J. A14015/14


                           2014 PA Super 269

DOUGLAS BURKEY,                         :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                         Appellant      :
                                        :
                    v.                  :         No. 1570 MDA 2013
                                        :
CCX, INC., ET AL.                       :


                   Appeal from the Order, August 6, 2013,
                in the Court of Common Pleas of York County
                      Civil Division at No. 2008-SU-4852


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 03, 2014

      Appellant, Douglas Burkey (“Burkey”), appeals the order granting

summary judgment in favor of appellee, CCX, Inc. (“CCX”), in appellant’s

personal injury lawsuit. CCX has filed a motion to quash this appeal on the

basis that the notice of appeal was untimely filed. Finding that the notice of

appeal was untimely filed, we will grant the motion to quash this appeal.

      We draw our procedural summary, in part, from the opinion of the trial

court drafted at the time summary judgment was entered:

                  This action stems from an accident that
            occurred on June 18, 2007. While employed by
            New York Wire, Plaintiff sustained an injury to his
            hand from a machine, known as a warper or beamer,
            that produces screen material typically used in
            windows (herein “warper).




* Retired Senior Judge assigned to the Superior Court.
J. A14015/14


                 The warper in question was designed,
           manufactured and sold by West Point Foundry and
           Machine Company (herein “Defendant West Point”)
           to Hanover Wire Cloth Company and Hanover Wire
           Cloth Co, (herein “Defendant Hanover”) in 1987.
           Additional Defendant CCX, Inc. (herein “Additional
           Defendant CCX”) later acquired Defendant Hanover
           and moved the warper from Covington, Georgia to
           Walterboro, South Carolina, where it remained in
           storage. On June 30, 2005, Additional Defendant
           CCX sold the warper in question, along with a variety
           of other machines, equipment and property, to
           New York Wire through an Asset Purchase and Sale
           Agreement. See Motion for Summary Judgment,
           Ex. A. The Sale Agreement between New York Wire
           and Additional Defendant CCX stated that all
           property, including the subject warper, was sold on
           an “as-is, where-is” basis. Id. After the June 30,
           2005 Sale Agreement and prior to the June 18, 2007
           accident, New York Wire moved the subject warper
           from South Carolina to Mount Wolf, Pennsylvania.

                 On January 31, 2008, Plaintiff filed a Complaint
           in negligence against Defendant West Point and
           Defendant Hanover. On March 30, 2009, Defendant
           Hanover sought leave of court to join Additional
           Defendant CCX, and the motion was granted on
           May 8, 2009. On June 11, 2009, Defendant Hanover
           filed a Joinder Complaint Against Additional
           Defendant CCX alleging theories of strict liability,
           breach    of   warranty      and   negligence.     On
           September 3, 2009, Additional Defendant CCX filed
           Answer with New Matter. On August 17, 2011, the
           Court approved a Stipulation which withdrew, with
           prejudice, the strict liability and breach of warranty
           claims against Additional Defendant CCX.

                 On February 17, 2012, Additional Defendant
           CCX filed Motion for Summary Judgment and a brief
           in support thereof on February 27, 2012.

Opinion, 5/25/12 at 2-3.




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     On May 25, 2012, the trial court granted CCX’s motion for summary

judgment. On July 20, 2012, Burkey’s action as to Hanover was dismissed

with prejudice by stipulation. The text of that document reads as follows:

                         STIPULATION TO DISMISS

                 It is hereby stipulated and agreed by all parties
           that Hanover Wire Cloth Company and Hanover Wire
           Cloth Co. are dismissed from the within action, with
           prejudice.

Stipulation to Dismiss, 7/20/12, Record Document No. 17. A related docket

entry appears as of that date. The document was signed by the attorneys

for Burkey, Hanover, and West Point.        No further pleading was filed

purporting to dismiss Hanover.

     On July 26, 2013, a similar stipulation was entered as to West Point:

                         STIPULATION TO DISMISS

                 The parties, by and through their counsel the
           undersigned, hereby stipulate and agree that
           Defendant West Point Foundry and Machine
           Company is dismissed from this action with
           prejudice.

