IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Duane Holmes, :
Appellant :
:
v. : No. 929 C.D. 2022
: Submitted: October 10, 2023
City of Allentown, Lehigh County, :
Lehigh County District Attorney’s :
Office, James B. Martin in his :
official and individual capacity, :
Steven M. Luksa in his official and :
individual capacity, John and Jane :
Does 1 to 10 :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: November 30, 2023
Duane Holmes, pro se, appeals an order of the Court of Common Pleas
of Lehigh County (trial court) that overruled his preliminary objections to the
preliminary objections of the City of Allentown (City), Lehigh County (County),
and Lehigh County District Attorney’s Office, District Attorney James B. Martin,
and Assistant District Attorney Steven M. Luksa (District Attorney Defendants)
(together, Defendants) to Holmes’ complaint. Defendants ask this Court to quash
Holmes’ appeal because the trial court’s order was not a final and appealable order.
We agree and quash the appeal.
On August 7, 2017, Holmes filed a civil complaint in replevin against
Defendants, seeking the return of property seized in connection with his arrest, and
he has amended the complaint numerous times.1 Relevant here is the ninth amended
complaint dated March 15, 2022, to which Defendants filed preliminary objections
on various grounds including failure to conform to law, failure to exhaust a statutory
remedy, legal insufficiency (demurrer), immunity, statute of limitations, and
collateral estoppel. In response, Holmes filed preliminary objections arguing that
the defenses of statute of limitations, immunity, and estoppel must be raised in an
answer and new matter. The trial court scheduled oral argument, but Holmes did
not appear. By order of August 1, 2022, the trial court overruled Holmes’
preliminary objections. On August 5, 2022, Holmes filed a motion to reschedule
oral argument for the stated reason that he had been incarcerated in New Jersey.
On August 22, 2022, Holmes appealed the trial court’s August 1, 2022,
order to this Court and argues that the trial court, in overruling his preliminary
objections in the nature of a motion to strike Defendants’ preliminary objections to
his ninth amended complaint, “forces [him] to waive the procedural defects”
contained in Defendants’ preliminary objections. Holmes Brief at 11. In its
PA.R.A.P. 1925(a) opinion, the trial court requests that this Court quash Holmes’
appeal because the August 1, 2022, order is not final or appealable as of right.
By order of February 16, 2023, this Court ordered that Holmes file and
serve his brief within 14 days or else his appeal would be dismissed as of course.
Holmes’ brief did not appear on this Court’s docket until March 29, 2023. The
1
This case was appealed to this Court on two previous occasions. In Holmes v. City of Allentown
(Pa. Cmwlth., No. 102 C.D. 2018, filed August 9, 2018), this Court reversed the trial court’s denial
of Holmes’ attempt to file an amended complaint. In Holmes v. City of Allentown (Pa. Cmwlth.,
No. 1663 C.D. 2019, filed August 26, 2020), this Court reversed the trial court’s order insofar as
it sustained the preliminary objections of the District Attorney Defendants on the basis of collateral
estoppel, and vacated the trial court’s order insofar as it dismissed Holmes’ sixth amended
complaint with prejudice and remanded the matter for further proceedings.
2
certificate of service attached to his brief, however, stated that Holmes served his
brief upon Defendants on December 12, 2022, “by placing it in the prison mailing
system of the Bergen County jail[.]” Holmes Brief, Certificate of Service.
Defendants request that this Court quash Holmes’ appeal due to his
untimely filing of his appellate brief. The date on the certificate of service is “absurd
on its face” and Holmes should not be afforded the benefit of the prisoner mailbox
rule. County Brief at 10-11. Further, Defendants argue that the trial court’s August
1, 2022, order is not a final, appealable order because it did not dispose of all claims
and of all parties.
We begin with Rule 341(a) of the Pennsylvania Rules of Appellate
Procedure. It states that “an appeal may be taken as of right from any final order of
a government unit or trial court.” PA.R.A.P. 341(a). The purpose of limiting
appellate review to final orders is “to prevent piecemeal determinations and the
consequent protraction of litigation.” In re First Baptist Church of Spring Mill, 22
A.3d 1091, 1095 (Pa. Cmwlth. 2011) (citation omitted). A final order is defined as
follows:
(b) Definition of Final Order. A final order:
(1) disposes of all claims and of all parties;
(2) (Rescinded);
(3) is entered as a final order pursuant to subdivision (c) of
this rule;[2] or
2
Subdivision (c) of Rule 341 provides that:
When more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties are
involved, the trial court or other government unit may enter a final order as to one
or more but fewer than all of the claims and parties only upon an express
determination that an immediate appeal would facilitate resolution of the entire
case. Such an order becomes appealable when entered. In the absence of such a
3
(4) is an order pursuant to subdivision (f) of this rule
[regarding post-conviction collateral relief].
PA.R.A.P. 341(b).
Here, the trial court’s August 1, 2022, order overruled Holmes’
preliminary objections to Defendants’ preliminary objections to his ninth amended
complaint; the order did not dispose of all claims and of all parties and, as such, is
not a final order under PA.R.A.P. 341(b). Further, the trial court’s interlocutory
order is not appealable as of right under Rule 311.3 Nor does it fit the collateral
determination and entry of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not constitute a final order.
PA.R.A.P. 341(c). The trial court’s August 1, 2022, order was not issued under Subdivision (c) of
Rule 341.
3
Under Rule 311, an appeal may be taken, as of right and without reference to the rule relating to
the determination of finality, from the following orders: (1) an order refusing to open, vacate, or
strike off a judgment; (2) an order confirming, modifying or dissolving or refusing to confirm,
modify, or dissolve an attachment, custodianship, receivership or similar matter affecting the
possession or control of property; (3) an order changing venue or venire in a criminal proceeding;
(4) certain orders relating to injunctions; (5) an order granting peremptory judgment in mandamus;
(6) certain orders awarding a new trial; (7) an order directing partition; or (8) an order made
appealable by statute or general rule. PA.R.A.P. 311(a).
In addition, under Rule 311, an appeal may be taken as of right from: (1) an order sustaining
venue or personal or in rem jurisdiction; (2) an order in a civil action or proceeding changing
venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed
in the matter on the basis of forum non conveniens or analogous principles; (3) certain orders in
criminal cases from which the Commonwealth appeals; (4) an order overruling preliminary
objections to a declaration of taking and an order overruling preliminary objections to a petition
for appointment of a board of viewers; and (5) certain orders remanding matters to an
administrative agency or hearing officer. PA.R.A.P. 311(b)-(f).
4
order definition under Rule 313.4 Thus, we cannot review the merits of that order at
this juncture. We therefore quash Holmes’ appeal.5
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
4
Rule 313 provides as follows:
(a) General Rule. An appeal may be taken as of right from a collateral order of a
trial court or other government unit.
(b) Definition. A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important to be denied review
and the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost.
PA.R.A.P. 313.
5
Because we quash Holmes’ appeal based on our conclusion that the trial court’s August 1, 2022,
order is not a final, appealable order, we need not address Defendants’ alternative argument that
Holmes should not be afforded the benefit of the prisoner mailbox rule.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Duane Holmes, :
Appellant :
:
v. : No. 929 C.D. 2022
:
City of Allentown, Lehigh County, :
Lehigh County District Attorney’s :
Office, James B. Martin in his :
official and individual capacity, :
Steven M. Luksa in his official and :
individual capacity, John and Jane :
Does 1 to 10 :
ORDER
AND NOW, this 30th day of November, 2023, the appeal in the above
captioned matter is hereby QUASHED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita