J-A03017-24
2024 PA Super 124
G.K., A MINOR, BY AND THROUGH : IN THE SUPERIOR COURT OF HIS PARENT AND NATURAL : PENNSYLVANIA GUARDIAN, BRITTANY KUGEL AND : BRITTANY KUGEL AND KENNETH : KUGEL, IN THEIR OWN RIGHT : : v. : : CHRISTINA M. LABELLA, M.D., : ALLEGHENY CLINIC D/B/A WESTERN : PENNSYLVANIA OB/GYN : ASSOCIATES AND ALLEGHENY : HEALTH NETWORK : : Appellants : No. 367 WDA 2023
Appeal from the Order Entered March 7, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 18-000478
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY KUNSELMAN, J.: FILED: June 10, 2024
In this medical-malpractice action, the Defendants, Christina M. LaBella,
M.D.; Allegheny Clinic; and the Allegheny Health Network (collectively, “AHN”)
appeal from the order granting Plaintiffs Brittany and Kenneth Kugel’s motion
to discontinue. We quash the appeal as premature.
In 2018, Mr. and Mrs. Kugel sued AHN on behalf of themselves and their
minor Son claiming that AHN mishandled Mrs. Kugel’s prenatal care, which
resulted in Son’s premature birth. The parties engaged in five years of
discovery. They eventually entered a consent order requiring the Kugels to
produce an expert report by January 23, 2023. When that day arrived, the J-A03017-24
Kugels petitioned the Orphans’ Court of Allegheny County to discontinue Mr.
and Mrs. Kugels’ case with prejudice and Son’s case without prejudice.
The President Judge of the Orphans’ Court, Lawrence J. O’Toole, heard
oral argument on the petition. AHN contended that the orphans’ court should
discontinue Son’s case with prejudice. The orphans’ court took the petition
and arguments under advisement.
Then, on March 7, 2023, President Judge O’Toole and the Administrative
Judge of the Civil Division, Christine A. Ward, co-signed and docketed an order
granting discontinuance of Son’s case without prejudice.1 Ten days later, AHN
petitioned the civil division to strike the discontinuance of Son’s case from its
docket. AHN’s petition raised a novel issue of local procedure: i.e., whether
Allegheny County Rule of Civil Procedure 2039(a) permitted the Administrative
Judge of the Civil Division to co-sign the order with the orphans’ court judge.
AHN claimed that the civil division had to assign the petition to the Calendar
Control Judge for a de novo hearing and/or argument before a judge of that
division could join any order discontinuing Son’s case without prejudice.
On March 28, 2023, the Calendar Control Judge heard oral argument on
AHN’s petition to strike the discontinuance. However, before that judge could
rule, AHN appealed the March 7, 2023 order to this Court.
AHN raises two appellate issues:
____________________________________________
1 The order granted discontinuance of the Parents’ case with prejudice.
-2- J-A03017-24
1. Did the [orphans’] court abuse its discretion in granting [the] petition to discontinue [Son’s] action without prejudice ...?
2. Did the [civil division] abuse its discretion in failing to adhere to state and local rules of civil procedure regarding the disposition of [the] petition to discontinue?
AHN’s Brief at 4 (some capitalization omitted). Before reaching the merits of
those issues, we must consider whether our appellate jurisdiction has vested,
because AHN appealed before the civil division could resolve its petition to
strike the discontinuance.
Although neither party challenges our appellate jurisdiction, “it is well-
settled that Superior Court may raise the issue of its jurisdiction sua sponte.”
A.A. v. Glicken, 237 A.3d 1165, 1168 (Pa. Super. 2020) (quoting Zablocki
v. Beining, 155 A.3d 1116, 1118 (Pa. Super. 2017), appeal denied, 172 A.3d
1121 (Pa. 2017)) (some punctuation omitted). “Jurisdiction is purely a
question of law; the appellate standard of review is de novo, and the scope of
review is plenary.” Commonwealth v. Seiders, 11 A.3d 495, 496–97 (Pa.
Super. 2010).
