           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Paluch, Jr.,                    :
                         Appellant       :
                                         :
                   v.                    :   No. 114 C.D. 2016
                                         :   Submitted: December 15, 2017
Jeffrey A. Beard, William S.             :
Stickman III, Gerald L. Rozum,           :
Steven M. Gates, Allen G. Joseph,        :
Daniel Gehlmann, Mandy Biser,            :
Robert Snyder, Robert S. Bitner,         :
Donald Williamson, Melissa Hughes,       :
Timothy Lucas, Susan Darr and John       :
Doe Officer #1                           :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: March 12, 2018


      James A. Paluch, Jr., (Appellant) appeals an Order of the Court of Common
Pleas of Somerset County (trial court) that granted summary judgment in favor of
Jeffrey A. Beard, William S. Stickman III, Gerald L. Rozum, Steven M. Gates, Allen
G. Joseph, Daniel Gehlmann, Mandy Biser, Robert Snyder, Robert S. Bitner, Donald
Williamson, Melissa Hughes, Timothy Lucas, Susan Darr, and John Doe Officer #1
(Appellees, collectively) and against Appellant with prejudice. Appellees argue the
appeal should be quashed because Appellant did not timely file his statement of
errors complained of on appeal (Statement) as required by Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b).1                      Because the
Pennsylvania Supreme Court has required strict adherence to Pa.R.A.P. 1925, and
because Appellant has not shown good cause for non-compliance, we are
constrained to find Appellant has waived all of his issues and quash the appeal.
       Appellant initiated this civil action against Appellees2 by filing a complaint in
August 2007. In the complaint, Appellant alleged, inter alia, that he was retaliated
against for speaking out about prison conditions, which resulted in him being placed
in the Special Management Unit (SMU) upon his transfer to a different state prison.
Appellant also claimed he was assaulted by another inmate and mail from his
attorney was improperly opened by prison staff. Appellees filed an answer to the
complaint, denying the allegations and averring, in part, that the transfer to the SMU
was for legitimate penological reasons, the fight was mutual, and that his mail was
opened after it tested positive for drugs.
       Following years of litigation, Appellees moved for summary judgment on
June 13, 2013, which the trial court ultimately granted on December 30, 2015.
Appellant filed a timely notice of appeal on January 22, 2016. In response to the

       1
           Rule 1925(b) provides:

       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”).

Pa.R.A.P. 1925(b).
        2
          Appellees include the former Secretary of Corrections and former and current employees
of the State Correctional Institution at Somerset, where Appellant was formerly incarcerated.



                                                2
notice of appeal, the trial court issued an order, dated January 27, 2016, and filed
January 28, 2016, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1925(b), directing Appellant to file his Statement within 21
days. The order directed Appellant to file the Statement and serve it upon the trial
court. It also directed Appellant to review and comply with Pa.R.A.P. 1925(b)(4)3
and advised that any error not included in the Statement would be deemed waived.
       Appellant’s Statement was due February 18, 2016. Instead of filing his
Statement, Appellant filed what he called a “Motion for Special Relief” with the trial
court on February 18, 2016, wherein he advised the trial court that he could not file
a Statement because he did not know the trial court’s reasoning for its December 30,

       3
           Rule 1925(b)(4) provides:

       (i) The Statement shall set forth only those rulings or errors that the appellant
             intends to challenge.
       (ii) The Statement shall concisely identify each ruling or error that the appellant
             intends to challenge with sufficient detail to identify all pertinent issues for the
             judge. The judge shall not require the citation to authorities; however,
             appellant may choose to include pertinent authorities in the Statement.
       (iii) The judge shall not require appellant or appellee to file a brief, memorandum
             of law, or response as part of or in conjunction with the Statement.
       (iv) The Statement should not be redundant or provide lengthy explanations as to
             any error. Where non-redundant, non-frivolous issues are set forth in an
             appropriately concise manner, the number of errors raised will not alone be
             grounds for finding waiver.
       (v) Each error identified in the Statement will be deemed to include every
             subsidiary issue contained therein which was raised in the trial court; this
             provision does not in any way limit the obligation of a criminal appellant to
             delineate clearly the scope of claimed constitutional errors on appeal.
       (vi) If the appellant in a civil case cannot readily discern the basis for the judge’s
             decision, the appellant shall preface the Statement with an explanation as to
             why the Statement has identified the errors in only general terms. In such a
             case, the generality of the Statement will not be grounds for finding waiver.
       (vii) Issues not included in the Statement and/or not raised in accordance of this
             paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(4).



                                                   3
2015 Order. He asked the trial court to file an opinion explaining its reasoning and
to grant him additional time to file his Statement. The trial court did not act on the
“Motion for Special Relief.” This prompted Appellant to file a second “Motion for
Special Relief” on June 8, 2016, wherein Appellant reasserted the difficulty he had
with filing his Statement without the trial court’s reasoning. Appellant again
requested the trial court issue an opinion explaining its decision to grant summary
judgment in Appellees’ favor and allow him additional time to file his Statement.
Once again, the trial court did not act on the request.
       Finally, on August 19, 2016, Appellant filed his Statement, which was six
months late. On January 23, 2017, the trial court issued a three-paragraph opinion,
pursuant to Rule 1925(a)(1) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925(a)(1),4 explaining its rationale for granting the motion for summary
judgment. On appeal to this Court, Appellant raises four issues: (1) whether the
trial court erred in granting summary judgment in Appellees’ favor when discovery
was outstanding; (2) whether genuine issues of material fact exist and Appellant was
deprived of due process to demonstrate those facts because of the outstanding
discovery issues; (3) whether the trial court erred in not allowing Appellant to file
an amended complaint; and (4) whether the case should be transferred to another
county or, alternatively, that the trial court judge should recuse himself.

       4
           Rule 1925(a)(1) provides, in pertinent part,

       (1)      General rule.--Except as otherwise prescribed by this rule, upon receipt of
       the notice of appeal, the judge who entered the order giving rise to the notice of
       appeal, if the reasons for the order do not already appear of record, shall forthwith
       file of record at least a brief opinion of the reasons for the order, or for the rulings
       or other errors complained of, or shall specify in writing the place in the record
       where such reasons may be found.

Pa.R.A.P. 1925(a)(1).


                                                  4
      On August 15, 2017, Appellees filed a motion to quash the appeal. Appellees
allege Appellant’s Statement was untimely because it was not filed within 21 days
of the trial court’s order as required by Rule 1925(b). As such, Appellees argue all
issues have been waived.
      Appellant responds that he was confused as to what matters were in error
because he did not have the benefit of the trial court’s reasoning behind its decision.
He points to the two “Motions for Special Relief” he filed asking the trial court to
file an opinion so he could comply and file his Statement. He also notes that the trial
court accepted the untimely Statement and addressed the merits of granting the
motion for summary judgment. As a result, Appellant asserts, his Statement should
be deemed timely.
      By order dated September 12, 2017, this Court directed Appellees’ motion to
quash be decided with the merits of Appellant’s appeal. Because we conclude that
Appellant’s Statement is untimely, we do not reach the merits because they are
waived.
      “In our early jurisprudence, this Court held that an untimely Rule 1925(b)
statement did not waive all issues where the trial court issued an opinion addressing
the merits of the appellant’s issues.” Jenkins v. Fayette Cnty. Tax Claim Bureau,
__ A.3d __, __ (Pa. Cmwlth., No. 71 C.D. 2017, filed Jan. 3, 2018), slip op. at 5.
Appellant advocates for this approach here. However, this approach was expressly
disapproved by the Pennsylvania Supreme Court, and now “[w]aiver is not cured by
the trial court’s filing of a Rule 1925(a) opinion addressing the merits of the issues
on appeal.” Id. at __, slip op. at 6. Instead, the Pennsylvania Supreme Court has
strictly applied its requirement that appellants timely comply with a trial court’s
order to file a statement of errors complained of on appeal pursuant to Pa.R.A.P.



                                          5
1925. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005); Commonwealth v.
Schofield, 888 A.2d 771, 774 (Pa. 2005); Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1988).5 “[T]o emphasize the point that the intermediate appellate courts do not
have the discretion to countenance deviations from the Rule’s requirements,” the
Supreme Court “expressly voiced [its] disapproval of lower court decisions that had
created exceptions to the Rule’s bright-line nature.” Commonwealth v. Hill, 16 A.3d
484, 492 (Pa. 2011); see also Castillo, 888 A.2d at 780 (“disapprov[ing] of prior
decisions of the intermediate courts to the extent that they have created exceptions
to [Pa.R.A.P. 1925] and have addressed issues that should have been deemed
waived”). Based upon this precedent, this Court has been constrained to find issues
waived when a 1925(b) statement is untimely filed. See Jenkins, __ A.3d at __, slip
op. at 7; In Re: Clinton Cnty. Tax Claims Bureau Consol. Return for Sale of
Sept. 24, 2012, 109 A.3d 331, 335 (Pa. Cmwlth. 2015); Hapchuk v. Dep’t of Transp.,
Bureau of Motor Vehicles, 929 A.2d 656, 660 (Pa. Cmwlth. 2007); Commonwealth
v. Holtzapfel, 895 A.2d 1284, 1289 (Pa. Cmwlth. 2006).
        The Rules provide for a limited exception if an appellant can show good cause
for non-compliance.          Pursuant to Rule 1925(c)(2), “[u]pon 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.” Pa.R.A.P. 1925(c)(2). In his response

