Opinion
No. 2398 C.D. 2011
12-13-2012
Cassandra J. Davis, in her own right and on behalf of her minor children Dernell Braxton, Dersaun Braxton and Shadean Davis, Appellants v. Gloria Bryant and Philadelphia Housing Authority
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Cassandra J. Davis (Davis), in her own right and on behalf of her minor children, appeals from the order of the Court of Common Pleas of Philadelphia County that granted the motion for summary judgment filed by the Philadelphia Housing Authority (PHA) and dismissed her action against PHA. In her action, Davis alleged that her children suffered from lead toxicity infection due to their exposure to lead-based paint, while residing on the property owned by Gloria Bryant (Bryant) and leased to her under the program administered by PHA pursuant to Section 8(a) of the Housing and Community Development Act of 1974, 42 U.S.C § 1437f(a) (Section 8 program). Because Davis has waived the issues raised on appeal due to her failure to comply with the trial judge's order directing her to file of record and serve on the judge a statement of errors complained of on appeal in accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b), we dismiss her appeal.
In November 2010, Davis commenced the instant action against Bryant, who owned a residential property located at 1344 N. 27th Street in Philadelphia, and PHA, setting forth the following allegations in the complaint. In June 2001, Bryant entered into an Assisted Lease Agreement with Davis and a Housing Assistance Payment Contract with PHA, in which PHA agreed to pay Bryant $340 toward Davis's $550 monthly rent under the Section 8 program. Davis alleged that her three sons suffered from lead toxicity infection as a result of their exposure to lead-based paint while residing on Bryant's property from June 2001 to March 2006.
In Count I of the complaint, Davis sought a judgment for the amount of rent she paid to Bryant, alleging that Bryant's property was unfit for human habitation and was in breach of the implied warranty of habitability. In Count II, Davis sought to recover the triple amount of rent paid to Bryant in March 2006 after the City of Philadelphia notified Bryant that she was prohibited from collecting rent until lead hazards were removed from the property. The remaining counts were based on the alleged violations of the Unfair Trade Practices and Consumer Protection Law (Consumer Protection Law), Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 - 201-9.3. Davis alleged that Bryant and PHA acted individually and in concert to engage in fraudulent or deceptive conduct, in violation of Sections 2(4) and 3 of the Consumer Protection Law, 73 P.S. §§ 201-2(4) and 201-3 (Count III). Davis further alleged that PHA failed to inspect Bryant's property and failed to include in the lease agreement a warning that houses built before 1978 may contain lead-based paint posing health hazards, in violation of the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4852d(b), and 24 C.F.R. § 35.92(b)(1) (Counts IV through VI).
After discovery, PHA filed a motion for summary judgment. PHA argued that Davis's claim for a breach of the implied warranty of habitability was barred by the statute of limitations and sovereign immunity and that she failed to establish the existence of a joint venture by PHA and Bryant to support her claims against PHA. The trial court initially denied PHA's motion but, after reconsideration, granted the motion and dismissed Davis's action against PHA. Davis and Bryant thereafter settled the action. See Reproduced Record (R.R.) at 300a. After the court denied her motion for reconsideration, Davis appealed the trial court's decision.
On December 21, 2011, the trial judge issued an order directing Davis to file of record and serve on the judge a Rule 1925(b) statement within 21 days of entry of the order, and advising her that any issues not properly included in a Rule 1925(b) statement would be deemed waived. Davis neither filed of record nor served on the trial judge a Rule 1925(b) statement as ordered. In an opinion filed on February 27, 2012, pursuant to Rule 1925(a), the trial judge concluded that Davis's claims against PHA were barred by sovereign immunity because her claims sounded in tort, not in contract, and did not fall within the real estate exception to sovereign immunity under Section 8522(b)(4) of the Judicial Code, as amended, 42 Pa. C.S. § 8522(b)(4). The court further concluded that PHA had no proprietary interest in Bryant's property and did not engage in a joint venture with Bryant in administering the Section 8 program.
Davis argues that she stated valid causes of action against PHA in Counts I and II. She further argues that PHA had a contractual relationship with her and that her claims against PHA, therefore, are not barred by sovereign immunity, citing Meyer v. Community College of Beaver County, 606 Pa. 539, 2 A.3d 499 (2010). Before addressing Davis's arguments, we will first consider PHA's argument that Davis's failure to comply with the trial judge's order directing her to file of record and serve on the judge a Rule 1925(b) statement constitutes a waiver of all claims.
In Meyer, the community college's former students filed a private action under the Consumer Protection Law, alleging a breach of contract and a breach of warranty. The Pennsylvania Supreme Court noted that governmental immunity is implicated only where the gravamen of a claim sounds in negligence and that immunity does not extend to all statutory causes of action. On remand, the majority of this Court's en banc panel concluded that the students' allegations sounded in contract, not in tort, and that the students' claims, therefore, were not barred by governmental immunity. See Meyer v. Cmty. Coll. of Beaver County, 30 A.3d 587 (Pa. Cmwlth. 2011), appeal granted in part and denied in part, ___ Pa. ___, 51 A.3d 177 (2012).
By order dated April 19, 2012, this Court granted Davis's nunc pro tunc motion to extend the time period within which to file a "designation of issues." Upon PHA's subsequent motion, the Court clarified that the April 19, 2012 order only permitted Davis to file nunc pro tunc a designation of contents and a brief statement of issues pursuant to Rule 2154(a), not a Rule 1925(b) statement. Davis later filed a motion to file a reply brief nunc pro tunc to address PHA's argument that she waived the issues due to her failure to comply with the trial court's December 21, 2011 order. By order dated August 31, 2012, this Court denied her motion.
