J. S55035/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THOMAS J. LYNCH,                        :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :         No. 2936 EDA 2017
MICHAEL GERACE, G. WORLD, INC.,         :
AND GERACE ENTERPRISE, INC.             :


           Appeal from the Judgment Entered October 18, 2017,
            in the Court of Common Pleas of Delaware County
                       Civil Division at No. 15-1092



THOMAS J. LYNCH                         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
MICHAEL GERACE, G. WORLD, INC.,         :
AND GERACE ENTERPRISE, INC.,            :         No. 2940 EDA 2017
                                        :
                       Appellants       :


           Appeal from the Judgment Entered October 18, 2017,
            in the Court of Common Pleas of Delaware County
                      Civil Division at No. 2015-1092


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 21, 2018

     Appellant/cross-appellee       Thomas   J.   Lynch   (“Lynch”)   and

appellees/cross-appellants Michael Gerace, G. World, Inc., and Gerace

Enterprise, Inc. (collectively, “Gerace”) each appeal from the October 18,
J. S55035/18

2017 judgment entered in favor of Lynch and against G. World, Inc. and

Gerace Enterprise, Inc., in this breach of contract action.1     After careful

review, we affirm on the basis of the comprehensive November 17, 2017

opinions of the Honorable Spiros E. Angelos.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

            [Lynch] initiated this action with the filing of a
            Complaint on February 6, 2015. [Lynch] alleged
            claims against [Gerace] in breach of contract and
            unjust enrichment. [Lynch] alleged that, pursuant to
            an oral agreement between the parties, [Lynch]
            performed human resources related consulting
            services at the request of Defendant, Michael
            Gerace. [Gerace] filed an Answer on November 17,
            2015. A bench trial was held on December 6, 2016
            and the undersigned Judge entered a Decision and
            supporting Findings of Facts and Conclusions of Law
            on December 19, 2017 in favor of [Lynch] against
            [Gerace] in the amount of Thirty Thousand Dollars
            ($30,000.00).

            [Lynch] filed a post-trial motion to amend the verdict
            to include prejudgment interest on December 28,
            2016. [Gerace] filed a post-trial motion to vacate
            the Trial Court[’]s December 19, 201[6] Decision on
            January 20, 2017,[Footnote 1] arguing that
            [Defendant Michael] Gerace was not a party to the
            alleged oral agreement between the parties.         A
            hearing was held on [the parties’] post-trial motions
            on April 5, 2017.        Following said hearing, the
            undersigned Judge issued an Amended Order on

1 Both parties purport to appeal from the August 8, 2017 order denying their
respective motions for post-trial relief. “[H]owever, an appeal properly lies
from the entry of judgment, not from the denial of post-trial motions.”
Croyle v. Dellape, 832 A.2d 466, 470 (Pa.Super. 2003) (citation and
internal quotation marks omitted).         We have amended the caption
accordingly.


                                    -2-
J. S55035/18


          April 12, 2017, finding in favor of [Lynch] and
          against two defendants, G World Inc. and Gerace
          Enterprise, Inc. in the amount of Thirty Thousand
          Dollars ($30,000.00) plus prejudgment interest in
          the amount of Five Thousand Eight Hundred Thirty
          Seven Dollars and Twelve Cents ($5,837.12).

               [Footnote 1] [Gerace’s] Post-Trial Motion
               was well past the 10 day period to file a
               post-trial  motion      under    Pa.R.C.P.
               227.1(c)[.]        However,      [Lynch’s]
               Post-Trial Motion on December 28, 2016
               provided a cover-page that incorrectly
               stated [Gerace] had twenty (20) days to
               respond to [Lynch’s] post-trial motion.
               The Trial Court has broad discretion to
               dismiss an untimely post-trial motion or
               to overlook its untimeliness.         See
               Kennel v. Thomas, 804 A.2d 667, 668-
               [6]69 (Pa.Super. 2002).       Due to the
               error on the cover-page of [Lynch’s]
               post-trial motion,     the   Trial Court
               exercised its discretion and considered
               the merits of [Gerace’s] post-trial
               motion.

