IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bucks County Water and Sewer :

Authority :

:

v. : No. 573 C.D. 2017

: Submitted: October 20, 2017

A Portion of the Lands of :

John Joseph Marchione and :

Jill Marchione, Husband and Wife, :

of Plumstead Township, :

County of Bucks, Tax Parcel 34-3-89 :

:

Appeal of: John Joseph Marchione :

and Jill Marchione :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: April 4, 2018

Property owners John Joseph Marchione and Jill Marchione 

(Objectors), pro se, appeal from an order of the Court of Common Pleas of Bucks 

County (trial court), which denied and dismissed Objectors’ preliminary objections 

to a declaration of taking filed by the Bucks County Water and Sewer Authority 

(Authority). For the reasons that follow, we affirm. 

On May 17, 2016, the Authority’s Board of Directors unanimously 

enacted a resolution authorizing the condemnation of a strip of land for use as a 

sanitary sewer easement for the purpose of constructing and maintaining a public 

sewer system. Thereafter, on May 27, 2016, the Authority filed a declaration of 

taking, condemning a sanitary sewer easement over a parcel of real property owned 
2

by Objectors and located in Plum Township, Bucks County, known as Bucks County 

Tax Parcel 34-3-89. The property consists of approximately 2.172 acres and is 

improved by a single-family dwelling. Objectors, acting pro se, filed preliminary 

objections, arguing that (1) the condemnation is an unlawful taking for a private 

purpose, (2) the primary beneficiary of the condemnation is the developer of a 

housing development known as “Lantern Ridge,” and (3) the condemnation is not 

an exercise of sound judgment. The Authority responded to the preliminary 

objections, essentially denying the allegations. 

By letter dated July 14, 2016, the Authority sent Objectors two notices 

of depositions scheduled for August 3, 2016. (Supplemental Reproduced Record 

(S.R.R.) at 1b.) The notices listed the deponents as the Authority’s engineer, 

John A. Swenson, P.E. (Swenson), and the Authority’s Chief Operating Officer, 

John Butler (Butler). Objectors did not immediately reply to this correspondence, 

nor did they appear at the depositions. 

On August 8, 2016, Objectors responded via letter to the Authority’s 

notices of depositions, raising concerns regarding the manner in which the Authority 

delivered the notices of depositions. Objectors stated that the Authority served the 

declaration of taking via personal service at Objectors’ place of business but sent the 

notices of depositions to a post office box that Objectors had never directed the 

Authority to use. (Id. at 4b.) Further, Objectors noted that they did not discover the 

notices in their post office box until the day of the depositions, thereby causing

Objectors’ absence. In light of Objectors’ inability to attend the depositions, they 

requested copies of the deposition transcripts and reserved the right to depose 

Swenson and Butler at a later date. (Id. at 5b.)
3

By letter dated August 15, 2016, the Authority explained that the 

notices of depositions were “sent to the [physical] address [for Objectors’ place of 

business], but returned by the postal office. They were then sent to the post office 

box because the county real estate records show that post office box address as the 

mailing address for the property.” (Id. at 6b.) The Authority further advised 

Objectors that it would send copies of the deposition transcripts as soon as 

practicable and that Objectors should contact the Authority if they wished to depose 

Swenson and Butler. (Id.)

On September 20, 2016, the Authority provided Objectors with the 

deposition transcripts of Swenson and Butler. (Id. at 7b.) The Authority again 

reminded Objectors to contact the Authority if they wished to depose Swenson and 

Butler. (Id.) Further, the Authority stated its intention to file a brief with the trial 

court to dismiss Objectors’ preliminary objections and Objectors would be obligated 

to file a reply brief. (Id.)

By response dated October 1, 2016, Objectors informed the Authority 

that they wished to depose Swenson. (Id. at 52b.) The Authority subsequently 

proposed two dates for this deposition: November 15 or 16, 2016. (Id. at 53b.) On 

November 10, 2016, Objectors informed the Authority that they would not be ready 

to conduct the deposition on either suggested date, and they would contact the 

Authority in the coming days to reschedule. (Id.) No future contact occurred 

between Objectors and the Authority regarding the scheduling of depositions. 

