J-S60004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMUNITY BANK, N.A.                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL EDWARD JOHNSTON, JR.                  :
                                               :
                       Appellant               :   No. 460 MDA 2019

            Appeal from the Judgment Entered September 17, 2018
    In the Court of Common Pleas of Bradford County Civil Division at No(s):
                                2016-CV-0187


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                      FILED: FEBRUARY 4, 2020

        Appellant, Carl Edward Johnston, Jr., appeals pro se from the judgment

entered against him on September 17, 2018, in the Court of Common Pleas

of Bradford County. We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

              Plaintiff [Community Bank, N.A.] filed its Complaint, which
        attached various documents, on August 29, 2016. Plaintiff’s claim
        arises out of [Appellant’s] failure to satisfy a car loan pursuant to
        the terms of a note and security agreement. See Complaint.

              Subsequent to filing, Plaintiff made several attempts to
        serve a copy of the Complaint upon [Appellant], all of which were
        unsuccessful. See Sheriff’s Return of Service filed September 12,
        2016 and August 7, 2017.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           In response to the failed attempts at service, Plaintiff filed
     Praecipes to Reinstate Complaint on July 5, 2017 and March 26,
     2018. The Complaint was duly reinstated in each instance.

           A copy of the reinstated Complaint was eventually served
     upon [Appellant] at the Bradford County Correctional Facility on
     March 29, 2018 by handing him a copy of the document. See
     Sheriff’s Return of Service filed April 9, 2018.

           [Appellant] responded to the reinstated Complaint by hand-
     written letter, filed on April 4, 2018, in which he did not address
     any of the factual averments set out in the reinstated Complaint,
     but offered generalized statements as to his financial situation, his
     desire to acquire the services of a public defender, his current
     address and, most particularly, his intention to contest the civil
     action against him. See Motion for Summary Judgment at Exhibit
     B.

           Plaintiff asserts in the Motion for Summary Judgment
     underlying the instant matter that Requests for Admissions and
     Production of Documents, in accordance with Pa. R.C.P. Nos. 4001
     and 4014, were served upon [Appellant] “on or around” April 30,
     2018. A Certificate of Service memorializing the service is of
     record. Id. at paragraph 5, and Exhibit C.

            On June 4, 2018, approximately 35 days after the claimed
     service of the Requests for Admissions and Production of
     Documents, [Appellant] responded to the discovery request by
     means of a hand-written letter purported by [Appellant] to be “a
     timely submission to the plaintiff’s request pursuant to Pa. R. Civ.
     [sic] P. 4014 and 4001 et seq.” Id. at Exhibit D.

           In [Appellant’s] responsive letter, he declares his inability to
     furnish discovery due to his current status as a prisoner at the
     Bradford County Correctional Facility in Troy, Pennsylvania.
     Additionally, the letter sets out [Appellant’s] request for, inter alia,
     “the Plaintiff’s cooperation in obtaining a stay of all proceedings”
     on the grounds that he has “every intent to honor any obligation
     I have” after his criminal matters are concluded. Id. at Exhibit D.,
     paragraphs 1., 4., 5., and 7.

           [Appellant’s] responsive letter does not specifically address
     any of the demands for admissions or discovery placed upon him


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        by Plaintiff in the Requests for Admissions and the Production of
        Documents.

              Plaintiff filed its Motion for Summary Judgment with Notice
        to Plead, and a Brief in Support of the Motion, on July 16, 2018;
        there is nothing of record indicating that [Appellant] filed a written
        response to the Motion for Summary Judgment within 30 days as
        required by Pa. R.C.P. No. 1035.3.

              The record of the case includes Certificates of Service, dated
        July 12, 2019, showing that Plaintiff served [Appellant] with copies
        of the Motion for Summary Judgment and the Brief in Support of
        the Motion, together with a Motion for Argument, at the Bradford
        County Correctional Facility, Troy, Pennsylvania, by first class
        mail.

               On July 19, 2018, the [c]ourt scheduled argument upon
        Plaintiff’s Motion for Summary Judgment for September 14, 2018,
        at 10:00 a.m.