          The parties filed post-trial motions on the April 12,
          2017 Amended Order, which were denied by Order
          on August 7, 2017, docketed August 8, 2017.
          [Lynch] and [Gerace] each filed a Notice of Appeal
          on September 6, 2017. The Court directed [Lynch]
          and [Gerace] to file a Concise Statement of Matters
          Complained       of    on    Appeal   pursuant     to
          Pa.R.A.P. 1925(b) on September 8, 2017. [Gerace]
          filed [its] 1925(b) statement on September 29, 2017
          and served a copy on the undersigned Judge.
          [Lynch] failed to timely file a 1925(b) statement
          within twenty-one (21) days and failed to serve a
          copy on the court,[Footnote 2] as prescribed by the
          Trial Court’s September 8, 2017 Order and pursuant
          to Pa.R.A.P. 1925(b).

               [Footnote 2] [Lynch’s] failure to serve a
               copy on the trial court is further


                                  -3-
J. S55035/18


                  evidenced by the Certification of Service,
                  which certifies that a copy was served
                  via email and regular mail to [Gerace’s]
                  counsel only.

Trial court opinion, 11/7/17 at 1-3 (some citations and footnotes omitted).

      On October 18, 2017, the trial court entered judgment in favor of

Lynch and against G. World, Inc., and Gerace Enterprise, Inc., in the amount

of $35,837.12.    Thereafter, on November 17, 2017, the trial court filed

separate Rule 1925(a) opinions with respect to the issues raised by Lynch

and Gerace.

      Lynch raises the following two issues for our review:

            I.    The trial court had no basis to vacate the
                  judgment and dismiss Michael Gerace from the
                  case via post[-]trial motion.

            II.   The trial court erred in failing to grant [Lynch]
                  leave to correct the designation of [] Gerace
                  Enterprise, Inc. to M. Gerace Enterprise, Inc.

Lynch’s brief at 9, 14 (full capitalization and emphasis omitted).

      The crux of Gerace’s argument on appeal is that the trial court erred in

entering judgment in favor of Lynch in the amount $35,837.12 because the

record did not establish that the parties entered into an oral contract.

(Gerace’s brief at 8-14.)   Gerace further avers that all of Lynch’s claims

should be dismissed for failure to file a timely Rule 1925(b) statement. (Id.

at 17.) Alternatively, Gerace argues that,

            [t]he trial court correctly denied Lynch’s post-trial
            motion to amend the name of Defendant Gerace
            Enterprise, Inc.[; and]


                                     -4-
J. S55035/18



           [t]he trial court . . . correctly determined judgment
           should not be entered . . . against Michael Gerace
           individually.

Id. at 19, 21 (emphasis and unnecessary capitalization omitted).2

     Our standard of review in nonjury cases is as follows:

           Our appellate role in cases arising from nonjury trial
           verdicts is to determine whether the findings of the
           trial court are supported by competent evidence and
           whether the trial court committed error in any
           application of the law. The findings of fact of the
           trial judge must be given the same weight and effect
           on appeal as the verdict of a jury. We consider the
           evidence in a light most favorable to the verdict
           winner. We will reverse the trial court only if its
           findings of fact are not supported by competent
           evidence in the record or if its findings are premised
           on an error of law. However, where the issue . . .
           concerns a question of law, our scope of review is
           plenary.    The trial court’s conclusions of law on
           appeal originating from a non-jury trial are not
           binding on an appellate court because it is the
           appellate court’s duty to determine if the trial court
           correctly applied the law to the facts of the case.

Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53,

60-61 (Pa.Super. 2012) (citations and internal quotation marks omitted),

appeal denied, 69 A.3d 599 (Pa. 2013).




2 The record reflects that Gerace waived its claim with regard to the trial
court’s award of $5,837.12 in prejudgment interest (see Gerace’s brief at
14-16) by failing to raise this specific issue in his Rule 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an appellant’s
1925(b)] Statement . . . are waived”); see also Hess v. Fox Rothschild,
LLP, 925 A.2d 798, 803 (Pa.Super. 2007) (stating, “any issue not raised in
an appellant’s Rule 1925(b) statement will be deemed waived for purposes
of appellate review[]”), appeal denied, 945 A.2d 171 (Pa. 2008).


