            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jermaine Terrell Miller,               :
                        Appellant      :
                                       :
            v.                         :    No. 2072 C.D. 2015
                                       :    Submitted: July 15, 2016
Pennsylvania Office of Attorney General:


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: September 20, 2016

            Jermaine Terrell Miller (Appellant) appeals from a final order of the
Court of Common Pleas of Dauphin County, sustaining the Pennsylvania Office of
Attorney General’s (OAG) preliminary objections and dismissing Appellant’s
complaint with prejudice. For the reasons discussed below, we affirm.
            At the time Appellant filed his original complaint, he was imprisoned
at the Franklin County Jail. He is currently incarcerated at the State Correctional
Institution at Huntingdon (SCI-Huntingdon). On December 26, 2015, Appellant
filed his complaint in the Dauphin County Court of Common Pleas, naming OAG
as the sole defendant. The substance of the complaint is set forth below in its
entirety:
                        In the Action of an [sic] Civil Suit
            (1) Pa. R. Civ. P. [No.] 1006, directs the procedures of an
                [sic] Civil Suit to be commenced in the Common
                Pleas Court that the Defendant is located in.
               (2) The Defendant(s) is (are) the government agency(s)
                   responsible for committing the criminal deed of
                   Intentional Tort.
               (3) In the Defendant(s) willful performance of negligence
                   and the action named in paragraph 2, the Defendant(s)
                   did knowingly brake [sic] State Criminal Law.
               (4) I, the Plaintiff, Jermaine Terrell Miller, do seek in the
                   form of compensation: (1) Unrestricted access and use
                   of every resource of the Pennsylvania State
                   Government; [and] (2) the perpretraters [sic] to be
                   held criminal [sic] liable for the injustices inflicted
                   against my life, freedom and mental well being [sic].

               On February 6, 2015, OAG filed preliminary objections, asserting that
Appellant had failed to conform to rule of court and had failed to plead with
sufficient specificity. See Pa. R.C.P. Nos. 1028(a)(2), (3). OAG asserted, inter
alia, that Appellant had failed to provide a civil cover sheet for the complaint,
failed to properly serve OAG, and failed to verify the complaint.                           OAG
additionally filed preliminary objections in the nature of demurrer for legal
insufficiency of a pleading, asserting the defense of sovereign immunity and that
Appellant had failed to state a legally cognizable claim.                      See Pa. R.C.P.
No. 1028(a)(4).1 By order dated July 7, 2015, the trial court sustained OAG’s
preliminary objections and dismissed Appellant’s complaint with prejudice.


       1
          Appellant filed a response to OAG’s preliminary objections, but, as the trial court
explained in its opinion filed pursuant to Pa. R.A.P. 1925(a), the response was filed long after
the 20 day deadline set forth by the trial court’s prior order, and, thus, the trial court did not
consider Appellant’s response in deciding the preliminary objections. Appellant does not contend
that the prisoner mailbox rule should apply or that the trial court improperly declined to consider
his response. Further, Appellant did not provide any evidence that the response was timely
delivered to the prison authorities. See Commonwealth v. Rose, 82 A.3d 426, 428 (Pa. 2013); see
also Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001) (holding that prisoner mailbox rule
applies to filings by pro se prisoner in civil suit).



                                                2
               Appellant filed a notice of appeal on July 21, 2015.                           On
December 1, 2015, pursuant to Pa. R.A.P. 1925(b)(1), the trial court ordered
Appellant to file of record and serve upon the trial court a concise statement of
errors complained of on appeal within twenty-one days of the date of the order,
thereby setting a deadline of December 22, 2015, for Appellant to file his concise
statement. It appears from the record that Appellant served his concise statement
on the trial judge, but he failed to file his statement with the Prothonotary.
               The trial court, in its opinion pursuant to Pa. R.A.P. 1925(a),
explained that Appellant’s complaint had provided no facts to support his claims
and contained only vague allegations of an intentional tort and a violation of state
law. The trial court, therefore, concluded that any amendment would be futile to
overcome the legal deficiencies of the complaint. In his brief, Appellant refers to a
myriad of constitutional violations, none of which were raised before the trial
court, and also argues that the trial court improperly sustained OAG’s preliminary
objections in the nature of demurrer without allowing him an opportunity to amend
his complaint.
               We need not reach the merits of Appellant’s claims because the record
demonstrates that he failed to properly file his statement of errors complained of on
appeal pursuant to Pa. R.A.P. 1925(b).2 Although not argued by OAG, it is
well-settled that this Court may dismiss an appeal sua sponte based on an
appellant’s failure to properly preserve issues for appellate review.                 Gibraltar

       2
          At the request of this Court, the trial court provided the statement served on the trial
judge as part of the supplemental record filed with this Court on July 12, 2016. The
Prothonotary of the court of common pleas docketed the statement on June 30, 2016, as part of
the supplemental record. We do not construe this gratuitous docketing as “filed” for purposes of
satisfying the requirements of Pa. R.A.P. 1925(b)(1).



