J-A26042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEAVER RIVER RAILS TO TRAILS             :      IN THE SUPERIOR COURT OF
ASSOCIATION,                             :            PENNSYLVANIA
                                         :
                 Appellant               :
                                         :
           v.                            :
                                         :
GENEVA COLLEGE AND AES REALITY,          :
LLC                                      :           No. 427 WDA 2016

              Appeal from the Order entered February 18, 2016
               in the Court of Common Pleas of Beaver County,
                     Civil Division, No(s): 10112 of 2011

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 5, 2016

     Beaver River Rails to Trails Association (“BRRTA”) appeals from the

February 18, 2016 Order (hereinafter “the Dismissal Order”) that sustained

the Preliminary Objections to BRRTA’s Complaint filed by AES Realty, LLC

(“AES”), and dismissed BRRTA’s claims against AES.1 We affirm.

     In January 2011, BRRTA filed a Complaint against AES and Geneva,

seeking declaratory relief against both parties concerning BRRTA’s rights

under a 2004 Lease Agreement between Geneva and BRRTA. According to

BRRTA, that Agreement granted it the right to construct a hiking and bicycle

trail across a certain parcel of real property (hereinafter the “Property”),



1
  Notably to this appeal, the Dismissal Order did not address BRRTA’s
remaining claim against the other defendant named in the Complaint,
Geneva College (“Geneva”). However, on March 22, 2016, the trial court
entered an Order terminating BRRTA’s case against Geneva due to inactivity.
Geneva is not a party to the instant appeal.
J-A26042-16


which Geneva had conveyed to AES in 2008.2          However, BRRTA never

served AES or Geneva with the Complaint, and there was no activity on the

case for over four years. In July 2014, and May 2015, BRRTA filed Praecipes

to reinstate the Complaint.3

      In July 2015, AES filed Preliminary Objections seeking the dismissal of

BRRTA’s Complaint.    AES asserted that (1) the trial court lacked personal

jurisdiction over AES due to BRRTA’s substantial delay in serving AES with

process; and (2) BRRTA was precluded from bringing the instant case based

on a prior stipulation (hereinafter “the Stipulation”). BRRTA had previously

entered into the Stipulation with AES in a separate lawsuit brought by AES

against BRRTA in 2010, concerning the same Property at issue in this case. 4

On February 18, 2016, the trial court entered the Dismissal Order,

sustaining AES’s Preliminary Objections and dismissing BRRTA’s claim

against AES alone, with prejudice. In an accompanying Memorandum, the

trial court stated that the action against AES must be dismissed because (1)


2
  In its sole count against AES, BRRTA sought a declaration that (1) AES
acquired the Property subject to an oral addendum to the Lease Agreement
between BRRTA and Geneva, which extended the time for BRRTA to
complete its hiking/biking trail over the Property; and (2) BRRTA had a valid
easement over a portion of the Property to construct the trail.
3
  BRRTA served AES with a copy of the reinstated Complaint on June 9,
2015. However, the record does not indicate that BRRTA served Geneva
with the reinstated Complaint.
4
  In the Stipulation, the parties essentially agreed that construction of
BRRTA’s trail would take place only on land owned by Geneva, and not on
AES property.


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BRRTA made no good faith effort to timely serve AES with the Complaint

(which was not served until after the expiration of the four-year statute of

limitations), thus depriving the trial court of personal jurisdiction over AES;

and (2) the Stipulation precluded BRRTA’s instant action, as it concerned the

same Property at issue in this case.       See Trial Court Memorandum and

Order, 2/18/16, at 4-9.

      On March 15, 2016, BRRTA timely filed a Notice of Appeal from the

Dismissal Order. In response, the trial court entered an Order on March 22,

2016 (hereinafter “the Rule 1925(b) Order”), directing BRRTA to file a

concise statement of errors complained of on appeal within twenty-one days,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).          However,

BRRTA did not file a concise statement within twenty-one days. On May 4,

2016, the trial court issued a Pa.R.A.P. 1925(a) Opinion, ruling that BRRTA

had waived all of its issues on appeal for its failure to file a Rule 1925(b)

concise statement.

