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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PEOPLESBANK, A CODORUS VALLEY              IN THE SUPERIOR COURT OF
COMPANY                                          PENNSYLVANIA

                      Appellant

                 v.

KAREN HOLLAND AND THE KAREN
HOLLAND IRREVOCABLE TRUST

                      Appellee                  No. 453 MDA 2015


          Appeal from the Order Entered on February 19, 2015
             In the Court of Common Pleas of York County
                 Civil Division at No.: 2013-SU-302-06


PEOPLESBANK, A CODORUS VALLEY              IN THE SUPERIOR COURT OF
COMPANY                                          PENNSYLVANIA

                      Appellant

                 v.

KAREN HOLLAND AND THE KAREN
HOLLAND IRREVOCABLE TRUST

                      Appellee                  No. 454 MDA 2015


          Appeal from the Order Entered on February 19, 2015
             In the Court of Common Pleas of York County
                 Civil Division at No.: 2013-SU-301-06


PEOPLESBANK, A CODORUS VALLEY              IN THE SUPERIOR COURT OF
COMPANY                                          PENNSYLVANIA

                      Appellant

                 v.

KAREN HOLLAND, THE KAREN HOLLAND
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IRREVOCABLE TRUST, AND DAVID
STARR

                            Appellee                No. 1111 MDA 2014


                Appeal from the Order Entered on June 27, 2014
                 In the Court of Common Pleas of York County
                   Civil Division at No.: 2013-SU-000301-06


PEOPLESBANK, A CODORUS VALLEY                    IN THE SUPERIOR COURT OF
COMPANY                                                PENNSYLVANIA

                            Appellant

                       v.

KAREN HOLLAND, THE KAREN HOLLAND
IRREVOCABLE TRUST, AND DAVID
STARR

                            Appellee                No. 1147 MDA 2014


                Appeal from the Order Entered on June 27, 2014
                 In the Court of Common Pleas of York County
                   Civil Division at No.: 2013-SU-000302-06


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED DECEMBER 15, 2015

       PeoplesBank, a Codorus Valley Company (“PeoplesBank”) appeals the

June 27, 2014 orders granting David Starr’s exceptions to the proposed

schedules of distribution in these consolidated mortgage foreclosure actions.

PeoplesBank also appeals the trial court’s February 19, 2015 order denying

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*
       Retired Senior Judge assigned to the Superior Court.



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PeoplesBank’s motion for nunc pro tunc relief.          Because we find no legal

error or abuse of discretion in the latter, we do not reach the former. Thus,

we affirm.

       To resolve this case in its current procedural posture, we need not

recount the underlying facts or allegations in detail. In 2013, PeoplesBank

litigated two separate mortgage foreclosure actions against the Karen

Holland Irrevocable        Trust (“the     trust”).   PeoplesBank obtained final

judgments in those actions, and the properties were sold at a sheriff’s sale in

December 2013. Following the sale, a mechanic’s lien claimant, David Starr,

filed exceptions to the proposed schedules of distribution.         According to

Starr, PeoplesBank’s mortgages were invalid because only two of the trust’s

three trustees had signed them. On June 27, 2014, the trial court entered

orders sustaining Starr’s exceptions in each of the actions. The trial court

agreed that PeoplesBank’s mortgages were void, and held that Starr had

first priority to the sale’s proceeds.

       On July 3, 2014, PeoplesBank timely filed notices of appeal from the

trial court’s June 27, 2014 orders.1 On July 10, 2014, the trial court ordered

PeoplesBank to file concise statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Although PeoplesBank timely served copies

of its 1925(b) statement upon opposing counsel and the trial judge, it failed


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1
       We docketed those appeals at 1111 MDA 2014 and 1147 MDA 2014.



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to file the same with the prothonotary. On August 6, 2014, the trial court

filed a Pa.R.A.P. 1925(a) opinion.

          On January 16, 2015, this Court sua sponte remanded the cases back

to the trial court because we could not determine whether PeoplesBank

timely filed Rule 1925(b) statements. We explained as follows:

          Although the trial court quotes PeoplesBank’s 1925(b) statement
          in its Rule 1925(a) opinion, the statement is not contained within
          the certified record. Nor is there any indication on the trial
          court’s docket that PeoplesBank ever filed its Rule 1925(b)
          statements. In addition, this Court was unable to obtain a copy
          of PeoplesBank’s Rule 1925(b) statement through informal
          inquiry.

