J-S35014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
STEVEN C. DERK : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : COAL TOWNSHIP GEISINGER : No. 1702 MDA 2022 MEDICAL CENTER :
Appeal from the Order Entered December 22, 2020 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2020-00725
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 5, 2024
Steven Derk appeals pro se from the Northumberland County Court of
Common Pleas’ order granting the preliminary objections of Coal Township
Geisinger Medical Center (“Geisinger”) and dismissing Derk’s complaint
against Geisinger with prejudice. Because of Derk’s failure to comply with the
Rules of Appellate Procedure, we quash the appeal. We also grant Geisinger’s
application to strike certain appendices Derk attached to his brief as they were
not made a part of the certified record.
Derk filed a writ of summons and a complaint for declaratory and
injunctive relief against Geisinger on March 30, 2020, essentially alleging
medical malpractice against Geisinger as it related to his mother’s death. It is
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* Retired Senior Judge assigned to the Superior Court. J-S35014-23
undisputed that Derk did not have the writ or the complaint served by a
sheriff. Derk filed a “Declaration of [Judgment] Against Defendant of Non-
Response to Civil Summons” on September 21, 2020. Geisinger then filed
preliminary objections to Derk’s complaint raising multiple objections.
On December 22, 2020, the trial court entered an order granting
Geisinger’s preliminary objections and dismissing Derk’s complaint with
prejudice on the basis that: (1) the complaint and writ of summons were not
directed to the Sheriff’s office for proper service as required by Pa.R.C.P.
400(a); (2) Derk lacked the standing or capacity to sue as he had not averred
that any estate had been raised on behalf of his mother; and (3) Derk failed
to state specific facts to support a claim of professional negligence. See Trial
Court Order, 12/22/2020 (single page).
Although the trial court’s order was entered on the docket, the
prothonotary did not notify the parties of the order’s entry in compliance with
Pa.R.C.P. 236. Derk filed a notice of appeal nearly two years later, on October
25, 2022. This Court entered an order directing the trial court prothonotary to
provide the requisite Rule 236 notice to the parties and update the docket to
reflect that such notice had been given. “Once the prothonotary complies with
this order’s directives, the notice of appeal previously filed in this case will be
treated as filed after the provision of the Rule 236 notice. See Pa.R.A.P.
905(a).” Order, 3/27/23, at 2. The prothonotary complied, and Derk’s notice
of appeal was deemed timely filed.
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The trial court ordered Derk to file a 1925(b) statement, and Derk
complied. The trial court issued a statement in lieu of a 1925(a) opinion,
reiterating its findings that Derk lacked standing, that he had not effectuated
proper service as required by Rule 400(a) and that the complaint did not make
out a claim of professional negligence. The trial court also noted that Derk
raised allegations of the trial court’s bias for the first time in his Rule 1925
statement, but the court rejected the claims that it had been biased. See
Statement in Lieu of Opinion, 10/17/2022, at 1-2.
On appeal, Derk purports to raise six issues. However, his brief utterly
fails to comply with our Rules of Appellate Procedure. Derk’s brief does not
contain a statement of jurisdiction, statement of the scope of review and the
standard of review, or a summary of the argument. See Pa.R.A.P.
2111(a)(1),(a)(3),(a)(6). While Derk does provide an “argument of the case”
section, it is eight pages of single-spaced argument containing, at several
points, information of questionable relevance. See Pa.R.A.P. 124. With the
exception of his argument relating to one of his issues, Derk cites no legal
authority to support his assertions. See Pa.R.A.P. 2119(a). Geisinger also
specifically complains that Derk did not set forth the place in the record where
he preserved his issues. See Appellee’s Brief at 4; Pa.R.A.P. 2117 (c); 2119
(e).
Further, Derk did not attach the trial court’s statement in lieu of a Rule
1925 opinion, in violation of Pa.R.A.P. 2111 (a)(10) and (b), or a copy of the
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statement of errors complained of on appeal to his brief, in violation of
Pa.R.A.P. 2111 (a)(11). However, Derk did attach several appendices to his
brief which are not part of the certified record, which, as discussed more fully
below, Geisinger has moved to strike.
Derk also filed a reply brief with this Court, in which he claims to have
“newly discovered evidence,” apparently a 2004 case he came across in the
prison law library after filing his initial brief. He does not coherently explain
the connection of that case to the instant matter in his reply brief’s six pages
of single-spaced text or how it is responsive to Geisinger’s brief. He cites no
legal authority in the brief. His reply brief, therefore, also violates the Rules
of Appellate Procedure. See Pa.R.A.P. 124; Pa.R.A.P. 2113 (providing that an
appellant may file a reply brief “in reply to matters raised by appellee’s brief”).
