Lynch, J. v. Cooper, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. LYNCH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BENJAMIN COOPER, ESQ. ALLAN J. : No. 2200 EDA 2021
SAGOT, ESQ. ALLAN J. SAGOT :
ASSOCIATES :
Appeal from the Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 190100419
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED JANUARY 18, 2023
The Majority holds that, because this timely appeal was taken from an
interlocutory order, we must quash this appeal. Majority Memorandum at 9.
I respectfully disagree that quashal is mandatory, and, therefore, I
respectfully dissent.
I begin by noting that the trial court purported to dismiss the case in its
entirety, not merely the claims against the lone defendant who filed a praecipe
to enter a judgment of non pros, and that the docket entry for the appealed-
from order designates it as an order entering a final disposition. As such, the
argument could be made that the order from which Mr. Lynch appealed is
indeed a final order that erroneously disposed of claims not before the court.
However, in Bloome v. Alan, 154 A.3d 1271, 1274 (Pa.Super. 2017), upon
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which the Majority relies in its disposition, this Court held in the same
circumstances that the order did not effectively terminate the action against
unserved defendants despite its stated intent to dismiss the complaint in toto.
Therefore, I proceed with the understanding that, despite all indications to the
contrary, Mr. Lynch’s claims against Attorney Sagot and Sagot Associates
were not dismissed by the trial court’s September 29, 2021 order.
Nonetheless, while Bloome may control the determination of the finality of
the order before us, neither it nor the appellate rules mandates that this
appeal be quashed.
The Rules of Appellate Procedure expressly state that they “shall be
liberally construed to secure the just, speedy, and inexpensive determination
of every matter to which they are applicable.” Pa.R.A.P. 105(a). “In the
interest of expediting decision,” with exceptions not pertinent here, this Court
may “disregard the requirements or provisions of any of these rules in a
particular case on application of a party or on its own motion and may order
proceedings in accordance with its direction.” Id.Along these lines, our Rules provide that “that jurisdiction in appellate
courts may be perfected after an appeal notice has been filed[.]” U.S. Bank,
N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua, 193 A.3d
994, 998 (Pa.Super. 2018) (cleaned up). For example, Rule 902 explains that
the “[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[.]” Pa.R.A.P. 902.
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Instead, the failure “is subject to such action as the appellate court deems
appropriate, which may include, but is not limited to, remand of the matter to
the lower court so that the omitted procedural step may be taken.” Id. Rule
905, in turn, provides that “[a] notice of appeal filed after the announcement
of a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
Accordingly, it is well-settled that, to further the interests of judicial
economy, quashal of an interlocutory appeal need not necessarily result if the
correction of a procedural misstep could perfect our jurisdiction. Pursuant to
case law, we may exercise the option “to regard as done that which ought to
have been done” when it is clear from the record that the appealed-from order
was intended “to be a final pronouncement on the matters.” Franciscus v.
Sevdik, 135 A.3d 1092, 1094 n.2 (Pa.Super. 2016) (cleaned up). In other
instances, we have ordered what ought to have been done to actually be done
within a limited timeframe to avoid quashal. See, e.g., Commonwealth v.
Young, 280 A.3d 1049, 1057 (Pa.Super. 2022) (remanding for the appellant
to file separate notice of appeal within ten days and stating failure to do so
will result in quashal); Heasley v. Carter Lumber, 843 A.2d 1274, 1275 n.1
(Pa.Super. 2004) (deciding merits of appeal filed from interlocutory order after
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the appellants complied with this Court’s direction to file a praecipe for the
entry of judgment).1
In my view, since this appeal has been fully briefed and assigned to a
merits panel for disposition, automatic quashal is not in keeping with “the just,
speedy, and inexpensive determination” of this matter. Pa.R.A.P. 105(a).
Rather, I would enter an order giving Appellant an opportunity, if he chooses
to forgo his claims against those defendants, to file a praecipe to dismiss his
claims against Attorney Sagot and Sagot Associates before quashing this
appeal and making the parties start the process anew.
Therefore, I respectfully dissent.
____________________________________________
1 See also Zaminsky v. Dodge, 2107 EDA 2014 (Pa.Super. March 23, 2015)
(per curiam order granting the appellants ten days to dismiss outstanding
claims within ten days or face quashal); Reinoso v. Kohl’s Department
Stores, Inc., 3174 EDA 2012 (Pa.Super. July 1, 2014) (per curiam order
directing the trial court to enter an order concluding the litigation as to all
parties or to inform this Court whether any claims remained undecided).
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