                                    -5-
J. S55035/18

       Instantly, the trial court found that “[Gerace] failed to prove that the

Trial Court abused its discretion or committed an error of law by finding a

breach of oral agreement between the parties.”           (See trial court opinion,

11/7/17 at 1; certified record at 41.)         In reaching this decision, the trial

court indicated that it carefully weighed the evidence presented by both

parties at trial and found Lynch’s testimony to be credible.           (Id. at 6-8.)

The trial court further noted that “[Lynch] failed to properly preserve all

claims on appeal by failing to timely file and serve on the court a concise

statement of matters complained of on appeal pursuant to [Rule] 1925(b)

and as ordered by the Trial Court.” (See trial court opinion, 11/7/17 at 1;

certified record at 42.)

       After a thorough review of the record, as well as the briefs of the

parties and the applicable law, and in light of this court’s scope and standard

of review, we find that the record supports the trial court’s determination

that   an    oral   contract   existed    between      the   parties   for   human

resources-related consulting services and Gerace’s claims to the contrary are

meritless.   Moreover, we agree with the trial court that Lynch’s failure to

timely comply with Rule 1925(b) results in waiver of his issues on appeal.

Accordingly, we adopt the trial court’s November 7, 2017 Rule 1925(a)

opinions as our own for purposes of this appellate review.

       Judgment affirmed.




                                         -6-
J. S55035/18



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/21/18




                          -7-
                                                                         Circulated 10/31/2018 12:15 PM




           COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                          CIVIL ACTION -LAW

                                                      No.    15-1092

               v.

MIC        L GERACE, G WORLD, INC.,
            CE ENTERPRISE, INC.


Kevin R Boyle, Esquire - Counsel for Appellants/Defendants
Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants
Eric Ma thew Hurwitz, Esquire - Counsel for Appellants/Defendants
David Avedissian, Esquire - Counsel for Cross-Appellant/Plaintiff


                                                         DATE:         November 6, 2017

                                       OPINION

            pell-ants/Defendants, Michael Gerace, G World, Inc., and Gerace

Enterpri e, Inc., appeal from the August 7, 2017 Order, docketed August 8, 2017,

denying their motion for post-trial relief in the instant breach of contract action.

Appella ts failed to prove that the Trial Court abused its discretion or committed

an erro of law by finding a breach of oral agreement between the parties. The

Trial C urt's findings are based upon competent evidence and therefore, the

August , 217 Order, docketed August 8, 2017, should not be disturbed.

                    PROCEDURAL AND FACTUAL HISTORY

         Pl intiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this

action     'th the filing of a Complaint on February 6, 2015. Plaintiff alleged claims

against efendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in
                                           1
breach of contract and unjust enrichment. See Amended Complaint. Plaintiff

alleged that, pursuant to an oral agreement between the parties, Plaintiff performed

human resources related consulting services at the request of Defendant, Michael

Gerace ("Mr. Gerace"). Id. at        ,r 5. Defendants filed an Answer on November               17,

2015.      bench trial was held on December 6, 2016 and the undersigned Judge

entered a Decision and supporting Findings of Facts and Conclusions of Law on

Decem er 19, 2017 in favor of Plaintiff against all Defendants in the amount of



         laintiff filed a post-trial motion to amend the verdict to include

prejud     ent interest on December 28, 2016. Defendants filed a post-trial motion to

vacate     e Trial Courts December 19, 2017 Decision on January 20, 2017,1 arguing

that Mr Gerace was not a party to the alleged oral agreement between the parties.

A hear g was held on Plaintiff and Defendants' post-trial motions on April 5,

          Bowing said hearing, the undersigned Judge issued an Amended Order on

April 1 , 2017, finding in favor of Plaintiff and against two defendants, G World

            Gerace Enterprise, Inc, in the amount of Thirty Thousand Dollars

1
  Defend ts Post-Trial Motion was well past the l O day period to file a post-trial motion under
Pa.R.C.P 227.l(c) However, Plaintiffs Post-Trial Motion on December 28, 2016 provided a
cover-pa e that incorrectly stated Defendants had twenty (20) days to respond to Plaintiffs
post-trial motion. The TriaJ Court has broad discretion to dismiss an untimely post-trial motion
or to ove look its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002).
Due to      error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its
discretio and considered the merits of Defendants post-trial motion.


