Bertino v. Tax Claim Bureau – Pa. Cmwlth. 12-12-23 – unreported**
Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Failure to comply with the minimal requirements of Pa. R.A.P. 1925(b) will result in automatic waiver of the issues raised,” even where granting relief has equitable appeal. Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005).
Requiring “a bright-line rule eliminates the potential for the inconsistent results that existed prior to Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998), when trial courts and appellate courts had discretion to address or to waive issues raised in non-compliant Pa.[ ]R.A.P. 1925(b) statements.” Schofield, 888 A.2d at 774. Accordingly, “the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement[,] appellants and their counsel are responsible for complying with the Rule’s requirements.” Hill, 16 A.3d at 494.
Rule 1925(b) requires that, to preserve issues for appellate review, the 1925(b) statement must be timely filed and served on a trial judge. Finding all of the appellant’s issues waived for not complying with Rule 1925(b)’s requirements is consistent with “the Supreme Court’s commitment to a bright-line rule of waiver for failure to comply with the requirements of Rule 1925.” Commonwealth v. $766.00 U.S. Currency, 948 A.2d 912, 915 (Pa. Cmwlth. 2008),
Here, the trial court’s July 22, 2022 order directed Bertino to file a Concise Statement within 21 days. Bertino did not file his statement until 25 days later; therefore, it was untimely.
Rule 1925(b) requires both filing of the Concise Statement and service of that statement on the trial court within the time set forth in the order. The deadlines in Rule 1925(b) are unambiguous, and a concise statement “is either timely or it is not.” Tucker v. R.M. Tours, 977 A.2d 1170, 1173 (Pa. 2009).
Because an untimely served statement “fail[s] to comply with the minimal requirements of Pa.[ ]R.A.P. 1925(b)[, it] will result in automatic waiver of the issues raised.” Schofield, 888 A.2d at 774.
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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).
