J-S39002-16
2016 PA Super 193
DAWN M. CUBANO IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JONAS M. SHEEHAN, M.D., MOKSHA
RANASINGHE, M.D., MILTON S.
HERSHEY MEDICAL CENTER, A/K/A
HERSHEY MEDICAL CENTER, A/K/A
HERSHEY MEDICAL CENTER, AND PENN
STATE HERSHEY NEUROSURGERY
Appellees No. 2055 MDA 2015
Appeal from the Order Entered October 26, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No: 2013-CV-08035-MM
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
OPINION BY STABILE, J.: FILED AUGUST 29, 2016
Appellant, Dawn M. Cubano, appeals from the order entered on
October 26, 2015 in the Court of Common Pleas of Dauphin County, granting
the motion for summary judgment filed by Appellees, Jonas M. Sheehan,
M.D., Moksha Ranasinghe, M.D., Milton S. Hershey Medical Center, a/k/a
Hershey Medical Center, a/k/a Hershey Medical Center, and Penn State
Hershey Neurosurgery. Upon review, we quash the appeal as untimely filed.
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*
Retired Senior Judge assigned to the Superior Court.
J-S39002-16
The trial court provided the following factual and procedural
background:
This case arises from an elective surgery that [Appellant]
underwent on October 9, 2008 to treat her back and leg pain.
Postoperatively, Appellant complained of moderate to severe low
back pain. Appellant was discharged from the [Appellee] Medical
Center on October 10, 2008, but alleges that she began to
experience new post-surgical symptoms of severe burning,
tingling and numbness of her right side from her buttocks to her
toes from October 11 through 13, 2008.
On October 15, 2008, Appellant went to the [Appellee]
Medical Center, and [Appellee Sheehan] performed a second
surgery on Appellant the next day. Appellant alleges that, after
this second surgery, she awoke with new and disabling
symptoms including bowel constipation, severe neuropathic
rectal and bowel pain, urinary retention, numbness extending
from her right buttock to her toes and a total lack of voluntary
dorsiflexion in her right foot and toes resulting in complete right
foot drop.
Appellant brought claims sounding in medical professional
negligence, alleging that the two [Appellee] physicians, an
attending and a Resident in the specialty of neurosurgery, were
negligent in performance of her spine surgery.[1] It is
undisputed that Appellant has not procured any expert reports to
support her claims. By Order dated July 6, 2015, Appellant’s
expert reports were due by August 28, 2015, which [Appellees]
agreed to extend to September 11, 2015. Dispositive Motions
were to be filed on or before October 16, 2015, “with Briefs as
directed by the [c]ourt.” Trial was set for the week of November
2, 2015.
On September 17, 2015, Appellees filed a Motion for
Summary Judgment based on Appellant’s failure to provide any
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1
We note Appellant’s action was initially filed in York County but was
transferred to Dauphin County as requested by Appellees based on forum
non conveniens.
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expert reports by the extended deadline of September 11, 2015.
In her pretrial statement, Appellant admitted that she had not
obtained an expert report that supported her case against
Appellees. Moreover, Appellant’s counsel admitted that there
were no experts who were preparing a report on behalf of
Appellant. . . .
Appellant never filed a Motion for extension of the case
management deadlines, nor did she file an Objection to the
November 2, 2015 trial listing. As a result, this case was
attached to the November 2[] trial term, and this [c]ourt held a
Pre-trial conference on October 19, 2015. Appellee[s’] Motion
for Summary Judgment was discussed, and Appellant’s counsel
again admitted that he had been unable to locate an expert who
was willing to write a favorable opinion for Appellant and testify
on her behalf. Due to the fact that trial was to start on
November 2, 2015, and there was no dispute that Appellant had
not produced a timely expert report, this [c]ourt did not direct
the parties to file briefs, but instead made a ruling based on the
Appellee[s’] Motion, relevant case law, and representations of
Appellant’s counsel both at the Pre-Trial Conference and in
Appellant’s response to Appellee[s’] Motion. Our reasoning for
granting Appellee[s’] Motion for Summary Judgment is set forth
in our October 23, 2015 Order[.]2
Trial Court Rule 1925(a) Opinion, 1/22/16, at 1-3 (unnumbered).
