        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clad Management, LLC, Clad Realty,      :
LLC and Clad Realty, LP,                :
                       Appellants       :
                                        :
                   v.                   :   No. 819 C.D. 2016
                                        :   Submitted: December 30, 2016
Commonwealth of Pennsylvania,           :
Department of Transportation            :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                     FILED: April 3, 2017


      Clad Management, LLC, Clad Realty, LLC, and Clad Realty, LP
(collectively, Clad) appeal from the May 17, 2016 Order entering judgment on a
jury verdict in Clad’s favor in the amount of $2,200,000 for the taking of its
property by eminent domain by the Commonwealth of Pennsylvania, Department
of Transportation (Department). On appeal, Clad argues that it should be granted a
new trial because the jury instructions given by the Court of Common Pleas of
York County (common pleas) improperly placed the burden on Clad to prove the
amount of just compensation for its property by a preponderance of the evidence,
and, by extension, disprove the Department’s valuation, and it suffered prejudice
as a result. The Department asserts that these arguments are waived for not raising
them before common pleas and, alternatively, that the jury instructions, when taken
as a whole, were fair, accurate, and consistent with the law.
      It is undisputed that, on November 26, 2013, the Department filed a
Declaration of Taking for the property owned by Clad located at 1162 Haines
Road, Springettsbury Township, York County, Pennsylvania (Property). (R.R. at
1a-5a.) The Property is 3.241 acres, and was improved with a Budget Host Motel,
a commercial building with two tenants, and a miniature golf course leased to
another tenant. (Board of Viewers Report, R.R. at 9a-10a.) Following a hearing,
an appointed Board of Viewers issued a report and award setting the value of the
Property at the time of the taking at $2,500,000, and the Department appealed. (Id.
at 9a-16a.)
      A jury trial was held from November 18, 2015 to November 20, 2015. Clad
presented the report and testimony of an expert valuing the Property at $2,700,000,
and the testimony of one of its owners, who set the value of the Property at
$3,050,000. (Id. at 113a-230a.) The Department presented the opinion of its
expert that the Property’s value was $1,969,700.                  (Id. at 249a-86a.)   Clad
challenged the Department’s expert’s valuation based on the expert’s use of the
hotel expense factor to all of the Property’s revenue stream. (R.R. at 599a-601a.)
When asked what the value would be if it was used against only the hotel’s
revenue, the expert stated it would increase the value by $235,000. (Id.)
      At the close of the evidence, common pleas charged the jury with multiple
instructions regarding the jurors’ obligations to determine the facts of the case, the
credibility of the witnesses and evidence presented, and, ultimately, the fair market
value of the Property just prior to its condemnation.1 (Id. at 487a-500a, 506a-07a.)

      1
          Common pleas’ jury instructions span more than 13 pages of the transcript.

                                                2
Common pleas explained what “fair market value” is and that, in making its
determination, the jury did not have to accept the valuations given by the experts in
their entirety, but could come up with its own valuation based on the record
evidence. (Id. at 490a, 506a.) Clad asserts that it objected to the following
instruction:

             Now, under the law in a civil case, I mentioned earlier to you
      that [Clad] has the burden of proving its claims. This is not a criminal
      case. It is a civil case. The burden of proof in a civil case is different
      from the burden of proof in a criminal case. In a civil case such as
      this, the Plaintiff, Clad, must prove its right to - - its claim for
      damages by what we call preponderance of the evidence. That means
      it is more likely true than not, and I talked to you about the balance
      scale concept. You are going to put evidence that you find favorable
      to Clad with regard to the fair market value in one pan and the
      evidence that you find favorable to the [Department] in the other pan,
      and if that pan tips even the slightest degree in favor of Clad, they
      have proved their fair market value. If it stays equally balanced or
      tips even the slightest degree to [the Department], then they have
      proved the fair market value.

(Id. at 490a-91a.) Common pleas then stated:

             There’s no burden on Clad in this case to prove that a taking
      occurred. That’s been admitted, and there is no burden that they
      prove that they were injured or harmed or damaged by the taking.
      That’s admitted too. The dispute we have here is the amount of
      damages to be awarded. Both sides have offered evidence as to the
      fair market value of the property as of November 26, 2013, and it is
      up to you to decide how much Clad should be awarded for that taking.

