Valentine, C. v. Martin Elfant Inc. Real Estate

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2018
• Docket: 3565 EDA 2016
• Status: Unpublished

Opinion

J-A28017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CYNTHIA VALENTINE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MARTIN ELFANT INC. REAL ESTATE, : No. 3565 EDA 2016 MARTIN ELFANT INC. REAL ESTATE : AND J. MALVERN BENJAMIN, JR. :

Appeal from the Order Entered June 15, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): April Term, 2014 No. 01727

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J. FILED MAY 29, 2018

Cynthia Valentine appeals from the order dismissing her complaint

alleging that she was injured after negligently maintained stairs caused her to

fall. After careful review, we affirm.

We assume the parties’ familiarity with the relevant factual background.

For a detailed recitation, see the trial court’s opinion, dated May 12, 2017.

Valentine filed her slip and fall complaint in 2014. According to the initial

scheduling order, Valentine’s expert reports were due by July 6, 2015.

The deadline was extended to September 7, 2015, by a revised case

management order. A subsequent case management order extended the

overall discovery deadline to February 19, 2016. However, this order did not

explicitly address the deadline for expert reports. J-A28017-17

The court granted Valentine two continuances due to her attorney’s

unavailability to start trial. Thereafter, Valentine retained new counsel. He

entered his appearance on behalf of Valentine, and a third continuance was

granted. However, the order indicated the trial court would grant no further

continuances. Trial was set to start on June 10, 2016.

On May 31, 2016, Valentine submitted an expert report from Richard

Hughes, P.E. Appellees, Martin Elfant Inc. Real Estate Company and J. Malvern

Benjamin, Jr., filed a motion in limine to preclude the testimony of Hughes

shortly thereafter.

On June 8, 2016, Valentine submitted an expert report from Mark D.

Allen, M.D. The next day, Appellees filed a motion in limine to preclude Dr.

Allen’s testimony.

Prior to trial, the court heard arguments on Appellees’ motions. The

court precluded the testimony of Hughes and Dr. Allen, noting the submissions

were untimely and prejudiced the Appellees.

Appellees then made an oral motion for nonsuit, based upon their belief

that Valentine could present no expert testimony on causation. Valentine

conceded. And the court granted Appellees’ motion for nonsuit.

Valentine filed a motion to strike the nonsuit. The court refused to

remove the nonsuit, and Valentine filed this appeal. Valentine purported to

appeal from the order denying her motion to remove the nonsuit.

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Upon reviewing the docketing statement, this Court concluded the order

confirming the nonsuit was not a final, appealable order and directed Valentine

to have judgment entered on the order pursuant to Billig v. Skvarla, 853

A.2d 1042 (Pa. Super. 2004). Valentine complied with our directive.

Despite this, we must address the issue of our jurisdiction to entertain

this appeal. We begin by noting the question of timeliness of an appeal is a

jurisdictional issue, as an untimely appeal divests this Court of jurisdiction to

hear the merits of the case. See Sass v. Amtrust Bank, 74 A.3d 1054, 1063

(Pa. Super. 2013). As such, we may inquire into timeliness of the appeal at

any time. See Murphy v. International Druidic Society, 152 A.3d 286,

289 (Pa. Super. 2015).

Usually, a party’s notice of appeal must be filed within 30 days of the

entry of the order that it is appealing. See Pa.R.A.P. 903(a). Further, we will

not deem a facially untimely appeal to be timely “except under the narrowest

of circumstances in which counsel for the offending party can establish either

a breakdown in the operations of the judicial support system or extenuating

circumstances that rendered h[er] incapable of filing the necessary notice.”

Sass, 74 A.3d at 1063.

However, a party may generally only appeal from “final orders.”

Pa.R.A.P. 341(a). In relevant part, a final order is defined as an order that

“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1).

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Under this rule, pre-trial orders dismissing a plaintiff’s case in its entirety

are considered final, appealable orders. See, e.g., D’Elia v. Folino, 933 A.2d

117, 121 (Pa. Super. 2007). However, a verdict entered after trial is not a

final order; judgment entered upon the verdict is the final, appealable order.

See Billig, 853 A.2d at 1048. This is true even where post-trial motions are

required to preserve issues for appeal. See id.

Nonsuit is appropriate if, after a plaintiff has finished presenting

evidence on liability, she has failed to establish a right to relief. See Pa.R.C.P.

230.1(a)(1). Chronologically, an order granting nonsuit falls between a pre-

trial order and a verdict. Because motions for nonsuit occur after trial has

started, our courts have treated them like verdicts, as opposed to pre-trial

rulings. Thus, “where a nonsuit has been entered the case is not ripe for

appeal until after a motion to remove the nonsuit has been presented to the

court and denied.” Billig, 853 A.2d at 1048.

Since nonsuit can only be entered after trial has started, a pre-trial

motion for nonsuit should be treated as a nunc pro tunc motion for summary

judgment or judgment on the pleadings. See Rivera v. Home Depot, 832

A.2d 487, 490 (Pa. Super. 2003). Thus, a post-trial motion to remove the

alleged nonsuit is not required, and does not toll the 30-day appeal period.

See id. However, where the trial court mistakenly refers to its order as one

granting nonsuit, we will not penalize an Appellant for relying on the trial

court’s description. See id.

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Here, the court mislabeled its order as one granting nonsuit prior to the

start of trial, rather than summary judgment. Valentine mistakenly followed

the procedures required to perfect her right to appeal from the entry of a

nonsuit. However, under Rivera, this does not render her appeal untimely.1

We therefore turn to the merits.

Valentine first argues the court improvidently granted a nonsuit prior to

the start of trial. As we have just discussed, we agree this was a technical

error, but it is a mere error of nomenclature. This error does not render the

court’s order invalid. See id., at 490. Thus, Valentine’s first issue on appeal

does not merit relief.

Valentine’s second and third issues assert the trial court erred in

dismissing her claims, as she believes expert testimony was not required to

establish causation. After reviewing the record and the trial court’s opinion on

appeal, we conclude the court thoroughly and appropriately addressed these

issues. See Trial Court Opinion, 5/12/17, at 6-8 (finding expert medical

testimony was required due to Valentine’s delay in experiencing symptoms

after the fall). We therefore adopt the trial court’s reasoning as our own.

Valentine’s second and third issue merit no relief.

____________________________________________

1 Regardless, we have corrected the appeal statement to reflect the date the court mailed Pa.R.C.P. 236 notice of the order dismissing Valentine’s case to the parties. See Pa.R.A.P. 108(b).

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Valentine’s final three issues assert claims that the trial court erred in

precluding the testimony of Hughes and Dr. Allen. After reviewing the record

and the trial court’s opinion on appeal, we again conclude the court thoroughly

and appropriately addressed these issues. See Trial Court Opinion, 5/12/17,

at 8-11 (finding Valentine’s expert reports were filed well past discovery

deadline, and that defendants would be prejudiced because the reports were

filed the week before trial began). We therefore adopt the trial court’s

reasoning as our own. Valentine’s fourth, fifth, and sixth issues merit no relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/29/18

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