J-A03005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    NAISHA FRANCISCO                           :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TIMOTHY LUDWIG AND MILROY                  :     No. 689 MDA 2019
    ENTERPRISES, INC.                          :

                 Appeal from the Order Entered April 16, 2019
     In the Court of Common Pleas of Berks County Civil Division at No(s):
                                  17-00584


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED MARCH 25, 2020

       Naisha Francisco appeals from the order, entered in the Court of

Common Pleas of Berks County, granting summary judgment in favor of

Appellees, Timothy Ludwig and Milroy Enterprises, Inc. (Milroy). After careful

review, we affirm.

       Francisco was involved in a nine-vehicle collision in March 2016; her car

was rear-ended by a vehicle driven by Ludwig and owned by Milroy.1                On

January 16, 2017, Francisco filed a personal injury complaint, alleging

negligence,     negligent    entrustment,      and   respondeat   superior,   against

Appellees. In her complaint, Francisco alleged that she suffered “serious and

____________________________________________


1 Francisco’s complaint alleges that Ludwig was “operating . . . Milroy
Enterprises, Inc.’s motor vehicle as defendant’s agent, servant and/or
employee acting in the scope of their agency.” Francisco Complaint, 1/16/17,
at ¶ 7.
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permanent personal injuries and damages.” Francisco Complaint, 1/16/17, at

¶ 8. On April 30, 2017, Appellees filed an answer and new matter, raising

factual allegations and the affirmative defenses of the statute of limitations

and contributory negligence.    On March 26, 2018, Appellees served their

supplemental interrogatories and supplemental requests for production of

documents and request for admissions on Francisco.        On May 10, 2018,

Appellees filed a summary judgment motion claiming that Francisco had failed

to timely respond to their new matter and requests for admissions, thus, all

averments and requests were deemed admitted.         See Pa.R.C.P. 1029(b);

Pa.R.C.P. 4014(b). Francisco filed a reply to new matter on May 14, 2018,

and a response to Appellees’ request for admissions on May 15, 2018. On

June 5, 2018, Francisco filed a response in opposition to Appellees’ summary

judgment motion. Francisco filed a memorandum of law on the motion on

March 21, 2019, and oral argument was held on April 15, 2019. Following

argument, the trial court entered an order granting summary judgment in

Appellees’ favor.

      Francisco filed a timely appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. In her brief, Francisco

raises the following issues for our review:

      (1)   Whether the trial court abused its discretion and otherwise
            committed an error of law when it improperly granted
            Defendants’ [m]otions for [s]ummary [j]udgment and
            discontinued Plaintiff’s case?

      (2)   Whether the trial court abused its discretion and otherwise
            committed an error of law when it granted Defendants’

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J-A03005-20


            [m]otions for [s]ummary [j]udgment on the grounds that
            Plaintiff’s reply to Defendants’ [n]ew [m]atter was untimely?

      (3)   Whether the trial court abused its discretion and otherwise
            committed an error of law when it granted Defendants’
            [m]otions for [s]ummary [j]udgment on the grounds that
            Plaintiff’s reply to Defendants’ [n]ew [m]atter was untimely,
            where Pennsylvania Rule of Civil Procedure 126 mandates
            that the rules shall be “liberally construed” to secure the
            “just, speedy and inexpensive determination” of cases and
            permit the [c]ourt to “disregard any effort or defect of
            procedure which does not affect the substantial rights of the
            parties.”

Appellant’s Brief, at 28.

      Before addressing the merits of the appeal, we must determine whether

Francisco has properly preserved her issues on appeal. Pursuant to Pa.R.A.P.

1925, a trial judge’s order directing the filing and service of a Rule 1925(b)

statement upon an appellant states, in part, “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)(iv). Moreover, under Rule

1925(b)(4)(vii), “[i]ssues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.

1925(b)(4)(vii).

      Instantly, Francisco’s Rule 1925(b) statement identifies the following

three issues for appeal:

      1. This Honorable Court erred and abused its discretion in
         granting Defendants’ Motion for Summary Judgment on the
         grounds that Plaintiff’s reply to Defendants’ New Matter
         was not timely filed.

      2. This Honorable Court erred and abused its discretion in
         granting Defendants’ Motion for Summary Judgment, where
         Plaintiff, in her responses to Defendants’ Motion for Summary

                                     -3-
J-A03005-20


          Judgment, demonstrated that there were genuine issues of
          material fact that would require submission of this case to the
          jury, despite her untimely reply to Defendants’ New
          Matter.

       3. This Honorable Court erred and abused its discretion in
          granting Defendants’ Motion for Summary Judgment on the
          grounds that Plaintiff’s reply to Defendants’ New Matter
          was untimely, where Pennsylvania Rule of Civil Procedure 126
          mandates that these rules shall be “liberally construed” to
          secure the “just, speedy and inexpensive determination” of
          cases, and permit the Court to “disregard any error or defect
          of procedure which does not affect the substantial rights of the
          parties.”

Francisco Rule 1925(b) Statement, 5/12/19, at 1-2 (emphasis added). In her

appellate brief, Francisco confines her argument to whether the court erred in

granting summary judgment on the basis of her untimely response to

Appellees’ request for admissions under Rule 4014. Because Francisco did not

raise this issue in her Rule 1925(b) statement, we find that she has waived

her first two issues on appeal. See Pa.R.A.P. 1925(b)(3)(iv); (4)(vii).2

       To the extent that Francisco has preserved her argument invoking

Pa.R.C.P. 126 and the liberal construction of the rules, we do not find it
____________________________________________


2Even if we did not find waiver, we would conclude that the trial court properly
granted summary judgment in favor of Appellees. Francisco’s deemed
admissions under Rule 4014 prevent her from establishing a prima facie case
of negligence. As the trial court aptly points out, since Appellees’ insurance
carrier admitted liability, Francisco need only prove damages. Based on her
admissions, there is no genuine issue of material fact regarding economic
damages from the alleged accident where she admits she did not have any
medical expenses, has not incurred any treatment, injections or invasive
procedures, and does not have future medical expenses. Trial Court Opinion,
6/24/19, at 11. Further, there is no dispute that Francisco did not have a
serious injury (thus, precluding her from non-economic damages) or that she
has any past or future lost earnings (having admitted that she did not miss
any days of work and, in fact, received a promotion and raises). Id.

                                           -4-
J-A03005-20



persuasive.   Francisco’s procedural missteps in the current case cannot be

saved by the rule. See Jones v. Trexler, 419 A.2d 24 (Pa. Super. 1980)

(where counsel’s delay and inaction amounted to failure to prosecute, court

could not overlook procedural errors in interest of justice under Rule 126).

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/25/2020




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