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In re Estate of Boyle

Superior Court of Pennsylvania

October 4, 2013

IN RE: ESTATE OF DENIS A. BOYLE, M.D.
v.
APPEAL OF: MARY DENISE CURRAN, DENIS A. BOYLE, JR., M.D., SUZANNE BOYLE MANNO, TIMOTHY P. BOYLE AND TERANCE P. BOYLE

Appeal from the Order Entered July 18, 2012 In the Court of Common Pleas of Chester County Orphans' Court Division No(s).: 1510-0548

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, and FITZGERALD, [*] JJ.

OPINION

FITZGERALD, J.

This case returns to this panel after remand for the trial court to determine the filing date of Appellants' Pennsylvania Rule of Appellate Procedure 1925(b) statement. The trial court has provided an informative statement of procedural history. Appellants, Mary Denise Curran, Denis A. Boyle, Jr., M.D., Suzanne Boyle Manno, Timothy P. Boyle, and Terance P. Boyle, appeal from the order entered in the Chester County Court of Common Pleas Orphans' Court Division, denying their exceptions to the confirming of an account of their sibling, Sally Ryan.[1] We affirm on the basis of an untimely 1925(b) statement.

Review of the underlying facts and Orphans' Court proceedings is not required for our disposition. On July 19, 2012, the Orphans' Court issued the underlying order, and Appellants filed a timely notice of appeal. On August 21st, the Orphans' Court entered an order directing Appellants to file, within twenty-one days, a 1925(b) statement of errors complained of on appeal. The order specifically provided that the "statement shall be filed and served on the trial judge no later than twenty-one (21) days after entry of this Order, " and that "[a]ny issue not properly included in the timely filed and served Statement . . . shall be deemed waived." Order, 8/21/12.

Immediately following the docket entry for this order, there is a separate entry indicating notice of the order was sent to the attorneys of record and unrepresented parties on the same day, August 21st.

We calculate that the twenty-first day after issuance of the 1925(b) order was Tuesday, September 11, 2012. Appellants filed a 1925(b) statement. The signature line and the accompanying certificate of service are dated September 10th. However, the statement is time-stamped as filed on September 20th. The docket entry for the 1925(b) statement is likewise dated September 20th. The record includes no indication that

Appellant sought or the court granted an extension of time for filing. Accordingly, on its face, the statement was untimely filed. In an abundance of caution, we remanded to the trial court for a determination of the filing date of Appellants' 1925(b) statement.

The trial court has provided a statement, indicating that it held "a brief evidentiary hearing" and providing the following findings of fact:

1. A copy of Appellant[s'] 1925(b) statement was served on the [trial court] on September 11, 2012 . . . . A copy was not contemporaneously transmitted to the Chester County Clerk of the Orphans' Court.
2. Appellant[s'] 1925(b) statement was filed with the Chester County Clerk of the Orphans' Court on September 20, 2012. Neither this Court nor Appellant is [sic] aware of how the 1925(b) statement was presented for filing on that date.

Trial Ct. Determination, 6/25/13.

Reviewing the trial record, docket, and above statement together, we glean that although Appellants served a copy of their 1925(b) statement on the trial court on September 11, 2012, they did not file a copy with the court clerk until September 20th.

In 2007, the Pennsylvania Supreme Court amended and "greatly expanded [Rule 1925] to clarify the requirements of trial judges in ordering, and litigants in submitting, Rule 1925(b) statements." Berg v. NationwideMutual Ins. Co., 6 A.3d 1002, 1008 n.12 (Pa. 2010) ...


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