J-A22023-18

                                   2019 PA Super 44



    WILLIAM MASSARO,                                  IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellant

                        v.

    TINCHER CONTRACTING LLC, KENNETH
    E. TINCHER, II AND JOHN DOE 1-10

                             Appellee                   No. 1013 EDA 2018


                 Appeal from the Order Entered March 5, 2018
               In the Court of Common Pleas of Delaware County
                        Civil Division at No(s): 15-4999


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

DISSENTING OPINION BY BENDER, P.J.E.:             FILED FEBRUARY 19, 2019

        I do not agree with the Majority that we must quash Appellant’s appeal

because of his outstanding claims against John Doe 1-10.          Accordingly, I

respectfully dissent.

        Our Supreme Court has declined to quash an appeal under similar

circumstances where a “John Doe” defendant was named in a complaint and

continued to appear on the case’s caption, but had never been identified and

never entered an appearance in the action. To explain, in Zane v. Friends

Hospital, 770 A.2d 339 (Pa. Super. 2001), rev’d 836 A.2d 25 (Pa. 2003), an

appellant filed a negligence suit against Dr. John Doe, a hospital, and a patient

at the hospital, after the patient physically and sexually assaulted the
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*   Former Justice specially assigned to the Superior Court.
J-A22023-18



appellant. See id. at 339-40. The trial court eventually granted summary

judgment in favor of the hospital, and entered a judgment on the pleadings

against the patient. See id. at 340. The appellant subsequently appealed,

raising issues related to the trial court’s granting summary judgment in favor

of the hospital. Id. On appeal, this Court observed that the appellant’s claims

were “final against all parties,” notwithstanding that the appellant had

included Dr. John Doe in her complaint and he remained on the caption. Id.

We reasoned:
      Although [the a]ppellant’s complaint also named a Dr. John Doe
      as a defendant and his name continues to appear on the caption
      of this case, he is not a party. This doctor has never been
      identified and has never entered an appearance in this action. An
      action at law requires the existence of legal parties. Anderson
      Equipment Co. v. Huchber, 456 Pa.Super. 535, 690 A.2d 1239,
      1241 (1997) (quoting Thompson v. Peck, 320 Pa. 27, 181 A.
      597, 598 (1935)). Because Dr. John Doe is not a legal party, his
      status in this appeal is of no moment.

Zane, 770 A.2d at 340 n.1.

      This Court then proceeded to address the merits of the appellant’s

issues.   We ultimately vacated orders relating to the entry of summary

judgment in favor of the hospital, and remanded the case for further

proceedings. See id. at 340-41.

      Thereafter, the hospital petitioned for allowance of appeal to our

Supreme Court, and it granted review.      See Zane, 836 A.2d at 28.       Our

Supreme Court subsequently reversed the order of this Court, reinstating the

entry of summary judgment in the hospital’s favor. See id. at 34. However,

before reaching that conclusion, it observed with respect to Dr. John Doe that:

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J-A22023-18


      The Superior Court opinion notes that this doctor has never been
      identified and never entered an appearance in the action. The
      Superior Court concluded that as an action at law requires the
      existence of legal parties, and because Dr. John Doe was not a
      legal party, his status “was of no moment.”

Id. at 27 n.1 (internal citation omitted).

      By reaching the merits of the appeal, our Supreme Court approved of

this Court’s treatment of Dr. John Doe. Had it concluded otherwise, i.e., if it

had determined that the claims against Dr. John Doe remained outstanding

and thereby precluded entry of a final order, it would have lacked jurisdiction

to consider the hospital’s arguments and could not have proceeded to the

merits. See Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009) (“If any

claim remains outstanding and has not been disposed of by the trial court,

then … this Court lacks jurisdiction to entertain the appeal unless the appeal

is interlocutory or we grant permission to appeal. Pa.R.A.P. 341.”). I also

observe that our Supreme Court could have examined the issue of subject

matter jurisdiction sua sponte, but did not.    See Mazur v. Trinity Area

School Dist., 961 A.2d 96, 101 (Pa. 2008) (“[A]s a pure question of law, the

standard of review in determining whether a court has subject matter

jurisdiction is de novo and the scope of review is plenary. Whether a court

has subject matter jurisdiction over an action is a fundamental issue of law

which may be raised at any time in the course of the proceedings, including

by a reviewing court sua sponte.”) (citation omitted).

      In the case sub judice, the Majority recognizes that “[n]o counsel

entered appearance on behalf of John Doe 1-10.” Majority Op. at 2. Further,


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J-A22023-18



based on my review of the reproduced record, it appears John Doe 1-10 were

never identified.   Therefore, pursuant to the reasoning in Zane, I would

conclude that John Doe 1-10 are not legal parties and their status does not

affect our jurisdiction to entertain Appellant’s appeal. For these reasons, I

would not quash Appellant’s appeal.




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