify:

i. the number of days after the date of entry of the judge's

order within which the appellant must file and serve the

Statement;

ii. that the Statement shall be filed of record;

iii. that the Statement shall be served on the judge

pursuant to paragraph (b)(1) and both the place the

appellant can serve the Statement in person and the

address to which the appellant can mail the Statement.J

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- In addition, the judge may provide an email, facsimile,

or other alternative means for the appellant to serve the

Statement on the judge; and

iv. that any issue not properly included in the Statement

timely filed and served pursuant to subdivision (b) shall

be deemed waived.

Pa.R.A.P . 1925(b)(2), (3).

Furthermore

, strict application of the bright

- line rule in Lord

necessitates strict interpretation of the rules regarding notice of Rule 1925(b)

orders. See Greater Erie , 88 A.3d at 226. In particular, a failure by the

prothonotary to give written notice of the entry of a court order and to note

on the docket that notice was given will prevent waiver for timeliness pursuant

to Rule 1925(b). See id

.

In the instant matter

, the record reflects on August 23, 2021, the t rial

c ourt ordered Appellants to file a Rule 1925(b) concise statement. See

1925(b) Order, 8/23/21. In that order , the trial court directed the Appellants

to comply with the f ollowing directives :

[W] ithin twenty

- one . . . days from the date of this order,

pursuant to Rule 1925(b) of the Rules of Appellate Procedure,

[Appellants] shall file of record with a copy to this court and serve

on the undersigned, pursuant to Pa.R.A.P

. 1925(b)(1), a concise

statement of the matters complained of on their appeal; and it is

further ORDERED, ADJUDGED, AND DECREED that, pursuant to

Pa.R.A.P . 1925(b)(3)(iv), any issue not properly included in the

statement timely filed and served pursuant to subdivision (b) shall

be deemed waived.

Id

. (unnecessary capitalization omitted).J

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Additionally, the docket reflects a notation that the prothonotary

provided notice of the t rial c ourt’s Rule 1925(b) order to the parties on August

23, 2021, which is the date on which the order was entered. See Trial Court

Docket, 8/23/21. T here is also a notation appearing in the bottom left

- hand

corner of the Rule 1925(b) order indicating that copies of the order were sent

to both Attorney Urbano and Attorney Wigle. Based upon all of the above, we

conclude that the t rial c ourt’s o rder complies with the technical requirements

of Rule 1925(b) and that due notice was given to the parties. 3

In co mputing the relevant filing deadline, we consider the date of entry

of the trial court’s Rule 1925(b) order to be August 23, 2021, as notice of the

order was sent to Appellants on August 23, 2021, and a notation indicating

such notice was placed in the doc ket on that date. 4 Having determined the

entry date of the Rule 1925(b) order, we calculate that the twenty

- first day

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3 Although the trial court’s Pa.R.A.P. 1925(b) order merely ordered Appellants

to serve him with a copy of the concise statement, and did not specify the

place A ppellant s c ould serve the s tatement in person or the addre ss to which

A ppellant s c ould mail the s tatement

, see subsection (b) (3)(iii), this omission

does not impact our analysis

, as Appellants did, in fact

, serve a copy of the

concise statement on the trial judge.

4 Pursuant to Pa.R.A.P . 108, “[t] he date of entry of an order in a matter subject

to the Pennsylvania Rules of Civil Procedure shall be the day on which the

clerk makes the notation in the docket that notice of entry of the order has

been given.”J

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after the entry of that order was September 13, 2021. 5 Appellants did not file

their Rule 1925(b) concise statement until September 27, 2021. The certified

record contains no indication that Appellants sought, or that the trial court

granted, an extension of time for filing the concise statement. 6 Consequently,

we must conclude that Appellants’ filing was untimely and that their issues

are waived for failure timely to file their Rule 1925(b) concise statement. See

Greater Erie , 88 A.3d at 227. 7 Because Appellants have waived their issues

on appeal, we may not address the merits of those issues.

Order affirmed

.

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5 Pursuant to Pa.R.C iv .P. 106(a)

, “[w]hen any period of time is referred to in

any rule, such period in all cases . . . shall be so computed as to exclude the

first and include the last day of such period.”

6 We are also mindful that the filing of record may be accomplished by mail as

provided in Pa.R.A.P. 121(a) if the appellant obtains a United States Postal

Service Form 3817, Certificate of Mailing, or other similar United States Postal

Service form from which the date of deposit can be verified, in compliance

with the requirements set forth in Pa.R.A.P. 1112(c). However, nothing in the

record indicates that Appellants obtained a United States Postal Service Form

3817, a Certificate of Mailing, or other similar United States Postal Service

f orm sufficient to verify that the statement was time ly mailed to the court so

that a mailing date could operate as the filing date.

7 Additionally, as indicated above, both of Appellants’ issues pertain to the trial

court’s May 21, 2021 order denying their motion to open the default judgment

. However, App ellants did not file an appeal from that order. Instead,

Appellants filed an appeal solely from the August 9, 2021 order denying their

petition to strike the default judgment. Thus, had we not found waiver based

on Appellants’ failure to comply with Rule 1925(b), we would have found

waiver based on their failure to comply with Pa.R.A.P. 903(a) (providing that

“the notice of appeal . . . shall be filed within 30 days after the entry of the

order from which the appeal is taken”).J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/0 4 /2022