J-S19019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOCELYN CHANDLER, RICHARD                  :   IN THE SUPERIOR COURT OF
    JENNINGS                                   :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    COREY BRACEY                               :
                                               :   No. 2027 EDA 2019
                       Appellant               :

                 Appeal from the Order Entered April 10, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): May Term, 2006, No. 060502517


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                               FILED MAY 22, 2020

        Corey Bracey (Appellant) appeals pro se1 from the order entered in the

Philadelphia Court of Common Pleas denying his petition to strike a default

judgment entered against him and in favor of Jocelyn Chandler and Richard

Jennings (Appellees).2 On appeal, Appellant argues the trial court erred by:

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1  Appellant is currently incarcerated, and we infer that he has been in prison
since at least January of 2018. Although the certified record includes no
information concerning the reason for, or length of, his incarceration,
Appellant listed the Greene and Rockview State Correctional Institutions as
his addresses on various filings, including his original petition to strike the
judgment, and stated his only asset was a prison inmate account. See
Appellant’s Petition to Strike Default Judgment, 1/31/18; Appellant’s Petition
for Reconsideration, 6/26/18; Appellant’s Petition to Proceed In Forma
Pauperis & Without Payment of Bond, 2/8/19, at 2. Appellant likewise
provides his address as the Rockview State Correctional Institution on his
filings in this Court. See Appellant’s Brief at 7.

2   Appellees did not file a responsive brief.
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(1) finding all his claims waived based upon his purported failure to file a

Pa.R.A.P. 1925(b) statement; (2) failing to inform him he could appear at the

petition to strike hearing by writ of habeas corpus, and (3) accepting personal

jurisdiction when he was not properly served with Appellees’ complaint. For

the reasons below, we remand this case to the trial court to determine whether

Appellant is entitled to file a Rule 1925(b) statement nunc pro tunc.

       The relevant facts and procedural history underlying this appeal are as

follows. On June 14, 2004, Appellant was involved in motor vehicle accident

with Appellees in Philadelphia.         On May 18, 2006, one month before the

expiration of the two-year statute of limitations period,3 Appellees filed a

complaint asserting the accident was caused solely by Appellant’s negligence,

and seeking damages for personal injuries (Chandler) and property damage

(Jennings). Appellees’ affidavit of service was docketed on June 30, 2006.

The form indicated that, on June 22, 2006, service of process was provided to

an “[a]dult in charge of [Appellant’s] residence who refused to give name or

relationship.” Affidavit of Service, 6/20/06. Appellant did not file an answer

or otherwise respond to the complaint.



____________________________________________


3 See 42 Pa.C.S. § 5524(a)(7) (statute of limitations for cause of action in
negligence is two years); Varner-Mort v. Kapfhammer, 109 A.3d 244, 248
(Pa. Super. 2015) (“[T]he general rule in Pennsylvania regarding car accident
cases is that the statute of limitations begins to run for an injured plaintiff on
the day of the accident.”).




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        On August 18, 2006, Appellees filed a praecipe for entry of default

judgment based upon Appellant’s failure to respond to the complaint.4

Judgment was entered on the docket, and on January 16, 2007, Appellees

appeared at an arbitration hearing to determine damages. Appellant did not

appear for the hearing. The panel awarded Chandler $35,000 in damages and

no damages to Jennings. No appeal was filed.

        The docket reveals no activity for 11 years. Thereafter, on January 31,

2018, Appellant, who was by then incarcerated, filed both a pro se petition to

strike the judgment, with accompanying brief, and a petition to proceed in

forma pauperis (IFP). In his petition to strike, Appellant averred he never

received the complaint and the affidavit of service form was patently defective,

and thus the trial court had no personal jurisdiction to enter a judgment

against him. Appellant’s Petition to Strike Judgment, 1/31/18, at 1-2. In his

brief, Appellant explained the affidavit indicated service was made on June 22,

2006, after the 30-day period for service provided in the Pennsylvania Rules

of Civil Procedure, and Appellees failed to reinstate the complaint.5 Appellant’s

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4 The praecipe stated that a 10-day notice of intent to enter default judgment
was provided to Appellant on July 18, 2006. See Order for Judgment,
8/18/06.

5   Pennsylvania Rule of Civil Procedure 401 provides, in relevant part:

               (a) Original process shall be served within the
        Commonwealth within 30 days after the issuance of the writ or
        the filing of the complaint.