Stipulation to Dismiss, 7/26/13, Record Document No. 8. A related docket

entry appears as of that date. The document was signed by the attorneys

for Burkey and West Point.

     On August 6, 2013, a second document was entered into the record

that also purported to dismiss West Point. That document reads as follows:

            ORDER TO SETTLE DISCONTINUE AND END AS TO
            DEFENDANT WEST POINT FOUNDRY AND MACHINE
                          COMPANY ONLY


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J. A14015/14



              TO THE PROTHONOTARY:

                    Please mark the above-entitled action Settled,
              Discontinued and Ended as to Defendant West Point
              Foundry and Machine Company only, upon payment
              of your costs only.

Order to Settle Discontinue and End, 8/6/13, Record Document No. 7.         A

related docket entry appears as of that date.     The document is signed by

Burkey’s counsel only.

        Burkey filed his notice of appeal as to CCX on September 3, 2013. In

its motion to quash, CCX contends that the notice of appeal is untimely.

CCX argues that the 30-day appeal period1 began to elapse on July 26,

2013, with the filing of the Stipulation to Dismiss, because that concluded

Burkey’s lawsuit as to all persons and all claims.    Burkey asserts that the

clock did not begin to run until the filing of the Order to Settle Discontinue

and End on August 6, 2013. We agree with CCX.

        It is well settled that the interlocutory orders dismissing various

parties piecemeal from a lawsuit may not be appealed until the case is

concluded as to the final remaining party and the case is therefore resolved

as to all parties and all claims.

                    This court later distinguished General Electric
              [Credit Corporation v. Aetna Casualty & Surety
              Co., 437 Pa. 463, 263 A.2d 448 (1970)] in Baker v.
              Cambridge      Chase,       Inc.,   725  A.2d    757
              (Pa.Super.1999), appeal denied, 560 Pa. 716, 745
              A.2d 1216 (1999). Baker found that the general

1
    See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.


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           principle of General Electric did not apply in a
           situation where multiple defendants in a single
           action, who were all original defendants, were
           removed from the case in piecemeal fashion by
           separate preliminary objections. Rather, in such a
           situation,   each  separate     judgment    becomes
           appealable when the suit is resolved against the final
           defendant[Footnote 1] and may be commenced as to
           all defendants by a single notice of appeal taken
           from the order resolving the final claim against the
           final defendant.

                 [Footnote 1] An appeal may not be filed
                 earlier because of the rule that an order
                 is not considered final and appealable
                 unless it disposes of all claims and all
                 parties.         Pa.R.A.P.     341(b)(1),
                 42 Pa.C.S.A.; K.H. v. J.R., 573 Pa. 481,
                 826 A.2d 863 (2003).

Strausser v. PRAMCO, III, 944 A.2d 761, 764 (Pa.Super. 2008).

     Moreover, 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, and a docket entry to the

effect that the claim was discontinued or settled may serve to render the

prior judgments final and appealable:

                  The posture of this appeal requires that we
           address the threshold issue of our jurisdiction to
           entertain the appeal. Appeal may be taken only
           from a final order, that is, an order that disposes of
           all claims and all parties.     Pa.R.A.P. 341(a).    A
           number of defendants remained of record following
           the trial court’s grant of summary judgment for
           Borg-Warner, B & C, Carlisle, and McCord. This fact
           appears to call into question the finality of the trial
           court’s   orders    granting    summary     judgment.
           However, the record reflects a July 16, 2007 trial
           court docket entry noting that this case was settled


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            as to all remaining non-bankrupt parties, except the
            Manville Fund, but the case against the Manville fund
            was dismissed. “A trial court order declaring a case
            settled as to all remaining parties renders prior
            grants of summary judgment final for Rule 341
            purposes, even if the prior orders entered disposed
            of fewer that all claims against all parties.”
            Gutteridge v. A.P. Green Services, Inc., 804 A.2d
            643, 650 (Pa.Super.2002); Harahan v. AC & S,
            Inc., 816 A.2d 296, 297 (Pa.Super.2003). In this
            case all parties are now settled, bankrupt, or
            dismissed by grant of summary judgment or
            otherwise. Consequently, the grants of summary
            judgment for Borg-Warner, B & C, Carlisle, and
            McCord are final orders for appeal purposes and the
            present appeal is properly within our jurisdiction.
            Gutteridge, 804 A.2d at 650; Harahan, 816 A.2d
            at 297.