On January 6, 2017, the Authority filed with the trial court a brief in 

opposition to Objectors’ preliminary objections and attached, inter alia, the 

depositions of Swenson and Butler. (Id. at 55b.) Thereafter, by letter dated 

January 18, 2017, the Authority notified Objectors of its intent to file a praecipe for 
4

dismissal of Objectors’ preliminary objections pursuant to Bucks County Rule of 

Civil Procedure No. 208.3(b)(5)1if Objectors failed to comply with Bucks County 

Rule of Civil Procedure No. 208.3(b)(2) 2 within ten days. (Id. at 56b.) Objectors 

took no action during the ten-day period. The Authority then filed its praecipe on 

February 6, 2017. (Id. at 59b.) 

On February 21, 2017, Objectors filed a response to the Authority’s 

praecipe, asserting only that the trial court should not dismiss the matter because 

Objectors had not been able to develop the required facts due to the Authority’s 

failure to make witnesses available for deposition. (Id. at 63b.) By order dated 

April 10, 2017, the trial court denied and dismissed Objectors’ preliminary 

objections. (Reproduced Record (R.R.) at 5a.)3 

On May 4, 2017, Objectors filed a timely notice of appeal. Pursuant to 

Pa. R.A.P. 1925(b), the trial court directed Objectors to file a concise statement of 

errors complained of on appeal (Rule 1925 Statement) no later than twenty-one days 

 

1 Bucks County Rule of Civil Procedure No. 208.3(b)(5) provides, in pertinent part:

Any other party may by praecipe forward a matter to the Court for dismissal of the 

application at issue when the party who [sic] submitted it does not comply with the 

provisions of subsection (2) of this rule. Written notice of the intent to file under 

this subsection shall be given to the party whose application is at issue at least ten 

days prior to such submission, during which period of time the non-complying party 

shall have the opportunity to come into compliance with the requirements of 

subsection (2).

2 Bucks County Rule of Civil Procedure No. 208.3(b)(2) provides that “when the matter is 

at issue and ready for decision, the moving party on the application shall, by praecipe, order the 

same to be submitted for disposition pursuant to this rule.”

3 Although Objectors have not numbered the pages in the manner required by 

Pa. R.A.P. 2173, we will cite to them as numbered to avoid confusion. See Torijano v. Workers’ 

Comp. Appeal Bd. (In A Flash Plumbing), 168 A.3d 424, 425 n.1 (Pa. Cmwlth. 2017).
5

after the entry of the order.

4

 Although dated May 22, 2017, the trial court docketed 

and mailed its Rule 1925(b) order to Objectors on May 26, 2017. Thus, Objectors 

had until June 16, 2017, to file their Rule 1925 Statement. The Rule 1925(b) order 

further notified Objectors that “[a]ny issue not properly included in the [Rule 1925]

Statement timely filed and served pursuant to Rule 1925(b) shall be deemed 

waived.” (Trial court’s Rule 1925(b) order.) 

Objectors filed their Rule 1925 Statement via first-class mail. 

Objectors’ certificate of service listed the mailing date as June 12, 2017. Objectors’ 

filing, however, did not include any certificate of mailing evidencing the mailing 

date. The trial court, however, docketed Objectors’ Rule 1925 Statement as having 

been received on June 26, 2017, thereby making it untimely. (R.R. at 2a.) 

On appeal,5 Objectors argue that the trial court erred in dismissing their

preliminary objections. Specifically, Objectors allege (1) the trial court erred in 

concluding that the Authority did not preclude Objectors from taking the depositions 

of Swenson and Butler, and (2) the trial court erred by considering the “ex parte” 

depositions taken by the Authority. The Authority contends that Objectors waived 

these issues due to Objectors’ failure to timely file their Rule 1925 Statement. 