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Brief in Support of Petition to Strike Judgment, 1/31/18, at 3. Because service

was made after the two-year statute of limitations expired Appellant insisted

the judgment should be stricken from the record. Id. Additionally, Appellant

claimed the affidavit did “not indicate the place of service[,]” as required by

the Rules of Civil Procedure, so that “it is impossible to ascertain if [he] was

served in this matter, which [he] avers he was not.”6 Id. at 4.

       On February 2, 2018, the trial court entered an order denying, without

prejudice, Appellant’s petition to proceed IFP because he had failed to provide

the requisite information to determine his indigency status. Order, 2/2/18.

The order further stated, “[Appellant] shall pay the requisite filing fees or file

a new Petition to Proceed In Forma Pauperis within twenty (20) days of the

docketing of this Order.” Id. Appellant did neither.




____________________________________________


             (b)(1) If service within the Commonwealth is not made
       within the time prescribed by subdivision (a) of this rule . . . the
       prothonotary upon praecipe and upon presentation of the original
       process, shall continue its validity by reissuing the writ or
       reinstating the complaint, by writing thereon “reissued” in the
       case of a writ or “reinstated” in the case of a complaint.

                 (2) A writ may be reissued or a complaint reinstated
              at any time and any number of times. . . .

Pa.R.C.P. 401(a), (b)(1).

6 The Affidavit of Service form, which is included in the record, directs the
process server to serve the complaint to Appellant at “323 N. 56 th St. Phila.,
PA 19139.” Affidavit of Service — Philadelphia Co., 6/30/06. However, the
section of the form to be completed by the process server, indicating where
service was made, was left blank. Id.

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        In the meantime, on February 21, 2018, Appellees filed an answer and

memorandum of law in response to Appellant’s motion to strike. Appellees

acknowledged “the Affidavit of Service appears defective[,]” however,

asserted the writ server properly served the complaint within 30 days but

simply “filled out the Affidavit wrong.”         Appellees’ Memorandum of Law,

2/21/18, at 1. Appellees further stated that, although the writ server “does

not remember what occurred” ten years ago, they would be “severely

prejudiced by allowing this matter to be completely dismissed with prejudice.”

Id. Nevertheless, Appellees requested the trial court “enter an Order vacating

the judgment and requiring [Appellant] to file an Answer to the Complaint[,]”

thus, agreeing Appellant was entitled to some relief. Id.

        On March 1, 2018, Appellant was notified his petition to strike the

judgment was stricken by the Office of Judicial Records because he failed to

pay the appropriate filing fee.7 Notice, 3/1/18. Appellant filed an untimely

motion for reconsideration, which was denied by the trial court, and then

appealed to this Court.        On September 25, 2018, this Court quashed the

appeal per curiam because it was taken from an interlocutory order.       See

Docket No. 2152 EDA 2018, Order, 9/25/18.

        On February 8, 2019, Appellant filed a second petition to strike the

January 2007 default judgment — identical to the one he filed the prior year

— as well as a petition to proceed IFP. On February 12th, the supervising
____________________________________________


7   Appellant did not file a new petition for IFP.


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judge granted Appellant IFP status. The petition to strike was assigned to the

Honorable Paula Patrick. On March 7, 2019, the court issued a rule to show

cause why Appellant’s petition should not be granted, and scheduled a hearing

for April 10, 2019. Appellant failed to appear at the show cause hearing and,

that same day, the court denied the petition to strike.        Order, 4/10/19.8

Appellant filed a notice of appeal that was docketed on May 17, 2019. On July

25, 2019, the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 9th,

the court issued an opinion suggesting that this Court dismiss the appeal

because Appellant failed to file a Rule 1925(b) statement.         Trial Ct. Op.,

9/9/19, at 1-2. The court also stated Appellant’s notice of appeal was filed

late. Id. at 1. The trial court did not address any substantive issues. On

April 13, 2019, this Court issued a per curiam rule to show cause why the

appeal should not be quashed as untimely. Order, 8/13/19. After Appellant

filed a timely response, this Court discharged the rule and referred the issue

to the merits panel. Order, 9/23/19.

        Appellant raises the following issues on appeal, which we have reordered

for ease of disposition:

        1. Did the lower court err by not finding Appellant’s statement of
        errors complained on appeal as timely, when he did file timely and
        multiple times thereafter (nunc pro tunc)?


____________________________________________


8   Notice of the order was sent the following day, April 11, 2019.


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      2. Did the lower court err by not stating Appellant’s right to
      effectuate his appearance at the petition to strike hearing by writ
      of habeas corpus?

