J. S15033/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BARBARA LADYANSKY,                      :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :         No. 3373 EDA 2017
ARIA HEALTH SYSTEM &                    :
TOWNE PARK LTD.                         :


           Appeal from the Judgment Entered November 3, 2017,
            in the Court of Common Pleas of Philadelphia County
              Civil Division at No. January Term, 2016 No. 2550


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 08, 2018

      Barbara Ladyansky appeals the November 3, 2017 judgment entered

in favor of Aria Health System (“Aria”) in the Court of Common Pleas of

Philadelphia County. After careful review, we affirm.

      The relevant facts and procedural history, as found by the trial court,

are as follows:

            This appeal filed, by [appellant], stems from this
            Court’s September 12, 2017 denial of [appellant’s]
            Amended Post-Trial Motion, after a jury verdict on
            July 18, 2017 in favor of [Aria] regarding
            [appellant’s] premises liability-based suit, in which
            she claimed that Aria’s purportedly negligent
            behavior had caused her to suffer injuries. . . .

            The relevant facts in this matter are as follows: On
            October 13, 2014, [appellant] visited Aria’s Medical
            Office Building (“MOB”), located at 3998 Red Lion
            Road, Philadelphia, PA, for an appointment with
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          Dr. Richmond,      who     is   an    ophthalmologist.
          Dr. Richmond administered eye drops of some sort
          to [appellant] during the course of the checkup,
          thereby dilating her pupils in order to facilitate a
          proper assessment of her visual acuity.           After
          Dr. Richmond completed his testing, [appellant] was
          given dark, oversized glasses, in order to shield her
          sensitive and still-dilated pupils from light, and was
          sent on her way. [Appellant] then went outside with
          Steven Ladyansky, her then-husband, whereupon a
          valet retrieved their vehicle and parked it in the
          driveway adjacent to the sidewalk in front of MOB’s
          main entrance, near a wheelchair ramp that sloped
          downwards from the sidewalk to the driveway below.
          As she moved towards the car’s passenger side,
          [appellant] incorrectly assumed that she was walking
          on the ramp, an error which caused her to step off
          the edge of the sidewalk’s curb and fall “hard” to the
          ground, fracturing her left ankle and fibula in the
          process. Subsequently, [appellant] sued Aria and
          Towne Park, Ltd. (“Towne Park”) on January 21,
          2016, claiming therein that Aria and Towne Park
          were liable for the injuries she had suffered, due to
          these entities’ purportedly negligent acts and
          omissions pertaining to, respectively, maintenance of
          the sidewalk area on which she had fallen, and
          operation of the valet service.

          ....

          This matter subsequently proceeded to a jury trial
          before this Court, beginning on July 17, 2017 with
          Aria as the sole defendant.[Footnote 4] Just prior to
          opening arguments, this Court heard oral argument
          from the parties regarding the Second MIL, during
          the course of which [appellant] maintained that Aria
          had violated Pa.R.C.P. 4017 and, in addition, that
          she had been prejudiced by the tardy discovery of
          the transcript omission, by virtue of her expert
          witness’ reliance on the original while creating his
          report. Ultimately, this Court denied the Second
          MIL. . . .




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                  [Footnote 4] [Appellant] discontinued her
                  suit as to Towne Parke via a stipulation
                  that was submitted on July 13, 2017 and
                  approved by this Court on July 18, 2017.

Trial court opinion, 11/27/17 at 1-4 (citations to record and all other

footnotes omitted).

      On July 18, 2017, the jury returned a verdict in favor of Aria and

against appellant on the basis that Aria had not committed negligence in

connection with appellant’s fall.

      On July 27, 2017, appellant filed post-trial motions. She then filed an

amended post-trial motion on July 28, 2017.        The trial court denied the

amended post-trial motion on September 12, 2017. Appellant filed a notice

of appeal on October 2, 2017.