(Id.)2 Following deliberation, the jury returned with a verdict in the amount of
$2,200,000. Clad filed a Motion for Post-Trial Relief seeking a new trial, (R.R. at


      2
          In a side bar, the following exchange occurred:

                                                                       (Continued…)
                                                 3
481a-84a), but no ruling was issued on those motions within the time prescribed by
Rule 227.4(1)(b) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No.
227.4(1)(b) (setting forth the time period after which post-trial motions are deemed
denied if the court does not issue an order disposing of the motions), and, thus,
were deemed denied. Clad filed a praecipe for judgment, and the York County
Prothonotary (Prothonotary) entered notice of judgment by Order dated May 17,
2016.
        Clad appealed and common pleas, in an order docketed on May 25, 2016,
directed Clad to file a Concise Statement of Errors Complained of on Appeal


        [Clad’s counsel]: With respect to the burden charge, I think you may have just
        flipped exactly what it was. We do not have the burden to prove the extent of our
        damages.

        The Court: That’s what I said.

        [Clad’s counsel]: Maybe then I misheard.

        The Court: I will tell you what I said. Said there is no burden on Clad to prove
        that the taking occurred or the damages resulted. Clad must prove by [a]
        preponderance of the evidence the amount of damage to which it is entitled.

        [Clad’s counsel]: Then I misheard I apologize.

(R.R. at 501a.) Subsequently, Clad objected as follows:

        [Clad’s counsel]: One other thing. I understand you have addressed the issue. I
        just want to preserve the point that our view of the matter is we do not have the
        responsibility to prove that our number is more likely credible than the
        [Department’s], and again I believe that was the substance of your charge.

        The Court: Well, see I - - and I think when I told the jury that both of you have
        produced evidence with regard to the fair market value, I think that I covered that.

(Id. at 504a-05a.)

                                                 4
pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure
(Statement), Pa. R.A.P. 1925(b). (R.R. at 539a.) In its order, common pleas
advised Clad that it had to

      strictly comply with Pa.[]R.A.P. 1925(b). [Clad] shall file of record
      and serve on the undersigned Judge a Concise Statement of the errors
      complained of on appeal (Statement) within twenty-one (21) days
      from the date of the entry of this Order on the docket of the
      Prothonotary . . . . Any issue not properly included in the Statement
      and timely filed and served pursuant to Pa.[]R.A.P. 1925(b) shall be
      deemed waived.

(R.R. at 539a-40a (emphasis added).) According to the Docket and the time stamp
on the Statement, Clad filed its Statement with the Prothonotary on June 14, 2016.
(Id. at 541a-42a; Docket at 1.)      In the Statement, Clad challenged the jury
instruction referenced above as improperly placing on Clad the “burden of proving
the amount of just compensation by a preponderance of the evidence” and that it
suffered prejudice due to this error “because the jury returned a verdict equal to the
amount of [the Department’s] asserted valuation plus the amount by which [Clad]
could prove by a preponderance of the evidence that [the Department’s] evidence .
. . was demonstrably wrong.” (R.R. at 541a-42a.)
      Common pleas, in its opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 1925(a), concluded that these issues may
be deemed waived because Clad did not serve the Statement upon the trial judge
within 21 days of its order for a concise statement and Clad did not request leave to
serve it upon the trial judge beyond that time period. (Common pleas 1925(a) op.
(Op.) at 2.) Rather, common pleas was not served with the Statement until August




                                          5
10, 2016, after the 21 days had expired.3 (Id.) Common pleas then analyzed
Clad’s argument that its jury instruction was improper. Common pleas explained
that the instruction used was similar to the one approved by this Court in Fink v.
Commonwealth, 482 A.2d 281 (Pa. Cmwlth. 1984), and that, when its instructions
were taken as a whole, it was clear to the jury that it was “tasked with determining
damages based on the evidence presented” by both parties regarding the fair
market value of the Property prior to the condemnation. (Op. at 2-3.) Common
pleas stated that “it appears from the outcome that the jury was simply persuaded
by the evidence produced by the [Department].” (Id. at 3.) The matter is now
before this Court for disposition.4
       We first consider whether the appeal must be quashed because Clad
untimely served its Statement on the trial judge and, therefore, waived all of the
issues raised therein. Rule 1925 provides, in relevant part, the following:

              (a) Opinion in support of order.