               In its scheduling Order, the [c]ourt directed [Appellant] to
        file a brief in support of his position at least five days prior to
        argument; however, there is no evidence of record showing that
        [Appellant] complied with this directive.

              On August 16, 2018, Plaintiff filed an Affidavit of Service
        indicating that Plaintiff served upon [Appellant] a copy of the
        Order scheduling argument for September 14, 2018, and, again,
        copies of (i) Plaintiff’s Motion for Argument, (ii) Plaintiff’s Motion
        for Summary Judgment, and (iii) Plaintiff’s Brief in Support of the
        Motion for Summary Judgment.

              Plaintiff’s Motion for Summary Judgment was granted on
        September 14, 2018, and a judgment was filed against
        [Appellant] in the amount of $13,427.00 plus interest, if any, and
        costs.[1]

Trial Court Opinion, 5/2/19, at 1-3.




____________________________________________


1   The order entering judgment was filed on September 17, 2018.

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      Appellant filed a notice of appeal that was docketed on November 30,

2018. The trial court and Appellant complied with Pa.R.A.P. 1925(a). On

appeal, Appellant presents the following issue for our review:           “Does

[Appellant] have a valid claim for failing to respond to the Notice of a Motion

for Summary Judgment with Notice to Plead, and a Motion for Argument[?]”

Appellant’s Brief at 4.

      We first determine whether we have jurisdiction to entertain this appeal.

Judgment in the instant matter was entered on September 17, 2018.

Appellant’s notice of appeal was dated November 26, 2018, and entered on

the docket on November 30, 2018.           Accordingly, the appeal is facially

untimely. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule,

the notice of appeal . . . shall be filed within 30 days after the entry of the

order from which the appeal is taken.”). Thus, on May 6, 2019, this Court

issued a rule to show cause directing Appellant to show cause “why this appeal

should not be quashed as having been filed untimely on November 30, 2018,

greater than 30 days after entry and notice of the summary judgment order.”

Order, 5/6/19, at 1.

      Appellant filed a response that was docketed on May 13, 2019. In it,

Appellant asserted that “he has been in a State Correction Institute since July

5, 2018.” Response to Rule to Show Cause, 5/13/19, at 1. He further averred

that “his legal mailing address has been SCI Benner Township, 301 Institution

Drive, Bellefonte Pa 16823 since August of 2018.” Id. Appellant maintained


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that he “did not receive any legal papers from Bradford County Courts via

legal mail, Bradford County Courts are well aware of the proper procedure to

send legal mail to an inmate at a SCI Benner Institution.” Id. He further

asserted that after receiving the “legal papers” in November of 2018, he did

meet the thirty-day time-frame to file his appeal. Id.

     It appears from the record that Appellant has been incarcerated during

the entirety of this legal proceeding, although we are unable to determine

when his physical location changed. As noted, in his response to the rule to

show cause, Appellant asserted that his legal mailing address has been SCI

Benner Township, 301 Institution Drive, Bellefonte, PA 16823, since August,

of 2018. The order entering judgment indicated that notice should be mailed

to Appellant at “Bradford County Correction Facility; 15927 Route 6; Troy,

Pennsylvania 16947.” Order, 9/17/18, at 1. The docket entry for that order,

however, indicated that the order was sent to “[Appellant,] 107 North Elmira

St.; Athens, PA 18810.” The record also includes an envelope addressed to

Appellant at the Bradford County Correction Facility bearing a post mark of

September 17, 2018, which was marked “return to sender.” The envelope

included the September 17, 2018 order. Although Appellant asserted that he

subsequently received these “legal papers in November 2018,” he did not

explain how he received these documents at that time. Response to Rule to

Show Cause, 5/13/19, at 1.     The record reflects that Appellant’s notice of

appeal was dated November 26, 2018, and the accompanying envelope bears


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a date stamp of November 27, 2018.2                Appellant’s notice of appeal was

docketed on November 30, 2019.

