IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Gerhol t

, :

Appellant :

:

v. : No. 375 C.D. 2021 : Submitted: September 3, 2021 John Wetzel, Jamie Soben, : Gina Orlando, Chris Steffenino, and : and David Thomas :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE CHRISTINE FIZZANO CANNON , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT 1 FILED: January 5, 2022

John Gerholt, an inmate at the State Correctional Institution (SCI) at

Phoenix, appeals pro se an order of the Court of Common Pleas of Montgomery

County (trial court) granting a motion to stay discovery filed by John Wetzel,

Secretary of Correction s and Department of C orrections employees Jamie Soben,

Gina Orlando, Chris Steffenino and David Thomas (collectively, Department

Officials ) . The stay was granted pending a decision on Department Officials’

preliminary objections to Gerholt’s complaint. Asserting that the tri al court ’ s order

was not a final and appealable order , Department Officials have filed a motion to

quash Gerholt’s appeal

. We agree and quash the appeal.

On October 21, 2020, Gerholt filed a complaint in the trial court against

Department Officials for damages arising from an injury Gerholt sustained to his left

hand on January 30, 2020, as he was walking to his housing unit. Gerholt was

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.2

provided medical treatment, which caused him “unnecessary pain and suffering.”

Original Record, Complaint ¶14, at 6. The complaint asserted, inter alia , that

Department Officials violated his rights under the Eighth and Fourteenth

Amendments to the United States Constitution, U.S. C ONST . amend s

. VIII, XIV

.

On December 7, 2020, Department Officials filed preliminary

obj ections to the complaint and argued, inter alia , that the action was barred by the

doctrines of res judicata and collateral estoppel. On January 22, 2021, Department

Officials filed a motion to stay discovery pending disposition of the preliminary

objecti ons. By order of February 1, 2021, the trial court granted the motion to stay

discovery.

Gerholt filed an objection to the trial court’s order on February 17,

2021, and a notice of appeal to this Court on March 23, 2021. In its P A . R.A.P.

1925(a) opini on, the trial court opined that its February 1, 2021, order was neither a
final appealable order within the meaning of Pennsylvania Rule of Appellate

Procedure 341(a) n or an interlocutory order appealable as of right pursuant to Rule

311.

Pennsylvania Ru le of Appellate Procedure 341 , in pertinent part, states

that “an appeal may be taken as of right from any final order of a government unit

or trial court” that “disposes of all claims and of all parties” or “is entered as a final

order” by a trial court pursuant to Rule 341(c). 2 P A . R.A.P. 341(a) , (b). The purpose

2 Pennsylvania Rule of Appellate Procedure 341(c) states in pertinent part as follows:
(c) Determination of finality.

-- When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross

- claim, or third

- party claim, or

whe n multiple parties are involved, the trial court or other government unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution

of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of3

of limiting appellate review to final orders is to prevent piecemeal determinations

and the consequent protraction of litigation. In re : First Baptist Church of Spring

Mill , 22 A.3d 10 91, 1095 (Pa. Cmwlth. 2011) (quotations omitted).

Here, the trial court’s order of February 1, 2021, stayed discovery

pending a decision on Department Officials’ preliminary objections and did not

dispose of all claims

. It was not a final order under Rule 34 1 (c). P A . R.A.P. 34 1 (c).

As such, the order is interlocutory.

Further, the trial court’s interlocutory order is neither appealable as of

right under P A

. R.A.P. 311 nor as a collateral order under P A

. R.A.P. 313. To

constitute a collateral order, “ [ ] the order must be separable from, and collateral to,

the main cause of action; [] the right involved must be too important to be denied

review; and [] the question presented must be such that if review is postponed until

after final judgment, the claim will be irreparably lost.” Commonwealth v. Harris

, 32 A.3d 243, 248 (Pa. 2011). All three prongs must be satisfied before an order may

be subject to a collateral appeal. Id

. In his brief, Gerholt asserted that the trial court

entered an order on June 14, 2021, overru ling Department Officials ’ preliminary

objections ; nevertheless, the trial court “did not relax the stay upon [the] discovery

order.” Ger

holt Brief at 6. What happened after the entry of the stay is irrelevant.

The only question before this Court is whether the stay pending disposition of the

preliminary objections is a final order.

decision that adjudicates fewer than all the claims and parties shall not constitute a

final order.

P A

. R.A.P. 341(c)

.4 Concluding that the trial court ’s February 1, 20 21 , or der was not a final

order appealable under the Pennsylvania Rules of Appellate Procedure , w e quash

Gerholt’s appeal as interlocutory. 3

___________________________________________ __ MARY HANNAH LEAVITT, President Judge Emerita

3 Under the prisoner mailbox rule, a pro se appeal by a prisoner is considered filed on the date of delivery of the appeal to prison authorities or placement of the appeal in the institution ’ s mailbox. Smith v. Pennsylvania Board of Pro bation and Parole , 683 A.2d 278 (Pa. 1996). Gerholt’s notice of appeal was dated February 16, 2021, but it i s unclear when the notice of appeal was delivered

to the prison authorities

. On March 2 , 2021, the trial court rejected Gerholt’s notice of appeal as not filed on the correct form and directed Gerholt to “resend” the paperwork on the forms provided by the trial court

. The refiling was done March 23, 2021. We need not decide whether Gerholt ’s refiled appeal was timely because the u nderlying order is interlocutory and not appealable

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Gerhol t

, :

Appellant :

:

v. : No. 375 C.D. 2021

: John Wetzel, Jamie Soben, : Gina Orlando, Chris Steffenino, and : and David Thomas :

O R D E R

AND NOW, this 5th day of January , 202 2 , John Gerholt’s appeal of the

order of the Court of Common Pleas of Montgomery County, dated February 1,

2021, in the above

- captioned matter, is QUASHED.

___________________________________________ __ MARY HANNAH LEAVITT, President Judge Emerita