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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MARCUS A. HENRY, JR.

Appellant

v.

HOLLIE RHOADS, TIM MORRIS AND DIAKON ADOPTION AND FOSTER CARE : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 317 MDA 2022

Appeal from the Order Dated January 25, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 21

- 13213

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J. * MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 2, 2023 Marcus A. Henry, Jr. appeals from the order granting the preliminary objections of Hollie Rhoads, Tim Morris, and Diakon Adoption and Foster Care 1 (“Diakon”) ( together, “ Appellees”) , and dismissing his complaint. Henry has waived all issues by failing to file a timely Rule 1925(b) statement

. See Pa.R.A.P. 1925(b)(4)(vii). We therefore dismiss the appeal

. Henry filed a pro se complaint alleging that Diakon placed his thre e biological children in foster care with Rhoads and Morris (“Foster Parents ” ) , who made false statements about him , including that he had physically abused
the children and violated a Protection f rom Abuse order. He alleged that

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* Retired Senior Judge assigned to the Superior Court.

1 Appellees’ brief states that the party’s name is “Diakon Child, Family, and Community Ministries.”J

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Diakon was negligent for p lacing the children with Foster Parents. Appell e es filed preliminary ob jections arguing, among other things, that they are
immune under the Child Protective Services Law (“CPSL”) , 23 Pa.C.S.A. § 6318(a)(2 ). T he court sustained the preliminary objections and dismissed the complain t , and Henry appealed.
The court entered an order on March 1, 2022, directing Henry to file a Rule 1925(b) c oncise s tatement of e rrors c omplained of on a ppeal , within 21 days. See Pa. R.A.P. 1925(b). 2 The order advised Henry , “Any issue not included in a timely filed and served Statement of Errors Complained of on Appeal shall be deemed waived.” Pa.R.A.P. 1925(b) Order, 3/1/22, at 1 ; see Pa.R.A.P. 1925(b)(3) (iv). The court did not rece ive Henry’s s tatement within

21 days

— that is, by March 22, 2022. 3 The trial court accordingly authored an opinion stating that Henry had waived all issues

. Two weeks later, on April 5, 2022, the trial court ’s prothonotary time

stamped a n d docketed Henry’s Rule 1925(b) statement. T he proof of service
indica t ed Henry sent the statement to the court via U.S. Mail two days before the deadline, on March 20, 2022

. Henry filed a “Motion to Clarify Delivery of

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2 The order is dated February 28, 2022 , but a March 1, 2022 , docket entry states that the prothonotary provided Rule 236 notice on March 1, 2022. The order was therefore “ entered ’” on March 1, 2022. See Pa.R.A.P. 108(b) ( providing order is entered on date clerk notes in docket that notice of order has been given).

3 See Pa.R.C.P. 1 06 (a) (“ When 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”)

. March 22, 2022 , did not fall on a weekend or holiday.J

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Appellant’s Concise Statement of Error s” in this Court

. He alleged that he first
mailed the statement to the trial court on March 20, 2022, two days before
the deadline , but the prothonotary sent it back to him, unfiled, demanding an $8 .00 filing fee . Henry claimed h e the n returned the statemen t with the fee

. 4 Appellees argued for dismissal of the appeal based on Henry’ s untimely Rule 1925(b) statement . However, w e determined that the date Henry filed the statement was the date it was first received by the prothonotary , 5 and
that the resolution of this operative factual issue was not apparent o n the face
of the record

. We therefore remanded the case to the trial court to determine whether the prothonotary had received and rejected the statement prior to the March 22 filing deadline

. See Pa.R.A.P. 1925(c)(1) ; Bank of New York
Mellon v. Brooks , No. 1362 EDA 2016, 2017 WL 1437521, unpublished
memorandum at *3 and n.3 (Pa.Super. 2017) (remanding for determination of when prothonotary received Rule 1925(b) statement, even where

p rothonotary time

- stamped and docketed the statement after the deadline,
where proof of service stated appellant mailed the statement before the
deadline ). We retained jurisdiction.

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4 We denied the motion without prejudice

.

5 See Mariano v. Rhodes , 270 A.3d 521, 530 (Pa.Super. 2022) ( if a prothonotary rejects civil pleadings filed within time limits, based on an initial failure to pay a filing fee, it does not affect the timeliness of the filing); see also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc. , 88 A.3d 222, 226 nn. 5, 6 (Pa.Super. 2014) ( en banc ) (when the appellant does not obtain a certificate of mailing, the date of filing is the date the prothonotary received the statement)

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The trial court has since responded

. It issued an order stating that it
hel d a hearing at which the deputy prothonotary for the trial court testified and at which Henry had an opportunity to present rebuttal evidence. The court found that the prothonotary ’s office first received Henry’s statement on March
23, 202 2

. See Order, 5/25/23, at 1.
We do not have discretion to entertain issues that were not included in a timely statement. Greater Erie Indus. Dev. Corp. , 88 A.3d at 225

. There is no exception to Rule 1925(b) for pro se litigants who miss the deadline by

even one day. See Commonwealth v. Boniella , 158 A.3d 162, 164 (Pa.Super. 2017). As the prothonotary of the trial court received Henry’s statement one day after the March 22, 2022, deadline, it is untimely, and all
issues are waived. See Pa.R.A.P. 1925(b)(4)(vii). W e accordingly dismiss the appeal.
Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2 /2023