           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bucks County Water and Sewer             :
Authority                                :
                                         :
            v.                           :   No. 573 C.D. 2017
                                         :   Submitted: October 20, 2017
A Portion of the Lands of                :
John Joseph Marchione and                :
Jill Marchione, Husband and Wife,        :
of Plumstead Township,                   :
County of Bucks, Tax Parcel 34-3-89      :
                                         :
Appeal of: John Joseph Marchione         :
and Jill Marchione                       :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: April 4, 2018

            Property owners John Joseph Marchione and Jill Marchione
(Objectors), pro se, appeal from an order of the Court of Common Pleas of Bucks
County (trial court), which denied and dismissed Objectors’ preliminary objections
to a declaration of taking filed by the Bucks County Water and Sewer Authority
(Authority). For the reasons that follow, we affirm.
            On May 17, 2016, the Authority’s Board of Directors unanimously
enacted a resolution authorizing the condemnation of a strip of land for use as a
sanitary sewer easement for the purpose of constructing and maintaining a public
sewer system. Thereafter, on May 27, 2016, the Authority filed a declaration of
taking, condemning a sanitary sewer easement over a parcel of real property owned
by Objectors and located in Plum Township, Bucks County, known as Bucks County
Tax Parcel 34-3-89. The property consists of approximately 2.172 acres and is
improved by a single-family dwelling. Objectors, acting pro se, filed preliminary
objections, arguing that (1) the condemnation is an unlawful taking for a private
purpose, (2) the primary beneficiary of the condemnation is the developer of a
housing development known as “Lantern Ridge,” and (3) the condemnation is not
an exercise of sound judgment.        The Authority responded to the preliminary
objections, essentially denying the allegations.
             By letter dated July 14, 2016, the Authority sent Objectors two notices
of depositions scheduled for August 3, 2016. (Supplemental Reproduced Record
(S.R.R.) at 1b.) The notices listed the deponents as the Authority’s engineer,
John A. Swenson, P.E. (Swenson), and the Authority’s Chief Operating Officer,
John Butler (Butler). Objectors did not immediately reply to this correspondence,
nor did they appear at the depositions.
             On August 8, 2016, Objectors responded via letter to the Authority’s
notices of depositions, raising concerns regarding the manner in which the Authority
delivered the notices of depositions. Objectors stated that the Authority served the
declaration of taking via personal service at Objectors’ place of business but sent the
notices of depositions to a post office box that Objectors had never directed the
Authority to use. (Id. at 4b.) Further, Objectors noted that they did not discover the
notices in their post office box until the day of the depositions, thereby causing
Objectors’ absence. In light of Objectors’ inability to attend the depositions, they
requested copies of the deposition transcripts and reserved the right to depose
Swenson and Butler at a later date. (Id. at 5b.)




                                          2
              By letter dated August 15, 2016, the Authority explained that the
notices of depositions were “sent to the [physical] address [for Objectors’ place of
business], but returned by the postal office. They were then sent to the post office
box because the county real estate records show that post office box address as the
mailing address for the property.” (Id. at 6b.) The Authority further advised
Objectors that it would send copies of the deposition transcripts as soon as
practicable and that Objectors should contact the Authority if they wished to depose
Swenson and Butler. (Id.)
              On September 20, 2016, the Authority provided Objectors with the
deposition transcripts of Swenson and Butler. (Id. at 7b.) The Authority again
reminded Objectors to contact the Authority if they wished to depose Swenson and
Butler. (Id.) Further, the Authority stated its intention to file a brief with the trial
court to dismiss Objectors’ preliminary objections and Objectors would be obligated
to file a reply brief. (Id.)
              By response dated October 1, 2016, Objectors informed the Authority
that they wished to depose Swenson. (Id. at 52b.) The Authority subsequently
proposed two dates for this deposition: November 15 or 16, 2016. (Id. at 53b.) On
November 10, 2016, Objectors informed the Authority that they would not be ready
to conduct the deposition on either suggested date, and they would contact the
Authority in the coming days to reschedule. (Id.) No future contact occurred
between Objectors and the Authority regarding the scheduling of depositions.
              On January 6, 2017, the Authority filed with the trial court a brief in
opposition to Objectors’ preliminary objections and attached, inter alia, the
depositions of Swenson and Butler. (Id. at 55b.) Thereafter, by letter dated
January 18, 2017, the Authority notified Objectors of its intent to file a praecipe for


                                           3
dismissal of Objectors’ preliminary objections pursuant to Bucks County Rule of
Civil Procedure No. 208.3(b)(5)1 if Objectors failed to comply with Bucks County
Rule of Civil Procedure No. 208.3(b)(2) 2 within ten days. (Id. at 56b.) Objectors
took no action during the ten-day period. The Authority then filed its praecipe on
February 6, 2017. (Id. at 59b.)
                On February 21, 2017, Objectors filed a response to the Authority’s
praecipe, asserting only that the trial court should not dismiss the matter because
Objectors had not been able to develop the required facts due to the Authority’s
failure to make witnesses available for deposition. (Id. at 63b.) By order dated
April 10, 2017, the trial court denied and dismissed Objectors’ preliminary
objections. (Reproduced Record (R.R.) at 5a.)3
                On May 4, 2017, Objectors filed a timely notice of appeal. Pursuant to
Pa. R.A.P. 1925(b), the trial court directed Objectors to file a concise statement of
errors complained of on appeal (Rule 1925 Statement) no later than twenty-one days



       1
           Bucks County Rule of Civil Procedure No. 208.3(b)(5) provides, in pertinent part:
       Any other party may by praecipe forward a matter to the Court for dismissal of the
       application at issue when the party who [sic] submitted it does not comply with the
       provisions of subsection (2) of this rule. Written notice of the intent to file under
       this subsection shall be given to the party whose application is at issue at least ten
       days prior to such submission, during which period of time the non-complying party
       shall have the opportunity to come into compliance with the requirements of
       subsection (2).
       2
          Bucks County Rule of Civil Procedure No. 208.3(b)(2) provides that “when the matter is
at issue and ready for decision, the moving party on the application shall, by praecipe, order the
same to be submitted for disposition pursuant to this rule.”
       3
         Although Objectors have not numbered the pages in the manner required by
Pa. R.A.P. 2173, we will cite to them as numbered to avoid confusion. See Torijano v. Workers’
Comp. Appeal Bd. (In A Flash Plumbing), 168 A.3d 424, 425 n.1 (Pa. Cmwlth. 2017).