Weible v. Allied Signal, Inc., 963 A.2d 521, 524-525 (Pa.Super. 2008).

      Instantly, the July 26, 2013 docket entry noting that the Burkey case

was dismissed as to the final remaining defendant, West Point, caused the

order granting summary judgment to CCX to become final on that date.

Consequently, Burkey had until August 26, 2013 to file his notice of appeal

but failed to do so.2

      Burkey offers two reasons why the clock should not begin to run on

this date, but rather on August 6, 2013, when Burkey filed the Order to

Settle Discontinue and End; neither is convincing. First, Burkey argues that

there was no court order following the filing of the Stipulation to Dismiss and

that it was not finalized until the filing of the Order to Settle Discontinue and


2
  The actual 30th day, August 25, 2013, fell on a Sunday and is not included
in the calculation of time. 1 Pa.C.S.A. § 1908.


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J. A14015/14


End.3 As we have seen in Weible, there was no court order finalizing the

docket entry that noted that the remaining defendants had all settled or had

the case dismissed; rather, this court considered the docket entry as

rendering the prior summary judgments final. Moreover, despite the “Order”

in its title, the filing indicated by Burkey is not a court order either, but

merely a form of praecipe.

      Second, Burkey asserts that the Stipulation to Dismiss was not a final

adjudication because the prothonotary failed to give written notice to the

parties of its entry pursuant to Pa.R.C.P., Rule 236, 42 Pa.C.S.A. Rule 236

requires notice as to the entry of court orders and judgments.            The

Stipulation to Dismiss constituted neither and therefore did not require

notice by the prothonotary.     Further, as CCX indicates, no court order

“finalizing” a discontinuance is required where all parties, as here, furnish




3
  Burkey does not explain why he did not file an Order to Settle Discontinue
and End following the Stipulation to Dismiss as to Hanover. Apparently,
Burkey believed the Stipulation to Dismiss alone was sufficient to discontinue
the case as to Hanover.


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J. A14015/14


their written consent and receive notice from the filing party. See Pa.R.C.P.,

Rule 229, 42 Pa.C.S.A.4

     Burkey cites three cases which he claims support his position. Burkey

first cites Toney v. Chester County Hospital, 961 A.2d 192 (Pa.Super.

2008), affirmed, 36 A.3d 83 (Pa. 2011), for the proposition that a signed

stipulation and a praecipe for discontinuance are required to effect a

discontinuance.   There is dicta in Toney that suggests this: “[A]lthough

Toney circulated the stipulation, the remaining defendant . . . did not sign

the stipulation, and no praecipe for discontinuance based upon it was filed.”

Toney, 961 A.2d at 197.       The issue being resolved in Toney was not

whether both a stipulation and a praecipe were needed to effectuate a

discontinuance.   Rather, the issue was whether a court order was needed

where the stipulation was not signed by all remaining defendants. The court

found that a court order was needed under those circumstances. Rule 229,

which governs discontinuances, does not require a praecipe to discontinue,



4
  The following Explanatory Comment from 1991 (in pertinent part) is
appended to Rule 229:

                  Prior to the present amendment, Rule 229(b)
           required leave of court to discontinue an action as to
           less than all parties.       However, it had been
           suggested it was unnecessary to involve the court in
           a discontinuance where there is an agreement of all
           parties. The amendment adopts the suggestion so
           that the rule now permits such a discontinuance
           either upon agreement of all parties or with leave of
           court.


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J. A14015/14


but requires only the written consent of all parties (or court approval) in

order to effect a discontinuance.      The Stipulation to Dismiss met this

requirement, manifesting the written consent of all remaining parties.

