J-S02012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 RUTH WALKER                             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 GIANT FOODS                             :    No. 1218 MDA 2019

               Appeal from the Order Entered June 21, 2019
    In the Court of Common Pleas of York County Civil Division at No(s):
                             2018-SU-002776


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 22, 2020

      Appellant, Ruth Walker, appeals from the order dated June 20, 2019

and entered on June 21, 2019, by the Court of Common Pleas of York County,

which granted Appellee’s, Giant Foods, motion for judgment on the pleadings

and dismissed Ms. Walker’s claims with prejudice. After careful review, we

affirm.

      The trial court has provided the following factual summary and

procedural history of this case:

            [Ms. Walker] is an adult individual who resides in York
      County, Pennsylvania. [Giant Foods] is a Delaware limited liability
      company that is authorized to conduct business in the
      Commonwealth of Pennsylvania and has a business address
      located at 1255 Carlisle Road, York, Pennsylvania 17404.

             [Ms. Walker] commenced this action via writ of summons
      filed on October 22, 2018. On November 15, 2018, [Giant Foods’]
      counsel entered their appearance and issued a rule to file [a]
      complaint on [Ms. Walker]. On December 31, 2018, [Ms. Walker]
      filed her complaint against [Giant Foods] for an alleged slip-and-
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      fall accident that occurred on October 17, 2016, at [Giant Foods’]
      grocery store located at 1255 Carlisle Road, York, Pennsylvania
      17404. On January 22, 2019, [Giant Foods] filed its answer with
      new matter and the required notice to plead within twenty days,
      and [it] asserted the affirmative defense of the statute of
      limitations along with other affirmative defenses. No response
      was filed by [Ms. Walker] to the new matter until June 7, 2019,
      apparently without agreement of the parties or leave of court.
      (See Pa.R.C.P. 1026 and 248).

           On April 24, 2019, [Giant Foods] filed its motion for
      judgment on the pleadings and an accompanying brief in support.
      On May 7, 2019, [Ms. Walker] filed [her] answer to [Giant Foods’]
      motion for judgment on the pleadings.

Trial Court Order (“TCO”), 6/21/19, at 1-2 (unnecessary capitalization

omitted).

      The trial court entered an order on June 21, 2019, granting Giant Foods’

motion for judgment on the pleadings and dismissing Ms. Walker’s claims with

prejudice. Ms. Walker filed a timely notice of appeal on July 22, 2019. On

July 23, 2019, the trial court directed Ms. Walker to file a concise statement

of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), but she

failed to comply.

      Ms. Walker now presents the following issues for our review on appeal:

      1. Whether [Ms. Walker] admitted to allegations stated in [Giant
         Foods’] new matter due [to] her alleged failure to file a timely
         response[?]

      2. Whether [Giant Foods] is entitled to a judgment on the
         pleadings due to [Ms. Walker’s] alleged failure to bring her
         action within the applicable statute of limitations[?]

Ms. Walker’s Brief at 2.

      Before addressing the merits of Ms. Walker’s claims, we must evaluate

whether she has properly preserved these issues for our review, as required

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by Pa.R.A.P. 1925(b). See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998) (“[F]rom this date forward … [a]ppellants must comply whenever the

trial court orders them to file a [s]tatement of [errors] [c]omplained of on

[a]ppeal 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) (providing that

any issues not raised in an appellant’s Rule 1925(b) statement “are waived”).

      The bright-line rule first set forth in Lord, which demands strict

adherence to the requirements of Rule 1925(b), has been re-affirmed by our

Supreme Court. See Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa.

2005) (stating that the “failure to comply with the minimal requirements of

[Rule] 1925(b) will result in automatic waiver of the issues raised”);

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (finding that the

appellant waived all of his claims on appeal for untimely filing his Rule 1925(b)

statement) (citing Lord, 719 A.2d at 309)). Waiver shall occur even where

the trial court ignores the untimeliness of a Rule 1925(b) statement and

addresses the merits of an appeal. Greater Erie Industrial Development

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224-25 (Pa. Super. 2014)

(en banc) (recognizing that our Supreme Court “specifically removed our

authority to allow … discretionary review”).

      “In determining whether an appellant has waived his issues on appeal

based on non-compliance with [Rule] 1925, it is the trial court’s order that

triggers an appellant’s obligation…. [T]herefore, we look first to the language

of that order.” Id. at 225 (quoting In re Estate of Boyle, 77 A.3d 674, 676

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(Pa. Super. 2013) (citing Berg v. Nationwide Mutual Ins. Co., 6 A.3d 1002,

1007-08 (Pa. 2010))). The pertinent requirements for the trial court’s order

are set forth in Rule 1925(b) as follows:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—If
      the judge entering the order giving rise to the notice of appeal
      (“judge”) desires clarification of the errors complained of on
      appeal, the judge 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 (“Statement”).

