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Berg v. Nationwide Mutual Insurance Co.

October 22, 2010

DANIEL BERG AND SHERYL BERG, H/W, APPELLANTS
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, INC., APPELLEE



Appeal from the Order of the Superior Court entered on November 12, 2008, reconsideration denied January 26, 2009, at No. 12 MDA 2008 affirming the Order of the Court of Common Pleas of Berks County, Civil Division, dated December 7, 2007 at No. 98-813.

The opinion of the court was delivered by: Madame Justice Todd

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

ARGUED: December 2, 2009

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

In this appeal by allowance, we consider whether an appellant's failure to personally serve on a trial judge a court-ordered statement of errors complained of on appeal, 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.*fn1 For the reasons that follow, we reverse and remand this case for further proceedings.

The relevant procedural history is as follows: In 1998, Appellants, Daniel and Sheryl Berg, filed an action against their automobile insurer, Nationwide Mutual Insurance Company, Inc. ("Nationwide"), for breach of contract, negligence, fraud, civil conspiracy, and violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL")*fn2 and the bad faith statute,*fn3 arising out of Nationwide's handling of a first-party collision claim made by Appellants. Following a bifurcated trial, on December 17, 2004, a jury returned a verdict in favor of Appellants and against Nationwide in the amount of $295 on Appellants' UTPCPL, fraud, and civil conspiracy claims. On July 10, 2007, however, following a bench trial, the distinguished trial judge, the Honorable Albert A. Stallone, who served as the President Judge of the Berks County Court of Common Pleas from 2000 to 2003, directed a verdict in Nationwide's favor on Appellants' claims for treble damages under the UTPCPL and for punitive damages and attorney fees under the bad faith statute.

On December 28, 2007, Appellants filed a timely appeal to the Superior Court. On January 3, 2008, Judge Stallone issued an order directing Appellant to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) (hereinafter the "1925(b) Statement"). Judge Stallone's order provided:

AND NOW, this 3rd day of January, 2008, it is hereby ORDERED and DECREED that the Appellants shall file with the Court, and a copy with the trial judge, a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days of the issuance of this Order.

Order, 1/3/08.*fn4

On January 17, 2008, at approximately 4:14 p.m., counsel for Appellants arrived at the Berks County Prothonotary's Office to file Appellants' 1925(b) Statement. Appellants' Brief at 7.*fn5 Counsel had three copies of the 1925(b) Statement time-stamped: one for the prothonotary; one for counsel's file; and one for the trial judge. Id. Appellants' counsel avers that he did not know the precise location of Judge Stallone's chambers because Judge Stallone was on senior status and thus had no permanent assignment of a chambers or courtroom; accordingly, Appellants' counsel asked the prothonotary for the location of Judge Stallone's chambers so that he could personally deliver the judge's copy of the 1925(b) Statement. Id. The prothonotary declined to specify a location where Judge Stallone could be found, and, instead, advised Appellants' counsel that the judge wanted only the "original" statement; that the judge was expecting the 1925(b) Statement; and that the prothonotary would deliver within ten minutes the 1925(b) Statement to the judge, who, it seems, was secreted away in the bowels of the Berks County Courthouse. Id. According to Appellants' counsel, the prothonotary refused to accept more than one time-stamped copy of the 1925(b) Statement, continually insisting that the "Court always wants 'the original.'" Appellants' Petition to Modify the Record, 3/27/08, at 4.

On March 14, 2008, Judge Stallone filed a Statement in Lieu of Memorandum Opinion in which he stated that he had not been served with Appellants' 1925(b) Statement, and concluded that, as a result, all of Appellants' issues on appeal were waived and their appeal should be quashed. On March 27, 2008, Appellants filed a Petition to Modify the Record, seeking to introduce into the record a recitation of the events that transpired in the prothonotary's office on January 17, 2008, and to establish that Judge Stallone received Appellants' 1925(b) Statement minutes after it had been filed. On April 11, 2008, Judge Stallone filed a Supplemental Statement in Lieu of Memorandum Opinion, denying Appellants' Petition to Modify the Record, and stating "it was the responsibility of the Bergs, and not the Prothonotary, to serve a copy of the Concise Statement upon the trial judge." Supplemental Statement in Lieu of Memorandum Opinion, 4/11/08, at 4. Judge Stallone maintained that "[t]o date, the trial judge has never been served and, therefore, never actually received a copy of the Concise Statement from [Appellants], as required by this Court's January 3, 2008 Order," id. at 3, and again concluded Appellants had waived their appellate issues by failing to "serve a copy of their Concise Statement upon the trial judge either in person or by mail." Id. at 4. Judge Stallone did not address Appellants' contentions in their Petition to Modify the Record that the prothonotary declined to provide a location at which he could be found and refused to accept more than the one original copy of Appellants' 1925(b) Statement.

On November 12, 2008, the Superior Court affirmed the trial court's order on the basis that, by failing to serve the trial judge with a copy of their 1925(b) Statement, Appellants waived all issues on appeal. Subsequently, Appellants sought allowance of appeal with this Court, and, on August 19, 2009, we granted allowance of appeal as to the following issues:

1. Whether the Superior Court erred in finding waiver of all appellate issues for failing to serve the trial judge with a Statement of Errors Complained Of, pursuant to Appellate Rule 1925(b), when the trial judge's order directing a Statement of Errors to be filed, failed to include language mandated by paragraphs (b)(3)(iii) and (iv) of Appellate Rule 1925(b)?

2. Whether the Superior Court erred in finding waiver of all appellate issues for failing to provide the trial judge with personal service of the timely-filed Statement of Errors, when [Appellants] complied with the actual wording of the trial judge['s] Rule 1925(b) Order, which directed [Appellants] to file the Statement of Errors "with the Court, and a copy with the trial judge," and when the trial judge in fact received the Statement of Errors contemporaneously with its filing?

Berg v. Nationwide, 126 MAL 2009 (Pa. filed August 19, 2009). Oral argument was held on December 2, 2009.*fn6

We accepted allocatur in this case not to address factual disputes between the parties, but to consider the global legal issue regarding the impact of a trial court's arguably deficient Pa.R.A.P. 1925(a) order on the determination of an appellant's compliance and/or waiver of issues under Rule 1925(b). As that issue involves questions of law, our review is plenary. Commonwealth v. Hess, 570 Pa. 610, 614, 810 A.2d 1249, 1252 (2002). Rule 1925 was substantially amended in 2007; the version of Rule 1925 in effect at the time of the trial court's order provided, in relevant part:

(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.3/4 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.3/4 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 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).

(2) Time for filing and service.3/4 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. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental statement to be filed. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.

(3) Contents of order.3/4 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 ...


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