Allah, M. v. Kirby, G.

• Court: Superior Court of Pennsylvania
• Decided: September 6, 2019
• Docket: 3146 EDA 2018
• Status: Unpublished

Opinion

J-S39001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL MALIK ALLAH : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : GEORGE KIRBY AND ALLSTATE : INSURANCE COMPANY : : Appellees : No. 3146 EDA 2018

Appeal from the Order Entered July 17, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term 2018 No. 1200

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED SEPTEMBER 06, 2019

Appellant, Michael Malik Allah, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which granted his petition to

proceed in forma pauperis (“IFP”) and dismissed his civil complaint against

Appellees, George Kirby and Allstate Insurance Company, as frivolous

pursuant to Pa.R.C.P. 240(j). On July 12, 2018, Appellant filed a civil

complaint against Appellees for injuries allegedly sustained in an automobile

accident that occurred on June 19, 2016. The trial court reviewed the

complaint in conjunction with Appellant’s IFP petition, but dismissed the action

as frivolous by order entered on July 17, 2018, with notice given per Pa.R.C.P.

236, on July 18, 2018. Appellant filed a notice of appeal dated October 16,

2018, and docketed on Monday, October 22, 2018. The court did not order

Appellant to file a concise statement of errors complained of on appeal per ____________________________________ * Former Justice specially assigned to the Superior Court. J-S39001-19

Pa.R.A.P. 1925(b), and Appellant filed none.

Preliminarily, “Except as otherwise prescribed by this rule, the notice of

appeal required by Rule 902 (manner of taking appeal) shall be filed within 30

days after the entry of the order from which the appeal is taken.” Pa.R.A.P.

903(a). “The prothonotary shall immediately give written notice of the entry

of any…order or judgment to each party’s attorney of record or, if

unrepresented, to each party.” Pa.R.C.P. 236(a)(2). See also Frazier v.

City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (stating

appeal period is not triggered until order is entered on docket with required

notation that appropriate notice was sent to parties). “[A]ppellate courts

cannot extend the time for filing an appeal.” In re Adoption of W.R., 823

A.2d 1013, 1015 (Pa.Super. 2003). This Court may raise the timeliness of the

appeal sua sponte, as it implicates this Court’s jurisdiction. Id. Generally, an

appellate court may not enlarge the time for filing a notice of appeal. Pa.R.A.P.

105(b). Instead, the time limitations for taking appeals are strictly construed

and cannot be extended as a matter of grace. Commonwealth v. Valentine,

928 A.2d 346 (Pa.Super. 2007). Absent extraordinary circumstances such as

fraud or some breakdown in the processes of the court, this Court has no

jurisdiction to entertain an untimely appeal. Commonwealth v. Patterson,

940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838

(2008).

Instantly, Appellant filed a civil complaint on July 12, 2018, against

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Appellees for injuries allegedly sustained on June 19, 2016. The trial court

reviewed the complaint in conjunction with an IFP petition, and dismissed the

complaint as frivolous by order entered with notice given per Rule 236 on July

18, 2018. A notice of appeal was technically due on or before Friday, August

17, 2018. The trial court docket entries marked Appellant’s notice of appeal

filed on Monday, October 22, 2018, which is untimely on its face.1

On January 29, 2019, this Court issued a rule directing Appellant to

show cause why his appeal should not be dismissed as untimely. Appellant’s

response was due within ten days, on or before Friday, February 8, 2019. This

Court discharged the rule to show cause on April 4, 2019. On April 22, 2019,

Appellant replied to the rule, asserting the trial court’s order was final and

appealable.2 Appellant, however, failed to explain the delay in filing his notice

of appeal, which was the principal inquiry in the rule to show cause. Thus,

Appellant’s reply was untimely and not responsive. Further, in Appellant’s

petition to proceed IFP on appeal, and on a copy of the trial court’s dismissal

order attached to the notice of appeal, Appellant wrote he did not receive the

court’s order dismissing his complaint until August 29, 2018. Assuming for

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1 Appellant dated his notice of appeal October 16, 2018. Even under the prisoner mailbox rule, the notice of appeal was untimely if deemed filed on October 16, 2018.

2 There was no dispute in this case that the order acting on the petition to proceed IFP and dismissing the civil complaint as frivolous under Pa.R.C.P. 240(j) was a final, appealable order. See Bell v. Mayview State Hosp., 853 A.2d 1058 (Pa.Super. 2004).

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the sake of argument that his assertion is true, under the most generous

interpretation of the applicable 30-day time limit, Appellant’s notice of appeal

would have been due on or about Friday, September 28, 2018. As a result,

we conclude Appellant’s notice of appeal filed in October 2018, was filed late.

Accordingly, we dismiss the appeal as untimely.

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/6/19

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