        5
          Castillo, Schofield, and Lord are criminal cases. In 2016, for all appeals except criminal
ones, the Appellate Court Procedural Rules Committee proposed amending Rule 1925(b) so that
waiver would not occur unless a deficiency in the 1925(b) statement “interferes with or effectively
precludes appellate review.” 46 Pa. Bull. 5886 (Sept. 17, 2016). In the proposed explanatory
comment, the Committee explained the proposed amendment was in response to the “harshness of
enforcing a bright-line rule that failure to file a timely Statement . . . will result in waiver.” Id. In
response to comments, the Committee revised its proposal a few months later to have the new
standard apply to all cases. 46 Pa. Bull. 7802 (Dec. 17, 2016). The Supreme Court has not adopted
the proposed amendment. Thus, under the current law, the bright-line rule remains in effect and
there is no distinction between criminal and civil appeals.


                                                   6
to the motion to quash, Appellant argues he was confused as to what issues he would
raise because he was without the benefit of the trial court’s opinion. While we
recognize it is difficult for a party, especially a pro se individual, to file a statement
of errors complained of on appeal without knowing the reasoning behind a trial
court’s decision, the Rules provide for this exact contingency. Rule 1925(b)(4)(vi)
provides:

      If the appellant in a civil case cannot readily discern the basis for the
      judge’s decision, the appellant shall preface the Statement with an
      explanation as to why the Statement has identified the errors in only
      general terms. In such a case, the generality of the Statement will not
      be grounds for finding waiver.

Pa.R.A.P. 1925(b)(4)(vi).
      Consistent with this Rule, our courts have held that a vague 1925(b) statement
is sometimes necessary when the record lacks the trial court’s reasoning, and in such
cases, a vague 1925(b) statement will not be grounds for waiver. In Ryan v. Johnson,
564 A.2d 1237, 1239 (Pa. 1989), the Supreme Court found that the Superior Court
erred in dismissing an appeal on the grounds that appellant filed a vague statement
of errors complained of on appeal, stating:

      Numerous issues were raised in the present case, and, inasmuch as the
      reasons for the court’s order do not appear in the record, there was no
      way for appellant to know which issues the court viewed favorably and
      which issues it had rejected. Indeed, there was no way to know whether
      the issues had even been considered by the court. Obviously, unless
      one knows the basis for a court’s order, there is no way to specifically
      challenge its rationale.

Id.
      In accordance with Ryan, the Superior Court has likewise acknowledged that
sometimes “an appellant may be forced to file a vague Rule 1925(b) statement.”
Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007) (emphasis in

                                            7
original). When the reasons for a trial court’s decision are not discernable from the
record, the Superior Court has held it would be “unjust to consider” a vague Rule
1925(b) statement a violation of the Rule. Id. “Just as the trial judge cannot be made
to guess what an appellant is complaining of on appeal, an appellant cannot be made
to guess what the trial judge is thinking in his or her ruling.”          Id. (quoting
Commonwealth v. Zheng, 908 A.2d 285, 288 (Pa. Super. 2006)). Thus, “under these
limited circumstances . . ., it is not appropriate to find waiver or dismiss the appeal
based on a vague Rule 1925(b) statement.” Id.
      Because the Rules provide a mechanism to file a generalized statement of
errors complained of on appeal when the basis for the trial court’s decision is not
readily discernable from the record, we cannot conclude Appellant had good cause
for not timely filing his Statement. Appellant could have done in February 2016
what he did in August 2016: file a Statement averring that summary judgment was
improper because discovery was outstanding and genuine issues of material fact
existed. Accordingly, we are constrained to grant Appellees’ motion to quash and
quash Appellant’s appeal on the basis that no issues have been preserved.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James A. Paluch, Jr.,                  :
                        Appellant      :
                                       :
                   v.                  :   No. 114 C.D. 2016
                                       :
Jeffrey A. Beard, William S.           :
Stickman III, Gerald L. Rozum,         :
Steven M. Gates, Allen G. Joseph,      :
Daniel Gehlmann, Mandy Biser,          :
Robert Snyder, Robert S. Bitner,       :
Donald Williamson, Melissa Hughes,     :
Timothy Lucas, Susan Darr and John     :
Doe Officer #1                         :


                                    ORDER


      NOW, March 12, 2018, the motion to quash filed by Jeffrey A. Beard,
William S. Stickman III, Gerald L. Rozum, Steven M. Gates, Allen G. Joseph,
Daniel Gehlmann, Mandy Biser, Robert Snyder, Robert S. Bitner, Donald
Williamson, Melissa Hughes, Timothy Lucas, Susan Darr, and John Doe Officer #1
(Appellees) is GRANTED, and the appeal of James A. Paluch, Jr., from the
December 30, 2015 Order of the Court of Common Pleas of Somerset County is
QUASHED.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