An “appeal will lie only from a final order unless otherwise permitted by
statute.” Funk v. Empfield, 281 A.3d 315, 318 (Pa. Super. 2022) (quoting
Gasper v. Gasper, 432 A.2d 613, 615 (Pa. Super. 1981). “A final order
disposes of all claims and of all parties . . . .” Pa.R.A.P. 341.
The Supreme Court of Pennsylvania has said, “a praecipe to discontinue
constitutes a final judgment . . . .” Miller Elec. Co. v. DeWeese, 907 A.2d
1051, 1055 (Pa. 2006), amended, 918 A.2d 114 (Pa. 2007). Based on Miller,
-3- J-A03017-24
this Court has held that whether a discontinuance is with or without prejudice
has no bearing on appealability. If there “are no outstanding claims remaining
. . . we have jurisdiction . . . .” Levitt v. Patrick, 976 A.2d 581, 588 (Pa.
Super. 2009).
Here, AHN has an outstanding claim pending in the trial court – namely,
its petition to strike the discontinuance of Son’s case. Recently, we held the
filing of a petition to strike a discontinuance “constituted new proceedings”
before the trial court. U.S. Bank Trust v. Unknown Heirs Claiming under
Helen A. Brolley, 278 A.3d 310, 316 n.3 (Pa. Super. 2022).
U.S. Bank Trust involved a mortgage-foreclosure action, initially filed
by Wells Fargo Bank. There, the trial court entered a September 9, 2009
order granting summary judgment in favor of Wells Fargo and against Ms.
Brolley’s heir. EMC Mortgage LLC then substituted as plaintiff due to a string
of mortgage assignments. EMC thereafter tried to execute on the summary
judgment, but the heir filed for bankruptcy, which stayed execution.
In 2012, EMC filed a new action to re-foreclose on the same property.
It praeciped to discontinue the original action and to vacate the order granting
summary judgment to Wells Fargo, EMC’s predecessor in interest. EMC hoped
to “avoid the preclusive effect of the final judgment already issued in [the]
case . . . .” Id. at 313. Its plan failed, because res judicata barred EMC’s
second action.
Thereafter, in April of 2020, U.S. Bank petitioned the trial court to “strike
the praecipe to discontinue, entered almost exactly seven years earlier by EMC
-4- J-A03017-24
. . . .” Id. at 314. It is unclear how U.S. Bank became involved in the action,
but it also moved to substitute another entity “as the named plaintiff due to
[yet another] reassignment of the mortgage.”2 Id. U.S. Bank argued that
EMC’s praecipe to discontinue was invalid and prevented the bank from
executing on the 2009 award of summary judgment. The trial court held a
hearing on the petition to strike the discontinuance. It denied relief. U.S.
Bank appealed, and we sua sponte questioned our appellate jurisdiction.
This Court held that the filing of a petition to strike a discontinuance and
the trial court’s consideration thereof “constituted new proceedings in [the]
case.” Id. at 316 n.3 (emphasis added). Furthermore, an appeal would lie
from the order denying the petition, because that order “disposed of all claims
and all parties.” Id. “Accordingly, [that] order was final and appealable
pursuant to Pa.R.A.P.
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J-A03017-24
2024 PA Super 124
G.K., A MINOR, BY AND THROUGH : IN THE SUPERIOR COURT OF HIS PARENT AND NATURAL : PENNSYLVANIA GUARDIAN, BRITTANY KUGEL AND : BRITTANY KUGEL AND KENNETH : KUGEL, IN THEIR OWN RIGHT : : v. : : CHRISTINA M. LABELLA, M.D., : ALLEGHENY CLINIC D/B/A WESTERN : PENNSYLVANIA OB/GYN : ASSOCIATES AND ALLEGHENY : HEALTH NETWORK : : Appellants : No. 367 WDA 2023
Appeal from the Order Entered March 7, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 18-000478
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY KUNSELMAN, J.: FILED: June 10, 2024
In this medical-malpractice action, the Defendants, Christina M. LaBella,
M.D.; Allegheny Clinic; and the Allegheny Health Network (collectively, “AHN”)
appeal from the order granting Plaintiffs Brittany and Kenneth Kugel’s motion
to discontinue. We quash the appeal as premature.
