Roundtree, P. v. Ahmad, J.

• Court: Superior Court of Pennsylvania
• Decided: April 16, 2015
• Docket: 3272 EDA 2014
• Status: Unpublished

Opinion

J-S24039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAULETTE ROUNDTREE, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : JAMAL AHMAD, M.D., : RECONSTRUCTIVE ORTHOPAEDIC : ASSOCIATES II, P.C., NAZARETH : HOSPITAL AND MERCY HEALTH : SYSTEM OF SOUTHEASTERN : PENNSYLVANIA, : : Appellees : No. 3272 EDA 2014

Appeal from the Order entered on August 18, 2014 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 0864 July Term 2012

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2015

Paulette Roundtree (“Roundtree”) appeals from the Order granting

summary judgment in favor of Jamal Ahmad, M.D., Reconstructive

Orthopaedic Associates, II, P.C., Nazareth Hospital, and Mercy Health

System of Southeastern Pennsylvania (“Defendants,” collectively). We

quash the appeal.

On July 13, 2012, Roundtree filed a Complaint against Defendants,

alleging that negligent care and treatment resulted in a severe infection, and

ultimately, the amputation of her right leg. Defendants filed a Motion for

Summary Judgment. The trial court granted summary judgment on August

18, 2014, dismissing the claims against Defendants. Roundtree filed a J-S24039-15

Motion for Reconsideration, which the trial court denied on September 10,

2014. Roundtree subsequently filed a Notice of Appeal on September 24,

2014.

On appeal, Roundtree raises the following question for our review:

“Did the trial court err in granting summary judgment in favor of

[Defendants] when [Roundtree] had produced an expert report critical of

[Defendants] in accordance with the trial [c]ourt [O]rder?” Brief for

Appellant at 9.

Initially, we must determine whether Roundtree filed a timely Notice of

Appeal. The question of timeliness of an appeal is jurisdictional. See Lee v.

Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999). “The notice of 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). An order granting a motion for

summary judgment is a final and appealable order. Sweener v. First

Baptist Church, 533 A.2d 998, 1000 (Pa. 1987). However, a motion for

reconsideration alone does not toll the time period for taking an appeal.

Gardner v. Consol. Rail Corp., 100 A.3d 280, 283 (Pa. Super. 2014).

“[T]he 30-day period may only be tolled if [the trial court] enters an order

expressly granting reconsideration with 30 days of the final order.”

Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 520 (Pa. Super. 1999).

Thus, an order denying reconsideration is not an appealable order, and an

appeal from such an order is “improper and untimely.” Valentine v.

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Wroten, 580 A.2d at 757, 758 (Pa. Super. 1990); see also Cheathem,

743 A.2d at 521 (stating that “although a party may petition the court for

reconsideration, the simultaneous filing of a notice of appeal is necessary to

preserve appellate rights in the event that either the trial court fails to grant

the petition expressly within 30 days, or it denies the petition.”).

Here, the trial court’s Order granting summary judgment on August

18, 2014 was a final appealable order. Moreover, the record indicates that

all parties received notice of the trial court’s Order, as required by

Pennsylvania Rule of Appellate Procedure 236. Thus, Roundtree was

required to file a Notice of Appeal by September 17, 2014. However,

because Roundtree did not file her Notice of Appeal until September 24,

2014, Roundtree failed to file a Notice of Appeal within the 30-day appeal

period. Accordingly, the appeal is untimely, and we lack jurisdiction to

consider the merits of Roundtree’s claim. See Cheathem, 743 A.2d at 521

(quashing the appeal where the appellant filed a notice of appeal following

the trial court’s denial of reconsideration, and after the 30-day appeal period

had expired).

Appeal quashed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/16/2015

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