      On June 16, 2016, sixty-five days after the expiration of the time set

forth in the Rule 1925(b) Order, BRRTA’s counsel, Gregory Douglass, Esquire

(“Attorney Douglass”), filed an Application for extension of time to file a

concise   statement,   nunc   pro   tunc   (hereinafter   “the   Application   for

Extension”).   Therein, Attorney Douglass alleged that he never received a

copy of the Rule 1925(b) Order, and first became aware of it when he

received the trial court’s Rule 1925(a) Opinion on May 5, 2016. By an Order



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entered on June 16, 2016, the trial court granted the Application for

Extension, and ordered Attorney Douglass to file the concise statement

within one day of the Order. On June 16, 2016, Attorney Douglass filed his

Concise Statement, nunc pro tunc.5

        In the interim, on June 8, 2016, this Court issued a Rule to Show

Cause upon BRRTA, requiring it to explain why its appeal from the Dismissal

Order is not interlocutory and unappealable. This Court pointed out that the

Dismissal Order disposed of only BRRTA’s claims against AES, and the claims

against Geneva remained pending. BRRTA filed a response letter, asserting

that there were no pending claims against Geneva (and the Dismissal Order

was thus final and appealable), since BRRTA had never served Geneva with

the Complaint.     On June 24, 2016, this Court issued an Order discharging

the Rule to Show Cause, pending a review by this panel.

        BRRTA now presents the following issues for our review:

        A. Did the lower court commit an abuse of discretion by denying
           the application of the continuing contract doctrine on
           Preliminary Objections[,] without [conducting] a hearing?

        B. Did the lower court commit an abuse of discretion by applying
           the doctrine of res judicata[,] without [conducting] a hearing?

        C. Does the doctrine of res judicata even apply where there was
           no finality in the prior case?

Brief for Appellant at 2 (capitalization omitted).




5
    Thereafter, the trial court did not issue a new Rule 1925(a) opinion.


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J-A26042-16


      Initially,   we   must   determine   whether   the   Dismissal    Order   is

interlocutory and non-appealable.6     “The appealability of an order directly

implicates the jurisdiction of the court asked to review the order.”       In re

Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super.

2009) (citation and brackets omitted). “An appeal may be taken from: (1) a

final order or an order certified as a final order (Pa.R.A.P. 341); (2) an

interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by

permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral

order (Pa.R.A.P. 313).”    Stahl v. Redcay, 897 A.2d 478, 485 (Pa. Super.

2006) (citation omitted). In the instant case, the relevant inquiry is whether

the Dismissal Order is a final order for purposes of Pa.R.A.P. 341. Rule 341

provides as follows:

      (a) General rule.-- Except as prescribed in subdivisions (d),
      and (e) of this rule[, which are not relevant to BRRTA’s instant
      appeal], an appeal may be taken as of right from any final order
      of an administrative agency or lower court.

      (b) Definition of final order.-- A final order is any order that:

          (1) disposes of all claims and of all parties; or

          (2) RESCINDED

          (3) is entered as a final order pursuant to subdivision (c)
          of this rule.

      (c) Determination of finality.-- When more than one claim for
      relief is presented in an action, … the trial court … may enter a
      final order as to one or more but fewer than all of the claims and

6
  BRRTA does not address in its brief whether the Dismissal Order is a final
or interlocutory order. Nor does the trial court in its Opinion.


                                   -5-
J-A26042-16


     parties only upon an express determination that an immediate
     appeal would facilitate resolution of the entire case. Such an
     order becomes appealable when entered. In the absence of such
     a determination and entry of a final order, any order … that
     adjudicates fewer than all the claims and parties shall not
     constitute a final order. …

Pa.R.A.P. 341(a)-(c) (emphasis added).7

     “[O]rders [sustaining] preliminary objections and disposing of only

some but not all of the underlying parties or claims are interlocutory and

unappealable.” Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. Super. 2003)

(per curiam) (citation omitted); see also Pa.R.A.P. 341, Note (setting forth

a partial list of orders previously interpreted as appealable as final orders

under Rule 341 that are no longer appealable as of right, including an order

granting judgment against one defendant but leaving pending the complaint

against other defendants). However, when a subsequent order or judgment

disposes of the claims as to the remaining party, the prior interlocutory

order is rendered “final” and appealable for purposes of Rule 341.      See,

e.g., Strausser v. PRAMCO, III, 944 A.2d 761, 764 (Pa. Super. 2008)

(explaining that where multiple defendants in a single action, who were all

original defendants, are removed from the case in a piecemeal fashion by

separate orders sustaining those defendants’ preliminary objections, each

order sustaining preliminary objections becomes appealable, under Pa.R.A.P.