      3. Did the lower court err accepting in personam jurisdiction of
      challenged judgment without proper service of original process
      upon Appellant?

Appellant’s Brief at 1.

      Before we address Appellant’s claims on appeal, we must first consider

whether this appeal was timely filed. Because “an untimely appeal divests

this Court of jurisdiction[,]” we may consider the timeliness of an appeal sua

sponte. Valley Forge Ctr. Assocs. v. Rib-It/K.P., Inc., 693 A.2d 242, 243,

245 (Pa. Super. 1997).

      Pennsylvania Rule of Appellate Procedure 903(a) mandates that “the

notice of appeal . . . shall be filed within 30 days after the entry of the order

from which the appeal is taken.” Pa.R.A.P. 903(a). In a civil case, the date

of entry of an order is “the day on which the clerk makes the notation in the

docket that notice of entry of the order has been given as required by

Pa.R.Civ.P. 236(b).”      Pa.R.A.P. 108(b).     See Pa.R.C.P. 236(b) (“The

prothonotary shall note in the docket the giving of the notice[.]]”). Here, the

underlying order was entered on April 10, 2019, and notice was sent on April

11, 2019. Appellant’s notice of appeal was date-stamped and docketed on

May 17, 2019. See Appellant’s Notice of Appeal, 5/17/19. Thus, on its face,

it appears Appellant’s appeal was untimely filed.

      However, Appellant claims he originally filed a notice of appeal in the

trial court on April 19th, but the clerk refused the filing and returned the


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documents to him because he used the wrong form. Appellant’s Response to

Order to Show Cause Why Appeal is Timely, 8/26/19, at 2. Appellant attached

to his show cause response a copy of a “Notice of Rejected/Returned

Documents” from the Philadelphia Court of Common Pleas, dated May 2, 2019,

which states his “documents are unacceptable for filing” and requests he

“please complete on notice of appeal forms provided.” Id., Exhibit 2.

       The Pennsylvania Supreme Court has held “[t]he clerk of courts . . .

lacks the authority to reject, as defective, a timely notice of appeal.”

Commonwealth v. Williams, 106 A.3d 583, 588 (Pa. 2014).9                 Rather,

Pennsylvania Rule of Procedure 905(a)(3) “unequivocally requires the clerk

for the lower court to time-stamp a notice of appeal immediately upon

receipt.” Id., citing Pa.R.A.P. 905(a)(3) (“Upon receipt of the notice of appeal,

the clerk shall immediately stamp it with the date of receipt, and that date

shall constitute the date when the appeal was taken, which date shall be

shown on the docket.”) (emphasis added).           Accordingly, we will consider

Appellant’s notice of appeal as filed on May 2, 2019, the date it was rejected

by the trial court; thus, this appeal is timely filed.

       Next, we must determine whether Appellant has waived all of his claims

based upon his failure to comply with the trial court’s Pa.R.A.P. 1925(b) order.

See Trial Ct. Op., 9/9/19, at 1-2.
____________________________________________


9 “Since the Rules of Appellate Procedure apply to criminal and civil cases
alike, the principles enunciated in criminal cases construing those rules are
equally applicable in civil cases.” Kanter v. Epstein, 866 A.2d 394, 400 n.6
(Pa. Super. 2004)

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      It is axiomatic that a litigant must file a timely Rule 1925(b) statement

when ordered to do so by the trial court.               Pa.R.A.P. 1925(b).     In

Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), the Pennsylvania Supreme

Court summarized the law concerning compliance with the Rule:

            Our jurisprudence is clear and well-settled, and firmly
      establishes that: 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 30, 309 (Pa. 1998),] 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.”

Id. at 494. Hill, however, considered the language of Rule 1925 prior to the

2007 amendments, which “made sweeping changes [to the Rule, including] a

longer period for filing, explicit provisions for extensions of time to file, and

detailed   direction   on   the   information   a   Statement   should   include.”

Commonwealth v. Gravely, 970 A.2d 1137, 1140 (Pa. 2009).

      Relevant herein, the Rule now provides a trial court with the discretion

to extend the original filing period:




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       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.

Pa.R.A.P. 1925(b)(2) (2014)10 (emphases added).         Furthermore, the 2007

Amendments added subsection (c), which permits an appellate court to

remand a civil case in the following circumstances:

             (1) An appellate court may remand in either a civil or
       criminal case for a determination as to whether a Statement had
       been filed and/or served or timely filed and/or served.

