J-A11034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES TAYLOR                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

CHRISTOPHER JOHN TCHABO AND THE
SCHOOL AT CHURCH FARM

                            Appellees                 No. 2903 EDA 2014


            Appeal from the Judgment Entered on January 2, 2015
              In the Court of Common Pleas of Chester County
                      Civil Division at No.: 11-08060-TT


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

JUDGMENT ORDER BY WECHT, J.:                            FILED JULY 14, 2015

       James Taylor appeals from the judgment entered on January 2, 2015

in favor of Christopher John Tchabo.1          Based upon an untimely-filed

Pa.R.A.P. 1925(b) concise statement, Taylor has waived his issues on

appeal, and we are constrained to affirm.

       Because of our disposition, a recitation of the facts of this case is

unnecessary.      On January 28, 2011, Taylor commenced this negligence

action against Tchabo and the School at Church Farm (“CFS”). On May 20,

2014, a jury found in favor of Tchabo. The jury found that CFS and Taylor

both were negligent, but that seventy percent of the negligence was

attributable to Taylor. Therefore, no damages were awarded. On May 29,
____________________________________________


1
       Taylor settled with the School at Church Farm prior to trial.
J-A11034-15



2014, Taylor filed post-trial motions, which the trial court denied on

September 9, 2014.

       On October 6, 2014, Taylor filed his notice of appeal from the order

denying his motion.2 On October 7, 2014, the trial court ordered Taylor to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) within twenty-one days. On the order, there is a notation

that it was sent on October 8, 2014. Taylor’s concise statement, which was

docketed on October 30, 2014, was therefore filed one day after it was due.

Consequently, it is untimely and we are constrained to find his issues

waived. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).

       Rule 1925 provides that the date of filing for a concise statement is the

date it is mailed, but only when that appellant obtains “a United States

Postal service form from which the date of deposit can be verified.”

Pa.R.A.P. 1925(b)(1). Nothing in the record indicates that Taylor obtained

or submitted such a form.          Taylor’s certificate of service, which is dated

October 27, 2014, is not sufficient to verify the mailing date. In fact, the

certificate does not even state whether service was by mail or otherwise.

Therefore, we are constrained to use the docketing date as the date that
____________________________________________


2
      An order denying post-trial motions is not appealable, and the appeal
properly lies from the judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2
(Pa. Super. 2005). However, when the final judgment is entered during the
pendency of an appeal, appellate jurisdiction is perfected. Id. Because
judgment was entered on January 2, 2015, we have jurisdiction and the
caption has been amended accordingly.



                                           -2-
J-A11034-15



Taylor filed the concise statement, and deem it untimely. See In re Estate

of Boyle, 77 A.3d 674, 675, 679 (Pa. Super. 2013) (holding issues waived

for failure to file timely concise statement when certificate of service was

dated one day prior to deadline, but the statement was docketed ten days

later).

      Although the trial court addressed the merits of Taylor’s appeal, this

Court has no “discretion to review the merits of an untimely Rule 1925(b)

statement based solely on the trial court’s decision to address the

merits. . . .   Under current precedent, even if a trial court ignores the

untimeliness of a Rule 1925(b) statement . . ., those claims still must be

considered waived.”    Greater Erie Indus. Dev. Corp., v. Presque Isle

Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc). Therefore, we

are constrained to find that Taylor’s issues are waived and affirm the

judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




                                    -3-
J-A11034-15




              -4-