The trial court issued the December 21, 2011 order pursuant to Rule 1925(b), which provides in relevant part:
(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.-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.-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) [governing the filing and service of papers in an appellate court] ....
(2) Time for filing and service.-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.- 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 paragraph (b)(4) are waived.
Rule 1925 was extensively amended on May 10, 2007, to be effective 60 days after its adoption. Prior to the 2007 amendment, Rule 1925(b) provided that trial court "may enter an order directing the appellant to file of record in the [trial] court and serve on the trial judge a concise statement of matters complained of on appeal no later than 14 days after entry of such order" and that "[a] failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of." The 2007 amendment addressed problems and difficulties in the enforcement of Rule 1925(b). Commonwealth v. Gravely, 601 Pa. 68, 970 A.2d 1137 (2009). Rule 1925 was again amended in 2009, but the 2009 amendment is inapplicable to this case.
Rule 1925(b) is intended to aid the trial judge in writing an opinion by identifying and focusing only on those issues that the appellant plans to raise on appeal and to enable appellate courts to engage in meaningful appellate review. Tucker v. R.M. Tours, 602 Pa. 147, 977 A.2d 1170 (2009). It is "the trial court's order that triggers an appellant's obligation under [Rule 1925(b)]." Berg v. Nationwide Mut. Ins. Co., 607 Pa. 341, 351, 6 A.3d 1002, 1008 (2010). Consequently, "absent an order by the trial court, an appellant has no obligation to file a Rule 1925(b) statement." Id. at 351 n. 11, 6 A.3d at 1008 n. 11.
In order to preserve claims, appellants "must comply whenever the trial court orders them to file a [Rule 1925] Statement." Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998). The Lord Court adopted "a bright-line rule for waiver," eliminating any aspect of the court's discretion in determining whether the appellant has waived issues due to failure to comply with Rule 1925(b). Commonwealth v. Butler, 571 Pa. 441, 445, 812 A.2d 631, 633 (2002). Under such rule, a waiver under Rule 1925 is "automatic"; courts may not "selectively enforce the Rule based upon the arguments of parties, which would subvert the purpose and effectiveness of Rule 1925." Id. at 446, 812 A.2d at 634. Subsequently in Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), the Supreme Court reaffirmed the Lord/Butler bright-line waiver rule and disapproved ad hoc exceptions to the rule created by the intermediate appellate courts in their previous decisions. See, e.g., Commonwealth v. Alsop, 799 A.2d 129 (Pa. Super. 2002), overruled in part by Castillo (finding no waiver on the basis that the untimely filing of the Rule 1925(b) statement did not impede meaningful appellate review because the trial court discussed the issues in its opinion).
In Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011), our Supreme Court further explained the Lord/Butler automatic bright-line waiver rule:
Our jurisprudence is clear and well-settled, and firmly establishes that: 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; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; 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; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee's request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule.
In the December 21, 2011, order issued pursuant to Rule 1925(b), the trial judge stated in relevant part:
Appellant is hereby ORDERED to file of record and serve unto this trial judge, at the chamber's address, a concise statement of the error(s) complained of on appeal within twenty-one (21) days of the entry of this Order. Any issue not properly included in the Statement ... timely filed and served pursuant to this Rule shall be deemed waived.R.R. at 719a (emphasis in original).
The trial judge's Rule 1925(b) order complied with Rule 1925(b)(3) governing the contents of such order and triggered Davis's obligation under Rule 1925(b). Berg. Davis does not dispute her noncompliance with the trial judge's order. Further, she neither requested an enlargement of the time period within which to comply with the trial judge's order nor sought permission to file a Rule 1925(b) statement nunc pro tunc pursuant to Rule 1925(b)(2). The fact that the trial court issued a Rule 1925(a) opinion setting forth reasons for granting PHA's motion for summary judgment is irrelevant to the application of the automatic waiver rule. Hill; Castillo. See also Commonwealth v. Smith, 604 Pa. 126, 159, 985 A.2d 886, 905 (2009) (holding that "the fact that the trial court addressed the issue in its 1925(a) opinion would not save Appellant's claim"). Hence, the issues raised by Davis on appeal are deemed waived under Rule 1925(b)(4)(vii). Accordingly, we dismiss her appeal.
In Berg, the senior trial judge ordered the appellants to "file with the Court, and a copy with the trial judge," a Rule 1925(b) statement within 21 days of the order. Berg, 607 Pa. at 344, 6 A.3d at 1004. The appellants' counsel thereafter attempted to provide the prothonotary with two time-stamped copies of a Rule 1925(b) statement, one to be served on the trial judge. The prothonotary, however, refused to accept more than one copy of the statement and declined to reveal the trial judge's location, stating that he would deliver the original statement to the judge within ten minutes. The trial judge stated that the appellants waived all issues on appeal because he had not been served with a Rule 1925(b) statement. Stating that the trial judge failed to state in his order that a Rule 1925(b) statement must be served on the judge, as required by Rule 1925(b)(3), our Supreme Court refused to apply the waiver rule. The Court noted that the appellants substantially complied with the express terms of the trial judge's order and that their attempt to serve the statement on the judge was thwarted by the prothonotary. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 13th day of December, 2012, the appeal filed by Cassandra J. Davis, in her own right and on behalf of her minor children, Dernell Braxton, Dersaun Braxton and Shadean Davis, from the order of the Court of Common Pleas of Philadelphia County is hereby DISMISSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge