           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                    :
                                                : No. 37 C.D. 2016
                      v.                        : Submitted: July 15, 2016
                                                :
John Jones Jr.,                                 :
                                                :
                              Appellant         :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                               FILED: August 10, 2016



               John Jones Jr. (Jones) appeals pro se the order of the Bucks County
Court of Common Pleas (trial court) dismissing his summary appeals and entering
guilty verdicts in absentia1 based on violations of the Bristol Township Ordinance
2002-12, International Property Maintenance Code Sections 302.8.1, 303.2, and
304G2-E. We remand.
               In July 2013, Jones was charged with ordinance violations relating to
property maintenance, parking motor vehicles on his property, and parking a
recreational vehicle on his property. On October 2, 2013, following a number of
continuances, Jones was adjudged guilty by the magisterial district court in


       1
         Pa. R.Crim. P. 462(D) states that “[i]f the defendant fails to appear, the trial judge may
dismiss the appeal and enter judgment in the [trial court] on the judgment of the issuing
authority.”
absentia of all charges after he failed to appear for trial, and fines and costs were
imposed.2
                 On October 28, 2013, Jones filed a summary appeal of his convictions
in the trial court3 and, following a number of continuances, a trial de novo was
scheduled before the court on August 28, 2015. When the case was called for trial,
the Commonwealth explained that Jones had requested a continuance and had
faxed a doctor’s note to Court Administration at 9:00 a.m. in support. See N.T.
8/28/154 at 2. The Commonwealth objected to another continuance “[b]ased on the
procedural history of this case and based on the insufficient basis for [Jones’]
failure to appear today.” Id. The trial court disposed of the motion and the trial de
novo stating:

                         THE COURT: All right.

                        All right. The record should reflect that the fax is
                 from the office of Dr. Patel in Bristol Township, Bucks
                 County, indicating that Mr. Jones, the appellant here who
                 filed the appeal from the proceeding below was seen
                 yesterday as a patient and experienced anxiety as a result

       2
          See Pa. R.Crim. P. 455(A) (“If the defendant fails to appear for trial in a summary case,
the trial shall be conducted in the defendant’s absence, unless the issuing authority determines
that there is a likelihood that the sentence will be imprisonment or that there is other good cause
not to conduct the trial in the defendant’s absence.”).

       3
         See Pa. R.Crim. P. 460(A) (“When an appeal is authorized by law in a summary
proceeding . . . an appeal shall be perfected by filing a notice of appeal within 30 days after the
entry of . . . the conviction.”); Pa. R.Crim. P. 460(E) (“This rule shall provide the exclusive
means of appealing from a summary . . . conviction.”); Pa. R.Crim. P. 462(A) (“When a
defendant appeals after . . . a conviction by an issuing authority in any summary proceeding,
upon the filing of the transcript and other papers by the issuing authority, the case shall be heard
de novo by the judge of the [trial court] sitting without a jury.”).

       4
           “N.T. 8/28/15” refers to the transcript of the trial court proceedings.


                                                   2
                 of his court date.[5] It does not indicate that he has been
                 committed or is undergoing any kind of inpatient
                 treatment; so therefore, he has – Mr. Jones. John Jones –
                 he has failed to appear.

                       Based on the procedural history of this case and
                 based on the insufficient basis for his failure to appear
                 today, I will incorporate the information that was
                 contained in the file that will be the factual basis for any
                 determination. I find him guilty in absentia.
Id. at 3-4. Jones then filed the instant appeal to the Superior Court that was later
transferred to this Court.
                 On September 29, 2015, the trial court issued an order directing Jones
“to file of record” within 21 days a Concise Statement of Errors Complained of on
Appeal (Concise Statement) pursuant to Pa. R.A.P. 1925(b)6 and to serve the

       5
         The fax is dated August 27, 2015, and indicates that it was faxed at 8:50 p.m. that
evening to an employee in the Bucks County Justice Center. Notice of Appeal at 2. It is signed
by Rajani J. Patel, M.D., and states the following, in relevant part:

                 The above named patient was seen in office today. Please extend
                 his court date 30 days due to [the patient being] unable to cope
                 [with] stress due to [increased] anxiety and depression. This will
                 be my final letter to the courts on this matter. [If there are a]ny
                 questions don’t hesitate to call my office.

Id.

       6
           Pa. R.A.P. 1925(b)(1) and (2) states, in pertinent part:

                 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”).

                 (1) Filing and service.—Appellant shall file of record the
                 Statement and concurrently shall serve the judge. Filing of record
(Footnote continued on next page…)
                                                   3
Concise Statement on the court and the Commonwealth in person or by mail as
provided in Pa. R.A.P. 121.        On October 23, 2015, the trial court issued a
Pa. R.A.P 1925(a) opinion in which the court explained that Jones’ appeal should
be dismissed because he waived all appellate claims by failing to file a Concise
Statement as directed by the Court.
            On October 26, 2015, Jones filed a Docketing Statement in the
Superior Court which appended a Concise Statement that is time-stamped as
received by the Prothonotary of Bucks County on October 19, 2015. The Concise
Statement asserts that it was hand delivered to the trial court and “to the involved
parties” and raises a number of allegations of trial court error including those
raised in this appeal. On December 23, 2015, Jones filed a copy of the Docketing
Statement with the appended Concise Statement in this Court. As a result, on
February 2, 2016, we issued the following Order:

(continued…)

            and service on the judge shall be in person or by mail as provided
            in Pa. R.A.P. 121(a). . . . Service on parties shall be concurrent
            with filing and shall be by any means of service specified under
            Pa. R.A.P. 121(a).