                                                2
    ($30,0 0 . .00) plus prejudgment interest in the amount of Five Thousand Eight

 Hundr d Thirty Seven Dollars and Twelve Cents ($5,837.12).

             he parties filed post-trial motions on the April 12, 2017 Amended Order,

 which       ere denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff

 and De endants each filed a Notice of Appeal on September 6, 2017. The Court

              Plaintiff and Defendants to file a Concise Statement of Matters

Compl ined of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017.

Defend nts filed their l 925(b) statement on September 29, 2017 and served a copy

on the ndersigned Judge. Plaintiff failed to timely file a l 925(b) statement within

twenty- ne (21) days and failed to serve a copy on the court', as prescribed by the

Trial C urt's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b).3

             TATEMENT OF MATTERS COMPLAINED OF ON APPEAL

             e issues raised in Defendants' Statement of Matters Complained of on

             re as follows:"


2
  Plaintif   s failure to serve a copy on the trial court is further evidenced by the Certification of
Service,     hich certifies that a copy was served via email and regular mail to Defendants' counsel
only.
3
  In dete   ining whether an Appellant has waived issues on appeal based on non-compliance
with Pa.  .A.P. 1925, the trial court's order triggers Appellant's obligation under the rule. See In
re Estate fBoyle, 77 A.3d 674, 676 (Pa. Super. 2013). Failure to comply with the service
requirem nts and verified admission ofreceiving notice of the same has been found sufficient to
find waiv r of issues on appeal. See Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223
�Pa. Supe . 2005).
  Defend ts' Concise Statement of Matters Complained of on Appeal is anything but concise. A
Rule 192 (b) "statement must be 'concise' and coherent as to permit the trial court to
            the specific issues being raised on appeal." Jiricko v. Geico Ins. Co., 947 A.2d 206,

                                                   3
                The Court erred in entering judgment against Defendants G World,

                Inc. and Gerace Enterprise, Inc. because additional facts were elicited

                at trial but were not mentioned or discussed in the Court's Findings of

                Fact and Conclusions of Law; and

                The Court erred in finding the formation of an oral contract between

                the parties.

                                         DISCUSSION

           he decision of the trial court in a non-jury trial will be reversed only where

the tria court has abused its discretion or if its findings are premised on an error of

law. A erikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa.

Super.      t. 2004). The trial court does not abuse its discretion where there is a mere

differen e of opinion regarding an interpretation of the facts. See Viener v. Jacobs,

834 A. d 546, 556 (Pa. Super. Ct. 2003. Rather, an abuse of discretion is found

only in flagrant' cases where there is no reasonable ground for a difference of

opinion. See Miller v. Krug, 386 A.2d 124, 127 (Pa. Super. Ct. 1978). Thus, the

trial co     's findings are controlling and will not be reversed unless those findings

are not ased upon competent evidence. Viener, 834 A.2d at 554.



211 (Pa.    uper. 2008). Appellants' Statement consists of a recitation of facts interwoven with
what the    rial Court can only discern as possible errors. Therefore, the Trial Court has
thorough]    read through Defendants' Statement and discerned the basis for Appellants' appeal as
numerate     above.