Given Derk’s substantial non-compliance with the Rules of Appellate
Procedure, we are constrained to quash his appeal. See Pa.R.A.P. 2101;
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017) (stating
that when an appellate brief does not conform materially to the requirements
of the Rules of Appellate Procedure, this Court may quash the appeal). We
recognize Derk is proceeding pro se. Still, even pro se litigants must comply
with the Rules of Appellate Procedure. See Commonwealth v. Lyons, 833
A.2d 245, 252 (Pa. Super. 2003). Derk has not done so here.
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Even if we declined to quash the appeal on the basis of Derk’s deficient
brief, we would still conclude that the trial court properly dismissed the matter
given that Derk did not properly serve the complaint or writ.
With some exceptions not relevant here, Pa.R.C.P. 400(a) requires a
sheriff to serve original process within the Commonwealth. Derk does not
dispute that a sheriff did not serve his complaint against Geisinger. He
maintains that he tried to contact the Sheriff’s office to determine the
appropriate way to serve his complaint but never received a response. See
Appellant’s Brief at 6. Consequently, Derk contends he decided to serve the
complaint by certified mail and baldly alleges this represented a good-faith
attempt to properly serve Geisinger and that “he did his very best.” Id. at 7.
He goes on to state that he is serving a life sentence for a first-degree murder
conviction, and claims he had his sister attempt to serve Geisinger a second
time when he was being held in “SCI-Greene RHU under [retaliatory]
misconduct.” Id. at 6.
There are several problems with Derk’s argument. First, it appears he is
arguing for the first time that he wrote to the Northumberland County Sheriff’s
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J-S35014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
STEVEN C. DERK : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : COAL TOWNSHIP GEISINGER : No. 1702 MDA 2022 MEDICAL CENTER :
Appeal from the Order Entered December 22, 2020 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2020-00725
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 5, 2024
Steven Derk appeals pro se from the Northumberland County Court of
Common Pleas’ order granting the preliminary objections of Coal Township
Geisinger Medical Center (“Geisinger”) and dismissing Derk’s complaint
against Geisinger with prejudice. Because of Derk’s failure to comply with the
Rules of Appellate Procedure, we quash the appeal. We also grant Geisinger’s
application to strike certain appendices Derk attached to his brief as they were
not made a part of the certified record.
Derk filed a writ of summons and a complaint for declaratory and
injunctive relief against Geisinger on March 30, 2020, essentially alleging
medical malpractice against Geisinger as it related to his mother’s death. It is
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S35014-23
undisputed that Derk did not have the writ or the complaint served by a
sheriff. Derk filed a “Declaration of [Judgment] Against Defendant of Non-
Response to Civil Summons” on September 21, 2020. Geisinger then filed
preliminary objections to Derk’s complaint raising multiple objections.
On December 22, 2020, the trial court entered an order granting
Geisinger’s preliminary objections and dismissing Derk’s complaint with
prejudice on the basis that: (1) the complaint and writ of summons were not
directed to the Sheriff’s office for proper service as required by Pa.R.C.P.
400(a); (2) Derk lacked the standing or capacity to sue as he had not averred
that any estate had been raised on behalf of his mother; and (3) Derk failed
to state specific facts to support a claim of professional negligence. See Trial
Court Order, 12/22/2020 (single page).
Although the trial court’s order was entered on the docket, the
prothonotary did not notify the parties of the order’s entry in compliance with
Pa.R.C.P. 236. Derk filed a notice of appeal nearly two years later, on October
25, 2022. This Court entered an order directing the trial court prothonotary to
provide the requisite Rule 236 notice to the parties and update the docket to
reflect that such notice had been given. “Once the prothonotary complies with
this order’s directives, the notice of appeal previously filed in this case will be
treated as filed after the provision of the Rule 236 notice. See Pa.R.A.P.
905(a).” Order, 3/27/23, at 2. The prothonotary complied, and Derk’s notice
of appeal was deemed timely filed.
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The trial court ordered Derk to file a 1925(b) statement, and Derk
complied. The trial court issued a statement in lieu of a 1925(a) opinion,
reiterating its findings that Derk lacked standing, that he had not effectuated
proper service as required by Rule 400(a) and that the complaint did not make
out a claim of professional negligence. The trial court also noted that Derk
raised allegations of the trial court’s bias for the first time in his Rule 1925
statement, but the court rejected the claims that it had been biased. See
Statement in Lieu of Opinion, 10/17/2022, at 1-2.
On appeal, Derk purports to raise six issues. However, his brief utterly
fails to comply with our Rules of Appellate Procedure. Derk’s brief does not
contain a statement of jurisdiction, statement of the scope of review and the
standard of review, or a summary of the argument. See Pa.R.A.P.