                                        ***

          Based upon our review of the record, we cannot discern if there
          is a valid explanation for PeoplesBank’s Rule 1925(b) statement
          being discussed by the trial court in its opinion, but not existing
          in the certified record. Accordingly, pursuant to Rule 1925(c)(1),
          we remand this case to the trial court. The trial court shall make
          a determination as to whether such statement was timely filed or
          whether, due to a breakdown in court operations or other
          extraordinary circumstances, nunc pro tunc relief is warranted.
          See Pa.R.A.P. 1925(b)(2) (stating, “[i]n extraordinary
          circumstances, the judge may allow for the filing of a Statement
          or amended or supplemental Statement nunc pro tunc[]”). Once
          the certified record is returned to this Court, the Prothonotary
          shall list this case before the next available oral argument panel.

Order, 1/16/2015, at 2-4 (footnote omitted).

          On February 17, 2015, PeoplesBank filed a motion for nunc pro tunc

relief.    On February 19, 2015, the trial court held a hearing to determine

whether PeoplesBank should be permitted to file its 1925(b) statement nunc

pro tunc.       At that hearing, counsel for PeoplesBank explained why the



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certified record did not contain PeoplesBank’s 1925(b) statement. According

to counsel, a “relatively new” paralegal in his office “kind of made a

mistake.” Notes of Testimony (“N.T.”), 2/19/2015, at 10, 12. The paralegal

mailed two copies of PeoplesBank’s 1925(b) statement to the trial court, one

of which she should have filed with the Prothonotary.             Counsel further

explained that the paralegal was under extreme stress at the time because

the Pennsylvania State Police had arrested her for driving under the

influence (“DUI”) about a week earlier, and she was afraid that she would

lose her job as a result.

      PeoplesBank    argued   that   these   facts   constitute    “extraordinary

circumstances,” and that the trial court should grant PeoplesBank nunc pro

tunc relief.   See Pa.R.A.P. 1925(b)(2) (stating that, “[i]n extraordinary

circumstances, the judge may allow for the filing of a Statement or amended

or supplemental Statement nunc pro tunc[]”).         At the conclusion of the

hearing, the trial court denied PeoplesBank’s motion for nunc pro tunc relief.

      On March 11, 2015, PeoplesBank timely filed a notice of appeal. The

trial court did not order PeoplesBank to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      PeoplesBank presents one issue in its appeal from the trial court’s

February 17, 2015 order: “Whether the trial court abused its discretion in

refusing to permit PeoplesBank to file its 1925(b) statement nunc pro tunc

because the procedural misstep by prior counsel constitutes non-negligent




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circumstances and does not warrant the total loss of PeoplesBank’s appellate

rights?” Brief for PeoplesBank at 4.

      The denial of an appeal nunc pro tunc is within the sound discretion of

the trial court, and we will only reverse for an abuse of that discretion.

Freeman v. Bonner, 761 A.2d 1193, 1194 (Pa. Super. 2000). “An abuse of

discretion occurs when a trial court, in reaching its conclusions, overrides or

misapplies the law, or exercises judgment which is manifestly unreasonable,

or the result of partiality, prejudice, or ill will.” U.S. Bank N.A. v. Mallory,

982 A.2d 986, 994 (Pa. Super. 2009).

      It is well settled that the untimely filing of a 1925(b) statement,

regardless of the length of the delay, generally results in waiver of all issues

on appeal.    See Commonwealth v. Castillo, 888 A.2d 775, 776 (Pa.

2005). In Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our Supreme

Court summarized and reiterated the consequences of failing to file a timely

concise statement:

      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; any issues not raised in a Rule 1925(b) statement will
      be deemed waived; the courts lack the authority to countenance
      deviations from the Rule’s terms; 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; Rule 1925 violations may be raised by
      the appellate court sua sponte, and the Rule applies
      notwithstanding an appellee’s request not to enforce it; and, if
      Rule 1925 is not clear as to what is required of an appellant, on-
      the-record actions taken by the appellant aimed at compliance
      may satisfy the Rule. We yet again repeat the principle first
      stated in Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998),


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         that must be applied here: “[I]n order to preserve their claims
         for appellate review, [a]ppellants must comply whenever the
         trial court orders them to file a Statement of Matters Complained
         of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised
         in a Pa.R.A.P. 1925(b) statement will be deemed waived.”
         719 A.2d at 309.

Id. at 494 (citation modified).     Moreover, the mandate of Rule 1925(b) is

not satisfied when an appellant merely serves the trial judge with a copy of

his or her concise statement, but fails to file it with the clerk of courts.

Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002).

