Burkey, D. v. CCX, Inc.

J. A14015/14
2014 PA Super 269DOUGLAS BURKEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1570 MDA 2013
:
CCX, INC., ET AL. :
Appeal from the Order, August 6, 2013,
in the Court of Common Pleas of York County
Civil Division at No. 2008-SU-4852
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014
Appellant, Douglas Burkey (“Burkey”), appeals the order granting
summary judgment in favor of appellee, CCX, Inc. (“CCX”), in appellant’s
personal injury lawsuit. CCX has filed a motion to quash this appeal on the
basis that the notice of appeal was untimely filed. Finding that the notice of
appeal was untimely filed, we will grant the motion to quash this appeal.
We draw our procedural summary, in part, from the opinion of the trial
court drafted at the time summary judgment was entered:
This action stems from an accident that
occurred on June 18, 2007. While employed by
New York Wire, Plaintiff sustained an injury to his
hand from a machine, known as a warper or beamer,
that produces screen material typically used in
windows (herein “warper).
* Retired Senior Judge assigned to the Superior Court.
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The warper in question was designed,
manufactured and sold by West Point Foundry and
Machine Company (herein “Defendant West Point”)
to Hanover Wire Cloth Company and Hanover Wire
Cloth Co, (herein “Defendant Hanover”) in 1987.
Additional Defendant CCX, Inc. (herein “Additional
Defendant CCX”) later acquired Defendant Hanover
and moved the warper from Covington, Georgia to
Walterboro, South Carolina, where it remained in
storage. On June 30, 2005, Additional Defendant
CCX sold the warper in question, along with a variety
of other machines, equipment and property, to
New York Wire through an Asset Purchase and Sale
Agreement. See Motion for Summary Judgment,
Ex. A. The Sale Agreement between New York Wire
and Additional Defendant CCX stated that all
property, including the subject warper, was sold on
an “as-is, where-is” basis. Id. After the June 30,
2005 Sale Agreement and prior to the June 18, 2007
accident, New York Wire moved the subject warper
from South Carolina to Mount Wolf, Pennsylvania.
On January 31, 2008, Plaintiff filed a Complaint
in negligence against Defendant West Point and
Defendant Hanover. On March 30, 2009, Defendant
Hanover sought leave of court to join Additional
Defendant CCX, and the motion was granted on
May 8, 2009. On June 11, 2009, Defendant Hanover
filed a Joinder Complaint Against Additional
Defendant CCX alleging theories of strict liability,
breach of warranty and negligence. On
September 3, 2009, Additional Defendant CCX filed
Answer with New Matter. On August 17, 2011, the
Court approved a Stipulation which withdrew, with
prejudice, the strict liability and breach of warranty
claims against Additional Defendant CCX.
On February 17, 2012, Additional Defendant
CCX filed Motion for Summary Judgment and a brief
in support thereof on February 27, 2012.
Opinion, 5/25/12 at 2-3.
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On May 25, 2012, the trial court granted CCX’s motion for summary
judgment. On July 20, 2012, Burkey’s action as to Hanover was dismissed
with prejudice by stipulation. The text of that document reads as follows:
STIPULATION TO DISMISS
It is hereby stipulated and agreed by all parties
that Hanover Wire Cloth Company and Hanover Wire
Cloth Co. are dismissed from the within action, with
prejudice.
Stipulation to Dismiss, 7/20/12, Record Document No. 17. A related docket
entry appears as of that date. The document was signed by the attorneys
for Burkey, Hanover, and West Point. No further pleading was filed
purporting to dismiss Hanover.
On July 26, 2013, a similar stipulation was entered as to West Point:
STIPULATION TO DISMISS
The parties, by and through their counsel the
undersigned, hereby stipulate and agree that
Defendant West Point Foundry and Machine
Company is dismissed from this action with
prejudice.
Stipulation to Dismiss, 7/26/13, Record Document No. 8. A related docket
entry appears as of that date. The document was signed by the attorneys
for Burkey and West Point.