             (2) 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)(1)-(2) (2014).

       Here, the record reveals the trial court entered an order on July 25,

2019, directing Appellant to file a Rule 1925(b) statement “no later than

twenty-one (21) days after entry of [the] Order.” Order, 7/25/19. Notice of

____________________________________________


10 We note Rule 1925 was amended on June 24, 2019, with an effective date
of October 1, 2019. See Pa.R.A.P. 1925, Credits. The language cited above
now appears in Subsection (b)(2)(i) of the Rule. See Pa.R.A.P. 1925(b)(2)(i).
Because the Rule 1925(b) order entered herein was filed on July 26, 2019 —
before the new amendments took effect — all references are to the prior
language of the Rule.


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the order was provided on July 26, 2019.           See Docket Entry, 7/26/19.

Therefore, Appellant’s Rule 1925(b) statement was due on August 16, 2019.

Appellant avers in his brief that he mailed his Rule 1925(b) statement “at his

first available opportunity” on August 21, 2019. Appellant’s Brief at 5. He

claims he was confined to his cell prior to that time and “[t]he guards would

not deposit the mailpiece (sic) themselves nor were they trusted to do so.”

Id. at 5 n.1. Accordingly, Appellant insists he “has shown good cause why

the statement should be accepted as timely.” Id. at 5.

       In its opinion, the trial court stated it directed Appellant to file a Rule

1925(b) statement “by August 26, 2019.” Trial Ct. Op. at 1. If this were so,

Appellant’s statement, purportedly filed on August 21, 2019, would have been

timely.11 As noted above, however, the court’s order directed Appellant to file

a statement within 21 days, or by August 16, 2019. See Order, 7/25/19.

       The court also indicated in its opinion that, “[t]o date, Appellant has not

filed a statement pursuant to Pa.R.A.P. 1925(b)[.]”          Trial Ct. Op. at 1.

However, we note that the court’s Rule 1925 order did not comply with the

requirements of the Rule.         Indeed, at the time the court entered its Rule

1925(b) order, subsection (b)(3) mandated:

         (3) Contents of order.--The judge’s order directing the filing
       and service of a Statement shall specify[, inter alia,]: . . .

____________________________________________


11 See Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001) (extending
prisoner mailbox rule to pro se incarcerated litigants in civil matters; under
this rule, “a legal document is deemed filed . . . on the date it is delivered to
the proper prison authority or deposited in the prison mailbox.”).

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              (ii) that the Statement shall be filed of record;

               (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1) . . . .

Pa.R.A.P. 1925(b)(3)(ii)-(iii) (2014) (emphasis added). Although the order

herein directed Appellant to “file[ ]” the statement within 21 days, it did not

instruct him to serve the statement on the trial court pursuant to Subsection

(b)(1).12     See Order, 7/25/19.         See also Pa.R.A.P. 1925(b)(1) (2014)

(directing appellants to concurrently file of record and serve statement on

judge either in person for by mail).

       Accordingly, based upon the circumstances presented herein — a pro

se, incarcerated appellant, who avers he attempted to comply with the court’s

order, but was unable to do so based upon circumstances allegedly beyond

his control — we remand this case to the trial court to conduct a hearing to

determine if Appellant did comply with the court’s Rule 1925 order, or,

alternatively, if Appellant demonstrated good cause or extraordinary

circumstances warranting the filing of a statement nunc pro tunc.13
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12 Pursuant to the 2019 amendments, Subsection (b)(3)(iii) now requires the
trial court to specify in its Rule 1925(b) order “both the place the appellant
can serve the Statement in person and the address to which the appellant can
mail the Statement.” Pa.R.A.P. 1925(b)(3)(iii). The subsection also notes the
trial court may provide an email or fax number to effectuate alternative
service. Id. However, as noted above, this amendment was not in effect at
the time the trial court herein entered its Rule 1925(b) order.

13 We note, too, that this case involves a $35,000 judgment entered 13 years
ago, without any record evidence that Appellant was properly served with the
complaint, or had any knowledge of the judgment against him prior to January
of 2018. Further, Appellees admitted in their response to Appellant’s motion



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       Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/20




____________________________________________


to strike that the Affidavit of Service “appears defective,” and conceded the
proper remedy would be “to vacate the judgment and allow [Appellant] to file
an Answer.” Appellees’ Response to Appellant’s Petition to Strike Judgement,
2/21/18, at 1.

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