Massaro, W. v. Tincher Contracting LLC

J-A22023-18
2019 PA Super 44WILLIAM 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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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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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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