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

Superior Court of Pennsylvania

March 11, 2014

GREATER ERIE INDUSTRIAL DEVELOPMENT CORPORATION, Appellee
v.
PRESQUE ISLE DOWNS, INC., Appellant

Argued November 19, 2013.

As Corrected March 18, 2014.

Appeal from the Order of the Court of Common Pleas, Erie County, Civil Division, No.: 14436-2009. Before GARHART, J.

Michael E. Flaherty, Pittsburgh and Frederick P. Santarelli, Blue Bell, for appellant.

W. Patrick Delaney, Erie, for appellee.

Before: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, GANTMAN, DONOHUE, ALLEN, LAZARUS, OTT and WECHT, JJ. OPINION BY WECHT, J. GANTMAN, J. filed a Concurring Opinion in which DONOHUE, ALLEN, and LAZARUS, JJ. joined.

OPINION

Page 223

WECHT, J.

Presque Isle Downs, Inc. (" Presque Isle" ) appeals from the December 14, 2011 order entering summary judgment against it and in favor of the Greater Erie Industrial Development Corporation (" GEIDC" ). After careful review, we are constrained to conclude that Presque Isle has waived all of its claims. Presque Isle failed to comply timely with the trial court's order directing it to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b). Consequently, we must affirm the trial court's December 14, 2011 order.

A thorough review of the underlying facts and procedural history in this case is unnecessary. On July 20, 2005, Presque Isle entered into an agreement to sell real property to GEIDC. On October 11, 2005, the parties closed on the sale. On October 1, 2009, GEIDC filed a complaint in civil action against Presque Isle, alleging $600,000 in damages. The claim related to Presque Isle's non-performance of an alleged contractual obligation to provide clean fill dirt to GEIDC as part of the real property sale. On December 14, 2011, the trial court entered the underlying order granting summary judgment to GEIDC.

On January 12, 2012, Presque Isle filed a timely notice of appeal. That same day, the trial court ordered Presque Isle to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). See 1925(b) Order, 1/12/2012, at 1. The trial court's order provided that Presque Isle was to " file of record and serve upon this Court a [c]oncise [s]tatement . . . within twenty-one (21) days of the date of this Order." Id. [1] Presque Isle untimely filed its Rule 1925(b) statement on February 6, 2012.[2] See Appellant's Concise Statement of Errors Complained of on Appeal, 2/6/2012, at 1. Nevertheless, the trial court accepted Presque Isle's untimely statement and, on February 14, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). See Order, 2/14/2012.

On April 8, 2013, a panel of this Court unanimously affirmed the trial court's holding. On April 22, 2013, Presque Isle filed an application for reargument before an en banc panel of this Court. On June 17, 2013, we granted Presque Isle's application for reargument.

Presque Isle raises three issues challenging the trial court's grant of summary judgment. However, before addressing the merits of Presque Isle's claims, we must evaluate whether Presque Isle properly has preserved those issues for our review, as required by Pa.R.A.P. 1925(b).[3] See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775, 780 (Pa. 2005) (finding that appellant waived all his claims on appeal for untimely filing his Rule 1925(b) statement) (citing Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306, 309 (Pa. 1998) (" [F]rom this date forward . . . [a]ppellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived." )); see also Pa.R.A.P. 1925(b)(4)(vii).

Page 224

Our Supreme Court intended the holding in Lord to operate as a bright-line rule, such that " failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised." Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771, 774 (Pa. 2005) (emphasis added); see also Castillo, 888 A.2d at 780. Given the automatic nature of this type of waiver, we are required to address the issue once it comes to our attention. Indeed, our Supreme Court does not countenance anything less than stringent application of waiver pursuant to Rule 1925(b): " [A] bright-line rule eliminates the potential for inconsistent results that existed prior to Lord, when . . . appellate courts had discretion to address or to waive issues raised in ...


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