HomeMy WebLinkAbout2019-05580 (2)
MAHMOUD SHAZLEY ELNAGGAR,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
OF THE NINTH JUDICIAL DISTRICT
HEBA ALLAH MALLAK,
Defendant 2019-05580 CIVIL TERM
IN RE: PLAINTIFF’S AMENDED CONCISE STATEMENT OF ERRORS
COMPLAINED OF ON APPEAL FILED NUNC PRO TUNC
SUPPLEMENTAL 1925(A) OPINION AND ORDER OF COURT
This case is designated a Children’s Fast Track Appeal. It is axiomatic that
appeals to the Pennsylvania Superior Court and the Pennsylvania Supreme Court result
in lengthy delays to a final disposition beyond a trial court’s decision. The Superior
court has recognized it is critical that timely and efficient decision-making occur by those
who exercise legal decision making authority over children. Therefore, in 2009, the
Pennsylvania Superior Court implemented new appellate rules governing custody,
adoption, termination of parental rights, paternity, and dependency cases in an effort to
expedite appeals involving dependent children. The new appellate rules for these
enumerated classes of cases are known as Children’s Fast Track.
The Supreme Court of Pennsylvania has required the rapid disposition of
Children’s Fast Track appeals and has been critical of any disposition delays. In Re
T.S.M., 71 A.3d 251, 261 n.21 (Pa. 2013). Accordingly, this jurist has complied with the
Children’s Fast Track rules, without the benefit of a transcript, and timely filed a
Statement in Lieu of 1925(a) Opinion within ten days of receiving Plaintiff’s Notice of
2019-05580 CIVIL TERM
Appeal on May 8, 2020. Plaintiff, on the other hand, has not complied with the
Children’s Fast Track rules, nor our President Judge’s permissive time extension, and
continues to ignore the Appellate Court’s established processes.
On March 30, 2020, an eighteen (18) page “Parenting Plan” was established for
the benefit of the parents in the best interests of their son as a result of a custody trial
held on March 11, 2020. On April 20, 2020, appellate counsel filed his entry of
appearance and also filed a Request for Transcript. On April 22, 2020, Plaintiff filed,
inter alia, Motion for Extension of Time to File Concise Statement of Errors Complained
of on Appeal, the Motions were all assigned to our President Judge. On April 27, 2020,
the Honorable Edward E. Guido granted Plaintiff’s request for extension and directed
him to file a concise statement within twenty-one (21) days of the transcript being filed
with the prothonotary.
Subsequently, on April 28, 2020, pursuant to Pa.R.A.P. 1925(a)(2)(i), counseled-
Plaintiff contemporaneously filed Notice of Appeal and Concise Statement of Errors.
The transcript was filed on June 2, 2020, and one week later, on June 9, 2020,
appellate counsel filed Praecipe to Withdraw Appearance. On June 12, 2020, Plaintiff
entered his own appearance, pro se. Importantly, this change in representation does
not toll the clock stemming from President Judge Guido’s order of April 27, 2020.
Therefore, Plaintiff had until June 23, 2020, to file an amended concise statement.
However, on July 6, 2020, Plaintiff untimely filed his Amended Concise Statement of
Errors. President Judge Guido directed the Amended Concise Statement of Errors to
this jurist for disposition.
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2019-05580 CIVIL TERM
The instant Amended Concise Statement of Errors consists of nineteen (19)
pages, avers twelve (12) separate errors complained of on appeal, and is fashioned in
part to be responsive to the undersigned’s May 8, 2020 Statement in Lieu of 1925(a)
Opinion, wherein the Amended Concise Statement complains of errors in the May 8,
2020 Statement in Lieu of 1925(a) Opinion. Such responses, couched within an
Amended Concise Statement, are not permitted under our rules of appellate procedure.
In addition to this procedural violation, the instant amendment was thirteen (13) days
late.
It is well-settled that untimely concise statements of errors filed in civil and
criminal cases pursuant to rule 1925(b) result in the waiver of all issues.
Commonwealth v. Castillo, 888 A.2d 775, 778 (Pa. 2005). It is moreover recognized
that in In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) the Superior Court has, with
regards to Children’s Fast Track appeals, declined to apply the bright-line application of
the waiver rule adopted by the Pennsylvania Supreme Court in Castillo. However, the
instant case should be governed by J.M.R. v. J.M., 1 A.3d 902 (Pa. Super. 2010), a
Children’s Fast Track case where the Superior Court relied on In re K.T.E.L. to find that
appellant’s claims were not waived for the failure to comply with Pa.R.A.P. 1925(a)(2)(i);
“however, the issues were waived when \[appellant\] failed to comply with the trial court’s
direct order instructing \[appellant\] to file a Concise Statement.” J.M.R., 1 A.3d at 906.
The instant case is similar to J.M.R. because here the Plaintiff did not comply with the
direct order to submit a concise statement within the twenty-one (21) day period after
the transcript was filed; therefore, as in J.M.R., this court is constrained to find the
issues raised in the Amended Concise Statement are waived pursuant to Castillo.
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2019-05580 CIVIL TERM
For the reasons stated supra, Plaintiff’s Amended Concise Statement of Errors
Complained of on Appeal filed nunc pro tunc and the issues therein are deemed
WAIVED.
ORDER OF COURT
th
AND NOW, this 24 day of July 2020, upon consideration of Plaintiff’s request to
file Amended Concise Statement of Errors Complained of on Appeal nunc pro tunc,
Plaintiff’s filing is untimely; accordingly, the issues raised are WAIVED for failure to
comply with the President Judge’s May 27, 2020 Order. Therefore, for the reasons
stated supra, Plaintiff’s request for nunc pro tunc consideration is DENIED.
The Prothonotary is directed to supplement the appeal record by sending
Plaintiff’s Statement along with this Opinion and Order to the Superior Court.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
Mahmoud S. Elnaggar, pro se
Heba Allah Mallak, pro se
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