      The trial court explained the subsequent procedural history:

            Pursuant to Pa.R.A.P. 1925(b), this Court then
            docketed an order on October 5, 2017, directing
            [appellant] “to file of record with the First Judicial
            District’s Office of Judicial Records, and serve upon
            this Court and all parties in interest, a concise and
            itemized Statement of Errors Complained of not late
            [sic] than twenty-one (21) days after the date of this
            order’s docketing,” cautioning her in this order that
            “any issue that is not included in a timely filed and
            served, concise and itemized statement shall be
            deemed waived.”[Footnote 8] Thus, [appellant] had
            until October 26, 2017 to fully comply with this
            order. Despite this, and though it appears that
            [appellant] did electronically docket her Statement of
            Errors on October 6, 2017 with the First Judicial
            District’s Office of Judicial Records, she neglected to
            contemporaneously serve a copy of this Statement
            upon this Court and subsequently did not remedy her



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            noncompliance, thus failing to fulfill the explicit
            requirements of this Court’s October 3, 2017 order.

                   [Footnote 8] This Court issued this order
                   on October 3, 2017; however, for
                   reasons unknown, it was not docketed
                   until two days later.

Trial court opinion, 11/27/17 at 6-7.

      Appellant raises the following issues for this court’s review:

            1.     Should [a]ppellant’s [a]ppeal be quashed
                   pursuant to the [trial c]ourt’s October 3, 2017
                   Order?

            2.     Did the [t]rial [c]ourt err in denying
                   [appellant’s] Second Motion in Limine,
                   thereby admitting evidence of a “corrected”
                   deposition      transcript      when        under
                   Pa.R.Civ.P. 4017(b), [Aria] waived its objection
                   to the correctness of the original transcript?

            3.     Did the [t]rial [c]ourt err in permitting Counsel
                   for [Aria] to play a portion of the audio
                   recording of [appellant’s] deposition testimony
                   during cross-examination?

Appellant’s brief at 4.

      Initially, appellant argues that her appeal should not be quashed

because she substantially complied with the order to serve the concise

statement of errors complained of on appeal with the trial judge because she

filed a copy with the Court of Common Pleas of Philadelphia County and

because she had earlier served a supplemental brief with the trial judge on

August 21, 2017, which also placed the trial judge on notice of the issues on

appeal.



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      First, this court does not agree that a supplemental brief in support of

a post-trial motion filed over a month before the trial judge ordered that he

be served with a copy of the concise statement of errors complained of on

appeal substantially complies with the order.

      Second, this court does not agree that appellant substantially complied

with the order. Pa.R.A.P. 1925(b) provides, in relevant part, as follows:

            (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).
                        ....



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                 (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);

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

Pa.R.A.P. 1925(b)(1) and (3).

     Preliminarily, in order for waiver to be found, the trial court must issue

a Rule 1925(b) order that directs the appellant to file a response within the

21 days specified in the rule.    Second, the order must be filed with the

prothonotary. Third, the prothonotary must docket the order and record on

the docket the date it was made. Fourth, the prothonotary shall give written

notice of the entry of the order to each party’s attorney of the record, and




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the giving of notice shall be recorded on the docket.        Forest Highlands

Community Ass’n v. Hammer, 879 A.2d 223, 227 (Pa.Super. 2005).1

      Here,    the   trial   judge   and   prothonotary   complied   with   these

requirements.    In Forest Highlands, the trial court in its Rule 1925(b)

order directed Nancy Hammer (“Hammer”), the appellant, to serve a copy

upon the presiding judge pursuant to Rule 1925(b). Hammer did not do so.

As in the present case, Hammer argued that because a copy was filed with

the prothonotary, the trial judge could find the concise statement on his

own. This court determined that it was not the trial court’s role to manually

search the files of the prothonotary or to surf the internet to locate the

website of the prothonotary.         Id. at 229.   This court determined that

Hammer’s failure to comply with the service requirements of Rule 1925(b)

resulted in waiver of her complaints on appeal. This court affirmed. Id. at

229-230.

      Similarly, here, appellant was directed to serve the trial judge with a

copy of the statement of errors and failed to do so. Although the trial judge

asks that the appeal be quashed, this court shall follow Forest Highlands

and find that appellant has waived all issues on appeal.

      Judgment affirmed.




1 In Forest Highlands, this court stated that the trial court was required to
direct an appellant to file a response within 14 days. At the time, that was
the time period specified in Rule 1925(b). The time limit was changed to
21 days in 2007.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/8/18




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