The order from which Appellant purports to appeal was entered on
October 26, 2015. Therefore, Appellant was required to file the appeal no
later than November 25, 2015. See Pa.R.A.P. 903(a) (an appeal “shall be
filed within 30 days after the entry of the order from which the appeal is
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2
Although the Rule 1925(a) opinion and the Dauphin County “Complete
Case History” suggest the date of the order was October 23, 2015, which
was a Friday, we note that the date of the order was actually Monday,
October 26, 2015, “the day on which the clerk ma[de] the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b).
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taken”). “An appeal permitted by law as of right from a lower court to an
appellate court shall be taken by filing a notice of appeal with the clerk of
the lower court within the time allowed by Rule 903 (time for appeal).”
Pa.R.A.P. 902.
The docket reflects that Appellant filed her appeal on November 27,
2015, thirty-two days after entry of the order and two days beyond the
rule’s deadline.3 On its face, the appeal is untimely under Pa.R.A.P. 903(a).
As such, this Court is divested of jurisdiction and we must quash the appeal.
Cheathem v. Temple University Hosp., 743 A.2d 518, 521 (Pa. Super.
1999); Valley Forge Ctr. Associates v. Rib-It/K.P., Inc., 693 A.2d 242,
245 (Pa. Super. 1997); see also Pa.R.A.P. 105(b) (appellate court may not
enlarge time for filing a notice of appeal).
We note that this Court issued an order on January 28, 2016,
directing Appellant to show cause, within ten days, why the appeal should
not be quashed as untimely filed. Appellant’s counsel responded, indicating
that he filed a motion for reconsideration of the trial court’s grant of
summary judgment and learned, through research, that the motion did not
stay the thirty-day period for filing an appeal. Appellant’s Response to Rule
to Show Cause, 2/8/16, at ¶ 6. He explained that he “waited some time
before filing [the] Notice of Appeal pending the [trial court’s] treatment of
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3
Thanksgiving fell on Thursday, November 26, 2015.
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[Appellant’s] Motion [for] Reconsideration and called the Dauphin County
Prothonotary on November 24, 2015 to learn of its denial” and to learn the
actual date of the court’s order granting summary judgment. Id. at ¶ 7.
Given that information, counsel determined that the notice of appeal had to
be filed by the following day and “[a]ccordingly . . . forwarded Appellant’s
Notice of Appeal to the Prothonotary of Dauphin County by Federal Express
overnight delivery with a cover letter requesting an email confirmation of
timely receipt.” Id. at ¶¶ 8-9.4 Counsel expected the notice of appeal
would be docketed upon receipt and that he would receive an email on
November 25 confirming receipt. Id. at ¶ 11. He could not explain “why
the Notice of Appeal was not docketed by the Dauphin County Prothonotary
on November 25th but state[d] that he did everything in his power to assure
that it would be.” Id. at ¶ 12. He asked this Court to treat the notice of
appeal as timely filed nunc pro tunc. Id. at 3.
This Court issued an order on February 26, 2016, documenting
counsel’s response to the Rule to Show Cause and acknowledging the
documentation submitted in support. The Order indicated that the issue
would be referred to this panel; that the January 28, 2016 show cause order
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4
With his response, counsel submitted documentation dated November 24,
2015, ostensibly completed by his office, for Federal Express overnight
package delivery service to the Dauphin County Prothonotary. He did not
attach any documentation from Federal Express reflecting the date of
delivery or any email communication from the Prothonotary indicating
receipt of the package.
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was discharged; and that this panel “may revisit the issue and may find the
appeal is defective.” Order, 2/26/16, at 1. The Order also advised Appellant
that she should be prepared to address the issue in her brief in the event
this matter would be submitted on briefs. Id.
Appellant’s brief was filed three days later, on February 29, 2016, and
did not address the issue of timeliness. However, after Appellees argued in
their brief that the appeal should be quashed as untimely, Appellant did
briefly address the issue as follows:
[Appellant’s] Notice of Appeal was timely. She did not send her
Notice by regular mail as noted in case law cited by [Appellees]
but rather by Federal Express Priority Overnight delivery on
Tuesday, November 24th for timely delivery to the Prothonotary
of Dauphin[] County, Pennsylvania on February [sic] 25th as
planned. [Appellant] used a highly reliable priority service with
every expectation of both timely delivery and timely docketing.