                                                4
         ennsylvania Rule of Civil Procedure l 03 8 states: "The decision of the trial

judge    ay consist only of general findings as to all parties but shall dispose of all

claims for relief. The trial judge may include as part of the decision specific

          of fact and conclusions of law with appropriate discussion." The trial

court,    hen hearing a case without a jury, is not required to separately list

subsidi ry and ancillary facts to support the judgment, but need only find the

materia facts controlling issues raised. Singer v. Redevelopment Auth. of City of

Oil Ci , 261 A.2d 594, 602 (Pa. 1970), citing First National Bank v. Jones' Estate,

6 A.2d 73 (Pa. 1939).

         efendants' alleged error by the Trial Court in failing to include additional

facts e icited at trial but not included in the Court's Findings of Fact and

Conclu ions of Law is without merit. The December 19, 2016 Findings of Fact and

Conclu ions of Law included material facts related to the Decision in the case. The

         urt need not list every fact elicited at trial, only those material facts related

to the   ecision in the case. Here, the Trial Court referred to testimony that was

         y both Plaintiff and Mr. Gerace and, after considering all of the testimony

and evi ence presented at trial, the undersigned Judge carefully made a decision

based    n the weight of that testimony and included Findings of Facts and

Conclus ons of Law that supported said decision.




                                           5
          o the extent that Defendants' further argue the Trial Court erred in finding

the fo     ation of an oral contract between the parties, Defendants' argument is

agam      ithout merit. The trial court, siting as the trier of fact in a bench trial, is the

sole ju ge of credib.ility and conflicts in the evidence. See Miller v. Brass Rail

Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. Ct. 1997); See also Mackay v.

Macka , 984 A.2d 529, 533 (Pa. Super. Ct. 2009) ("The weight afforded to the

testimo y of the witnesses as well as credibility determinations are within the

exclusi e province of the trial court"). Therefore, "[t)he findings of fact of the trial

judge     ust be given the same weight and effect on appeal as the verdict of a jury."

Amerik hl, 860 A.2d at 549-50.

           e Trial Court found that an oral contract existed between the parties for

human esources related consulting services. See December 19, 2016 Findings of

Fact an    Conclusions of Law,      1 40-47.   This finding was based on the testimony

and ev dence elicited at trial. Plaintiff testified that he met Mr. Gerace in

March/ pril 2013 to discuss human resources policies and procedures for Mr.

Gerace s business, but they did not discuss the cost of said services at this meeting.

N.T. D c. 6, 2016, pp. 13, 18. In May 2013, Plaintiff prepared a written proposal

for Mr. Gerace, which included support for regulatory posters to be placed at

locatio s for Mr. Gerace 's business, a new hire checklist for all new employees,

and a p licies and procedures manual. N.T. Dec. 6, 2016, pp. 19-22; Exhibit P-1.


                                               6
Plainti   testified that at the May 2013 meeting, he informed Mr. Gerace that his

service would cost Thirty Thousand Dollars ($30,000.00) .and that Mr. Gerace

agreed. N.T. Dec. 6, 2016, pp. 22. Mr, Gerace testified that he never agreed to pay

any su    to Plaintiff. N.T. Dec. 6, 2016, p. 120. However, Plaintiff testified that he

provid     Mr. Gerace with two finished products, created specifically for his

compa y, in July or August 2013, and then asked for payment for his services.

N.T. D c. 6, 2016, pp. 31-32. Plaintiff further testified that he emailed Mr.Gerace

on mu tiple occasions asking for compensation, and Mr. Gerace eventually

respon ed stating that he was "real1y tied up" and "tied up with year end." N.T.

Dec. 6, 2016, pp. 37, 52-63; Exhibit P-8. Mr. Gerace did not object to, protest, or

deny in any emails where he was asked by Plaintiff for compensation that he did

not agr e to pay Plaintiff for his services.

          e Trial Court found the testimony of Plaintiff to be credible. See

          er 19, 2016 Findings of Fact and Conc1usions of Law,        ,r   39. The Trial

Court     rther found that Plaintiff and Mr. Gerace agreed upon services to be

           by Plaintiff and Plaintiff did in fact provide those services to Mr. Gerace.

Further the testimony of Plaintiff, along with multiple e-mails and Demand

Letters, established: the parties agreed to the amount of the oral contract in the

amount of Thirty Thousand Dollars ($30,000.00), the parties agreed that payment

for Pla tiffs services would take place at the completion of the project by


                                           7
Plainti , and Plaintiff completed the agreed upon work for Defendants. Acting as

the trie of fact in this case, the undersigned Judge listened to the testimony and

eviden e presented at trial and carefully weighed the weight of the testimony and

eviden e. As the trier of fact is in the best position to judge the credibility of

witness s, the Trial Court's December 19, 2016 Decision should not be disturbed.