                                                 4
after the entry of the order.4 Although dated May 22, 2017, the trial court docketed
and mailed its Rule 1925(b) order to Objectors on May 26, 2017. Thus, Objectors
had until June 16, 2017, to file their Rule 1925 Statement. The Rule 1925(b) order
further notified Objectors that “[a]ny issue not properly included in the [Rule 1925]
Statement timely filed and served pursuant to Rule 1925(b) shall be deemed
waived.” (Trial court’s Rule 1925(b) order.)
                Objectors filed their Rule 1925 Statement via first-class mail.
Objectors’ certificate of service listed the mailing date as June 12, 2017. Objectors’
filing, however, did not include any certificate of mailing evidencing the mailing
date. The trial court, however, docketed Objectors’ Rule 1925 Statement as having
been received on June 26, 2017, thereby making it untimely. (R.R. at 2a.)
                On appeal,5 Objectors argue that the trial court erred in dismissing their
preliminary objections. Specifically, Objectors allege (1) the trial court erred in
concluding that the Authority did not preclude Objectors from taking the depositions
of Swenson and Butler, and (2) the trial court erred by considering the “ex parte”
depositions taken by the Authority. The Authority contends that Objectors waived
these issues due to Objectors’ failure to timely file their Rule 1925 Statement.
Before we address the merits of Objectors’ appeal, we must first address the
timeliness of Objectors’ Rule 1925 Statement.


       4
           Pa. R.A.P. 1925(b) provides:
       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 errors complained of on appeal (“Statement”).
       5
         “In eminent domain cases, our scope of review is limited to determining whether the trial
court abused its discretion or committed an error of law.” Appeal of Heim, 617 A.2d 74, 76 (Pa.
Cmwlth. 1992), appeal denied, 629 A.2d 1385 (Pa. 1993).

                                                5
              Pa. R.A.P. 1925 is “intended to aid trial judges in identifying and
focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is
thus a crucial component of the appellate process.”                 Cmwlth. v. Lord,
719 A.2d 306, 308 (Pa. 1998). “Whenever 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.”            Hess v. Fox Rothschild, LLP,
925 A.2d 798, 803 (Pa. Super. 2007), appeal denied, 945 A.2d 171 (Pa. 2008)
(emphasis in original). Failure to comply with the order’s directive will result in
waiver of all issues raised on appeal. Cmwlth. v. Schofield, 888 A.2d 771, 774
(Pa. 2005).
              In terms of the filing and service of a Rule 1925 Statement,
Pa. R.A.P. 1925(b)(1) provides, in pertinent part:
              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).

(Emphasis added.)
              Applying the above principles to the instant case, we hold that
Objectors waived all issues on appeal due to the untimeliness of their Rule 1925
Statement. Although Objectors’ certificate of service for their Rule 1925 Statement
identifies the mailing date as June 12, 2017, the trial court’s docket shows the date
of receipt as June 26, 2017. Per Pa. R.A.P. 1925(b), Objectors would only be able
to preserve the timely mailing date set forth on their certificate of service if they had
attached some form of a certificate of mailing from which the date Objectors
deposited the Rule 1925 Statement in the mail could be verified.             Objectors,

                                           6
however, failed to attach such documentation. We, therefore, must use the date set
forth on the trial court’s docket, which renders Objectors’ Rule 1925 Statement
untimely, thereby resulting in the waiver of all issues on appeal.
               Accordingly, we affirm the trial court’s order.6




                                      P. KEVIN BROBSON, Judge




       6
          As to the substantive issues, we note that Objectors’ arguments lack merit. Although
Objectors contend they did not receive notices of the depositions in a timely manner, the Authority
made reasonable attempts to notify Objectors of the depositions. Moreover, the record establishes
that on four separate occasions the Authority offered Objectors an opportunity to conduct
depositions. (S.R.R. at 1b, 6b-7b, 53b.) Further, Objectors indicated that they would contact the
Authority to schedule the depositions but failed to do so. Finally, when a party is notified of a
proceeding, yet fails to attend, it does not render that proceeding, or any resulting evidence, as ex
parte. See Allen v. Bureau of Workers’ Comp., 814 A.2d 1275, 1278 (Pa. Cmwlth. 2003). Given
these facts, we see no error on behalf of the trial court.

                                                 7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bucks County Water and Sewer          :
Authority                             :
                                      :
           v.                         :   No. 573 C.D. 2017
                                      :
A Portion of the Lands of             :
John Joseph Marchione and             :
Jill Marchione, Husband and Wife,     :
of Plumstead Township,                :
County of Bucks, Tax Parcel 34-3-89   :
                                      :
Appeal of: John Joseph Marchione      :
and Jill Marchione                    :


                                   ORDER


           AND NOW, this 4th day of April, 2018, the order of the Court of
Common Pleas of Bucks County is AFFIRMED.




                             P. KEVIN BROBSON, Judge
