J-A11043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ERIE INSURANCE EXCHANGE                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MATTHEW LUTZ, KIMBERLEY LUTZ,              :
    DAKOTAH MILLER, AND ANDREW                 :
    SVRCEK                                     :   No. 1838 MDA 2016
                                               :
                                               :
    APPEAL OF: MATTHEW LUTZ,                   :
    KIMBERLEY LUTZ, AND DAKOTAH                :
    MILLER                                     :

               Appeal from the Judgment Entered October 7, 2016
                 In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 15-16318


BEFORE:       SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                                FILED JUNE 20, 2017

        Appellants    Matthew      Lutz,   Kimberly   Lutz,    and   Dakotah   Miller

(hereinafter collectively “Appellants”) appeal the Order entered in the Court

of Common Pleas of Berks County on October 7, 2016, granting the Motion

for Summary Judgment filed by Appellee Erie Insurance Exchange.                  We

affirm.

        The trial court briefly set forth the facts and procedural history herein

as follows:



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11043-17


           On October 31, 2012, Defendants Matthew Lutz, Kimberly
     Lutz and Dakotah Miller a minor, ("Underlying Plaintiffs"), filed
     suit against Defendant Andrew Svrcek ("Underlying Defendant"
     or "Insured") for torts arising out of an altercation,
     ("Altercation") between Defendants Andrew Svrcek and Matthew
     Lutz and Dakotah Miller. (Berks docket No.: 12-13670).
     Defendant Svrcek and another individual accosted Defendants
     Lutz and Miller when they passed each other hunting, and
     caused physical harm to Defendant Lutz. Defendant Svrcek plead
     guilty to a criminal charge of Simple Assault arising out of the
     Altercation. The 2012 underlying tort case (hereinafter
     "Underlying Case") is still ongoing, and Underlying Plaintiffs
     allege intentional torts, as well as negligence in failing to
     exercise proper care to not cause injury to Underlying Plaintiff
     Matthew Lutz when Defendant Andrew Svrcek assaulted him.
           At the time of the Altercation, Defendant Andrew Svrcek
     held a homeowners insurance policy with Plaintiff Erie. In the
     instant case, Plaintiff Erie seeks declaratory relief ordering that
     Erie has no duty to defend or indemnify Mr. Svrcek in the
     Underlying case. Defendants Matthew and Kimberly Lutz and
     Dakotah Miller filed an Answer to Plaintiff Erie's Complaint, but
     Defendant Svrcek did not. On June 30, 2016, Plaintiff was
     awarded a default judgment against Defendant Andrew Svrcek.
           On July 1, 2016, Plaintiff Erie filed a Motion for Summary
     Judgment against Defendants Matthew Lutz, Kimberly Lutz, and
     Dakotah Miller. Following argument, on September 19, 2016,
     this Court entered an Order granting Summary Judgment
     against Defendants and in favor of Plaintiff.

Trial Court Opinion, filed December 7, 2016, ay 1-2.

     While the trial court’s Order granting Appellee’s Motion for Summary

Judgment was dated September 19, 2016, it was not entered on the docket

until October 7, 2016.     Appellants filed a timely notice of appeal on

November 7, 2016, and on November 17, 2016, the trial court directed

Appellants to file and serve upon it a concise statement of the matters




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J-A11043-17


complained of on appeal within 21 days.1 Although Appellants timely filed

the same, they did not serve the statement upon the trial court.

        Moreover,    in   contravention        of   Pa.R.A.P.   1925(b)(4),    Appellants’

Concise Statement of Matters Complained of on Appeal is comprised of six

pages, the first five of which are divided into three parts:                “Introduction,”

“Procedural History,” and “Applicable Legal Standard and Argument Section.”

See     Concise   statement      of   Matters       Complained    of   on   Appeal   at   5

(unnumbered).        The final portion of the concise statement, captioned

“Statement of Errors” asks: “Whether the trial court erred and/or abused its

discretion in granting [Appellee’s] Motion for Summary Judgment.” Id. at 6

(unnumbered). Appellants present the same question for our review in their

appellate brief. See Brief of Appellants at 4.




____________________________________________


1
    The order reads, as herein relevant, as follows:

              AND NOW, this 17th day of NOVEMBER, 2016,
        [Appellants], [ ], having filed an appeal to the Superior Court,
        are hereby directed to file of record in the Lower Court and serve
        upon the undersigned Trial Judge, a Concise Statement of the
        Errors Complained of [o]n Appeal, no later than twenty-one (21)
        days after the date of this order in accordance with Pa.R.A.P.
        1925(b). Any issue not included in a timely filed and served
        Statement of Errors Complained of [o]n Appeal shall be deemed
        waived.

                                                          BY THE COURT:
                                                          /s/[Trial Court Judge ]
        See Record No. 22.



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J-A11043-17


      Appellee argues Appellants have waived appellate review for failing to

serve a copy of their concise statement upon the trial court and for filing a

vague and overbroad statement. Therefore, before reaching the merits of

this appeal, we must first determine whether Appellants’ issue has been

properly preserved for our review. See Commonwealth v. Wholaver, 588

Pa. 218, 228-29, 903 A.2d 1178, 1184 (2006), cert. denied, 549 U.S. 1171

(2007) (holding that appellate courts may sua sponte determine whether

issues have been properly preserved on appeal).

      As stated previously, a review of the certified record reveals that while

Appellants timely filed their Rule 1925(b) statement, they did not serve it

upon the trial judge as the court had directed. Typically, a failure to comply

with Rule 1925 by filing a Rule 1925(b) statement with the court and

concurrently serving the statement on the trial judge results in waiver of all

issues. See Pa.R.A.P. 1925(b)(1) (“Appellant shall file of record the

Statement and concurrently shall serve the judge.”) (emphasis added); See

also Commonwealth v. Schofield, 585 Pa. 389, 393, 888 A.2d 771, 774

(2005) (“[F]ailure to comply with the minimal requirements of Pa.R.A.P.

1925(b) will result in automatic waiver of the issues raised.”).

      As in the instant case, in Forest Highlands Community Ass'n v.

Hammer, 879 A.2d 223 (Pa.Super. 2005), the trial judge issued an order

instructing the appellant “to file, within fourteen (14) days, a concise,

written statement of the matters complained of on appeal, and to serve a


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copy of the same upon this Court pursuant to Rule 1925(b) of the Rules of

Appellate Procedure.” 879 A.2d at 228 n. 4 (quoting order) (emphasis

added). The appellant filed her 1925(b) statement with the prothonotary,

but did not serve a copy of the statement on the trial court. In ruling that

the appellant waived her issues on appeal, this Court held that Rule 1925(b)

is not satisfied when an appellant simply mails his or her 1925(b) statement

to the presiding judge, nor is the rule satisfied when an appellant merely

files a 1925(b) statement with the prothonotary, as it is not the trial court's

responsibility to search the files of the prothonotary to locate the statement.

Id. at 229.

      Similarly, although its decisions are not binding upon this Court, the

Commonwealth Court has found issues waived for an appellant’s failure to

comply with the filing and service requirements of Rule 1925(b). In Egan v.

Stroudsburg School Dist., 928 A.2d 400, 401 (Pa.Cmwlth. 2007) the trial

court directed the appellant “to file a Pa.R.A.P. 1925(b) statement of matters

complained of on appeal within fourteen days, and serve a copy on the trial

court.” (emphasis added). The appellant timely filed a 1925(b) statement

with the prothonotary, but did not serve it on the trial court. Citing Forest

Highlands with approval, the Commonwealth Court determined that the

appellant had waived all issues on appeal for her failure to serve the trial

court with her 1925(b) statement as instructed. See also Commonwealth

v. $766.00 U.S. Currency, 948 A.2d 912, 913 (Pa.Cmwlth. 2008)


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(appellant's failure to serve his Rule 1925(b) statement on the trial judge

where order directed appellant “to file of record and concurrently serve upon

this court a concise statement of errors complained of on appeal” resulted in

waiver of issues on appeal under newly amended Rule 1925(b)).

     This Court has stressed that:

     [I]n determining whether an appellant has waived his issues on
     appeal based on non-compliance with Pa.R.A.P. 1925, it is the
     trial court's order that triggers an appellant's obligation under
     the rule, and, therefore, we look first to the language of that
     order.” Berg [v. Nationwide Mutual Ins. Co., 607 Pa. 341, 6
     A.3d 1002], 1007–08 [(opinion announcing the judgement of the
     court]. Rule 1925(b)(3) sets forth the contents of a 1925(b)
     order:
     (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)(3)(i)-(iv).

In re Estate of Boyle, 77 A.3d 674, 676–77 (Pa.Super. 2013).             Upon

noting that our application of Rule 1925(b) may be harsh, this Court,

nevertheless, determined our decision to affirm on the basis of an untimely

Rule 1925(b) statement was consistent with Rule 1925(b) and decisional

authority. Id. at 679.




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J-A11043-17


      Herein, the record is clear that Appellants timely filed their Rule

1925(b) statement, although they failed to serve it concurrently upon the

trial court, despite the court’s express instruction to do so.       Therefore,

Appellants have waived their issue on appeal.

      Even had the statement properly been served upon the trial court, we

would find Appellant’s issue waived due to vagueness. It is well-settled that

issues not included in an appellant’s statement of questions involved and

concise statement of errors complained of on appeal are waived. Krebs v.

United Refining Co. of Pa., 893 A.2d 776, 797 (Pa.Super. 2006). With

respect to issues not included in a concise statement, our Supreme Court

has instructed that this Court has no discretion in choosing whether to find

waiver.   Waiver is mandatory, and this Court may not craft ad hoc

exceptions or engage in selective enforcement.      City of Philadelphia v.

Lerner,   ___    Pa.   ____,   151   A.3d   1020,    1024   (2016)    (quoting

Commonwealth v. Hill, 609 Pa. 410, 426, 16 A.3d 484, 494 (2011).

      While Appellants precede their concise statement with a five page

discussion and argument, their ultimate statement “announced a very

general proposition; namely, that the trial court erred when it granted

[Appellee’s] summary judgment motion.” Lineberger v. Wyeth, 894 A.2d

141, 148-49     (Pa.Super. 2006). Because Appellants failed to include the

specific challenges they present in their appellate brief in their statement of

errors, we would find those issues waived for that reason as well.         See


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J-A11043-17


Commonwealth v. Dowling, 778 A.2d 683, 686-87 (stating a concise

statement that is too vague to permit the trial court to identify issues raised

on appeal is the functional equivalent of no concise statement at all).

       Order affirmed. 2

       Judge Shogan joins the memorandum.

       Judge Moulton files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




____________________________________________


2
 This Court may affirm the trial court’s order on any valid basis. Plasticert,
Inc. v. Westfield Ins. Co., 923 A.2d 489 (Pa.Super. 2007).




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