                                       8
                                                                        Circulated 10/31/2018 12:15 PM




IN THE COURT OF COMMON PLEAS OF DELAVVARE COUNTY, PENNSYLVANIA
                      CIVIL ACTION - LAW

THOMAS J. LYNCH                                      No.     15-1092

             v.

MICHAEL GERACE, G WORLD, INC.,
and GERACE ENTERPRISE, INC.


Kevin R. Boyle, Esquire - Counsel for Appellants/Defendants
Michelle H. Badolato, Esquire - Counsel for Appellants/Defendants
Eric Matthew Hurwitz, Esquire - Counsel for Appellants/Defendants
David A. Avedissian, Esquire-Counsel for Cross-Appellant/Plaintiff


ANGELOS,J.                                                 DATE:       November 6, 2017

                                     OPINION

      Cross-Appellant/Plaintiff, Thomas J. Lynch, appeals from the August 7,

2017 Order, docketed August 8, 2017, denying his motion for post-trial relief in

the instant breach of contract action. Plaintiff failed to properly preserve all claims

on appeal by failing to timely file and serve on the court a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) and as ordered by

the Trial Court. Therefore, Plaintiffs Appeal should be dismissed.

                  PROCEDURAL AND FACTUAL HISTORY

      Plaintiff/Cross-Appellant, Thomas Lynch ("Mr. Lynch"), initiated this

action with the filing of a Complaint on February 6, 2015. Plaintiff alleged claims

against Defendants, Michael Gerace, G World, Inc. and Gerace Enterprise, Inc. in

breach of contract and unjust enrichment. See Amended Complaint. Plaintiff
                                           1
alleged that, pursuant to an oral agreement between the parties, Plaintiff performed

human resources related consulting services at the request of Defendant, Michael

Gerace ("Mr. Gerace"). Id. at� 5. Defendants filed an Answer on November 17,

20 l 5. A bench trial was held on December 6, 2016 and the undersigned Judge

entered a Decision and supporting Findings of Facts and Conclusions of Law on

December 19, 2017 in favor of Plaintiff against all Defendants in the amount of

Thirty Thousand Dollars ($30,000.00).

        Plaintiff filed a post-triaJ motion to amend the verdict to include

prejudgment interest on December 28, 2016. Defendants filed a post-trial motion to

vacate the Trial Courts December 19, 2017 Decision on January 20, 2017,1 arguing

that Mr. Gerace was not a party to the alleged oral agreement between the parties.

A hearing was held on Plaintiff and Defendants' post-trial motions on April 5,

2017. Foilowing said hearing, the undersigned Judge issued an Amended Order on

April 12, 2017, finding in favor of Plaintiff and against two defendants, G World

Inc. and Gerace Enterprise, Inc. in the amount o.f Thirty Thousand Dollars

($30,000.00) plus prejudgment interest in the amount of Five Thousand Eight

Hundred Thirty Seven Dollars and Twelve Cents ($5,837.12).

I
  Defendants Post-Trial Motion was well past the 10 day period to file a post-trial motion under
Pa.R.C.P. 227. l(c) However, Plaintiff's Post-Trial Motion on December 28, 2016 provided a
cover-page that incorrectly stated Defendants had twenty (ZO) days to respond to Plaintiff's post-
triaJ motion. The Trial Court has broad discretion to dismiss an untimely post-trial motion or to
overlook its untimeliness. See Kennel v. Thomas, 804 A.2d 667, 668-69 (Pa.Super.2002). Due to
the error on the cover-page of Plaintiffs post-trial motion, the Trial Court exercised its discretion
and considered the merits of Defendants post-trial motion,
                                                 2
       The parties filed post-trial motions on the April 12, 2017 Amended Order,

which were denied by Order on August 7, 2017, docketed August 8, 2017. Plaintiff

and Defendants each filed a Notice of Appeal on September 6,. 2017. The Court

directed Plaintiff and Defendants to file. a Concise Statement of Matters

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) on September 8, 2017.