On August 6, 2013, a second document was entered into the record
that also purported to dismiss West Point. That document reads as follows:
ORDER TO SETTLE DISCONTINUE AND END AS TO
DEFENDANT WEST POINT FOUNDRY AND MACHINE
COMPANY ONLY
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TO THE PROTHONOTARY:
Please mark the above-entitled action Settled,
Discontinued and Ended as to Defendant West Point
Foundry and Machine Company only, upon payment
of your costs only.
Order to Settle Discontinue and End, 8/6/13, Record Document No. 7. A
related docket entry appears as of that date. The document is signed by
Burkey’s counsel only.
Burkey filed his notice of appeal as to CCX on September 3, 2013. In
its motion to quash, CCX contends that the notice of appeal is untimely.
CCX argues that the 30-day appeal period1 began to elapse on July 26,
2013, with the filing of the Stipulation to Dismiss, because that concluded
Burkey’s lawsuit as to all persons and all claims. Burkey asserts that the
clock did not begin to run until the filing of the Order to Settle Discontinue
and End on August 6, 2013. We agree with CCX.
It is well settled that the interlocutory orders dismissing various
parties piecemeal from a lawsuit may not be appealed until the case is
concluded as to the final remaining party and the case is therefore resolved
as to all parties and all claims.
This court later distinguished General Electric
[Credit Corporation v. Aetna Casualty & Surety
Co., 437 Pa. 463, 263 A.2d 448 (1970)] in Baker v.
Cambridge Chase, Inc., 725 A.2d 757(Pa.Super.1999), appeal denied, 560 Pa. 716, 745
A.2d 1216 (1999). Baker found that the general
1
See Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A.
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principle of General Electric did not apply in a
situation where multiple defendants in a single
action, who were all original defendants, were
removed from the case in piecemeal fashion by
separate preliminary objections. Rather, in such a
situation, each separate judgment becomes
appealable when the suit is resolved against the final
defendant[Footnote 1] and may be commenced as to
all defendants by a single notice of appeal taken
from the order resolving the final claim against the
final defendant.
[Footnote 1] An appeal may not be filed
earlier because of the rule that an order
is not considered final and appealable
unless it disposes of all claims and all
parties. Pa.R.A.P. 341(b)(1),
42 Pa.C.S.A.; K.H. v. J.R., 573 Pa. 481,
826 A.2d 863 (2003).
Strausser v. PRAMCO, III, 944 A.2d 761, 764 (Pa.Super. 2008).
Moreover, a case may be resolved against the final defendant by other
than an order of court, as happens where the case against the sole
remaining defendant is discontinued or settled, and a docket entry to the
effect that the claim was discontinued or settled may serve to render the
prior judgments final and appealable:
The posture of this appeal requires that we
address the threshold issue of our jurisdiction to
entertain the appeal. Appeal may be taken only
from a final order, that is, an order that disposes of
all claims and all parties. Pa.R.A.P. 341(a). A
number of defendants remained of record following
the trial court’s grant of summary judgment for
Borg-Warner, B & C, Carlisle, and McCord. This fact
appears to call into question the finality of the trial
court’s orders granting summary judgment.
However, the record reflects a July 16, 2007 trial
court docket entry noting that this case was settled
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as to all remaining non-bankrupt parties, except the
Manville Fund, but the case against the Manville fund
was dismissed. “A trial court order declaring a case
settled as to all remaining parties renders prior
grants of summary judgment final for Rule 341
purposes, even if the prior orders entered disposed
of fewer that all claims against all parties.”
Gutteridge v. A.P. Green Services, Inc., 804 A.2d
643, 650 (Pa.Super.2002); Harahan v. AC & S,
Inc., 816 A.2d 296, 297 (Pa.Super.2003). In this
case all parties are now settled, bankrupt, or
dismissed by grant of summary judgment or
otherwise. Consequently, the grants of summary
judgment for Borg-Warner, B & C, Carlisle, and
McCord are final orders for appeal purposes and the
present appeal is properly within our jurisdiction.