       Accordingly, it appears that Appellant did not receive timely notice of

the September 17, 2018 entry of judgment due to a breakdown in the court’s

operations.    This Court has found the delay in filing an appeal excusable

because of a breakdown in the court’s operations.             Nagy v. Best Home

Services, Inc., 829 A.2d 1166, 1168 (Pa. Super. 2003). Thus, it is possible

that Appellant’s notice of appeal could be deemed timely filed if we were able

to determine with certainty, which we are unable to do, when Appellant

received notice of this judgment. However, even if Appellant’s notice of appeal

was deemed timely filed, he would be entitled to no relief on his claim.

       By order entered January 9, 2019, the trial court directed Appellant to

file a Pa.R.A.P. 1925(b) statement.            Appellant filed his Pa.R.A.P. 1925(b)

statement on March 18, 2019. In his statement, Appellant made the following

five assertions, which we restate here verbatim:

       1. The Defendant avers/believes that by law he has never been
       legally served a notice or has signed an acknowledgement that
       there was a judgment made against him from Community Bank,
       N.A 45-49 Court Street Canton, New York 13617.

       2. Defendant avers that he believes there is insurance to cover
       the legal action brought against him by Community Bank, N.A 45-
       49 Court Street Canton, New York 13617.


____________________________________________


2 We note that in Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001),
this Court held that the prisoner mailbox rule applies to all pro se filings by
incarcerated litigants, including civil matters.

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       3. Defendant avers he has made several attempts to contact Mr.
       Sheils the attorney for Plaintiff concerning this matter and the
       courts. The Courts and the Law Office of Sheils Associates; P.C
       108 North Abington Road, Clark Summit, pa 18411 has repeatedly
       sent mail to 107 N. Elmira St Athens Pa. 18810 not his legal
       residence.

       4. Defendant avers he requests to be notified of any pending
       proceedings and to be present by phone or via video due to his
       incarceration at SCI Benner Township, 301 Institution Drive,
       Bellefonte Pa, 33733 until his release when he may attend in
       person.

       5. Defendant requests a stay of all proceedings until his release
       from custody so he may retrieve the documents needed that he
       has in his files that are in storage.

Pa.R.A.P. 1925(b) Statement, 3/18/19, at 1.

       Appellant failed to preserve the issue that he has “a valid claim for failing

to respond to the Notice of a Motion for Summary Judgment with Notice to

Plead, and a Motion for Argument,” Appellant’s Brief at 4, in his Pa.R.A.P.

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

deemed waived.” U.S. Bank, N.A. for Certificateholders of LXS 2007-7N

Trust Fund v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).                  Accordingly,

because Appellant failed to preserve the issue in his Pa.R.A.P. 1925(b)

statement, his single claim raised on appeal is waived.3

____________________________________________


3We note that Appellant has proceeded pro se in this civil matter. As we have
explained: “Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon the appellant.
To the contrary, any person choosing to represent himself in a legal



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       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2020




____________________________________________


proceeding must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.” Wilkins v. Marsico, 903 A.2d 1281,
1284-1285 (Pa. Super. 2006). Further, the trial court did not err in declining
to appoint counsel for Appellant in this matter. Our Supreme Court has
explained that “although in rem forfeiture proceedings must comport with due
process of law, property interests are generally afforded less due process
protections than liberty interests. Consequently, there is no constitutional
right to the appointment of counsel in a forfeiture proceeding.”
Commonwealth v. All That Certain Lot or Parcel of Land Located at 605
University Drive, 104 A.3d 411, 426 (Pa. 2014).              Moreover, as the
Commonwealth Court explained, due process does not require the
appointment of counsel to an indigent inmate in a civil action because the
interest at stake is financial, which commands a lower level of due process
protection than life or liberty interests. Mason v. Pa. Dep’t of Corr., 886
A.2d 724 (Pa. Cmwlth. 2005); cf. Corra v. Coll, 451 A.2d 480, 486 (Pa.
Super. 1982) (wherein this Court determined that the familial, liberty and
property interests at stake in a paternity proceeding are significant enough to
warrant protection through the appointment of counsel for indigent
defendants in paternity actions.)

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