             (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.
             ....


       3
         Although common pleas indicated in its opinion that the Statement was not filed until
July 14, 2016, this appears to be a mistake because both the Docket and the date stamp on the
Statement indicate the filing date was June 14, 2016.
       4
         “Our scope of review regarding a denial of post-trial motions” based on a common
pleas court’s jury instruction is whether there was an abuse of discretion or an error of law.
Johnson v. City of Phila., 808 A.2d 978, 980 n.1 (Pa. Cmwlth. 2002).

                                              6
      (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”).

       (1) Filing and service.--Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of record and
service on the judge shall be in person or by mail as provided in
Pa.[]R.A.P. 121(a) and shall be complete on mailing if appellant
obtains a United States Postal Service Form 3817, Certificate of
Mailing, or other similar United States Postal Service form from
which the date of deposit can be verified in compliance with the
requirements set forth in Pa.[]R.A.P. 1112(c). Service on parties shall
be concurrent with filing and shall be by any means of service
specified under Pa.[]R.A.P. 121(c).

       (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);
                                    7
               (iv) that any issue not properly included in the Statement timely
               filed and served pursuant to subdivision (b) shall be deemed
               waived.

               (4) Requirements; waiver.
               ....

               (vii) Issues not included in the Statement and/or not raised in
               accordance with the provisions of this paragraph (b)(4) are
               waived.

Pa. R.A.P. 1925 (underlined emphasis added). “Rule 1925(b) sets out a simple
bright-line rule, which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered.” Com. v. Hill, 16 A.3d 484, 494 (Pa. 2011) (emphasis
added).   “[F]ailure to comply with the minimal requirements of Pa.[]R.A.P.
1925(b) will result in automatic waiver of the issues raised,” even where granting
relief has equitable appeal. Com. v. Schofield, 888 A.2d 771, 774 (Pa. 2005). The
Supreme Court has explained that requiring “a bright-line rule eliminates the
potential for the inconsistent results that existed prior to [Commonwealth v.] Lord,
[719 A.2d 306 (Pa. 1998),] when trial courts and appellate courts had discretion to
address or to waive issues raised in non-compliant Pa.[]R.A.P. 1925(b)
statements.” Schofield, 888 A.2d at 774. Accordingly, “the Rule’s provisions are
not subject to ad hoc exceptions or selective enforcement[,] appellants and their
counsel are responsible for complying with the Rule’s requirements.” Hill, 16
A.3d at 494.
      In Egan v. Stroudsburg School District, 928 A.2d 400, 402 (Pa. Cmwlth.
2007), we held that, although the appellant timely filed her 1925(b) statement, she
did not serve it on the trial judge as directed and, therefore, had waived all of her
issues for appellate review.      We agreed, in Egan, with the Superior Court’s

                                           8
rationale in Forest Highlands Community Association v. Hammer, 879 A.2d 223,
229 (Pa. Super. 2005), that “neither the Rules of Appellate Procedure nor the
applicable case law placed the burden of locating an appellant’s 1925(b) statement
on the trial court.” Egan, 928 A.2d at 402. In Commonwealth v. $766.00 U.S.
Currency, 948 A.2d 912, 915 (Pa. Cmwlth. 2008), we reiterated that Rule 1925(b)
requires that, to preserve issues for appellate review, the 1925(b) statement must be
timely filed and served on the trial judge. This Court held that finding all of the
appellant’s issues waived for not complying with Rule 1925(b)’s requirements is
consistent with “the Supreme Court’s commitment to a bright-line rule of waiver
for failure to comply with the requirements of Rule 1925.” Id.
       Common pleas’ May 25, 2016 order complied with the requirements of Rule
1925(b)(3) in that it ordered Clad that, within 21 days, it had to “file of record and
serve on the undersigned Judge a Concise Statement of the errors complained of
on appeal” and that “[a]ny issue not properly included in the Statement and timely
filed and served pursuant to Pa.[] R.A.P. 1925(b) shall be deemed waived.”5 (R.R.
at 539a (emphasis added).) Although Clad timely filed the Statement with the
Prothonotary on June 14, 2016, the trial judge was not served with the Statement
until August 10, 2016. (Op. at 2.) August 10, 2016, is 77 days after May 25, 2016,
the date common pleas’ order directing Clad to file and serve its Statement was


