J-A07012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    H&H MANUFACTURING COMPANY,                 :   IN THE SUPERIOR COURT OF
    INC. AND VINCENT H. TOMEI                  :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    THOMAS R. TOMEI AND JEANETTE M.            :
    TOMEI                                      :   No. 1198 EDA 2018
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES F. FLANDREAU, ESQUIRE,               :
    EXECUTOR AD LITEM FOR THE                  :
    ESTATE OF MARIE L. TOMEI,                  :
    DECEASED                                   :
                                               :
                                               :
    APPEAL OF: ESTATE OF MARIE L.              :
    TOMEI, DECEASED                            :

              Appeal from the Judgment Entered on April 20, 2018
       In the Court of Common Pleas of Delaware County Civil Division at
                              No(s): 2013-05775


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                  FILED MAY 22, 2019

       Appellant, James F. Flandreau, Esquire, Executor ad Litem for the Estate

of Marie L. Tomei, Deceased, appeals from the judgment entered on April 20,

2018.1    As is relevant to the current appeal, the judgment was: in favor of
____________________________________________


1Appellant purports to appeal from the trial court’s order dated April 18, 2018,
which ruled upon the defendants’ motion for post-trial relief. See Notice of
Appeal, 4/23/18. “Orders denying post-trial motions, however, are not


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07012-19



Defendants Thomas R. Tomei and Jeanette M. Tomei (hereinafter, collectively,

“Defendants”) and against Appellant, on all of Appellant’s claims against

Defendants; and, in favor of Appellant and against Thomas Tomei, on all of

Thomas Tomei’s counterclaims against Appellant. We affirm.

       On June 11, 2013, Plaintiffs, H&H Manufacturing Company and Vincent

H. Tomei (hereinafter “Plaintiffs”), instituted the current action by filing a writ

of summons. Within Plaintiffs’ third amended complaint, Plaintiffs levied 12

claims against Defendants.            See Plaintiffs’ Third Amended Complaint,

5/18/16, at 1-16.

       After Defendants answered the original complaint, Appellant was

granted permission to intervene in the proceedings; Appellant later filed a

complaint against Defendants.            See Trial Court Order, 7/18/16, at 1;

Appellant’s Complaint, 8/1/16, at 1-9. Jeanette Tomei answered Appellant’s

complaint and denied liability; Thomas Tomei answered Appellant’s complaint,

denied liability, and filed counterclaims against Appellant.       See Plaintiffs’

Answer to Appellant’s Complaint, 10/4/16, at ¶¶ 1-48; Jeanette Tomei’s

Answer and New Matter to Appellant’s Complaint, 1/3/17, at 1-13; Thomas

Tomei’s Answer, New Matter, and Counterclaim to Appellant’s Complaint,

1/3/17, at 1-38.
____________________________________________


appealable. Rather, it is the subsequent judgment that is the appealable order
when a trial has occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d
523, 524, n.1 (Pa. Super. 2006) (internal citation omitted). Judgment was
entered on April 20, 2018. Thus, we treat the appeal as from the entry of
judgment and have amended the caption accordingly.             See Pa.R.A.P.
905(a)(5).

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      The case proceeded to an eight-day bench trial and, on November 30,

2017, the trial court entered its findings of fact, conclusions of law, and

decision in the matter. As is relevant to the current appeal, the trial court

found in favor of Defendants and against Appellant, on all of Appellant’s claims

against Defendants; and, in favor of Appellant and against Thomas Tomei, on

all of Thomas Tomei’s counterclaims against Appellant. Trial Court Decision,

11/30/17, at 1-3.    On April 19, 2018, the trial court denied Appellant’s

post-trial motion and, on April 20, 2018, judgment was entered on the trial

court’s decision.

      Appellant filed a timely notice of appeal. Appellant’s Notice of Appeal,

4/23/18, at 1. In an order dated April 30, 2018 and entered May 22, 2018,

the trial court directed that Appellant file a concise statement of errors

complained of on appeal, pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b), and serve a copy of the concise statement upon the trial

court. The order reads:

        AND NOW, this 30th day of April 2018, it is hereby ORDERED
        AND DECREED that Intervenor, the Estate of Marie Tomei,
        through her executor ad litem, James Flandreau, Esquire and
        counsel to the Estate, pursuant to Rule 1925(b) of the
        Pennsylvania Rules of Appellate Procedure, shall file a
        Concise Statement of Matters Complained of on Appeal no
        later than twenty-one (21) days after entry of this Order and
        serve a copy on this Court pursuant to Pa.R.A.P. 1925(b)(1).
        Any issue not properly included in the Statement, timely filed
        and served, shall be waived.