2111(a)(1),(a)(3),(a)(6). While Derk does provide an “argument of the case”
section, it is eight pages of single-spaced argument containing, at several
points, information of questionable relevance. See Pa.R.A.P. 124. With the
exception of his argument relating to one of his issues, Derk cites no legal
authority to support his assertions. See Pa.R.A.P. 2119(a). Geisinger also
specifically complains that Derk did not set forth the place in the record where
he preserved his issues. See Appellee’s Brief at 4; Pa.R.A.P. 2117 (c); 2119
(e).
Further, Derk did not attach the trial court’s statement in lieu of a Rule
1925 opinion, in violation of Pa.R.A.P. 2111 (a)(10) and (b), or a copy of the
-3- J-S35014-23
statement of errors complained of on appeal to his brief, in violation of
Pa.R.A.P. 2111 (a)(11). However, Derk did attach several appendices to his
brief which are not part of the certified record, which, as discussed more fully
below, Geisinger has moved to strike.
Derk also filed a reply brief with this Court, in which he claims to have
“newly discovered evidence,” apparently a 2004 case he came across in the
prison law library after filing his initial brief. He does not coherently explain
the connection of that case to the instant matter in his reply brief’s six pages
of single-spaced text or how it is responsive to Geisinger’s brief. He cites no
legal authority in the brief. His reply brief, therefore, also violates the Rules
of Appellate Procedure. See Pa.R.A.P. 124; Pa.R.A.P. 2113 (providing that an
appellant may file a reply brief “in reply to matters raised by appellee’s brief”).
Given Derk’s substantial non-compliance with the Rules of Appellate
Procedure, we are constrained to quash his appeal. See Pa.R.A.P. 2101;
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017) (stating
that when an appellate brief does not conform materially to the requirements
of the Rules of Appellate Procedure, this Court may quash the appeal). We
recognize Derk is proceeding pro se. Still, even pro se litigants must comply
with the Rules of Appellate Procedure. See Commonwealth v. Lyons, 833
A.2d 245, 252 (Pa. Super. 2003). Derk has not done so here.
-4- J-S35014-23
Even if we declined to quash the appeal on the basis of Derk’s deficient
brief, we would still conclude that the trial court properly dismissed the matter
given that Derk did not properly serve the complaint or writ.
With some exceptions not relevant here, Pa.R.C.P. 400(a) requires a
sheriff to serve original process within the Commonwealth. Derk does not
dispute that a sheriff did not serve his complaint against Geisinger. He
maintains that he tried to contact the Sheriff’s office to determine the
appropriate way to serve his complaint but never received a response. See
Appellant’s Brief at 6. Consequently, Derk contends he decided to serve the
complaint by certified mail and baldly alleges this represented a good-faith
attempt to properly serve Geisinger and that “he did his very best.” Id. at 7.
He goes on to state that he is serving a life sentence for a first-degree murder
conviction, and claims he had his sister attempt to serve Geisinger a second
time when he was being held in “SCI-Greene RHU under [retaliatory]
misconduct.” Id. at 6.
There are several problems with Derk’s argument. First, it appears he is
arguing for the first time that he wrote to the Northumberland County Sheriff’s
office in an attempt to discern the proper way to effect service of his
complaint. He certainly does not point to the place in the record where he
raised this issue before the trial court, and we fail to see such an argument in
the record. Of course, as Geisinger points out, Derk cannot raise new issues
on appeal. See Pa.R.A.P. 302.
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In support of this assertion, Derk attaches the letter he purportedly
wrote to the Sheriff’s office to his brief as an appendix (Appendix 6-F). But
the letter is not part of the certified record, and we therefore cannot consider
it. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en
banc). Similarly, Derk attaches a copy of an undated postal service form
(Appendix 7-G), an undated certified mail receipt (Appendix 9-I), and a
second postal service form signed “Covid” (Appendix 10-J); but again, these
documents are not part of the certified record and we cannot consider them
on appeal. See id. As this Court has stated, “a document not filed of record
does not become part of the certified record by merely making a reproduction
and placing that reproduction in the reproduced record.” See Rosselli v.
Rosselli, 750 A.2d 355, 359 (Pa. Super. 2000).
In the end, even had Derk provided this Court with a brief that complied
with the Rules of Appellate Procedure, he has failed to show the trial court
erred in finding he had not properly served the complaint and dismissing it
with prejudice for that reason.
As noted above, Geisinger filed an application to strike several of the
appendices Derk has now attached to his brief, arguing that this Court cannot
consider them as they are not part of the certified record. Specifically,
Geisinger moves to strike the appendices referenced above, Appendix 6-F, 7-
G, 9-I and 10-J, as well as Appendix 5-E, which is a document titled Family
Settlement Agreement which, like the appendices just listed, was also not
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made a part of the certified record. We grant the application to strike. See
Pa.R.A.P. 1921, 2152; Rosselli, 750 A.2d at 359.
Appeal Quashed. Application to Strike granted.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 01/05/2024
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