         Even after the Supreme Court’s decision in Lord, narrow exceptions to

Rule 1925(b) waiver remain.         The case sub judice implicates one such

exception.     PeoplesBank does not dispute that it failed to file a concise

statement with the York County Prothonotary. Instead, PeoplesBank argues

that the trial court should have granted it equitable relief in the form of the

filing of a Rule 1925(b) statement nunc pro tunc. See Brief for PeoplesBank

at 14.

         Our Supreme Court has characterized the purpose of nunc pro tunc

restoration of appellate rights as follows:

         Allowing an appeal nunc pro tunc is a recognized exception to
         the general rule prohibiting the extension of an appeal deadline.
         This Court has emphasized that the principle emerges that an
         appeal nunc pro tunc is intended as a remedy to vindicate the
         right to an appeal where that right has been lost due to certain
         extraordinary circumstances. Generally, in civil cases an appeal
         nunc pro tunc is granted only where there was fraud or a
         breakdown in the court’s operations through a default of its
         officers.




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Union Elec. Corp. v. Bd. Of Prop. Assessments, Appeals & Review

of Allegheny Cty., 746 A.2d 581, 584 (Pa. 2000) (citations and internal

quotation marks omitted).

      Initially, an appeal nunc pro tunc was limited to circumstances in
      which a party failed to file a timely notice of appeal as a result of
      fraud or a breakdown in the court’s operations. West Penn
      Power Co. v. Goddard, 333 A.2d 909, 912 (Pa. 1975) (the
      time for taking an appeal will not be extended as a matter of
      grace or mere indulgence).          In Bass v. Commonwealth
      Bureau of Corrections, 401 A.2d 1133 (Pa. 1979), however,
      [the Pennsylvania Supreme] Court found that where an
      appellant, an appellant’s counsel, or an agent of appellant’s
      counsel has failed to file a notice of appeal on time due to non-
      negligent circumstances, the appellant should not lose his day in
      court. Id. at 1135. Therefore, the Bass Court expanded the
      limited exceptions for allowing an appeal nunc pro tunc to permit
      such an appeal where the appellant proves that: (1) the
      appellant’s notice of appeal was filed late as a result of non-
      negligent circumstances, either as they relate to the appellant or
      the appellant’s counsel; (2) the appellant filed the notice of
      appeal shortly after the expiration date; and (3) the appellee
      was not prejudiced by the delay. See id. at 1135-36 (allowing
      appellant to appeal nunc pro tunc where appeal was filed four
      days late because appellant’s attorney placed the notice of
      appeal on the desk of the secretary responsible for ensuring that
      appeals were timely filed and the secretary became ill and left
      work, not returning until after the expiration of the period for
      filing an appeal); see also Cook v. Unemployment Comp. Bd.
      of Review, 671 A.2d 1130, 1132 (Pa. 1996) (granting appeal
      nunc pro tunc where claimant filed appeal four days late because
      he was hospitalized).

Criss v. Wise, 781 A.2d 1156, 1159-60 (Pa. 2001).

      Although Bass and its progeny appertained to a party’s failure to file a

timely notice of appeal, the Supreme Court has extended Bass’s “non-

negligent circumstances” exception to apply equally when a party fails to file



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a timely concise statement.     In 2007, the Pennsylvania Supreme Court

amended our Rules of Appellate Procedure. Among other changes, the Court

added   Rule   1925(b)(2),    which    provides   that,   “[i]n   extraordinary

circumstances, the judge may allow for the filing of a Statement or amended

or supplemental Statement nunc pro tunc.”         Pa.R.A.P. 1925(b)(2).    The

commentary to this provision explains as follows:

      In general, nunc pro tunc relief is allowed only when there has
      been a breakdown in the process constituting extraordinary
      circumstances. See, e.g., In re Canvass of Absentee Ballots
      of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1234 (Pa.
      2004) (“We have held that fraud or the wrongful or negligent act
      of a court official may be a proper reason for holding that a
      statutory appeal period does not run and that the wrong may be
      corrected by means of a petition filed nunc pro tunc.”)[.] Courts
      have also allowed nunc pro tunc relief when “non-negligent
      circumstances, either as they relate to appellant or his counsel”
      occasion delay. McKeown v. Bailey, 731 A.2d 628, 630 (Pa.
      Super. 1999). However, even when there is a breakdown in the
      process, the appellant must attempt to remedy it within a “very
      short duration” of time. Id.; Amicone v. Rok, 839 A.2d 1109,
      1113 (Pa. Super. 2003) (recognizing a breakdown in process,
      but finding the delay too long to justify nunc pro tunc relief).

Pa.R.A.P. 1925(b)(2) cmt.

      PeoplesBank argues that the trial court abused its discretion in denying

nunc pro tunc relief because, as in Bass, non-negligent circumstances

occasioned its filing delay. We disagree.