            (2) Time for filing and service.—The judge shall allow the
            appellant at least 21 days from the date of the order’s entry upon
            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.


                                             4
                  [U]pon review of the above-captioned action, the parties’
                  principal briefs on the merits shall address the trial
                  court’s assertion the [Jones] has waived all issues on
                  appeal based on the failure to file a [Concise Statement]
                  pursuant to Pa. R.A.P. 1925(b) and as directed in the trial
                  court’s order of September 29, 2015.
                  In his brief to this Court, Jones raises a number of claims of trial court
error relating to the denial of his continuance request and its purported bias. Jones
also contends that he timely filed and served his Concise Statement as the trial
court directed in its order. The Commonwealth counters that Jones has waived his
appeal by failing to properly file a Concise Statement. The Commonwealth asserts
that Jones should have filed the Concise Statement with the Bucks County Clerk of
Courts, and not the Prothonotary, because that was where he filed the summary
appeal of his convictions.7          The Commonwealth also argues that the Concise
Statement fails to adequately identify the issues that he seeks to raise on appeal.
As a result, the Commonwealth submits that Jones has waived all claims and that
his appeal should be dismissed. In the alternative, the Commonwealth argues that
Jones’ substantive claims are without merit.8
                  The Pennsylvania Supreme Court has explained:

                  [I]n order to preserve their claims for appellate review,
                  [a]ppellants must comply whenever the trial court orders
                  them to file a [Concise Statement] pursuant to Pa. R.A.P.
                  1925(b). Any issues not raised in a Pa. R.A.P. 1925(b)
                  statement will be deemed waived.

        7
             See Pa. R.Crim. P. 460(A) (“The notice of appeal shall be filed with the clerk of
courts.”).

        8
         The Commonwealth also asserts that the trial court did not have jurisdiction over Jones’
summary appeal because it was untimely filed. However, the certified record shows that Jones
filed the summary appeal in the trial court on October 28, 2013, within 30 days of his
convictions in magisterial district court on October 2, 2013.


                                                5
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation omitted). Here,
Jones contends that he timely filed and served the Concise Statement as the trial
court directed and the Commonwealth claims otherwise. Pa. R.A.P. 1925(c)(1)9
permits this Court to remand an action for a determination of whether the Concise
Statement was, in fact, timely filed and served.10 Further, upon application, the
trial court may allow the filing of a Concise Statement nunc pro tunc.11
               Accordingly, the case is remanded to the trial court for proceedings
consistent with the foregoing opinion.




                                             MICHAEL H. WOJCIK, Judge




       9
          Pa. R.A.P. 1925(c)(1) states, “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.”

       10
          See also Berg v. Nationwide Mutual Insurance Company, Inc., 6 A.3d 1002, 1008 (Pa.
2010) (plurality) (“The equitable doctrine of substantial compliance gives a court latitude to
overlook a procedural defect that does not prejudice a party’s rights. In Womer v. Hilliker, [908
A.2d 269 (Pa. 2006)], we noted that ‘while we look for full compliance with the terms of our
rules, we provide a limited exception under [Pa. R.C.P. No.] 126 to those who commit a misstep
when attempting to do what any particular rule requires.’ Id. at [276]. We find that Appellants’
counsel, by attempting to provide the prothonotary with two time-stamped copies of Appellants’
1925(b) Statement, with one to be served on the trial judge, substantially complied with the trial
court's order to ‘file with the Court and a copy with the trial judge’ their 1925(b) Statement.
Appellants should not be penalized by the prothonotary’s refusal to accept other than the original
copy of the 1925(b) Statement from Appellants’ counsel.”) (footnote omitted).

       11
           See Pa. R.A.P. 1925(b)(2) (“In extraordinary circumstances, the judge may allow for
the filing of a Statement or amended or supplemental Statement nunc pro tunc.”).


                                                6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                :
                                            : No. 37 C.D. 2016
                    v.                      :
                                            :
John Jones Jr.,                             :
                                            :
                          Appellant         :

                                         ORDER

             AND NOW, this 10th day of August, 2016, the above-captioned
matter is remanded to the Bucks County Court of Common Pleas (trial court) for a
determination as to whether John Jones Jr. (Jones) filed and/or served or timely
filed and/or served a Concise Statement of Matters Complained of on Appeal
(Concise Statement) pursuant to Pa. R.A.P. 1925. If the trial court determines that
Jones did not file and/or serve, or timely file and/or serve, a Concise Statement, the
trial court shall remit the original record to this Court, including its ruling on this
issue, within 60 days of the date of this Order. If the trial court determines that
Jones did file and/or serve, or timely file and/or serve, a Concise Statement, the
trial court shall remit the original record, including the Concise Statement and its
corresponding Pa. R.A.P. 1925(a) Opinion addressing the issues raised therein, to
this Court within 90 days of the date of this Order.
             The Chief Clerk shall send a copy of this Order to the Honorable
Diane E. Gibbons, Judge of the Bucks County Common Pleas Court, to the Bucks
County Clerk of Courts, and to the Bucks County Prothonotary.
             Jurisdiction is retained.


                                          __________________________________
                                          MICHAEL H. WOJCIK, Judge