Gutteridge, 804 A.2d at 650; Harahan, 816 A.2d
at 297.
Weible v. Allied Signal, Inc., 963 A.2d 521, 524-525 (Pa.Super. 2008).
Instantly, the July 26, 2013 docket entry noting that the Burkey case
was dismissed as to the final remaining defendant, West Point, caused the
order granting summary judgment to CCX to become final on that date.
Consequently, Burkey had until August 26, 2013 to file his notice of appeal
but failed to do so.2
Burkey offers two reasons why the clock should not begin to run on
this date, but rather on August 6, 2013, when Burkey filed the Order to
Settle Discontinue and End; neither is convincing. First, Burkey argues that
there was no court order following the filing of the Stipulation to Dismiss and
that it was not finalized until the filing of the Order to Settle Discontinue and
2
The actual 30th day, August 25, 2013, fell on a Sunday and is not included
in the calculation of time. 1 Pa.C.S.A. § 1908.
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End.3 As we have seen in Weible, there was no court order finalizing the
docket entry that noted that the remaining defendants had all settled or had
the case dismissed; rather, this court considered the docket entry as
rendering the prior summary judgments final. Moreover, despite the “Order”
in its title, the filing indicated by Burkey is not a court order either, but
merely a form of praecipe.
Second, Burkey asserts that the Stipulation to Dismiss was not a final
adjudication because the prothonotary failed to give written notice to the
parties of its entry pursuant to Pa.R.C.P., Rule 236, 42 Pa.C.S.A. Rule 236
requires notice as to the entry of court orders and judgments. The
Stipulation to Dismiss constituted neither and therefore did not require
notice by the prothonotary. Further, as CCX indicates, no court order
“finalizing” a discontinuance is required where all parties, as here, furnish
3
Burkey does not explain why he did not file an Order to Settle Discontinue
and End following the Stipulation to Dismiss as to Hanover. Apparently,
Burkey believed the Stipulation to Dismiss alone was sufficient to discontinue
the case as to Hanover.
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their written consent and receive notice from the filing party. See Pa.R.C.P.,
Rule 229, 42 Pa.C.S.A.4
Burkey cites three cases which he claims support his position. Burkey
first cites Toney v. Chester County Hospital, 961 A.2d 192 (Pa.Super.
2008), affirmed, 36 A.3d 83 (Pa. 2011), for the proposition that a signed
stipulation and a praecipe for discontinuance are required to effect a
discontinuance. There is dicta in Toney that suggests this: “[A]lthough
Toney circulated the stipulation, the remaining defendant . . . did not sign
the stipulation, and no praecipe for discontinuance based upon it was filed.”
Toney, 961 A.2d at 197. The issue being resolved in Toney was not
whether both a stipulation and a praecipe were needed to effectuate a
discontinuance. Rather, the issue was whether a court order was needed
where the stipulation was not signed by all remaining defendants. The court
found that a court order was needed under those circumstances. Rule 229,
which governs discontinuances, does not require a praecipe to discontinue,
4
The following Explanatory Comment from 1991 (in pertinent part) is
appended to Rule 229:
Prior to the present amendment, Rule 229(b)
required leave of court to discontinue an action as to
less than all parties. However, it had been
suggested it was unnecessary to involve the court in
a discontinuance where there is an agreement of all
parties. The amendment adopts the suggestion so
that the rule now permits such a discontinuance
either upon agreement of all parties or with leave of
court.
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but requires only the written consent of all parties (or court approval) in
order to effect a discontinuance. The Stipulation to Dismiss met this
requirement, manifesting the written consent of all remaining parties.