                                                3
Rock, Inc. v. New Hanover Twp., 118 A.3d 461, 464 (Pa. Cmwlth.), appeal
denied, 128 A.3d 222 (Pa. 2015). Pa. R.A.P. 1925(b) provides that, upon receipt of
a notice of appeal, the trial court may order an appellant to file of record a concise
statement of errors complained of on appeal. The trial court must allow the
appellant at least twenty-one days from the date of the order’s entry for filing and
service of the statement. Upon application of the appellant, the trial court may
extend this deadline or allow a statement to be filed nunc pro tunc. The order must
include:

              (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] (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)(3).3 If the trial court orders an appellant to file a concise
statement of errors complained of on appeal, the appellant must file the statement
within twenty-one days of the date of the order unless the trial court allows the
appellant additional time to file.         In re Clinton County Tax Claims Bureau
Consolidated Return for Sale of September 24, 2012, 109 A.3d 331, 334
(Pa. Cmwlth. 2015). Failure to comply with the trial court’s order will result in
waiver of all issues raised on appeal. Id.4 Accordingly, because Appellant failed


       3
         The trial court’s December 1, 2015 order complied with all requirements set forth in
Pa. R.A.P. 1925(b)(3).
       4
         We do not dismiss Appellant’s appeal because the concise statement was untimely filed,
but rather because it was never properly filed with the Prothonotary. But see Com. v. Rodriguez,
(Footnote continued on next page…)

                                               4
to comply with the trial court’s order and the requirements of Pa. R.A.P. 1925(b),
all issues on appeal are deemed waived.
              Even if we did not dismiss Appellant’s appeal for failure to comply
with the requirements of Pa. R.A.P. 1925(b), his claim is without merit. The trial
court also sustained, inter alia, OAG’s preliminary objections in the nature of
demurrer pursuant to Pa. R.C.P. No. 1028(a)(4) for legal insufficiency of a claim.
In its preliminary objections, OAG raised the affirmative defense of sovereign
immunity. Section 8522 of the Judicial Code, 42 Pa. C.S. § 8522, which is often
referred to as the Sovereign Immunity Act, bars Appellant’s cause of action
because it does not fall within any enumerated exceptions to the Commonwealth’s
sovereign immunity set forth in that section. Appellant’s complaint refers only to
an “intentional tort” and, although it is unclear precisely which tort Appellant is
alleging, we have previously explained that the General Assembly did not waive
sovereign immunity for an intentional tort by a Commonwealth agency. Rhoads v.
Philadelphia Hous. Auth., 978 A.2d 431, 433 (Pa. Cmwlth. 2009).                       Further,
because Appellant has failed to demonstrate any way that he could overcome the
legal deficiencies of his claim, the trial court properly dismissed his complaint with
prejudice. See Carlino v. Whitpain Investors, 453 A.2d 1385, 1388 (Pa. 1982);
Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616, 624 (Pa. Super. 1999), appeal
denied, 736 A.2d 616 (Pa. 2000).

(continued…)

81 A.3d 103, 104 n.2 (Pa. Super. 2013) (noting that untimely filing of 1925(b) statement does
not automatically result in waiver of all issues on appeal where trial court accepts appellant’s
untimely concise statement of errors complained of on appeal and issues a responsive
1925(a) opinion).



                                               5
For the reasons discussed above, we affirm the order of the trial court.




                   P. KEVIN BROBSON, Judge




                             6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jermaine Terrell Miller,               :
                        Appellant      :
                                       :
            v.                         :   No. 2072 C.D. 2015
                                       :
Pennsylvania Office of Attorney General:


                                  ORDER


            AND NOW, this 20th day of September, 2016, the order of the Court
of Common Pleas of Dauphin County is hereby AFFIRMED




                              P. KEVIN BROBSON, Judge
