J-A21007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOSE ESQUIVEL,                          :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 RSC EQUIPMENT RENTAL AND                :   No. 43 EDA 2018
 UNITED RENTALS (NORTH AMERICA)          :
 INC.                                    :
           v.                            :
                                         :
                                         :
 RRR CONTRACTORS                         :

            Appeal from the Judgment Entered December 6, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): March Term, 2014 No: 5378


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 02, 2018

      The Appellant, Jose Esquivel, appeals from the Judgment entered in the

Court of Common Pleas of Philadelphia County on December 6, 2017. His

Post-Trial Motion had been earlier denied by way of an Order dated October

23, 2017. We affirm. The dispositive issue herein concerns application of

Pa.R.A.P. 1925.

      This action was commenced by Esquivel based upon a negligence claim

against the Appellees, RSC Equipment Rental and United Rentals (North

America, Inc.) (hereinafter collectively “Appellees”). Esquivel alleged he was

injured on April 2, 2012, when he was working as a roofer. His complaint
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alleged that a scaffold rolled and then suddenly stopped, eventually tilting

over and causing his injuries.

      The trial court briefly set forth the procedural history pertinent to our

decision:

      This is the appeal of the Plaintiff/Appellant, Jose Esquivel, from a
      jury verdict entered in favor of the Defendant/Appellees on June
      16, 2017 following several days of trial. Subsequent to the
      recording of the verdict, Appellant filed Post-trial Motions on June
      26, 2017. Appellee, United Rentals (North America), Inc., filed its
      Answer in Opposition on July 11, 2017. Oral argument was held
      on October 23, 2017 and this Court, upon consideration of the
      parties’ respective filings and argument, determined that the
      Appellant was not entitled to post-trial relief and issued an Order
      denying the same.

      On December 6, 2017, Appellee filed its Praecipe to Enter
      Judgment on the Verdict. On December 8, 2017, Appellant timely
      filed his Notice of Appeal to the Superior Court and on December
      13, 2017 this Court issued a 1925(b) Order directing the Appellant
      to:

            1) file of record a statement of matters complained of on
            appeal within twenty-one (21) days from the date of the
            availability of the transcripts from the hearing/trial dates
            held on June 15, and 16th, 2017.
            2) a copy of the statement of maters complained of on
            appeal shall also be served upon the trial judge; and,
            3) an issue not properly included in a timely filed and
            served statement of matters complained of on appeal shall
            be deemed waived.

      The pertinent transcripts that were specifically requested by
      Appellant were made available to Appellant’s counsel on January
      9, 2018. Therefore, Appellant had 21 days or until January 31,
      2018 to file his Statement of Matters Complained of on Appeal of
      record. To date, Appellant has not filed a response to this Court’s
      January 13, 2017 Order, nor has any request for an extension of
      time to file been made.



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Trial Court Opinion dated April 20, 2018, at 1-2 (footnotes omitted).

       Following the filing of the appeal, Esquivel filed his Docketing Statement

on January 18, 2018, and identified the following issues to be argued:

       The trial court abused its discretion and/or erred as a matter of
       law when denying Plaintiff's Motion for Directed Verdict with
       respect to both negligence and causation?

       The trial court erred in allowing evidence of OSHA standards to be
       presented in front of the jury and charging the jury with respect
       to OSHA.

       The trial court erred as a matter of law and/or abused its discretion
       by permitting Defendant to interject OSHA and OSHA standards
       in this matter.

       The trial court erred in its jury charge concerning admissions of
       fact.

       The certified record from the trial court, which included the trial court’s

opinion filed pursuant to Rule 1925(a), was received and docketed on April

23, 2018. In its opinion, the trial court requested that the appeal be dismissed

as Esquivel has “waived all issues on appeal” because of noncompliance with

the directive issued by the court pursuant to Rule 1925(b). No motion was

made by Esquivel in the trial court for additional time to file a Rule 1925(b)

statement or for permission to file the statement late.1

       The briefs and reproduced record were timely filed by the parties. In his

brief, Esquivel argues for the first time that he should be given leave to file a


____________________________________________


1 Rule 1925 specifically gives the trial court authority to enlarge the time or
to permit an amended or supplemental statement based upon good cause
shown. Pa.R.A.P. 1925(b)(2).

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1925(b) statement nunc pro tunc, and that the trial court erred by not granting

his request for a directed verdict as to liability.

      Prior to addressing Esquivel's argument on the merits, we must

determine whether he has preserved it for appeal. Regrettably, we are

compelled to find waiver.

      In determining whether an appellant has waived 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. In re Estate of Boyle, 77 A.3d

674, 676 (Pa. Super. 2013). Accordingly, we look to the language of the order

to determine whether the trial court complied with Rule 1925. Id.; Berg v.

Nationwide Mutual Insurance Company, Inc., 6 A.3d 1002, 1007–08 (Pa.

2010)(plurality).

      Here, we have carefully reviewed the court's 1925(b) order. Consistent

with all of the requirements of Rule 1925(b)(3), the trial court's order specified

(1) the number of days within which Appellant 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).

      As we stated above, the trial court’s order under Rule 1925(b) was filed

on December 13, 2017, and entered on the docket in the Philadelphia Court

on December 14, 2017. The Docketing Statement filed by Esquivel on January


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18, 2018, included a copy of the Philadelphia docket entries, which repeated,

almost verbatim, the trial court’s order of December 13th. Nevertheless, it was

not until Esquivel’s brief was filed on June 4, 2018, that he, for the first time,

requested nun pro tunc relief to file a Rule 1925 statement.

