United States: Pa Superior Court Finds That All Issues Were Waived On Appeal Due To Untimely Filed 1925 B Statement

On March 11, 2014, the Pa Superior Court ruled that there is only one  exceptions to the timely filing of a Concise Statement of Matters Complained of on appeal as required by Pa Rules of Appellate Procedure 1925 (b). The exception is if the Prothonotary fails to give written notice of the entry of a court order requiring the 1925 (b) Concise Statement of Matters Complained of and/or fails to note service of the order on the dockets.

Absent a mistake by the Prothonotary the Pa Superior Court found that there is a "bright line rule" and Superior Court does not have the discretion to permit an appeal if the 1925(b) statement was untimely filed.  The result is that all issues on appeal are waived!

As background information, the Appellant filed their statement of matters complained of 3 days late. They mailed the Statement on the 20th day but it was not received by the Prothonotary until the 23rd day. The Lower Court accepted the late filing and issued an opinion. On appeal the Superior Court found that the statement that was filed 3 days late caused the Appellant to waive all their issues on appeal. Thus, the court affirmed the Lower Court Decision.

There are a few lessons to be learned from this case. First, if you mail the Statement make sure you get a certificate of mailing from the post office. If you do, then the date of mailing constitutes the date of filing. In this case, the Appellant did not obtain such a certificate of mailing. If they had then the statement would have been timely filed and the Appellant would not have waived all issues on appeal.  Second, if you do not plan on obtaining such a certificate of mailing then make sure you hand deliver the statement to the court or send it by overnight mail making sure that it arrives in the clerk's office by the 20th day. Third, if your opponent does not timely file the statement then you should argue that all issues on appeal have been waived.

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