      Burkey also cites Chamberlin of Pittsburgh, Inc. v. Fort Pitt

Chemical Co., 352 A.2d 176 (Pa.Super. 1975), arguing, “in Chamberlin

there was not only a Stipulation of Dismissal, but a subsequent Order of

Dismissal With Prejudice and only upon the entry of the Order was the

applicable appellate appeal period triggered.”         (Answer of Appellant

Douglas Burkey to Motion of Appellee CCX, Inc. to Quash and/or Dismiss

Appeal and to Defer Briefing Schedule at 4.) The stipulation in Chamberlin

was made in a federal lawsuit, and the suit was subsequently dismissed with

prejudice by order of court.    In discussing the res judicata effect on a

related Pennsylvania lawsuit, this court observed:

            When appellant and appellee executed the
            stipulation, they established the rights as between
            themselves. The subsequent order of ‘dismissal with
            prejudice’ finalized their rights as would a judgment
            on the merits.

Chamberlin, 352 A.2d at 177.

      This is not a ruling that Pennsylvania law requires an order of dismissal

with prejudice in order to effect a discontinuance. Rule 229 clearly requires

court approval only where fewer than all defendants are being dismissed and

there is not written consent from all parties. The Stipulation to Dismiss here

meets the requirements of Rule 229.



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      Finally, Burkey cites Thierfelder v. Wolfert, 52 A.3d 1251 (Pa.

2012), for the proposition that a stipulation only becomes appealable after

the stipulation is approved by the trial court. Burkey does not pin cite the

supreme court’s discussion of this issue nor does he offer any analysis.

Thierfelder is a rather long decision, and our review finds only one mention

pertaining to a stipulation and court approval.

      In Thierfelder, husband and wife plaintiffs brought a multi-count

malpractice claim against a physician who was treating them for emotional

problems and subsequently engaged in a sexual affair with the wife. After

several of their claims were dismissed with prejudice, the plaintiffs filed a

stipulation dismissing their remaining claims so that they could appeal the

claims dismissed with prejudice.    In describing the procedural history, the

supreme court described this event as follows:

                  After subsequent litigation and discovery,
            including consolidation with a previously separate,
            parallel matter, appellees stipulated to dismiss their
            claims for battery and intentional infliction of
            emotional distress, a stipulation the trial court
            approved.     The stipulation allowed appellees to
            appeal the trial court’s now-final dismissal of their
            remaining claims . . .

Thierfelder, 52 A.3d at 1257.

      This is not a ruling that a stipulation of dismissal requires court

approval.   Rather, it is an observation that in Thierfelder the court

apparently issued an order approving the stipulation. In point of fact, other

than the above quotation, Thierfelder does not discuss whether a


                                    - 10 -
J. A14015/14


stipulation of dismissal requires court approval and the matter is not at issue

in the case.   Thierfelder is completely inapposite.      Again, 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.           The

Stipulation to Dismiss here meets the requirements of Rule 229 and

discontinued Burkey’s suit against West Point.

      We find that by filing the July 26, 2013 Stipulation to Dismiss,

discontinuing his appeal as to the final defendant, Burkey made final the

prior order granting summary judgment in favor of CCX. Consequently, the

notice of appeal filed on September 3, 2013, is untimely, and we must quash

this appeal.

      Appeal quashed.      Application for Post Submission Communication

denied.5




5
  Following oral argument before the panel, on May 21, 2014, Burkey filed an
Application for Post Submission Communication requesting permission to file a
document, no more than four pages in length, addressing the quashal issue and
specifically discussing the interplay of Rule 229 and this court’s rules. On
May 23, 2014, CCX filed a Response opposing any further pleading. We are
constrained to agree with CCX. Burkey has had ample opportunity to address
this issue.      CCX originally filed its Application to Quash Appeal on
September 20, 2013.        Burkey filed his Answer on October 7, 2013.
Subsequently, this court denied the Application to Quash Appeal on October 31,
2013, without prejudice to CCX to again raise the issue before the merits panel.
On February 28, 2014, CCX filed its appellee’s brief which again raised the
quashal issue. On March 17, 2014, Burkey filed a reply brief that included a
response to this issue. The argument of CCX as to whether this appeal should
be quashed has remained the same throughout this appeal. Burkey has already
had two opportunities to address this issue in writing as well as a third time at


                                     - 11 -
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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 12/3/2014




oral argument. We find that no valid purpose would be served in permitting
argument to continue further.


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