IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rasheed Nifas and Garry Mason, :
Appellants :
:
v. :
:
Thomas McGinley, Renee Foulds, :
Anthony Luscavage, Karen Merritt- : No. 1467 C.D. 2021
Scully, and Blanche Milo : Submitted: March 17, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 8, 2023
Rasheed Nifas (Nifas) and Garry Mason (jointly Appellants), pro se,
appeal from an order of the Court of Common Pleas of Northumberland County (trial
court) dated June 9, 2021, denying Appellants in forma pauperis status and dismissing
their civil complaint as frivolous. Upon review, we quash the appeal as untimely.
Appellants are inmates incarcerated in the State Correctional Institution
in Coal Township. In May 2021, they filed a purported class action complaint in the
trial court, alleging that prison personnel violated their constitutional rights by
failing to implement proper safety protocols during the COVID-19 pandemic,
resulting in Appellants’ contraction of COVID-19. Br. of Appellants at 4.
Appellants also filed a praecipe to proceed in forma pauperis, which the trial court
apparently treated as an application for in forma pauperis status. See id. at 2 & 4.
On June 9, 2021, the trial court issued an order dismissing Appellants’
praecipe and complaint as frivolous. Br. of Appellants at 2. Appellants’ brief avers
the following sequence of events thereafter:
On July 22nd,[ ]2021[,] Plaintif[f]—Nifas called the
Prothonotar[y]’s Office for a copy of any order, and [o]n
July 22nd,[ ]2021 the Prothonotary’s Office finally sent
th[e] Order dismissing the Complaint on June 9th,[ ]2021
....
On July 26th,[ ]2021[,] Plaintiff—Nifas filed a Notice of
Appeal to the [trial c]ourt . . . . The trial court refused to
process the timely No[ti]ce of Appeal, Plaintiff—Nifas
constantly wrote to the trial court Prothonotary[’s] Office
asking for a stamped copy of the Notice of Appeal
showing that it was processed and docketed. ([Br. of
Appellants,] Ex[].B).
On December 13th,[ ]2021[,] the[ ]Prothonotary[’s] Office
finally processed the Notice of Appeal, and the Notice has
two different time and dates stamped on it.[1] [I]d.
On Jan 11th,[ ]2022[,] the trial court issued an order, that
was not[ ]sent to the Plaintiff–Nifas until January 20th,[ ]
2022. ([Br. of Appellants,] Ex[].E). And on Jan. 19th,[ ]
2022[,] Plaintiff–Nifas filed a Concise Statement of Errors
Complained of on Appeal, after calling the
Northumberland County Prothonotary Office for a copy of
any order by the trial court. ([Br. of Appellants,] Ex[].D).
Id. at 4. Thus, Appellants suggest that they did not receive timely service of the trial
court’s dismissal and, additionally, that the trial court did not timely process their
Notice of Appeal. See id.
Consistent with Appellants’ averment that Nifas called the trial court
Prothonotary for a copy of the order on July 22, 2021, the trial court’s docket
indicates that a copy of the dismissal order was sent to Nifas on that date, apparently
1
The two dates were both in December 2021. See Notice of Appeal.
2
in response to his telephone call. See Notice of Appeal, attachment. Assuming,
arguendo, that this was the trial court’s first service of notice of the dismissal on
Appellants, any appeal had to be filed within 30 days after that date. 2 Pa.R.A.P.
903(a). However, the first indication of the trial court’s receipt of the Notice of
Appeal appears on the docket dated December 15, 2021, nearly five months after the
docket reflects mailing of a copy of the dismissal in compliance with Nifas’s request.
Notice of Appeal, attachment. The Notice of Appeal itself was designated by
Appellants in its caption as “Resubmitted 12/3/21,” and although the certificate of
service provides a purported mailing date of July 26, 2021, the attached certified
mail receipts are dated December 15 and 27, 2021. Notice of Appeal & attachment.
The docket does not reflect any previously filed Notice of Appeal. See Notice of
Appeal, attachment; Br. of Appellants, Ex. E (trial court statement) at 1 (stating that
the Notice of Appeal was filed December 13, 2021).3
On March 11, 2022, this Court issued an order observing that the appeal
appeared to be untimely and directing the parties to address the issue of untimeliness
in their briefs on the merits of their appeal.4 Other than including the statement of
facts quoted above, however, Appellants did not comply with this Court’s order.
