Epps L. v. Dunbar Community Counseling Services

Opinion

J-A08002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LORETTA EPPS IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

DUNBAR COMMUNITY COUNSELING SERVICES; DR. REGINALD BANKS PH.D; AND YOLANDA BANKS

Appellees No. 1232 EDA 2016

Appeal from the Order Entered March 18, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 1406-03646

BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY PANELLA, J. FILED JUNE 29, 2017

Appellant, Loretta Epps, asks us to review the order denying her

request to file an appeal nunc pro tunc. While we conclude that a breakdown

in court operations occurred, we nevertheless affirm the order on the basis

that the proposed appeal would be interlocutory.

Epps filed a complaint against Appellees asserting that she had been

wrongfully terminated from her employment after revealing their fraudulent

conduct. Appellees, in turn, filed an answer denying Epps’s assertions, and

asserted counterclaims against her premised in defamation and commercial

disparagement. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A08002-17

On July 31, the trial court provided Epps with notice that it had

granted summary judgment in favor of Appellees on all of Epps’s claims.

Appellees’ counterclaims were still intact, as neither party had filed for

summary judgment on the counterclaims. The case was listed for trial in

October.

On August 21, Epps attempted to file a notice of appeal from the order

granting summary judgment to the Appellees. It is undisputed that the trial

court Prothonotary rejected the filing, allegedly over the failure to include a

certificate of service that identified the trial court as a recipient. This the trial

court Prothonotary was not permitted to do. See, e.g., Commonwealth v.

Willis, 29 A.3d 393, 396 (Pa. Super. 2011).

Shortly after being notified that the affidavit of service was deficient,

Epps filed a corrected affidavit of service. The corrected affidavit of service

was accepted by the Prothonotary and is in the certified record, while the

notice of appeal it references is not.

The events that followed amply support the propriety of the rule

followed in Willis. The trial court first entered an order directing Epps to file

a statement of matters complained of on appeal, and then vacated the

order, noting that the order was “without prejudice for petitioner to re-file.”

Epps attempted to determine what had gone wrong, and eventually filed a

second notice of appeal on October 5.

-2- J-A08002-17

The trial court again ordered Epps to file a statement of matters

complained of on appeal, and Epps complied. We quashed the appeal as

untimely on January 19, 2016.

On February 16, 2016, Epps filed a petition for allowance of appeal

nunc pro tunc. The trial court denied the petition, and this timely appeal

followed.

“Generally, in civil cases [nunc pro tunc relief] is granted only where

there was fraud or a breakdown in the court’s operations through a default

of its officers.” Union Electric Corp. v. Board of Property Assessment,

Appeals & Review of Allegheny Coutny, 746 A.2d at 584 (Pa. 2000)

(citation omitted). As noted previously, it is undisputed that the trial court

Prothonotary acted without authority in rejecting Epps’s notice of appeal. As

such, there clearly was a breakdown in the court’s operation that acted to

nullify her attempt to appeal.

However, it is equally apparent from the record that the order Epps

desired to appeal was interlocutory. A party may only appeal from a final

order unless otherwise permitted by rule or statute. See Stewart v.

Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). A final order is any order

that disposes of all claims and all parties. See Pa.R.A.P. 341(b)(1). As noted

above, Appellees’ counterclaims were still pending and were listed for trial

when Epps attempted to file the notice of appeal. A review of the certified

record before us reveals no indication that Appellees’ counterclaims have

-3- J-A08002-17

been resolved. As such, we conclude that Epps was not denied her right to

appeal, as that right has not yet ripened.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/29/2017

-4-