J-S39002-16


                                  2016 PA Super 193

DAWN M. CUBANO                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JONAS M. SHEEHAN, M.D., MOKSHA
RANASINGHE, M.D., MILTON S.
HERSHEY MEDICAL CENTER, A/K/A
HERSHEY MEDICAL CENTER, A/K/A
HERSHEY MEDICAL CENTER, AND PENN
STATE HERSHEY NEUROSURGERY

                            Appellees                  No. 2055 MDA 2015


                Appeal from the Order Entered October 26, 2015
                In the Court of Common Pleas of Dauphin County
                     Civil Division at No: 2013-CV-08035-MM


BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                               FILED AUGUST 29, 2016

        Appellant, Dawn M. Cubano, appeals from the order entered on

October 26, 2015 in the Court of Common Pleas of Dauphin County, granting

the motion for summary judgment filed by Appellees, Jonas M. Sheehan,

M.D., Moksha Ranasinghe, M.D., Milton S. Hershey Medical Center, a/k/a

Hershey Medical Center, a/k/a Hershey Medical Center, and Penn State

Hershey Neurosurgery. Upon review, we quash the appeal as untimely filed.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       The   trial   court   provided     the    following   factual   and   procedural

background:

              This case arises from an elective surgery that [Appellant]
       underwent on October 9, 2008 to treat her back and leg pain.
       Postoperatively, Appellant complained of moderate to severe low
       back pain. Appellant was discharged from the [Appellee] Medical
       Center on October 10, 2008, but alleges that she began to
       experience new post-surgical symptoms of severe burning,
       tingling and numbness of her right side from her buttocks to her
       toes from October 11 through 13, 2008.

              On October 15, 2008, Appellant went to the [Appellee]
       Medical Center, and [Appellee Sheehan] performed a second
       surgery on Appellant the next day. Appellant alleges that, after
       this second surgery, she awoke with new and disabling
       symptoms including bowel constipation, severe neuropathic
       rectal and bowel pain, urinary retention, numbness extending
       from her right buttock to her toes and a total lack of voluntary
       dorsiflexion in her right foot and toes resulting in complete right
       foot drop.

             Appellant brought claims sounding in medical professional
       negligence, alleging that the two [Appellee] physicians, an
       attending and a Resident in the specialty of neurosurgery, were
       negligent in performance of her spine surgery.[1]           It is
       undisputed that Appellant has not procured any expert reports to
       support her claims. By Order dated July 6, 2015, Appellant’s
       expert reports were due by August 28, 2015, which [Appellees]
       agreed to extend to September 11, 2015. Dispositive Motions
       were to be filed on or before October 16, 2015, “with Briefs as
       directed by the [c]ourt.” Trial was set for the week of November
       2, 2015.

           On September 17, 2015, Appellees filed a Motion for
       Summary Judgment based on Appellant’s failure to provide any
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1
   We note Appellant’s action was initially filed in York County but was
transferred to Dauphin County as requested by Appellees based on forum
non conveniens.




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       expert reports by the extended deadline of September 11, 2015.
       In her pretrial statement, Appellant admitted that she had not
       obtained an expert report that supported her case against
       Appellees. Moreover, Appellant’s counsel admitted that there
       were no experts who were preparing a report on behalf of
       Appellant. . . .

             Appellant never filed a Motion for extension of the case
       management deadlines, nor did she file an Objection to the
       November 2, 2015 trial listing. As a result, this case was
       attached to the November 2[] trial term, and this [c]ourt held a
       Pre-trial conference on October 19, 2015. Appellee[s’] Motion
       for Summary Judgment was discussed, and Appellant’s counsel
       again admitted that he had been unable to locate an expert who
       was willing to write a favorable opinion for Appellant and testify
       on her behalf. Due to the fact that trial was to start on
       November 2, 2015, and there was no dispute that Appellant had
       not produced a timely expert report, this [c]ourt did not direct
       the parties to file briefs, but instead made a ruling based on the
       Appellee[s’] Motion, relevant case law, and representations of
       Appellant’s counsel both at the Pre-Trial Conference and in
       Appellant’s response to Appellee[s’] Motion. Our reasoning for
       granting Appellee[s’] Motion for Summary Judgment is set forth
       in our October 23, 2015 Order[.]2

Trial Court Rule 1925(a) Opinion, 1/22/16, at 1-3 (unnumbered).