Trial Court Order, 5/22/18, at 1 (some emphasis omitted).




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      The docket states that, in accordance with Pennsylvania Rule of Civil

Procedure 236, notice of the Rule 1925(b) order was given to Appellant on

May 22, 2018. See Docket Entry, at 5/22/18.

      The certified record contains no Rule 1925(b) statement, the docket

does not reflect that Appellant ever filed a Rule 1925(b) statement, and the

trial court stated in its opinion that, although Appellant “sent the [trial] court

a copy of” her Rule 1925(b) statement, the Rule 1925(b) statement was

“never filed pursuant to the [trial] court’s April 30, 2018 order.” Trial Court

Opinion, 7/10/18, at 5 (some capitalization omitted).

      We are constrained to conclude that Appellant’s claims on appeal are

waived, as Appellant failed to comply with Pennsylvania Rule of Appellate

Procedure 1925(b). In relevant part, Rule 1925(b) declares:

        (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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       (2) Time for filing and service.--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. ...

       (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.

       (4) Requirements; waiver.

                                    ...

          (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).

     As we have explained:

       In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998),
       our Supreme Court held that in order to preserve claims for
       appellate review, an appellant must comply with a trial court
       order to file a Statement of Matters Complained of on Appeal,
       pursuant to Pa.R.A.P. 1925(b). Our Supreme Court recently
       reiterated the bright-line rule established in Lord, holding
       that “failure to comply with the minimal requirements of
       Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
       raised [on appeal].” Commonwealth v. Schofield, 888
       A.2d 771, 774 (Pa. 2005); see also Commonwealth v.
       Castillo, 888 A.2d 775 (Pa. 2005) (same). If an appellant

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J-A07012-19


        does not comply with an order to file a Rule 1925(b)
        statement, all issues on appeal are waived—even if the
        Rule 1925(b) statement was served on the trial judge
        who subsequently addressed in an opinion the issues
        raised in the Rule 1925(b) statement.                 Although
        recognizing that such a strict application of the Rule may be
        harsh, our Supreme Court stressed that failure to file the Rule
        1925(b) statement “results in the inability of the appellate
        courts to determine which issues were presented to the trial
        court, and thus preserved for appeal, and whether the trial
        court received the statement within the required time
        period.” [Schofield,] 888 A.2d at 774-775.

In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (some citations omitted)

(emphasis added); see also Schofield, 888 A.2d at 771-775 (the

Pennsylvania Supreme Court held that the appellant’s failure to file her Rule

1925(b) statement resulted in the “automatic waiver of the issues raised” on

appeal, even though the trial court received the appellant’s Rule 1925(b)

statement and addressed the issues in an opinion); Greater Erie Indus. Dev.

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

(en banc) (“it is no longer within [the Superior] Court’s discretion to review

the merits of an untimely Rule 1925(b) statement based solely on the trial

court’s decision to address the merits of those untimely raised issues”).

      In the case at bar, the trial court’s concise statement order fully

complied with Rule 1925(b). It informed Appellant: that she was required to

file her concise statement within 21 days; that she was required to serve a

copy of the statement on the court pursuant to Rule 1925(b)(1); and, that

failure to comply with the order would result in waiver. Trial Court Order,

5/22/18, at 1; see also Pa.R.A.P. 1925(b)(3). The concise statement order



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J-A07012-19



was entered on the docket and the docket reflects that notice of the order was

sent to Appellant on May 22, 2018. See Docket Entry, at 5/22/18.

      Appellant, however, failed to file her Rule 1925(b) statement, as

required by the trial court’s order and Rule 1925(b)(1). This results in the

automatic wavier of Appellant’s claims on appeal. Schofield, 888 A.2d at

774. Moreover, although Appellant apparently “sent the [trial] court a copy

of” her Rule 1925(b) statement and the trial court addressed the issues

contained in the statement, waiver is nevertheless mandatory under the rule

and our Supreme Court’s precedent. Schofield, 888 A.2d at 774-775; see

also Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017) (“our

review is limited to those facts which are contained in the certified record and

what is not contained in the certified record does not exist for purposes of our

review”) (quotations and citations omitted).

      Thus, since Appellant waived all issues on appeal, we affirm the

judgment entered in this case.

      Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/19




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