       5
          Thus, this is not like the situation in Berg v. Nationwide Mutual Insurance Company,
Inc., 6 A.3d 1002 (Pa. 2010) (per curiam). In Berg, the Supreme Court held that the failure to
personally serve a 1925(b) statement on the trial judge did not result in the waiver of all of the
issues because personal service was attempted, but was thwarted by the prothonotary, and the
order directing the appellant to file a 1925(b) statement did not comply with the requirements of
Rule 1925(b)(3)(iii) because it did not specifically require that the statement be served on the
trial judge or give notice that issues not included in the statement would be waived as required
by Rule 1925(b)(3)(iv). Berg, 6 A.3d at 1008-11.

                                                9
docketed. Thus, the Statement was not served within the 21-day period required
by common pleas’ order, (R.R. at 539a), and Rule 1925(b)(2). While this matter
differs from those where the trial judge was not served with the 1925(b) statement
at all, Rule 1925(b) requires both filing of the 1925(b) statement and service of that
statement on the undersigned judge within the time set forth in the order. The
deadlines in Rule 1925(b) are unambiguous and a 1925(b) statement “is either
timely or it is not.” Tucker v. R.M. Tours, 977 A.2d 1170, 1173 (Pa. 2009).
Because an untimely served statement “fail[s] to comply with the minimal
requirements of Pa.[]R.A.P. 1925(b)[, it] will result in automatic waiver of the
issues raised.” Schofield, 888 A.2d at 774.
       Clad offers no argument in response to common pleas’ determination that all
of its issues are deemed waived for Clad’s failure to timely serve the trial judge
with the Statement and, in fact, Clad’s brief makes no reference to its Statement.6
Clad does not assert that its service on the trial judge was timely, point to any
United States Postal Service Form 3817 or other Certificate of Mailing proving
that it timely served the trial judge via mail, present any explanation for the
untimely service, or request that this Court remand based on good cause as
authorized by Rule 1925(c)(2).7 Applying the bright-line waiver standard for non-
compliance with Rule 1925(b) that is consistently enforced by our Supreme Court,


       6
          The Department similarly does not reference common pleas’ determination in this
regard. However, common pleas certainly raised the timeliness of the service of the Statement in
its 1925(a) opinion and, moreover, “Rule 1925 violations may be raised by the appellate court
sua sponte.” Hill, 16 A.3d at 494.
        7
          Rule 1925(c)(2) provides: “Upon 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
or for amendment or supplementation of a timely filed and served Statement and for a concurrent
supplemental opinion.” Pa. R.A.P. 1925(c)(2).

                                              10
because Clad did not serve the trial judge with its Statement within the 21 days set
forth in Rule 1925(b)(2) and the May 25, 2016 order, all of the issues raised therein
are waived.8