       The order from which Appellant purports to appeal was entered on

October 26, 2015. Therefore, Appellant was required to file the appeal no

later than November 25, 2015. See Pa.R.A.P. 903(a) (an appeal “shall be

filed within 30 days after the entry of the order from which the appeal is

____________________________________________


2
  Although the Rule 1925(a) opinion and the Dauphin County “Complete
Case History” suggest the date of the order was October 23, 2015, which
was a Friday, we note that the date of the order was actually Monday,
October 26, 2015, “the day on which the clerk ma[de] the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b).



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J-S39002-16


taken”). “An appeal permitted by law as of right from a lower court to an

appellate court shall be taken by filing a notice of appeal with the clerk of

the lower court within the time allowed by Rule 903 (time for appeal).”

Pa.R.A.P. 902.

        The docket reflects that Appellant filed her appeal on November 27,

2015, thirty-two days after entry of the order and two days beyond the

rule’s deadline.3 On its face, the appeal is untimely under Pa.R.A.P. 903(a).

As such, this Court is divested of jurisdiction and we must quash the appeal.

Cheathem v. Temple University Hosp., 743 A.2d 518, 521 (Pa. Super.

1999); Valley Forge Ctr. Associates v. Rib-It/K.P., Inc., 693 A.2d 242,

245 (Pa. Super. 1997); see also Pa.R.A.P. 105(b) (appellate court may not

enlarge time for filing a notice of appeal).

        We note that this Court issued an order on January 28, 2016,

directing Appellant to show cause, within ten days, why the appeal should

not be quashed as untimely filed. Appellant’s counsel responded, indicating

that he filed a motion for reconsideration of the trial court’s grant of

summary judgment and learned, through research, that the motion did not

stay the thirty-day period for filing an appeal. Appellant’s Response to Rule

to Show Cause, 2/8/16, at ¶ 6.           He explained that he “waited some time

before filing [the] Notice of Appeal pending the [trial court’s] treatment of

____________________________________________


3
    Thanksgiving fell on Thursday, November 26, 2015.



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[Appellant’s] Motion [for] Reconsideration and called the Dauphin County

Prothonotary on November 24, 2015 to learn of its denial” and to learn the

actual date of the court’s order granting summary judgment.           Id. at ¶ 7.

Given that information, counsel determined that the notice of appeal had to

be filed by the following day and “[a]ccordingly . . . forwarded Appellant’s

Notice of Appeal to the Prothonotary of Dauphin County by Federal Express

overnight delivery with a cover letter requesting an email confirmation of

timely receipt.”     Id. at ¶¶ 8-9.4       Counsel expected the notice of appeal

would be docketed upon receipt and that he would receive an email on

November 25 confirming receipt. Id. at ¶ 11. He could not explain “why

the Notice of Appeal was not docketed by the Dauphin County Prothonotary

on November 25th but state[d] that he did everything in his power to assure

that it would be.” Id. at ¶ 12. He asked this Court to treat the notice of

appeal as timely filed nunc pro tunc. Id. at 3.

       This Court issued an order on February 26, 2016, documenting

counsel’s response to the Rule to Show Cause and acknowledging the

documentation submitted in support.            The Order indicated that the issue

would be referred to this panel; that the January 28, 2016 show cause order
____________________________________________


4
  With his response, counsel submitted documentation dated November 24,
2015, ostensibly completed by his office, for Federal Express overnight
package delivery service to the Dauphin County Prothonotary. He did not
attach any documentation from Federal Express reflecting the date of
delivery or any email communication from the Prothonotary indicating
receipt of the package.



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J-S39002-16


was discharged; and that this panel “may revisit the issue and may find the

appeal is defective.” Order, 2/26/16, at 1. The Order also advised Appellant

that she should be prepared to address the issue in her brief in the event

this matter would be submitted on briefs. Id.

      Appellant’s brief was filed three days later, on February 29, 2016, and

did not address the issue of timeliness. However, after Appellees argued in

their brief that the appeal should be quashed as untimely, Appellant did

briefly address the issue as follows:

      [Appellant’s] Notice of Appeal was timely. She did not send her
      Notice by regular mail as noted in case law cited by [Appellees]
      but rather by Federal Express Priority Overnight delivery on
      Tuesday, November 24th for timely delivery to the Prothonotary
      of Dauphin[] County, Pennsylvania on February [sic] 25th as
      planned. [Appellant] used a highly reliable priority service with
      every expectation of both timely delivery and timely docketing.