      Most recently, in Criss, our Supreme Court revisited the non-negligent

circumstances exception and limited it to unique and compelling cases where

the appellant clearly established that he attempted to file an appeal, but

unforeseeable and unavoidable events prevented him from doing so. Criss,

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781 A.2d at 1160.      There, counsel mailed her notice of appeal to the

Prothonotary approximately six days before the expiration of the appeal

period.   Nevertheless, the notice of appeal arrived at the Prothonotary’s

office two days late. The trial court denied counsel’s petition for nunc pro

tunc relief. On appeal, the Supreme Court held that “delays in the U.S. mail

are both foreseeable and avoidable, Appellee’s failure to anticipate a

potential delay in the mail was not such a non-negligent circumstance for

which an appeal nunc pro tunc may be granted.” Id.

      The case sub judice is analogous to Criss. PeoplesBank’s attempt to

file its 1925(b) statement was not thwarted by an unforeseeable and non-

negligent event.   Whereas a sudden illness is serendipitous, see Bass,

supra, depositing paperwork into the wrong envelope bespeaks negligence.

Counsel emphasizes that his paralegal was under “extreme emotional stress”

following her DUI related arrest. See Brief for PeoplesBank at 16. But, this

is irrelevant. The paralegal’s arrest and/or her residual anxiety following it

did not physically preclude her from correctly addressing an envelope to the

Prothonotary, while still allowing her to address an envelope to the trial

judge. See Criss, 781 A.2d at 1160 (“The exception . . . is meant to apply

only in unique and compelling cases in which the appellant has clearly

established that she attempted to file an appeal, but unforeseeable and

unavoidable events precluded her from actually doing so.”). Furthermore, a

DUI related arrest is neither unforeseeable nor unavoidable.        See id.;

compare Bass, 401 A.2d at 1135 (“This principle can be illustrated by

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assuming that an attorney, while on his way to the Prothonotary’s Office to

file an appeal has an unexpected heart attack[.]”).      PeoplesBank’s broad

reading of the non-negligent circumstances exception would swallow the rule

that the untimely filing of a 1925(b) statement results in waiver of all issues

on appeal.2 See Castillo, 888 A.2d at 776.

       PeoplesBank has failed to demonstrate that its failure to file a concise

statement was the result of anything other than negligence on the part of

counsel and/or his staff. Accordingly, the trial court did not err or abuse its

discretion in denying PeoplesBank’s motion for nunc pro tunc relief. To hold

otherwise would create, as Justice Samuel Roberts warned in his dissenting

opinion is Bass, “a new and unnecessary layer of delay, mandating a special

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2
       Even if PeoplesBank could demonstrate that non-negligent
circumstances prevented it from filing a concise statement, its claim still
would be without merit. Rule 1925 makes clear that nunc pro tunc relief
should be granted only when an appellant attempts to remedy his or her
failure within “a very short duration of time.” Pa.R.A.P. 1925(b)(2) cmt.
Here, we sua sponte alerted the parties to PeoplesBank’s missing 1925(b)
statement more than five months after PeoplesBank failed to comply with
the trial court’s concise statement order. See Order, 1/16/2015, at 2-4.
Prior to our order, PeoplesBank made no effort to remedy its failure.
Instead, PeoplesBank submitted a civil docketing statement to this Court,
wherein it incorrectly stated that it had filed its Rule 1925(b) statement with
the Prothonotary on July 21, 2014.             See Superior Court Docketing
Statement, 1111 MDA 2014, 7/23/2014, at 1. Thereafter, PeoplesBank
submitted two revised docketing statements.               Therein, PeoplesBank
incorrectly stated that it had filed its Rule 1925(b) statement with the
Prothonotary on August 22, 2014.              See Superior Court Docketing
Statement, 1111 MDA 2014, 8/27/2014, at 1; Superior Court Docketing
Statement, 1147 MDA 2014, 8/27/2014, at 1. To this day, PeoplesBank has
not filed a copy of its Rule 1925(b) statement with the Prothonotary.



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inquiry whenever an appeal is untimely filed.”   Bass, 401 A.2d at 1137

(Roberts, J., dissenting).

      Because we conclude that the trial court did not err or abuse its

discretion in denying PeoplesBank’s motion for nunc pro tunc relief, we do

not reach the merits of the appeals docketed at 1111 MDA 2014 and 1147

MDA 2014. See Castillo, 888 A.2d at 776 (holding that the untimely filing

of a 1925(b) statement, regardless of the length of the delay, generally

results in waiver of all issues on appeal).

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015




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