In 2018, Mr. and Mrs. Kugel sued AHN on behalf of themselves and their
minor Son claiming that AHN mishandled Mrs. Kugel’s prenatal care, which
resulted in Son’s premature birth. The parties engaged in five years of
discovery. They eventually entered a consent order requiring the Kugels to
produce an expert report by January 23, 2023. When that day arrived, the J-A03017-24
Kugels petitioned the Orphans’ Court of Allegheny County to discontinue Mr.
and Mrs. Kugels’ case with prejudice and Son’s case without prejudice.
The President Judge of the Orphans’ Court, Lawrence J. O’Toole, heard
oral argument on the petition. AHN contended that the orphans’ court should
discontinue Son’s case with prejudice. The orphans’ court took the petition
and arguments under advisement.
Then, on March 7, 2023, President Judge O’Toole and the Administrative
Judge of the Civil Division, Christine A. Ward, co-signed and docketed an order
granting discontinuance of Son’s case without prejudice.1 Ten days later, AHN
petitioned the civil division to strike the discontinuance of Son’s case from its
docket. AHN’s petition raised a novel issue of local procedure: i.e., whether
Allegheny County Rule of Civil Procedure 2039(a) permitted the Administrative
Judge of the Civil Division to co-sign the order with the orphans’ court judge.
AHN claimed that the civil division had to assign the petition to the Calendar
Control Judge for a de novo hearing and/or argument before a judge of that
division could join any order discontinuing Son’s case without prejudice.
On March 28, 2023, the Calendar Control Judge heard oral argument on
AHN’s petition to strike the discontinuance. However, before that judge could
rule, AHN appealed the March 7, 2023 order to this Court.
AHN raises two appellate issues:
____________________________________________
1 The order granted discontinuance of the Parents’ case with prejudice.
-2- J-A03017-24
1. Did the [orphans’] court abuse its discretion in granting [the] petition to discontinue [Son’s] action without prejudice ...?
2. Did the [civil division] abuse its discretion in failing to adhere to state and local rules of civil procedure regarding the disposition of [the] petition to discontinue?
AHN’s Brief at 4 (some capitalization omitted). Before reaching the merits of
those issues, we must consider whether our appellate jurisdiction has vested,
because AHN appealed before the civil division could resolve its petition to
strike the discontinuance.
Although neither party challenges our appellate jurisdiction, “it is well-
settled that Superior Court may raise the issue of its jurisdiction sua sponte.”
A.A. v. Glicken, 237 A.3d 1165, 1168 (Pa. Super. 2020) (quoting Zablocki
v. Beining, 155 A.3d 1116, 1118 (Pa. Super. 2017), appeal denied, 172 A.3d
1121 (Pa. 2017)) (some punctuation omitted). “Jurisdiction is purely a
question of law; the appellate standard of review is de novo, and the scope of
review is plenary.” Commonwealth v. Seiders, 11 A.3d 495, 496–97 (Pa.
Super. 2010).
An “appeal will lie only from a final order unless otherwise permitted by
statute.” Funk v. Empfield, 281 A.3d 315, 318 (Pa. Super. 2022) (quoting
Gasper v. Gasper, 432 A.2d 613, 615 (Pa. Super. 1981). “A final order
disposes of all claims and of all parties . . . .” Pa.R.A.P. 341.
The Supreme Court of Pennsylvania has said, “a praecipe to discontinue
constitutes a final judgment . . . .” Miller Elec. Co. v. DeWeese, 907 A.2d
1051, 1055 (Pa. 2006), amended, 918 A.2d 114 (Pa. 2007). Based on Miller,
-3- J-A03017-24
this Court has held that whether a discontinuance is with or without prejudice
has no bearing on appealability. If there “are no outstanding claims remaining
. . . we have jurisdiction . . . .” Levitt v. Patrick, 976 A.2d 581, 588 (Pa.
Super. 2009).