                                      ***
         (2) Time for filing and service.—The judge shall allow the
         appellant at least 21 days from the date of the order’s entry
         on the docket for the filing and service of the Statement.
         Upon application of the appellant and for good cause shown,
         the judge may enlarge the time period initially specified or
         permit an amended or supplemental Statement to be filed.
         Good cause includes, but is not limited to, delay in the
         production of a transcript necessary to develop the
         Statement so long as the delay is not attributable to a lack
         of diligence in ordering or paying for such transcript by the
         party or counsel on appeal. In extraordinary circumstances,
         the judge may allow for the filing of a Statement or
         amended or supplemental Statement nunc pro tunc.

         (3) Contents of order.—The judge’s order directing the filing
         and service of a Statement shall specify:

            (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);

            (iv) that any issue not properly included in the Statement
            timely filed and served pursuant to subdivision (b) shall
            be deemed waived.



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

      Here, the record reveals that the trial court issued an order on July 23,

2019, directing Ms. Walker to comply with Rule 1925(b) and to:

      [F]ile of record and serve on the undersigned Judge, a concise
      statement of errors complained of on appeal no later than twenty-
      one (21) days after the entry date of this order. A failure to
      comply with this direction may be considered by the Superior
      Court as a waiver of all objections to the Order, ruling, or matter
      complained of.

Order, 7/23/19, at 1. We conclude that this order is in compliance with Rule

1925(b). See Commonwealth v. Medina, 209 A.3d 992 (Pa. Super. 2019)

(determining that the trial court’s order warning the appellant that a failure to

comply with its direction to file a 1925(b) statement “may be considered by

the appellate court as a waiver of all objections to the Order, ruling or other

matters complained of” complied with Rule 1925(b)(3)(iv)). Moreover, the

docket indicates that the parties were properly notified of the entry of the

order on the same date, pursuant to Pa.R.C.P. 236(b).

      As the trial court complied with the requirements of Rule 1925(b), Ms.

Walker’s failure to file and serve upon the trial court a statement of errors

complained of on appeal is fatal. See Castillo, 888 A.2d at 780. This is true

despite the trial court’s filing of a statement of the reasons for its decision,

pursuant to Rule 1925(a).      See Greater Erie Industrial Development




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Corp., 88 A.3d at 225. Thus, we are constrained to deem all of Ms. Walker’s

issues on appeal waived.1

       Accordingly, we affirm the June 21, 2019 order granting Giant Foods’

motion for judgment on the pleadings and dismissing Ms. Walker’s claims with

prejudice.

       Order affirmed.




____________________________________________


1  Even if Ms. Walker’s arguments had been preserved, we would have
concluded that the trial court properly granted Giant Foods’ motion for
judgment on the pleadings and dismissed her claims with prejudice, on the
ground that her claims were time-barred and she could not recover as a
matter of law. “In Pennsylvania, a cause of action for negligence is controlled
by the two-year statute of limitations set forth in 42 Pa.C.S.[] § 5224(2). The
statute of limitations begins to run as soon as the rights to institute and
maintain a suit arises[.]” Hubert v. Greenwald, 743 A.2d 977, 981 (Pa.
Super. 1999). Moreover, if a plaintiff fails to respond to new matter within 20
days, the averment of facts must be taken as admitted, the pleadings are
closed and a motion for judgment on the pleadings under Rule 1034 is proper.
See Newspaper Guild of Greater Philadelphia, AFL-CIO v. Philadelphia
Daily News, Inc., 164 A.2d 215, 218 (Pa. 1960).

       Here, Giant Foods averred in its new matter that Ms. Walker’s claims
were barred due to her failure to initiate her negligence action within the
applicable two-year statute of limitations under 42 Pa.C.S. § 5524. Because
Ms. Walker did not file her response to new matter until nearly six months
after the filing of Giant Foods’ answer and new matter, the averments in the
new matter were properly deemed admitted by the trial court. See TCO at 4.
“Looking at the uncontested allegations in the relevant pleadings, it can be
determined that on October 17, 2016, [Ms. Walker] was involved in an incident
at [Giant Foods’] store. [Ms. Walker] had cause to bring suit on that date, but
failed to do so until October 22, 2018.” Id. at 5. As the trial court observed,
“October 17, 2018 was neither a court holiday nor a weekend, so [her] suit
could have been filed on that date, but [it] was not. Therefore, her claim is
barred by the statute of limitations.” Id. at 5-6.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/22/2020




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