Litigation Alert – 03/27/2014
On March 11, 2014, the Superior Court of Pennsylvania held that the appellant in Greater Erie Ind. Dev. Corp. v. Presque Isle Downs, Inc. waived all of its claims on appeal by filing its concise statement of errors three days late. The Court noted: “[O]ur Supreme Court does not countenance anything less than stringent application of waiver pursuant to [Pa. R.A.P.] 1925(b)…”
The Greater Erie Industrial Development Corporation (“GEIDC”) filed a complaint against Presque Isle Downs, Inc. (“Presque Isle”) alleging that Presque Isle breached the terms of a contract for the sale of real property. The trial court granted summary judgment in favor of GEIDC.
Presque Isle filed a timely notice of appeal. That same day, the trial court ordered Presque Isle to file a concise statement of errors (“Statement”) complained of on appeal pursuant to Pa. R.A.P. 1925(b). The Statement was to be filed within twenty-one days of the Court’s order. Presque Isle filed its Statement three days past the twenty-one day period ordered by the Court. Nonetheless, the trial court accepted Presque Isle’s untimely filing.
Presque Isle then filed its appeal with the Superior Court. After a hearing, the Superior Court affirmed the trial court’s decision. Presque Isle filed an application for reargument before an en banc panel of the Court. On reargument, the Superior Court held that Presque Isle had waived its claims by filing its Statement three days after the deadline.
In reaching its decision, the Superior Court was guided by the Supreme Court’s clear mandate in Commonwealth v. Lord that “failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.” This bright-line rule is intended to eliminate the potential for inconsistent results that existed prior to Lord when appellate courts had discretion to address or to waive issues raised in non-compliant Statements.
Do not delay in filing your Pa.R.A.P. 1925(b) statement or you will jeopardize your client’s rights on appeal. Even if your client plans to retain separate counsel for appeal, inform the client of all critical deadlines and the importance of strict adherence to them.
The Litigation Department, Gibson & Perkins, PC