Here, AHN has an outstanding claim pending in the trial court – namely,
its petition to strike the discontinuance of Son’s case. Recently, we held the
filing of a petition to strike a discontinuance “constituted new proceedings”
before the trial court. U.S. Bank Trust v. Unknown Heirs Claiming under
Helen A. Brolley, 278 A.3d 310, 316 n.3 (Pa. Super. 2022).
U.S. Bank Trust involved a mortgage-foreclosure action, initially filed
by Wells Fargo Bank. There, the trial court entered a September 9, 2009
order granting summary judgment in favor of Wells Fargo and against Ms.
Brolley’s heir. EMC Mortgage LLC then substituted as plaintiff due to a string
of mortgage assignments. EMC thereafter tried to execute on the summary
judgment, but the heir filed for bankruptcy, which stayed execution.
In 2012, EMC filed a new action to re-foreclose on the same property.
It praeciped to discontinue the original action and to vacate the order granting
summary judgment to Wells Fargo, EMC’s predecessor in interest. EMC hoped
to “avoid the preclusive effect of the final judgment already issued in [the]
case . . . .” Id. at 313. Its plan failed, because res judicata barred EMC’s
second action.
Thereafter, in April of 2020, U.S. Bank petitioned the trial court to “strike
the praecipe to discontinue, entered almost exactly seven years earlier by EMC
-4- J-A03017-24
. . . .” Id. at 314. It is unclear how U.S. Bank became involved in the action,
but it also moved to substitute another entity “as the named plaintiff due to
[yet another] reassignment of the mortgage.”2 Id. U.S. Bank argued that
EMC’s praecipe to discontinue was invalid and prevented the bank from
executing on the 2009 award of summary judgment. The trial court held a
hearing on the petition to strike the discontinuance. It denied relief. U.S.
Bank appealed, and we sua sponte questioned our appellate jurisdiction.
This Court held that the filing of a petition to strike a discontinuance and
the trial court’s consideration thereof “constituted new proceedings in [the]
case.” Id. at 316 n.3 (emphasis added). Furthermore, an appeal would lie
from the order denying the petition, because that order “disposed of all claims
and all parties.” Id. “Accordingly, [that] order was final and appealable
pursuant to Pa.R.A.P. 341(a)-(b)(1) (providing that ‘an appeal may be taken
as of right from any final order of a government unit or trial court,’ including
an order that ‘disposes of all claims and of all parties’).” Id. As such, we had
jurisdiction over U.S. Bank’s appeal.
Similarly, AHN petitioned to strike the non-prejudicial discontinuance of
Son’s case, and the Calendar Control Judge undertook consideration of that
petition to strike. The filing of AHN’s petition and the civil division’s
consideration of that petition “constituted new proceedings in this case.” Id.
However, unlike U.S. Bank, AHN appealed before the entry of an order ____________________________________________
2 We recognized that U.S. Bank potentially lacked standing to petition to strike
the discontinuance, but that issue was not before this Court on appeal.
-5- J-A03017-24
disposing of its petition to strike. Therefore, AHN’s petition to strike remains
unresolved; it is still pending under the original jurisdiction of the court of
common pleas’ civil division.
Unlike in U.S. Bank, supra, the trial court did not issue a final and
appealable order pursuant to Pa.R.A.P. 341(a)-(b)(1) deciding the petition to
strike. No order disposed of AHN’s novel claim, raised in its petition to strike,
that the Administrative Judge lacked authority under the Local Rules to co-
sign the March 7, 2023 order with the orphans’ court. Indeed, that issue did
not manifest until the March 7, 2023 order was filed.
Therefore, the appellate jurisdiction of this Court does not lie from the
March 7, 2023 order of the orphan’s court, because that order does not
dispose of all of AHN’s claims. AHN’s petition to strike Son’s discontinuance
created a new claim, which is still pending in the trial court. See U.S. Bank,
supra. Thus, the appealed-from order is not a final, appealable order.
The civil division must resolve the petition to strike the discontinuance
in the first instance. As such, AHN’s appeal is premature.
Appeal quashed.
Judge Murray joins.
Judge Bowes files a dissenting opinion.
-6- J-A03017-24
DATE: 06/10/2024
-7-