341(b)(1), when the suit is resolved against the final defendant); B.K. ex


7
 Here, BRRTA did not petition the trial court for a determination of finality
under subsection 341(c).


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J-A26042-16


rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178, 1181 (Pa. Super. 2003)

(stating that in an action involving multiple defendants, an order granting

summary judgment as to one party becomes appealable after the disposition

of the plaintiffs’ claims involving the remaining parties); Gutteridge v. A.P.

Green Servs., Inc., 804 A.2d 643, 650 (Pa. Super. 2002) (stating that an

order declaring the case settled as to all remaining parties renders final the

prior orders granting summary judgment in favor of some defendants, even

if the prior orders disposed of fewer than all claims against all parties).

      Here, though the Dismissal Order was initially interlocutory because it

did not dispose of BRRTA’s remaining claim against Geneva, it became final

and appealable when the trial court terminated BRRTA’s case against Geneva

(the sole remaining party), by its Order entered on March 22, 2016.           See

Pa.R.A.P. 341(b)(1); Strausser, supra; B.K., supra; Gutteridge, supra.

Accordingly, we conclude that the instant appeal is not interlocutory, albeit

for a different reason than that advanced by BRRTA in its response to this

Court’s Rule to Show Cause.

      Before reaching the merits of BRRTA’s claims, however, we must

address whether it has properly preserved those claims for our review,

where it failed to timely file a Rule 1925(b) concise statement in response to

the Rule 1925(b) Order. See Commonwealth v. Castillo, 888 A.2d 775,

780 (Pa. 2005) (ruling that the appellant waived all of his claims on appeal

for untimely filing his court-ordered Rule 1925(b) statement) (citing



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J-A26042-16


Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (stating that “from

this date forward … [a]ppellants must comply whenever the trial court orders

them to file a Statement of [Errors] Complained of on Appeal pursuant to

Rule 1925.    Any issues not raised in a 1925(b) statement will be deemed

waived.”)); see also Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not

included in the Statement and/or not raised in accordance with the

provisions of this [Rule] are waived.”).

      An en banc panel of this Court recently observed that

      [o]ur [Pennsylvania] Supreme Court intended the holding in
      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 Castillo, 888 A.2d at 780.              Given the
      automatic nature of this 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); see also id.

(stating that “[p]reviously, we enjoyed discretion to review otherwise

untimely Rule 1925(b) statements in the event that the trial court had

chosen   to   ignore   the   underlying    untimeliness.   The   Castillo   Court’s

disapproval of this leniency was emphatic[.]”); Hess v. Fox Rothschild,


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J-A26042-16


LLP, 925 A.2d 798, 803 (Pa. Super. 2007) (stating 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.” (emphasis in original)).

     The Greater Erie Court further observed that “strict application of the

bright-line rule in Lord necessitates strict interpretation of the rules

regarding notice of Rule 1925(b) orders.”    Greater Erie, 88 A.3d at 226

(emphasis in original) (quoting In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007), wherein this Court held that a failure by the prothonotary to

“give written notice of the entry of a court order and to note on the docket

that notice was given” will prevent waiver for untimeliness pursuant to

Pa.R.A.P. 1925(b)).8

     Here, in the Application for Extension, Attorney Douglass asserted that

although he had received two copies of the trial court’s March 22, 2016

Order terminating BRRTA’s case against Geneva (which was filed on the

same date as the Rule 1925(b) Order), he did not become aware, or receive

a copy of, the Rule 1925(b) Order until May 5, 2016, when he received the

trial court’s Rule 1925(a) Opinion.    Attorney Douglass filed a separate

Affidavit certifying same.    Attorney Douglass urged that this defect


8
  Additionally, the Greater Erie Court stressed the importance of the
technical requirements for orders directing the filing of a concise statement
set forth in Rule 1925. See Greater Erie, 88 A.3d at 225-26; see also
Pa.R.A.P. 1925(b)(2), (3). In the instant case, the Rule 1925(b) Order
properly complied with these technical requirements.


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J-A26042-16


constituted an “extraordinary circumstance,” under Pa.R.A.P. 1925(b)(2),9

that warranted extension of the time to file a concise statement.

