Hand, M. v. Dancha, A.

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2019
• Docket: 827 MDA 2019
• Status: Unpublished

Opinion

J-S54001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARCUS HAND : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ANDREW DANCHA, M.D.; SANDRA : SNYDER; DR. MCGREGOR; PAULA : PRICE; DR. MARTY COLE., M.D.; : WEXFORD HEALTH SOURCES, INC.; : CORIZON HEALTH CARE SERVICE : No. 827 MDA 2019

Appeal from the Order Entered April 30, 2019 In the Court of Common Pleas of Huntingdon County Civil Division at No(s): 2015-00717

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 12, 2019

Marcus Hand (“Mr. Hand”) appeals pro se from the order that denied his

petition for leave to appeal nunc pro tunc. We affirm.

Mr. Hand, a state prison inmate, filed a complaint alleging medical

malpractice against Dr. Andrew Dancha, Dr. Deborah McGregor, Dr. Marty

Cole, Sandra Snyder, Paula Price, Wexford Health Sources, Inc., and Corizon

Health Care Services in connection with their treatment of Mr. Hand at SCI-

Huntingdon. The trial court granted summary judgment in favor of some, but

not all, of the defendants. Appellant appealed that order. This Court quashed

the appeal as interlocutory because the order appealed from did not resolve

all claims as to all parties. Hand v. Dancha, 194 A.3d 654 (Pa.Super. 2018)

(unpublished memorandum). J-S54001-19

On July 17, 2018,1 Mr. Hand filed in the trial court a motion to dismiss

all remaining defendants. On October 8, 2018, Mr. Hand filed a praecipe

dismissing said defendants.2 On October 11, 2018, the trial court entered an

order granting Mr. Hand’s July motion to dismiss. The next activity on the

docket is the filing of Mr. Hand’s nunc pro tunc appeal on January 14, 2019,3

in which Mr. Hand averred that he did not receive the trial court’s October 11,

2018 order until January 11, 2019. The trial court, explaining that Mr. Hand

was required to seek and obtain leave of court before appealing nunc pro tunc,

instructed the prothonotary to file, but not process, Mr. Hand’s notice of

appeal.

Mr. Hand promptly thereafter filed a motion for leave to appeal nunc pro

tunc in which he again represented that he had not known that the trial court

granted his motion to dismiss until he received a copy of the trial court’s

October 2018 order in January 2019, and detailed the efforts he had made in

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1 The motion is dated July 17, 2018, and was docketed on July 23, 2018. As Mr. Hand has been incarcerated at all times relevant to this appeal, his filings are deemed to have been filed on the date he deposited them with prison authorities for mailing. See Thomas v. Elash, 781 A.2d 170, 176 (Pa.Super. 2001) (“[T]he prisoner mailbox rule applies to all pro se legal filings by incarcerated litigants.”). Mr. Hand did not make a record of any information about the dates when any of the filings at issue herein were given to prison authorities to be mailed. While giving him the benefit of the doubt makes no difference to our ultimate determination, we shall use the date placed on each document by Mr. Hand as the filing date.

2 The praecipe was docketed on October 16, 2018.

3 The notice of appeal was not docketed until February 12, 2019.

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the interim to monitor the status of his motion. The trial court acknowledged

that Mr. Hand had pled “facts which point to the conclusion that he did not

receive the copy of the October 11, 2018 order granting his motion to dismiss

. . . until January 11, 2019.” Memorandum, 4/30/19, at 3. The court

nonetheless denied Mr. Hand’s motion to appeal nunc pro tunc on the basis

that Mr. Hand “proffered no explanation as to why he did not file a timely

appeal immediately after he filed the praecipe to discontinue” in October 2018.

Id.

Mr. Hand timely appealed from the trial court’s April 30, 2019 order

denying his motion to appeal nunc pro tunc, and both Mr. Hand and the trial

court complied with Pa.R.A.P. 1925. Mr. Hand presents the following

questions:

(1) Whether the [trial] court committed an error of law or abused its discretion by disregarding the breakdown in court operations?

(2) Whether the [trial] court misapplied the law in determining that the praecipe to discontinue was a final order?

Mr. Hand’s brief at 2.