       8
          Even if we did not quash Clad’s appeal or find that Clad’s argument was not waived,
Clad would not prevail in its appeal. Clad relies on Morrissey v. Commonwealth, Department of
Highways, 225 A.2d 895 (Pa. 1967) and Redevelopment Authority of Philadelphia v. United
Novelty & Premium Co., Inc., 314 A.2d 553 (Pa. Cmwlth. 1973), to argue that the portion of the
jury instruction challenged instructed the jury that Clad had to disprove the Department’s
valuation evidence and impermissibly infringed upon the jury’s fact finding function by crediting
the Department’s evidence. The jury charge at issue in Morrissey stated that the condemnees
had to “prove by a fair preponderance of the credible evidence, that the damages are greater than
that which the State’s evidence shows.” Morrissey, 225 A.2d at 897 (quotation marks omitted).
The Supreme Court concluded that the trial judge, based on that instruction, “usurp[ed] the
power and function of the jury” by “plac[ing] its imprimatur of approval on the convincing
nature and believability of the Commonwealth’s opinion evidence.” Id. at 899. This prejudiced
the condemnees and warranted a new trial. Id. In United Novelty, the jury charge indicated that
as between the condemnee’s expert and the condemnor’s expert, the condemnee had the “duty . .
. to show by a preponderance of [the] testimony that [its expert] is right.” United Novelty, 314
A.2d at 558 (quotation marks omitted). The trial judge also characterized the condemnee’s
expert as being “a young man, not with too many years of experience.” Id. at 559. This Court
held that it was not an abuse of discretion for the trial court to order a new trial based on, inter
alia, including the misleading jury instructions and comments regarding condemnee’s expert
witness. Id.
        “The correctness and adequacy of a” jury charge must be determined by considering the
“entire charge and not just excerpts therefrom.” Felix v. Baldwin-Whitehall Sch. Dist., 289 A.2d
788, 790 (Pa. Cmwlth. 1972). “There is no question that the burden [is] on condemnees to prove
that, by reason of the taking of a portion of their property, the value of their property has been
impaired.” Morrissey, 225 A.2d at 897; see also Glider v. Commonwealth, Dep’t of Highways,
255 A.2d 542, 545 (Pa. 1969) (stating “[i]n the instant case, the burden of proving damages was
on the condemnees, not the condemnor”). A jury instruction is proper and does not offend
Morrissey if it does “not take from the jury its function of passing upon the weight of [the
condemnor’s witness’] testimony [or] in its instruction . . . place any imprimatur of approval on
the believability of the [condemnor’s] opinion evidence.” Sweeney v. Urban Redevelopment
Auth. of Pittsburgh, 235 A.2d 143, 144 (Pa. 1967). Similarly, we have held that a jury charge
that included a burden of proof statement was not erroneous and, even if it was, the “charge as a
whole was free from error on the basic issue of just compensation and properly placed before the
jury the question of damages caused by the taking.” Fink, 482 A.2d at 300-01.
        Reviewing common pleas’ jury instruction in its entirety, we discern no error. The jury
instructions clearly advised the jury that Clad did not have to prove that a taking occurred or that
                                                                                  (Continued…)
                                                11
       Accordingly, we are constrained to quash Clad’s appeal.9




                                                 ________________________________
                                                 RENÉE COHN JUBELIRER, Judge




it sustained damages; rather Clad had to prove the extent of those damages by a preponderance
of the evidence. (R.R. at 490a-91a.) Common pleas further instructed the jury that it did not
have to accept the experts’ opinions as to value, but could, in its role as fact finder, review both
parties’ evidence and come to its own conclusion on the Property’s fair market value. (R.R. at
488a, 491a-92a, 494a-95a, 506a.) Finally, common pleas expressly stated that the jury was the
only judge of the facts and credibility and that the jury should not think that anything common
pleas said or did “was an attempt to indicate what [its] opinion” was because it was up to the jury
to decide the matter. (R.R. at 492a-94a, 497a-98a.) Taken as a whole, the challenged jury
instruction here did not offend Morrissey or United Novelty.
        9
          This Court previously quashed an appeal for failing to timely serve the trial judge with a
1925(b) statement notwithstanding the fact that the statement had been timely filed of record.
See Boyle v. Mahoning Dissolution Corp. (Pa. Cmwlth., No. 1021 C.D. 2009, filed Oct. 6, 2009)
(quashing an appeal because, notwithstanding the timely filing of a 1925(b) statement, the
appellant failed to timely serve the trial judge with that statement within 21 days resulting in the
waiver of all of the issues on appeal); 210 Pa. Code § 69.414(a) (An unreported opinion of this
Court filed after January 15, 2008, is not precedential but may be considered persuasive).

                                                12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clad Management, LLC, Clad Realty,      :
LLC and Clad Realty, LP,                :
                       Appellants       :
                                        :
                  v.                    :   No. 819 C.D. 2016
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation            :



                                   ORDER


      NOW, April 3, 2017, because Clad Management, LLC, Clad Realty, LLC,
and Clad Realty, LP did not timely serve its Concise Statement of Errors
Complained of on Appeal on the trial judge as required by Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b), there are no issues
preserved for appellate review, and the above-captioned appeal is hereby quashed.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