Defendants filed their 192S(b) statement on September 29, 2.017 and served a copy

on the undersigned Judge. Plaintiff failed to timely file a 1925(b) statement within

twenty-one (21) days and failed to serve a copy on the court', as prescribed by the

Court's September 8, 2017 Order and pursuant to Pa.R.A.P. 1925(b).

                                         DISCUSSION

       Pursuant to Pa.R.A.P. 1925(b), a judge entering an order giving rise to a

notice of appeal "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."      Appellants must comply when a trial court orders them to file a

concise statement and any matters not included in a timely filing are deemed

waived. Com. v. Lord, 719 A.2d 306, 309 (Pa. 1998).3




2
  Plaintiff's failure to serve a copy on the trial court is further evidenced by the Certification of
Service, which certifies that a copy was served via email and regular mail to Defendants' counsel
onlv.                 ·
3 Although Lord is a criminal case, the principles enunciated therein are equally applicable in
civil cases since the Rules of Appellate Procedure apply to both criminal and civil cases.
Mc Keeman v Corestates Bank, NA., 751 A.2d 655, 658 (Pa.Super. 2000).
                                                  3
      Our Supreme Court has recognized that their ruling in Lord was intended to

be a bright-line rule requiring that all issues not included in a timely statement of

matters be automatically deemed waived in order to provide "clear rules regarding

what is necessary for compliance and certainty of result for failure to comply.

Com. v. Castillo, 888 A.2d 775, 779-80 (Pa. 2005).        The Superior Court has

recently recognized that the Supreme Court requires "stringent application of

waiver pursuant to Rule l 925(b )" and that "it is no longer within [the Superior

Court's] discretion to ignore the internal deficiencies of Rule 1925(b) statements."

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224

(Pa.Super . .2014). See also Com. v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding that

the provisions of 1925(b) "are not subject to ad hoc exceptions or selective

enforcement").

      In determining whether an Appellant has waived his issues on appeal based

on non-compliance with Pa.R.A.P. 1925,. it is the trial court's order that triggers.

appellant's obligation under the rule. See In re Estate of Boyle, 77 A.3d 674, 676

(Pa. Super. 2013). Accordingly, the language of the order should be examined to

determine whether the court complied with Rule 1925. Berg v. Nationwide Mutual

Insurance Company, Inc., 6 A.3d 1002, 1007-08 (Pa. 2010). Here, the Trial

Court's l 925(b) order was consistent with all the requirements of Pa.R.A.P.

l 925(b )(3). The Trial Courts order specified (I) the number of days within which


                                         4
Plaintiff was to file a statement of errors; (2) that the 'statement must be filed; (3)

that the statement must be served on the court; and ( 4) that any issue not properly

included in the statement, timely filed and served, would be deemed waived.· See
                                                      ,
Pa.R.A.P. 1925(b)(3)(i)-(iv); Berg, 6 A.3d at 1008; Order 9/8/17. Further, an

examination of the Certification of Service of Plaintiff's Statement indicates that it

was served up.on Defendants' counsel, but not upon the trial court. See Plaintiffs

10/4/17 1925(b) Statement.

         Although Plaintiff filed his Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, he failed to file it in a timely manner as ordered by the

Court and pursuant to Pa.R.A.P. 1925(b) and he failed to serve his statement on the

Trial Court per its Order of September 8, 2017.4 Therefore, Plaintiff failed to

properly preserve any claims on appeal and the subject Appeal should be

dismissed.




4
    See, e.g., Forest Highlands Cmty. Ass 'n v. Hammer, 879 A.2d 223 (Pa. Super. 2005) (finding
Appellant's failure to comply with service requirements and verified admission to receiving
notice of the same sufficient to find waiver); see also Commonwealth of Pennsylvania v. $766
US. Currency, 948 A.2d 912, 915 (Pa. Commw. 2008) (holding that failure to serve a 1925(b)
statement on the trial court judge constitutes a fatal defect which results in the waiver of issues
and quashal of the appeal).
                                                  5