We begin with a review of the applicable law. Denial of an appeal nunc

pro tunc is within the discretion of the trial court, and we will reverse only for

an abuse of that discretion. Fischer v. UPMC NW., 34 A.3d 115, 120

(Pa.Super. 2011) (internal quotation marks omitted). An abuse of discretion

is not a mere error in judgment. Rather, it is “where the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

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result of partiality, prejudice, bias or ill will, as shown by the evidence or the

record, [that] discretion is abused.” Union Elec. Corp. v. Bd. of Prop.

Assessment, Appeals & Review of Allegheny Cty., 746 A.2d 581, 583

(Pa. 2000) (internal quotation marks omitted).

Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline. . . . [A]n appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances. Generally, in civil cases, an appeal nunc pro tunc is granted only where there was fraud or a breakdown in the court’s operations through a default of its officers.

Id. at 584 (cleaned up). “Cases involving a breakdown in court operations

often involve a failure on the part of the prothonotary to fulfill his or her

ministerial duties, such as the filing of dispositions and other relevant

information on the appropriate docket, or giving notice of these dispositions

to interested parties.” Fischer, supra at 120 (internal quotation marks

omitted).

In addition to the occurrence of fraud or breakdown in the court’s operations, nunc pro tunc relief may also be granted where the appellant demonstrates that (1) his notice of appeal was filed late as a result of nonnegligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) he filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay.

Vietri ex rel. Vietri v. Delaware Valley High Sch., 63 A.3d 1281, 1284

(Pa.Super. 2013) (cleaned up). “The exception for allowance of an appeal

nunc pro tunc in non-negligent circumstances is meant to apply only in unique

and compelling cases in which the appellant has clearly established that she

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attempted to file an appeal, but unforeseeable and unavoidable events

precluded her from actually doing so.” Fischer, supra at 120 n.2 (internal

quotation marks omitted).

With these principles in mind, we consider Mr. Hand’s arguments. He

asserts that there was a breakdown in court operations because the

prothonotary failed to serve him with notice of the October 11, 2018 order as

is required by Pa.R.C.P. 236(a)(2). Mr. Hand’s brief at 11-12. Elsewhere, he

insists that the fact that he did not receive the order until January 11, 2019,

demonstrates that there was either a breakdown in court operations or “some

other third party negligence.[.]” Id. at 17. Mr. Hand maintains that the trial

court’s failure to grant nunc pro tunc relief in light of this breakdown

constituted an abuse of discretion. Id. at 13. At the least, he suggests, the

court should have held “a hearing to determine the origin of the breakdown.”

Id. at 17.

Mr. Hand further contends that the trial court’s “reliance on Pa.R.C.P.

229(a) as a reasoning for denying [Mr. Hand’s] motion seeking leave to file

an appeal nunc pro tunc does not apply in the instant case[.]” Id. at 16. He

suggests that the trial court’s reasoning “is an overreach from established law

and an abuse of discretion because Pa.R.C.P. 229(b)(2) does not allow for a

discontinuance in medical professional liability actions.” Id. It is Mr. Hand’s

position that he “was compelled by Rule 1042.3 to wait until an order granting

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[his motion to] dismiss was received by him in order to file an appeal.” Id.

at 18.

Upon a review of the record, we cannot conclude that Mr. Hand has

established that the trial court misapplied the law or otherwise abused its

discretion. For the following reasons, we agree with the trial court that, even

assuming arguendo that there had been a court breakdown or third-party

interference with Mr. Hand’s receipt of the court’s order granting his motion

to dismiss,4 Mr. Hand’s independent action of filing the praecipe to voluntarily

dismiss all of the remaining defendants resolved the case in the trial court and

rendered the prior interlocutory orders final and appealable as of that date.

Mr. Hand properly observes that a court order marking a case settled as

to all remaining parties serves to make final all prior orders that disposed of

fewer than all claims or parties. See Mr. Hand’s brief at 16 (citing Burkey v.

CCX, Inc., 106 A.3d 736, 741 (Pa.Super. 2014)). However, he ignores the

salient portion of the Burkey decision, i.e. that “a case may be resolved

against the final defendant by other than an order of court, as happens where

the case against the sole remaining defendant is discontinued or settled[.]”

