J-S21034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH OLLIE,                                     :   IN THE SUPERIOR COURT OF
                                                  :         PENNSYLVANIA
                        Appellant                 :
                                                  :
                                                  :
               v.                                 :
                                                  :
                                                  :
JOHN LUBAHN, M.D. AND PATRICK                     :
SMITH, M.D.                                       :      No. 1515 WDA 2019

                 Appeal from the Order Dated August 6, 2019
              in the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD No. 18-007366

BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                    FILED JULY 09, 2020

      Joseph        Ollie   (“Ollie”)   appeals   from   the   Orders   sustaining   the

Preliminary Objections filed by John Lubahn, M.D. (“Dr. Lubahn”), and

Patrick Smith, M.D. (“Dr. Smith”), and dismissing with prejudice Ollie’s

Complaint. We quash the appeal as untimely filed.

      The trial court summarized the relevant factual history of this appeal

as follows:

            [On June 11, 2018, Ollie], an inmate at the Elkton Federal
      Correctional Institution, filed a Complaint in Civil Action against
      Defendants [Dr. Lubahn] and [Dr. Smith] sounding in medical
      professional negligence … [with] additional claims for lack of
      informed consent and constitutional violations under the Eighth
      and Fourteenth Amendment[s] of the United States Constitution.

            [Ollie’s] cause of action arose out of treatment for injuries
      sustained to his hand and neck while working at General Electric.
      In January 2010, [Ollie] was referred to [Dr. Lubahn] by his
      primary care physician. During the original consultation with Dr.
      Lubahn, [Ollie] alleged that the doctor accused him of raping a
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      child[,] and further stated that he had medical records and tests
      to prove it. [Ollie] claimed that he informed Dr. Lubahn that he
      was not the perpetrator, but rather, it was a family member who
      had been convicted of the crime.             [Ollie] subsequently
      underwent surgery on his hand[, performed by Dr. Lubahn,] on
      November 3, 2010. The following week, [Dr. Smith] performed
      surgery on [Ollie’s] spine. [Ollie] alleged that immediately prior
      to the surgery[,] Dr. Lubahn and Dr. Smith were present and
      discussing the allegations of rape.        The crux of [Ollie’s]
      Complaint is that the [d]efendants conspired against him and
      negligently performed the procedures as a form of retribution.

            [Specifically, o]n March 19, 2017, [Ollie] was allegedly
      informed by an unnamed urologist at the Elkton Federal
      Correctional Institution that the bone gristle had been removed
      from his penis, although [Ollie] claimed to have no prior
      knowledge of its removal. [Ollie] alleged that [Dr. Lubahn]
      operated on the wrong body part[, namely, his penis,] and as a
      result[,] [Ollie] suffers bloody, painful[,] and uncontrollable
      urinations along with impotency and the inability to have sexual
      intercourse. As to [Dr. Smith], [Ollie] alleged that the doctor
      operated on his spine without first taking x-rays[,] and,
      subsequently, failed to properly join the fusion hardware in his
      neck[,] causing serious and permanent injuries to his spine and
      nervous system.

Trial Court Opinion, 12/5/19, at 1-2.

      On October 10, 2018, Ollie filed an Amended Complaint.         In June

2019, Dr. Lubahn and Dr. Smith filed separate Preliminary Objections to

Ollie’s Amended Complaint. On August 6, 2019, the trial court sustained the

Preliminary Objections, and dismissed Ollie’s Amended Complaint, with




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prejudice.    Ollie filed a single Notice of Appeal,1 which was docketed on

October 8, 2019. Ollie subsequently filed a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

       On January 29, 2020, Dr. Smith filed a Motion to Quash Ollie’s appeal,

asserting that Ollie’s Notice of Appeal was untimely filed.   On January 31,

2020, Dr. Lubahn filed a Motion to Quash on the same grounds. On March

13, 2020, this Court entered an Order denying both Motions to Quash,

without prejudice to the appellees’ rights to again raise the issue in their

briefs or separate motions.

       On April 6, 2020, Dr. Lubahn filed a renewed Motion to Quash on the

same grounds as before, i.e., that Ollie’s Notice of Appeal was untimely filed.

On April 20, 2020, Ollie filed a Response to Dr. Lubahn’s Motion to Quash,

claiming that because he was incarcerated and had deposited his Notice of

Appeal with the prison authorities on September 3, 2019, his Notice of

Appeal was timely pursuant to the Prisoner Mailbox Rule. Dr. Smith has

similarly raised the timeliness issue in his brief.

____________________________________________


1 We note that Ollie’s appeal is from two Orders, which separately dismissed
the two defendants. See Pa.R.A.P. 341 (stating that “where … one or more
orders resolves issues … relating to more than one judgment, separate
notices of appeal must be filed.”); see also Commonwealth v. Walker,
185 A.3d 969, 977 (Pa. 2018) (stating that “when a single order resolves
issues arising on more than one lower court docket, separate notices of
appeal must be filed. The failure to do so will result in quashal of the
appeal.” (citing Pa.R.A.P. 341)). However, in light of our disposition, we
need not address this issue.



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      Before addressing the merits of Ollie’s appeal, we must first determine

whether Ollie’s Notice of Appeal was timely filed.      See Morningstar v.

Hoban, 819 A.2d 1191, 1196 (Pa. Super. 2003) (stating that “the timeliness

of an appeal is jurisdictional….” (citations omitted)). The Pennsylvania Rules

of Appellate Procedure provide that “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). The date of entry of an order is the date that the clerk of

courts mails or delivers a copy of the order to the parties, or makes such

copies public. Pa.R.A.P. 108(a)(1). This Court may not extend the time for

filing a notice of appeal. Pa.R.A.P. 105(b). Pro se status does not relieve an

appellant of the duty to follow the Rules of Appellate Procedure. Jiricko v.

Geico Ins. Co., 947 A.2d 206, 213 (Pa. Super. 2008).

      Pursuant to the Prisoner Mailbox Rule,

      A pro se filing submitted by a person incarcerated in a
      correctional facility is deemed filed as of the date of the prison
      postmark or the date the filing was delivered to the prison
      authorities for purposes of mailing as documented by a
      properly executed prisoner cash slip or other reasonably
      verifiable evidence.

Pa.R.A.P. 121(f) (emphasis added).

      Our review of the record discloses that the trial court mailed its Orders

dismissing Ollie’s Amended Complaint on August 6, 2019. Therefore, Ollie

was required to file his Notice of Appeal on or before September 5, 2019.

See Pa.R.A.P. 903(a). Ollie’s Notice of Appeal was docketed on October 8,

2019. Ollie has not provided a “properly executed prisoner cash slip or other

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reasonably verifiable evidence” of the date that he deposited his Notice of

Appeal with the prison authorities. Pa.R.A.P. 121(f). Additionally, no other

evidence     of   record    reasonably         verifies   that   Ollie   timely   filed   his

Notice of Appeal.2 Consequently, we must quash Ollie’s appeal as untimely

filed.

         Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2020




____________________________________________


2 Ollie’s Notice of Appeal includes, under his signature line, “September 3,
2019.” However, Ollie’s Notice of Appeal does not include a cash slip or
other “reasonably verifiable evidence,” such as an affidavit attesting that
Ollie deposited his Notice of Appeal with the prison authorities on September
3, 2019. See Pa.R.A.P. 121(f), supra; Commonwealth v. Jones, 700
A.2d 423, 426 (Pa. 1997) (stating that an “affidavit attesting to the date of
deposit with the prison officials” is reasonably verifiable evidence of the date
the prisoner deposited his filing with prison authorities) (citing Smith v.
Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 282 (Pa. 1996)).



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