       A Rule 1925(b) Statement is necessary for appropriate appellate

review.2 Our Supreme Court has stated:

       Our jurisprudence is clear and well-settled, and firmly establishes
       that: Rule 1925(b) sets out a simple bright-line rule, which
       obligates an appellant to file and serve a Rule 1925(b) statement,
       when so ordered; any issues not raised in a Rule 1925(b)
       statement will be deemed waived; the courts lack the authority to
       countenance deviations from the Rule's terms; the Rule's
       provisions are not subject to ad hoc exceptions or selective
       enforcement; appellants and their counsel are responsible for
       complying with the Rule's requirements; Rule 1925 violations may
       be raised by the appellate court sua sponte[.]

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). An en banc panel of

this Court observed that:

       Our [Pennsylvania] Supreme Court intended the holding
       in [Commonwealth v.] Lord to operate as a bright-line rule,
       such that “failure to comply with the minimal requirements of
       Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
       raised.” Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d
       771, 774 (2005) (emphasis added); see also [Commonwealth
       v.] Castillo, 888 A.2d at 780. Given the automatic nature of this
____________________________________________


2  “This Rule is a crucial component of the appellate process. It is intended to
aid trial judges in identifying and focusing upon those issues that the parties
plan to raise on appeal. When an appellant fails adequately to identify in a
concise manner the issues sought to be pursued on appeal, the trial court is
impeded in its preparation of a legal analysis which is pertinent to those
issues.” 16A Standard Pennsylvania Practice 2d § 88:24.




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      type of waiver, we are required to address the issue once it comes
      to our attention. Indeed, our Supreme Court does not
      countenance anything less than stringent application of waiver
      pursuant to Rule 1925(b): “[A] bright-line rule eliminates the
      potential for inconsistent results that existed prior to Lord, when
      ... appellate courts had discretion to address or to waive issues
      raised       in       non-compliant         Pa.R.A.P.       1925(b)
      statements.” Id. Succinctly put, it is no longer within this 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) (en banc) (emphasis added). In Hess v. Fox

Rothschild, LLP, 925 A.2d 798 (Pa. Super. 2007), we clearly stated that

“[w]henever 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.” Id. at 803 (emphasis in original).

      However, Rule 1925 includes a process where a case may be remanded

by an appellate court for the filing of a Rule 1925 statement:

      (c) Remand.
      (1) An appellate court may remand in either a civil or criminal case
      for a determination as to whether a Statement had been filed
      and/or served or timely filed and/or served.
      (2) Upon application of the appellant and for good cause shown,
      an appellate court may remand in a civil case for the filing nunc
      pro tunc of a Statement or for amendment or supplementation of
      a timely filed and served Statement and for a concurrent
      supplemental opinion.

Pa.R.A.P. 1925(c). The Note following Rule 1925 makes it clear that nunc pro

tunc relief is available when there has been “a breakdown in the process

constituting   extraordinary    circumstances.”     Our      Supreme   Court    has

determined:

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      Allowing an appeal nunc pro tunc is a recognized exception to the
      general rule prohibiting the extension of an appeal deadline. This
      Court has emphasized that the principle emerges that an
      appeal nunc pro tunc is intended as a remedy to vindicate the
      right to an appeal where that right has been lost due to certain
      extraordinary circumstances. Generally, in civil cases an
      appeal nunc pro tunc is granted only where there was fraud or a
      breakdown in the court's operations through a default of its
      officers.

Union Elec. Corp. v. Bd. Of Prop. Assessments, Appeals & Review of

Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (citations and internal

quotation marks omitted); see also, In re Canvass of Absentee Ballots of

November 4, 2003 General Election, 843 A.2d 1223, 1234 (Pa. 2004)

(“fraud or the wrongful or negligent act of a court official may be a proper

reason for holding that a statutory appeal period does not run and that the

wrong may be corrected . . . nunc pro tunc.”).

      Based upon a review of the docket and certified record, we conclude

that there is no allegation or evidence which in any way supports a contention

that there was a breakdown in the operations of the court system.

      The Note following Rule 1925 also recognizes that courts have

allowed nunc pro tunc relief based upon good cause shown when “non-

negligent circumstances, either as they relate to appellant or his counsel”

occasion delay. See Note, Pa.R.A.P. 1925(b)(2)&(c)(2); McKeown v. Bailey,

731 A.2d 628, 630 (Pa. Super. 1999). There is still a requirement for the

appellant to act in a timely fashion; the appellant must attempt to remedy the

failure   to   file   the   statement   within   a   “very   short   duration”   of


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time. Id.; Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003)

(recognizing a breakdown in process, but finding the delay too long to

justify nunc pro tunc relief).

       Here, Esquivel provided the following reason for failing to file his Rule

1925 statement:

       Appellant's counsel drafted the necessary Rule 1925(b) Statement
       of Matters Complained of. A secretary typed up the document and
       it was reviewed by Appellant's counsel. The document was
       finalized for filing and service upon the trial judge. The secretary
       unexpectedly ceased her employment several days following. The
       document was not filed. A subsequent check indicated that the
       document appeared to have been filed. It was not until the trial
       court issued its opinion that Appellant's counsel was advised the
       Rule 1925(b) Statement was not filed. The trial court maintained
       it lost jurisdiction of the matter to this Court and, therefore would
       not entertain a motion for leave to file the Rule 1925(b) Statement
       nunc pro tunc.

Appellant’s Brief at 23. Obviously, this explanation does not constitute a non-

negligent excuse, nor does it provide a reason why an application to rectify

the failure to file the statement was not pursued earlier.3

       Accordingly, we find all of Appellant's issues waived for failure to

properly file and serve a timely court-ordered 1925(b) statement.

       Order affirmed.




____________________________________________


3 We closely examined the certified record and could find nothing to support
the contention that the trial court refused to entertain an application to file a
Rule 1925 statement late or nun pro tunc.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/18




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