Burkey, supra at 739.

4 Although we assume a breakdown for the sake of argument, we observe that no breakdown of court operations is apparent from the face of the record. From our review of the docket, it appears that the prothonotary satisfied all applicable Pa.R.C.P. 236 obligations. The cause of Mr. Hand’s failure to receive the order, which appears to have been processed and recorded the same as all of the other orders Mr. Hand did receive, remains a mystery.

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Voluntary discontinuances are governed by Pa.R.C.P. 229, which

provides as follows in relevant part:

(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.

(b)(1) Except as otherwise provided in subdivision (b)(2), a discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court upon motion of any plaintiff or any defendant for whom plaintiff has stipulated in writing to the discontinuance.

(2) In an action governed by Rule 1042.3, a plaintiff may enter a discontinuance as to a defendant if a certificate of merit as to that defendant has not been filed.

Note: Rule 1042.3 requires the filing of a certificate of merit as to a defendant against whom a professional liability claim is asserted.

Pa.R.C.P. 229.

Mr. Hand’s praecipe dismissed all of the remaining defendants. The

dismissal was immediately effective under Rule 229(a) to make the prior

orders final and appealable. See, e.g., Motley Crew, LLC v. Bonner

Chevrolet Co., Inc., 93 A.3d 474, 477 n.5 (Pa.Super. 2014) (noting that a

praecipe to discontinue the remaining claims or parties makes prior

interlocutory orders as to the other claims or parties final for appeal purposes).

Subsection (b)(1) of the rule was not applicable and leave of court was not

required because there were no other defendants left to consent to the

discontinuance. See Burkey, supra at 741 (quashing appeal filed more than

thirty days after the filing of a stipulation to dismiss the last remaining

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defendant because “simply stated, Rule 229 requires court approval only

where fewer than all defendants are being dismissed and there is not written

consent from all parties”). See also Glenn v. Horan, 765 A.2d 426, 428 n.1

(Pa.Cmwlth. 2001) (cited with approval in Motley Crew, LLC, supra at 477

n.5) (holding interlocutory order sustaining preliminary objections and

dismissing complaint as to one defendant became final and appealable when

the plaintiff entered a “Praecipe to Settle, Discontinue, and End” as to the

remaining defendants).

The fact that this is a medical malpractice action for which Mr. Hand filed

a certificate as to all defendants does not change the analysis. By its plain

language, subsection (b)(2) provided an exception to the general rule that a

plaintiff needs the consent of the parties or leave of court when discontinuing

as to fewer than all defendants. Subsection (b)(2) gives a medical malpractice

plaintiff an additional avenue for dismissing fewer than all defendants. It does

not, as Mr. Hand represents, provide that if the case is a medical malpractice

action and a certificate of merit was filed, then a court order provides the only

means of dismissing any or all defendants.

Mr. Hand unilaterally rendered the summary judgment orders he wished

to appeal final when he filed his praecipe to dismiss all of the other defendants.

Mr. Hand further acknowledges that he received the requested time-stamped

copy of the praecipe from the prothonotary indicating that it had been filed on

October 16, 2018. See Mr. Hand’s brief at 11. He did not allege in his petition

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for leave to file a nunc pro tunc appeal that his mistaken belief that further

court action was necessary to effectuate his praecipe was engendered by any

court official’s misrepresentation. As the delay in filing the appeal was instead

based upon Mr. Hand’s misunderstanding of the law, he has failed to establish

his right to nunc pro tunc relief.

Nor does Mr. Hand’s pro se status warrant a different result. Although

Mr. Hand is correct that this Court liberally construes the filings of a pro se

litigant, see Mr. Hand’s brief at 18, it is also true that “a pro se litigant must

comply with the procedural rules set forth in the Pennsylvania Rules of the

Court.” Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014)

(internal quotation marks omitted). “Any layperson choosing to represent

himself in a legal proceeding must, to some reasonable extent, assume the

risk that his lack of expertise and legal training will prove his undoing.”

Commonwealth v. Gray, 608 A.2d 534, 550 (Pa.Super. 1992) (cleaned up).

Unfortunately for Mr. Hand, that is precisely what occurred here.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/12/2019

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