Appellant’s Reply Brief at 1. Appellant does not cite any authority to support

her contention that enlisting the services of Federal Express, and relying on

Federal Express to deliver the package overnight, satisfies the requirement

of Rule 902 to file a notice of appeal with the clerk of the lower court within

the time allowed by Rule 903.       With respect to Rule 902, this Court has

stated:

      The rule provides of no exceptions. In fact, the rule emphasizes
      that the filing of a timely notice of appeal is the sine qua non of
      a proper appeal from a final order by stating that “[f]ailure of an
      appellant to take any step other than the timely filing of a notice
      of appeal does not affect the validity of the appeal. . . .” This
      clearly implies that the only failure that does affect the validity of
      the appeal is the failure to file a timely notice of appeal. It is
      this failure that we have no jurisdiction to excuse.

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J-S39002-16



Thermo–Guard, Inc. v. Cochran, 596 A.2d 188, 192 (Pa. Super. 1991)

(emphasis in original) (superseded by statute on other grounds).

       Appellees acknowledge that our courts will permit an untimely appeal

in extraordinary circumstances through an appeal nunc pro tunc. Appellees’

Brief at 14.    However Appellant did not file an appeal nunc pro tunc but

simply asked, in her response to this Court’s Rule to Show Cause, that we

treat the appeal as nunc pro tunc. Regardless, Appellant has not identified

any extraordinary circumstances that prevented a timely filing of the appeal.

Her counsel did not explain why, for example, he did not file a notice of

appeal simultaneously with the motion for reconsideration.      Nor does he

explain why he simply did not drive to the Dauphin County Courthouse, not

even 40 miles from his office, to file the appeal in person.5      Instead, he

waited until November 24 to contact the Dauphin County Prothonotary,

learned that the motion for reconsideration had been denied, and learned
____________________________________________


5
  We take judicial notice of the distance between counsel’s office and the
Dauphin County Courthouse, which according to Google maps is 37.7 miles.
See https://www.google.com/maps. See Pa.R.E. 201; United States v.
Perea-Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir. 2012) (“We take judicial
notice of a Google map . . . as a ‘source whose accuracy cannot reasonably
be questioned,’ at least for the purpose of determining the general location
of the [defendant’s] home.”). See also Nascone v. Spudnuts, Inc., 735
F.2d 763, 773 (3d Cir. 1983) (taking judicial notice of the distance between
Western Pennsylvania and Utah). Further, weather records indicate the
temperature at the Capital City Airport during business hours on November
24 and 25, 2015 ranged from the mid-30s to low 50s with no precipitation
measured on either day. See https://www.wunderground.com.




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J-S39002-16


that the October 23 order was actually docketed on October 26, making the

deadline for filing an appeal the next day, November 25.6         Appellant’s

Response to Rule to Show Cause, 2/8/16, at ¶¶ 6-8. He then enlisted the

services of Federal Express to deliver the notice of appeal, id. at ¶ 9, even

though the rules clearly do not designate Federal Express overnight service

as an accepted method of preserving an appeal or as an alternate method of

filing a notice of appeal with the clerk. Cf. Mapu v. Nicholson, 397 F.3d

1375 (Fed. Cir. 2005) (rejecting use of Federal Express as an equivalent to

the U.S. Postal Service for preserving an appeal from a decision of the Board

of Veterans’ Appeals).

       Because her appeal was not timely filed, the appeal must be quashed.7

       Appeal quashed.



____________________________________________


6
  It is not lost on us that had the October 23 order been entered on the day
it was issued rather than on October 26, the deadline for filing an appeal
would have passed before counsel contacted the Prothonotary on November
24.
7
  Even if her appeal were not quashed, Appellant would not be entitled to
relief. Appellant’s cross motion for summary judgment was filed beyond the
court-imposed deadline for filing dispositive motions. Appellant did not seek
an extension of that deadline or request that the case be continued from the
November 2 trial list. The trial court properly refused to consider the
untimely motion. Further, even if timely, the claims Appellant sought to
preserve were claims of negligence for post-operative pain and suffering that
were not within the range of ordinary experience so as to eliminate the need
for an expert report. At the very least, her claims raised genuine issues of
material fact that would compel denial of summary judgment.



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J-S39002-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2016




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