Appellant’s Reply Brief at 1. Appellant does not cite any authority to support
her contention that enlisting the services of Federal Express, and relying on
Federal Express to deliver the package overnight, satisfies the requirement
of Rule 902 to file a notice of appeal with the clerk of the lower court within
the time allowed by Rule 903. With respect to Rule 902, this Court has
stated:
The rule provides of no exceptions. In fact, the rule emphasizes
that the filing of a timely notice of appeal is the sine qua non of
a proper appeal from a final order by stating that “[f]ailure of an
appellant to take any step other than the timely filing of a notice
of appeal does not affect the validity of the appeal. . . .” This
clearly implies that the only failure that does affect the validity of
the appeal is the failure to file a timely notice of appeal. It is
this failure that we have no jurisdiction to excuse.
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Thermo–Guard, Inc. v. Cochran, 596 A.2d 188, 192 (Pa. Super. 1991)
(emphasis in original) (superseded by statute on other grounds).
Appellees acknowledge that our courts will permit an untimely appeal
in extraordinary circumstances through an appeal nunc pro tunc. Appellees’
Brief at 14. However Appellant did not file an appeal nunc pro tunc but
simply asked, in her response to this Court’s Rule to Show Cause, that we
treat the appeal as nunc pro tunc. Regardless, Appellant has not identified
any extraordinary circumstances that prevented a timely filing of the appeal.
Her counsel did not explain why, for example, he did not file a notice of
appeal simultaneously with the motion for reconsideration. Nor does he
explain why he simply did not drive to the Dauphin County Courthouse, not
even 40 miles from his office, to file the appeal in person.5 Instead, he
waited until November 24 to contact the Dauphin County Prothonotary,
learned that the motion for reconsideration had been denied, and learned
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5
We take judicial notice of the distance between counsel’s office and the
Dauphin County Courthouse, which according to Google maps is 37.7 miles.
See https://www.google.com/maps. See Pa.R.E. 201; United States v.
Perea-Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir. 2012) (“We take judicial
notice of a Google map . . . as a ‘source whose accuracy cannot reasonably
be questioned,’ at least for the purpose of determining the general location
of the [defendant’s] home.”). See also Nascone v. Spudnuts, Inc., 735
F.2d 763, 773 (3d Cir. 1983) (taking judicial notice of the distance between
Western Pennsylvania and Utah). Further, weather records indicate the
temperature at the Capital City Airport during business hours on November
24 and 25, 2015 ranged from the mid-30s to low 50s with no precipitation
measured on either day. See https://www.wunderground.com.
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that the October 23 order was actually docketed on October 26, making the
deadline for filing an appeal the next day, November 25.6 Appellant’s
Response to Rule to Show Cause, 2/8/16, at ¶¶ 6-8. He then enlisted the
services of Federal Express to deliver the notice of appeal, id. at ¶ 9, even
though the rules clearly do not designate Federal Express overnight service
as an accepted method of preserving an appeal or as an alternate method of
filing a notice of appeal with the clerk. Cf. Mapu v. Nicholson, 397 F.3d
1375 (Fed. Cir. 2005) (rejecting use of Federal Express as an equivalent to
the U.S. Postal Service for preserving an appeal from a decision of the Board
of Veterans’ Appeals).
Because her appeal was not timely filed, the appeal must be quashed.7
Appeal quashed.
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6
It is not lost on us that had the October 23 order been entered on the day
it was issued rather than on October 26, the deadline for filing an appeal
would have passed before counsel contacted the Prothonotary on November
24.
7
Even if her appeal were not quashed, Appellant would not be entitled to
relief. Appellant’s cross motion for summary judgment was filed beyond the
court-imposed deadline for filing dispositive motions. Appellant did not seek
an extension of that deadline or request that the case be continued from the
November 2 trial list. The trial court properly refused to consider the
untimely motion. Further, even if timely, the claims Appellant sought to
preserve were claims of negligence for post-operative pain and suffering that
were not within the range of ordinary experience so as to eliminate the need
for an expert report. At the very least, her claims raised genuine issues of
material fact that would compel denial of summary judgment.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2016
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