Massaro v. Tincher Contracting LLC
Decision Date | 19 February 2019 |
Docket Number | No. 1013 EDA 2018,1013 EDA 2018 |
Citation | 204 A.3d 932 |
Court | Pennsylvania Superior Court |
Parties | William MASSARO, Appellant v. TINCHER CONTRACTING LLC, Kenneth E. Tincher II & John Doe 1-10 |
Peter G. Mylonas, Broomall, for appellant.
David F. Binder, Wayne, for appellee.
Appellant William Massaro appeals from the order granting the motion for summary judgment filed by Appellees Tincher Contracting, LLC, and Kenneth E. Tincher, II (collectively, Tincher). We quash Appellant's appeal because Appellant has outstanding claims against John Doe 1-10.
We need not discuss the factual background extensively given our disposition. Briefly, Appellant sued Tincher and John Doe 1-10 for breach of contract, unjust enrichment, breach of implied-in-law contract, breach of implied warranty, and unfair trade practices. Compl., 3/24/17. For each claim, Appellant requested relief against all defendants, including John Doe 1-10, who purportedly reside at Tincher's address. Id. at ¶ 4. On April 12, 2017, counsel entered his appearance on behalf of Tincher only. Entry of Appearance, 4/12/17. No counsel entered appearance on behalf of John Doe 1-10. Eventually, Tincher filed a motion for summary judgment, which the court granted on March 6, 2018. Appellant timely appealed, and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues on appeal:
Appellant's Brief at 7-8 (some capitalization omitted).
We may raise whether this Court has jurisdiction sua sponte . Mazur v. Trinity Area Sch. Dist. , 599 Pa. 232, 961 A.2d 96, 101 (2008). Commonwealth v. Grove , 170 A.3d 1127, 1137 (Pa. Super. 2017), appeal denied , 185 A.3d 967 (Pa. 2018).
The key inquiry in any determination of finality is whether there is an outstanding claim. Pa.R.A.P. 341 ; see also Bourne v. Temple Univ. Hosp. , 932 A.2d 114, 115-16 (Pa. Super.) (, )appeal denied , 595 Pa. 710, 939 A.2d 889 (2007). 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.
Levitt v. Patrick , 976 A.2d 581, 588 (Pa. Super. 2009) ; see Bonner v. Fayne , 441 Pa.Super. 432, 657 A.2d 1001, 1003 (1995) ( ). Indeed, the Bourne Court noted that the trial court had "approved a stipulation withdrawing without prejudice the claims against John Doe, Jane Doe," and a third party, which rendered a previously-entered order final for purposes of appeal. Bourne , 932 A.2d at 115-16.
Here, Appellant sued Tincher Contracting, LLC, Kenneth E. Tincher, II, and John Doe 1-10. Counsel entered his appearance for Tincher, but not John Doe 1-10. Tincher successfully moved for summary judgment, which left Appellant's claims against John Doe 1-10 outstanding. An order that grants summary judgment in favor of Tincher, but leaves unresolved Appellant's claims against John Doe 1-10 is ordinarily not an appealable order. See Bonner , 657 A.2d at 1003 ; see also Bourne , 932 A.2d at 115-16. Appellant has not argued that the order otherwise falls within the class of appealable interlocutory orders or he requested permission to appeal. See Levitt , 976 A.2d at 588. Therefore, because Appellant's claims remain outstanding against John Doe 1-10, and Appellant failed to request permission to appeal, we quash. Nothing within our opinion precludes Appellant from filing a timely appeal from a final order. See generally Pa.R.A.P. 341.2
Appeal quashed.
P.J.E., Stevens joins the opinion.
P.J.E., Bender files a dissenting opinion.
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 575 Pa. 236, 836 A.2d 25 (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 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:
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:
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) () . 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. , 599 Pa. 232, 961 A.2d 96, 101 (2008) ( ...
To continue reading
Request your trial