      Our review discloses that the trial court’s docket contains an entry

dated March 23, 2016, which states that “a copy of the Order dated March

22nd 2016[, i.e., the Rule 1925(b) Order,] was placed in attorney[’]s mailbox

for [Attorney] Douglass ….”    Additionally, on the reverse side of the Rule

1925(b) Order is a handwritten note, authored by the Deputy Prothonotary,

which states that on March 23, 2016, “a Certified Copy of this Order was

issued to [Attorney] Douglass by first class mail ….”    By the trial court’s

granting of the Application for Extension, it appears to have credited

Attorney Douglass’s assertion that he did not receive notice of the Rule

1925(b) Order until May 5, 2016.

      Even assuming the accuracy of Attorney Douglass’s assertion that

there was a breakdown in the court’s process, he was required to petition for

nunc pro tunc relief within a reasonable period of time.       See Pa.R.A.P.

1925(b)(2).   The comment to Rule 1925(b)(2) elucidates this concept as

follows:

      In general, nunc pro tunc relief is allowed only when there has
      been a breakdown in the process constituting extraordinary
      circumstances. See, e.g., In re Canvass of Absentee Ballots
      of Nov. 4, 2003 Gen. Election, 577 Pa. 231, 248-49, 843 A.2d
      1223, 1234 (2004) (“We have held that fraud or the wrongful or
      negligent act of a court official may be a proper reason for

9
   Rule 1925(b)(2) provides, in relevant part, that “[i]n extraordinary
circumstances, the judge may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.”).


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J-A26042-16


      holding that a statutory appeal period does not run and that the
      wrong may be corrected by means of a petition filed nunc pro
      tunc.”)[.] Courts have also allowed nunc pro tunc relief when
      “non-negligent circumstances, either as they relate to appellant
      or his counsel” occasion delay. McKeown v. Bailey, 731 A.2d
      628, 630 (Pa. Super. 1999). However, even when there is
      a breakdown in the process, the appellant must attempt to
      remedy it within a “very short duration” of time.           Id.;
      Amicone v. Rok, 839 A.2d 1109, 1113 (Pa. Super. 2003)
      (recognizing a breakdown in process, but finding the delay[, of
      approximately four months,] too long to justify nunc pro
      tunc relief).

Pa.R.A.P. 1925(b)(2), cmt (emphasis added); see also Amicone, 839 A.2d

at 1113 (stating that the standard of review applicable to the grant or denial

of an appeal nunc pro tunc is whether the trial court abused its discretion).

      Here, Attorney Douglass did not file the Application for Extension until

forty-three days10 after he admittedly received notice of the Rule 1925(b)

Order. We conclude that this substantial delay is not a “very short duration”

of time, and the trial court thus abused its discretion in affording BRRTA

nunc pro tunc relief under Pa.R.A.P. 1925(b)(2). See Amicone, supra; cf.

Fischer v. UPMC Northwest, 34 A.3d 115, 123 n.7 (Pa. Super. 2011)

(distinguishing Amicone and ruling that the appellants had established their

right to nunc pro tunc relief, where they “acted within a reasonable amount

of time by filing their motion [for leave to appeal nunc pro tunc] within five

days of receiving a copy of the order from the prothonotary.” (emphasis

added)).   Moreover, the trial court made no finding as to the existence of

10
  This period of time is over double the amount of time in which the trial
court originally gave BRRTA to file a concise statement in the Rule 1925(b)
Order.


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extraordinary circumstances that justified a nunc pro tunc submission, and

granted BRRTA’s Application for Extension without thereafter issuing a

supplemental Pa.R.A.P. 1925(a) opinion.

      Accordingly, Because BRRTA failed to comply with the trial court’s Rule

1925(b) Order directing it to file a concise statement, and failed to establish

that it was entitled to nunc pro tunc relief to file an amended concise

statement, we are compelled to rule that it has waived the claims it now

raises on appeal. See Greater Erie Indus., supra; Amicone, supra.11

      Order affirmed.

      Judge Ransom joins this memorandum.

      President Judge Emeritus Bender concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2016




11
    Nevertheless, even if BRRTA had not waived its claims on appeal, we
would have determined that they lack merit for the reasons set forth in the
trial court’s Memorandum issued in support of the Dismissal Order. See
Trial Court Memorandum and Order, 2/18/16, at 3-9.


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