Specifically, Appellants did not list timeliness as an issue on appeal and did not
discuss it anywhere in the argument section of their brief; nor did they otherwise
2
As this Court has explained, the 30-day appeal period “does not commence until an order
is ‘entered’ by the trial court . . . , [and] a trial court’s order is not ‘entered’ until that order has
been entered by the Prothonotary on the docket and notice of the order’s entry has been given to
the parties by the Prothonotary . . . . ” Gomory v. Dep’t of Transp., Bureau of Motor Vehicles, 704
A.2d 202, 204 (Pa. Cmwlth. 1998) (additional citation omitted).
3
We also note that the appeal was not properly perfected, as the Notice of Appeal was not
served on the trial court judge. See Pa.R.A.P. 1925(a)(1); Br. of Appellants, Ex. C (trial court
order dated January 10, 2022) at 1 n.1.
4
Appellees elected not to file a brief or otherwise participate in the appeal.
3
point to any record evidence or offer any legal argument or citation to legal authority
in support of their bare averments of fact. As such, Appellants have failed to support
their implicit suggestion that we should consider the appeal as timely although it was
filed six months after the trial court’s dismissal order.
In Watkins v. Workers’ Compensation Appeal Board (Ingram’s Drain
& Sewer Cleaning Inc.) (Pa. Cmwlth., No. 895 C.D. 2018, filed March 11, 2019),
this Court considered a similar timeliness issue.5 As in this case, we issued an order
in Watkins directing the parties to address in their briefs the potentially untimely
appeal. However, the petitioner failed to address the timeliness issue, in
contravention of this Court’s order. See id., slip op. at 2. We first observed that
where an appeal is untimely, we lack subject matter jurisdiction to consider it. Id.,
slip op. at 2-3 (first citing Riverlife Task Force v. Planning Comm’n of City of
Pittsburgh, 966 A.2d 551, 559 (Pa. 2009); and then citing Tishok v. Dep’t of Educ.,
133 A.3d 118, 122 n.2 (Pa. Cmwlth. 2016) (stating that “failure to timely appeal is
a jurisdictional defect that cannot be waived”)). We then noted that, although the
petitioner stated in a pro se letter that he did not receive the appealed order in the
mail, the record indicated that the order had been mailed, and there was no evidence
indicating that the mailing was returned as undeliverable. Watkins, slip op. at 1-2
n.1. We observed that it is the appellant’s burden to demonstrate an excuse for an
untimely appeal. Id. (citing Roman-Hutchinson v. Unemployment Comp. Bd. of
Rev., 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009) (stating, “the claimant bears a
heavy burden to justify an untimely appeal”)). We further observed that an
appellant’s failure to present a developed timeliness argument in his brief,
5
We cite this unreported decision as persuasive authority pursuant to Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
4
particularly where that failure contravenes the appellate court’s express order,
waives any timeliness argument. Watkins, slip op. at 2 n.1 (citing Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating, “where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim is
waived”)). We therefore quashed the appeal in Watkins. Id., slip op. at 3.
We find our analysis in Watkins applicable and persuasive here.
Appellants here, like the petitioner in Watkins, failed to offer any support for their
assertion that they did not receive notice of the trial court’s dismissal order. As in
Watkins, the docket here demonstrated the mailing of the order and did not indicate
that the mailing was returned as undeliverable. Thus, the record here, as in Watkins,
failed to sustain Appellants’ heavy burden of demonstrating an excuse for their
untimely appeal. Moreover, like the petitioner in Watkins, Appellants here have
waived any argument regarding such an excuse by failing to offer a developed
argument in their brief.
For these reasons, this Court lacks subject matter jurisdiction over this
appeal. Accordingly, the appeal is quashed as untimely filed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rasheed Nifas and Garry Mason, :
Appellants :
:
v. :
:
Thomas McGinley, Renee Foulds, :
Anthony Luscavage, Karen Merritt- : No. 1467 C.D. 2021
Scully, and Blanche Milo :
ORDER
AND NOW, this 8th day of May, 2023, the appeal of Rasheed Nifas
and Garry Mason from the order of the Court of Common Pleas of Northumberland
County dated June 9, 2021, is QUASHED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge