J. A30037/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ALDER RUN, LLC                    :           IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                v.                :
                                  :
RICHARD E. LUTZ, TRUSTEE,         :
NANCY M. LUTZ, TRUSTEE RHCC, LLC, :
JAMES A. STRAWSER,                :
LESTER H. STRAWSER,               :
DANIEL D. STRAWSER,               :
EARL T. STRAWSER,                 :
PALMER E. STRAWSER,               :
AMOS T. STRAWSER,                 :
KEVIN O. STRAWSER,                :
SHANE A. STRAWSER,                :
KEITH A. STRAUSER,                :
ELROY D. STRAUSER,                :
JOSHUA E. STRAUSER,               :
DALE E. GOODLING,                 :
ANTHONY L. PORTZLINE,             :
TERRY L. ARNOLD,                  :
EDWARD P. VERES, JR.,             :
ANN F. VERES, RONALD R. SEILER,   :
DEBORAH L. CARNS, GARETH O. WICK, :
AND DURVIN Z. WICK                :
                                  :                No. 797 WDA 2017
APPEAL OF: RICHARD E. LUTZ,       :
TRUSTEE                           :


                    Appeal from the Judgment, May 10, 2017,
               in the Court of Common Pleas of Clearfield County
                         Civil Division at No. 15-309-CD

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 27, 2018

     Appellant, Richard E. Lutz, Trustee (“Lutz”), appeals from the May 10,

2017 judgment following the trial court’s February 21, 2017 order granting
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appellee, Alder Run, LLC (“Alder Run”), an easement by prescription across

the respective properties of the defendants in the underlying action.1 For the

following reasons, we find that Lutz has waived all his issues on appeal by

failing to file a timely Pa.R.A.P. 1925(b) statement. Accordingly, we affirm

the May 10, 2017 judgment.

      This matter stems from a longstanding dispute over access to a dirt

roadway intersecting parcels of land owned by neighboring property owners

in rural Clearfield County, Pennsylvania. (Notes of testimony, 12/12/16 at

60-61.) Lutz placed a gate across the roadway in question where it intersected

his property but refused to give Alder Run a key. (Id.) Following a non-jury

trial on December 12, 2016, the trial court filed an opinion and entered an

order on February 21, 2017, granting Alder Run an easement by prescription

across the properties in question “by use of the dirt roadway that is connected

to Township Road 727.” (Trial court opinion and order, 2/21/17 at 10.) On

March 3, 2017, Lutz filed post-trial motions that were denied by opinion and

order of the trial court on May 5, 2017. Judgment was subsequently entered

by Prothonotary on May 10, 2017.




1 Although Lutz is the only named appellant in this matter, he makes several
arguments on behalf of the defendants in the underlying action,
James A. Strawser, Lester H. Strawser, Earl T. Strawser, Palmer E. Strawser,
Amos T. Strawser, Kevin O. Strawser, Shane A. Strawser, Keith A. Strauser,
Elroy D. Strauser, Dale E. Goodling, Anthony L. Portzline, and Terry L. Arnold,
whom he collectively refers to as both “Lutz and Strauser” and “Appellants”
throughout the duration of his brief.


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J. A30037/17

      Instantly, the record reflects that appellant filed a timely notice of appeal

on June 1, 2017. That same day, the trial court directed Lutz to file a concise

statement of errors complained of on appeal, in accordance with Rule 1925(b),

within 21 days. On June 26, 2017, four days after expiration of the 21-day

filing period, Lutz filed his Rule 1925(b) statement. A certificate of service

indicating that Lutz’s Rule 1925(b) statement was served on the trial judge

and opposing counsel on June 16, 2017, is attached to his Rule 1925(b)

statement, but as noted, this statement was time-stamped as filed on

June 26, 2017.     Additionally, the record contains no indication that Lutz

sought, or that the trial court granted, an extension of time for filing. The trial

court, presumably because of Lutz’s untimely Rule 1925(b) statement, did not

file a Rule 1925(a) opinion addressing the issues presented therein.

      This court has long recognized that “[w]henever a trial court orders an

appellant to file a concise statement of matters complained of on appeal

pursuant to Rule 1925(b), the appellant must comply in a timely manner.

Failure to comply with a Rule 1925(b) order will result in waiver of all issues

raised on appeal.” Hess v. Fox Rothschild, 925 A.2d 798, 803 (Pa.Super.

2007) (citations omitted; emphasis in original), appeal denied, 945 A.2d 171

(Pa. 2008).    Barring extraordinary circumstances, the untimely filing of a

Rule 1925 statement in a civil case constitutes waiver of all issues on appeal.

See Greater Erie Industrial Development Corp. v. Presque Isle Downs,

Inc., 88 A.3d 222, 224-225 (Pa.Super. 2014) (appellant’s failure to file a



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J. A30037/17

timely concise statement waived all claims on appeal, despite the fact that the

trial court accepted the untimely statement and addressed claims in opinion);

see also Pa.R.A.P. 1925(b)(3)(iv) (stating, “any issue not properly included

in the Statement timely filed and served pursuant to subdivision (b) shall be

deemed waived.”).

      Based on the foregoing, we find all of Lutz’s issues waived because of

his failure to file a timely Rule 1925(b) statement in accordance with the trial

court’s June 1, 2017 order.2

      Judgment affirmed.




2 We recognize that in Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002 (Pa.
2010), our supreme court indicated that a trial court’s Pa.R.A.P. 1925 order
should specifically track the language set forth in Subsection (b)(3)(iii) and
(iv). However, we find the analysis in Berg, a plurality of our supreme court,
non-binding and distinguishable. Justice Todd’s rationale in the lead opinion
in Berg was joined, at most, by two other justices (Justice McCaffery and
Justice Saylor). Two justices (Chief Justice Castille and Justice Eakin) filed
separate concurring opinions, specifically not joining in Justice Todd’s
rationale. One justice (Justice Baer) filed a dissenting opinion, and a seventh
justice (former Justice Greenspan) did not participate in the decision. Berg,
6 A.3d at 1012. Moreover, Berg involved consideration of “whether an
appellant’s failure to personally serve on a trial judge a court-ordered
[1925(b) statement], in accordance with Pa.R.A.P. 1925, results in waiver of
all issues, where the court’s order itself does not comply with Rule 1925.[]”
Id. at 1003. Unlike the instant matter, in Berg, personal service of the
Rule 1925(b) statement was attempted on the trial judge, but was ultimately
thwarted by the prothonotary.        Id. at 1008-1011.        Here, appellant’s
Rule 1925(b) statement was served on the Honorable Frederic J. Ammerman,
albeit four days past the deadline.

      In any event, even if Lutz had not waived his claims on appeal, we would
have determined that they lack merit for the reasons set forth in the trial
court’s comprehensive opinion issued in support of its February 21, 2017
order. (See trial court opinion and order, 2/21/17 at 4-10.)


                                     -4-
J. A30037/17

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2018




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