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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DAVID J. COLES,                        :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :          No. 798 WDA 2015
                                       :
CENTURION SENIOR SERVICES, LLC         :


                    Appeal from the Order, May 13, 2015,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. GD-15-000404


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 30, 2016

      David J. Coles (“Coles”) appeals, pro se, from the order of May 13,

2015, sustaining defendant/appellee, Centurion Senior Services, LLC’s

(“Centurion”) preliminary objections in the nature of a demurrer and

dismissing Coles’ complaint with prejudice. We affirm.

      The Honorable Timothy Patrick O’Reilly has summarized the history of

this case as follows:

                  This matter came before me in Motions Court
            on May 11, 2015. Plaintiff [Coles] sued Defendant
            [Centurion] asserting that it had contracted with him
            to sell certain health insurance products.       That
            contract was characterized as a Producer Agreement
            and contemplated sells [sic] by Coles during a
            Medicare Enrollment Period which ran from
            October 15 to December 7 of each year.

                  The aforementioned contract was entered
            [into] by the parties in July 2014 and is attached to
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            the Complaint as Exhibit A.       Attached also is
            Exhibit C, which is the termination letter to Coles
            dated October 14, 2014.

                  The Producer Agreement also provides at
            Section F that either party “Shall have the right at
            anytime to terminate this Agreement, with or
            without cause, by written notice to the other
            party[.”]

                  Notwithstanding this clear language and his
            attachment to his Complaint, Coles alleges he got no
            notice.

                 He also alleges that Centurion did not treat
            him with good faith and fair dealing.

                  In essence, Coles invokes a variety of
            equitable considerations especially that because of
            the timing of his termination, he will be unable to
            obtain another position in time for him to train in the
            Medicare products market, since it is only open from
            October 15 to December 7 of each year.               At
            Argument[,] I sustained the Preliminary Objections
            of Centurion and dismissed Coles’ complaint. He has
            appealed.

Trial court opinion, 7/30/15 at 1-2.

      Coles filed a timely notice of appeal on May 18, 2015. On June 11,

2015, the trial court ordered Coles to file a concise statement of errors

complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b).

(Docket #13.) The trial court’s Rule 1925 order cautioned that, “Any issue

not properly included in a timely filed and served statement shall be deemed

waived. If no statement is timely filed and served, all issues are waived.”

(Id.) The official docket reflects that a copy of the trial court’s Rule 1925

order was mailed to Coles on June 12, 2015. According to the trial court’s


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Rule 1925(a) opinion, Coles did forward a Rule 1925(b) statement to the

court; however, it was never filed, nor was it served on counsel for

Centurion, as required by the rule.

      Rule 1925(b) provides, in pertinent part, as follows:

            (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).

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

                  (vii) Issues    not   included   in   the
                        Statement and/or not raised in
                        accordance with the provisions of
                        this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(4)(vii). See Greater Erie Indus. Development Corp.

v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.Super. 2014)

(en banc) (“Whenever a trial court orders an appellant to file a concise

statement of [errors] complained of on appeal pursuant to Rule 1925(b), the

appellant must comply in a timely manner.”), quoting Hess v. Fox

Rothschild, LLP, 925 A.2d 798, 803 (Pa.Super. 2007) (emphasis in Hess)

(citations omitted). See also Everett Cash Mut. Ins. Co. v. T.H.E. Ins.


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Co., 804 A.2d 31, 34 (Pa.Super. 2002) (“The filing requirement is distinct

from the service requirement in that the filing requirement ensures that the

Concise   Statement     becomes       part       of   the   certified   record.”),    citing

Pa.R.A.P. 1921.

     Instantly,   Coles    failed   to    file    the   court-ordered     Rule   1925(b)

statement.        As      such,     all    issues       are     waived      on       appeal.

Pa.R.A.P. 1925(b)(4)(vii).    We acknowledge that Coles is acting pro se;

however, his pro se status does not except him from strict adherence to the

Rules of Appellate Procedure:

             It is well settled that an individual who chooses to
             proceed pro se is not entitled to any particular
             advantage because of his or her lack of legal
             training. O’Neill v. Checker Motors Corp., 389
             Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). As
             our Supreme Court has explained, an individual
             choosing to represent him- or her-self must, to some
             reasonable extent, assume the risk that the lack of
             expertise and legal training will prove his or her
             undoing.           Vann      v.     Commonwealth,
             Unemployment Compensation Board of Review,
             508 Pa. 139, 149, 494 A.2d 1081, 1086 (1985).
             Accord O’Neill v. Checker Motors Corp.

Slaughter v. Allied Heating, 636 A.2d 1121, 1125 (Pa.Super. 1993),

appeal denied, 652 A.2d 839 (Pa. 1994).

     Order affirmed.1




1
  At any rate, we agree with the trial court that Coles would not be entitled
to relief where he was an independent contractor and the Agreement clearly


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2016




provides that it may be terminated at any time, with or without cause, by
written notice to the other party.


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