Before we address the merits of Objectors’ appeal, we must first address the 

timeliness of Objectors’ Rule 1925 Statement.

 

4 Pa. R.A.P. 1925(b) provides:

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 errors complained of on appeal (“Statement”).

5

“In eminent domain cases, our scope of review is limited to determining whether the trial 

court abused its discretion or committed an error of law.” Appeal of Heim, 617 A.2d 74, 76 (Pa. 

Cmwlth. 1992), appeal denied, 629 A.2d 1385 (Pa. 1993). 
6

Pa. R.A.P. 1925 is “intended to aid trial judges in identifying and 

focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is 

thus a crucial component of the appellate process.” Cmwlth. v. Lord,

719 A.2d 306, 308 (Pa. 1998). “Whenever a trial court orders an appellant to file a 

concise statement of matters complained of on appeal pursuant to Rule 1925(b), the 

appellant must comply in a timely manner.” Hess v. Fox Rothschild, LLP, 

925 A.2d 798, 803 (Pa. Super. 2007), appeal denied, 945 A.2d 171 (Pa. 2008) 

(emphasis in original). Failure to comply with the order’s directive will result in 

waiver of all issues raised on appeal. Cmwlth. v. Schofield, 888 A.2d 771, 774 

(Pa. 2005). 

In terms of the filing and service of a Rule 1925 Statement, 

Pa. R.A.P. 1925(b)(1) provides, in pertinent part:

Filing of record and service on the judge shall be in person 

or by mail as provided in Pa. R.A.P. 121(a) and shall be 

complete on mailing if 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).

(Emphasis added.)

Applying the above principles to the instant case, we hold that 

Objectors waived all issues on appeal due to the untimeliness of their Rule 1925 

Statement. Although Objectors’ certificate of service for their Rule 1925 Statement

identifies the mailing date as June 12, 2017, the trial court’s docket shows the date 

of receipt as June 26, 2017. Per Pa. R.A.P. 1925(b), Objectors would only be able 

to preserve the timely mailing date set forth on their certificate of service if they had 

attached some form of a certificate of mailing from which the date Objectors 

deposited the Rule 1925 Statement in the mail could be verified. Objectors, 
7

however, failed to attach such documentation. We, therefore, must use the date set 

forth on the trial court’s docket, which renders Objectors’ Rule 1925 Statement 

untimely, thereby resulting in the waiver of all issues on appeal. 

Accordingly, we affirm the trial court’s order.6

 

 P. KEVIN BROBSON, Judge

 

6 As to the substantive issues, we note that Objectors’ arguments lack merit. Although 

Objectors contend they did not receive notices of the depositions in a timely manner, the Authority 

made reasonable attempts to notify Objectors of the depositions. Moreover, the record establishes 

that on four separate occasions the Authority offered Objectors an opportunity to conduct 

depositions. (S.R.R. at 1b, 6b-7b, 53b.) Further, Objectors indicated that they would contact the 

Authority to schedule the depositions but failed to do so. Finally, when a party is notified of a 

proceeding, yet fails to attend, it does not render that proceeding, or any resulting evidence, as ex 

parte. See Allen v. Bureau of Workers’ Comp., 814 A.2d 1275, 1278 (Pa. Cmwlth. 2003). Given 

these facts, we see no error on behalf of the trial court. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bucks County Water and Sewer :

Authority :

:

v. : No. 573 C.D. 2017

:

A Portion of the Lands of :

John Joseph Marchione and :

Jill Marchione, Husband and Wife, :

of Plumstead Township, :

County of Bucks, Tax Parcel 34-3-89 :

:

Appeal of: John Joseph Marchione :

and Jill Marchione :

O R D E R

AND NOW, this 4

th day of April, 2018, the order of the Court of 

Common Pleas of Bucks County is AFFIRMED.

 

 P. KEVIN BROBSON, Judge