Burkey also cites Chamberlin of Pittsburgh, Inc. v. Fort Pitt
Chemical Co., 352 A.2d 176 (Pa.Super. 1975), arguing, “in Chamberlin
there was not only a Stipulation of Dismissal, but a subsequent Order of
Dismissal With Prejudice and only upon the entry of the Order was the
applicable appellate appeal period triggered.” (Answer of Appellant
Douglas Burkey to Motion of Appellee CCX, Inc. to Quash and/or Dismiss
Appeal and to Defer Briefing Schedule at 4.) The stipulation in Chamberlin
was made in a federal lawsuit, and the suit was subsequently dismissed with
prejudice by order of court. In discussing the res judicata effect on a
related Pennsylvania lawsuit, this court observed:
When appellant and appellee executed the
stipulation, they established the rights as between
themselves. The subsequent order of ‘dismissal with
prejudice’ finalized their rights as would a judgment
on the merits.
Chamberlin, 352 A.2d at 177.
This is not a ruling that Pennsylvania law requires an order of dismissal
with prejudice in order to effect a discontinuance. Rule 229 clearly requires
court approval only where fewer than all defendants are being dismissed and
there is not written consent from all parties. The Stipulation to Dismiss here
meets the requirements of Rule 229.
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Finally, Burkey cites Thierfelder v. Wolfert, 52 A.3d 1251 (Pa.
2012), for the proposition that a stipulation only becomes appealable after
the stipulation is approved by the trial court. Burkey does not pin cite the
supreme court’s discussion of this issue nor does he offer any analysis.
Thierfelder is a rather long decision, and our review finds only one mention
pertaining to a stipulation and court approval.
In Thierfelder, husband and wife plaintiffs brought a multi-count
malpractice claim against a physician who was treating them for emotional
problems and subsequently engaged in a sexual affair with the wife. After
several of their claims were dismissed with prejudice, the plaintiffs filed a
stipulation dismissing their remaining claims so that they could appeal the
claims dismissed with prejudice. In describing the procedural history, the
supreme court described this event as follows:
After subsequent litigation and discovery,
including consolidation with a previously separate,
parallel matter, appellees stipulated to dismiss their
claims for battery and intentional infliction of
emotional distress, a stipulation the trial court
approved. The stipulation allowed appellees to
appeal the trial court’s now-final dismissal of their
remaining claims . . .
Thierfelder, 52 A.3d at 1257.
This is not a ruling that a stipulation of dismissal requires court
approval. Rather, it is an observation that in Thierfelder the court
apparently issued an order approving the stipulation. In point of fact, other
than the above quotation, Thierfelder does not discuss whether a
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stipulation of dismissal requires court approval and the matter is not at issue
in the case. Thierfelder is completely inapposite. Again, simply stated,
Rule 229 requires court approval only where fewer than all defendants are
being dismissed and there is not written consent from all parties. The
Stipulation to Dismiss here meets the requirements of Rule 229 and
discontinued Burkey’s suit against West Point.
We find that by filing the July 26, 2013 Stipulation to Dismiss,
discontinuing his appeal as to the final defendant, Burkey made final the
prior order granting summary judgment in favor of CCX. Consequently, the
notice of appeal filed on September 3, 2013, is untimely, and we must quash
this appeal.
Appeal quashed. Application for Post Submission Communication
denied.5
5
Following oral argument before the panel, on May 21, 2014, Burkey filed an
Application for Post Submission Communication requesting permission to file a
document, no more than four pages in length, addressing the quashal issue and
specifically discussing the interplay of Rule 229 and this court’s rules. On
May 23, 2014, CCX filed a Response opposing any further pleading. We are
constrained to agree with CCX. Burkey has had ample opportunity to address
this issue. CCX originally filed its Application to Quash Appeal on
September 20, 2013. Burkey filed his Answer on October 7, 2013.
Subsequently, this court denied the Application to Quash Appeal on October 31,
2013, without prejudice to CCX to again raise the issue before the merits panel.
On February 28, 2014, CCX filed its appellee’s brief which again raised the
quashal issue. On March 17, 2014, Burkey filed a reply brief that included a
response to this issue. The argument of CCX as to whether this appeal should
be quashed has remained the same throughout this appeal. Burkey has already
had two opportunities to address this issue in writing as well as a third time at
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/3/2014
oral argument. We find that no valid purpose would be served in permitting
argument to continue further.
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