IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rasheed Nifas and Garry Mason, :

Appellants :

:

v. :

:

Thomas McGinley, Renee Foulds, :

Anthony Luscavage, Karen Merritt- : No. 1467 C.D. 2021

Scully, and Blanche Milo : Submitted: March 17, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: May 8, 2023

Rasheed Nifas (Nifas) and Garry Mason (jointly Appellants), pro se,

appeal from an order of the Court of Common Pleas of Northumberland County (trial 

court) dated June 9, 2021, denying Appellants in forma pauperisstatus and dismissing

their civil complaint as frivolous. Upon review, we quash the appeal as untimely.

Appellants are inmates incarcerated in the State Correctional Institution 

in Coal Township. In May 2021, they filed a purported class action complaint in the 

trial court, alleging that prison personnel violated their constitutional rights by 

failing to implement proper safety protocols during the COVID-19 pandemic, 

resulting in Appellants’ contraction of COVID-19. Br. of Appellants at 4. 

Appellants also filed a praecipe to proceed in forma pauperis, which the trial court 

apparently treated as an application for in forma pauperis status. See id. at 2 & 4.
2

On June 9, 2021, the trial court issued an order dismissing Appellants’

praecipe and complaint as frivolous. Br. of Appellants at 2. Appellants’ brief avers 

the following sequence of events thereafter:

On July 22nd,[ ]2021[,] Plaintif[f]—Nifas called the 

Prothonotar[y]’s Office for a copy of any order, and [o]n 

July 22nd,[ ]2021 the Prothonotary’s Office finally sent 

th[e] Order dismissing the Complaint on June 9th,[ ]2021

. . . .

On July 26th,[ ]2021[,] Plaintiff—Nifas filed a Notice of 

Appeal to the [trial c]ourt . . . . The trial court refused to 

process the timely No[ti]ce of Appeal, Plaintiff—Nifas 

constantly wrote to the trial court Prothonotary[’s] Office 

asking for a stamped copy of the Notice of Appeal

showing that it was processed and docketed. ([Br. of 

Appellants,] Ex[].B).

On December 13th,[ ]2021[,] the[ ]Prothonotary[’s] Office 

finally processed the Notice of Appeal, and the Notice has 

two different time and dates stamped on it.[1][I]d.

On Jan 11th,[ ]2022[,] the trial court issued an order, that 

was not[ ]sent to the Plaintiff–Nifas until January 20th,[ ]

2022. ([Br. of Appellants,] Ex[].E). And on Jan. 19th,[ ]

2022[,] Plaintiff–Nifas filed a Concise Statement of Errors 

Complained of on Appeal, after calling the 

Northumberland County Prothonotary Office for a copy of 

any order by the trial court. ([Br. of Appellants,] Ex[].D).

Id. at 4. Thus, Appellants suggest that they did not receive timely service of the trial 

court’s dismissal and, additionally, that the trial court did not timely process their 

Notice of Appeal. See id. 

Consistent with Appellants’ averment that Nifas called the trial court 

Prothonotary for a copy of the order on July 22, 2021, the trial court’s docket 

indicates that a copy of the dismissal order was sent to Nifas on that date, apparently 

1 The two dates were both in December 2021. See Notice of Appeal.
3

in response to his telephone call. See Notice of Appeal, attachment. Assuming, 

arguendo, that this was the trial court’s first service of notice of the dismissal on 

Appellants, any appeal had to be filed within 30 days after that date.2 Pa.R.A.P. 

903(a). However, the first indication of the trial court’s receipt of the Notice of 

Appeal appears on the docket dated December 15, 2021, nearly five months after the 

docket reflects mailing of a copy of the dismissal in compliance with Nifas’s request. 

Notice of Appeal, attachment. The Notice of Appeal itself was designated by 

Appellants in its caption as “Resubmitted 12/3/21,” and although the certificate of 

service provides a purported mailing date of July 26, 2021, the attached certified 

mail receipts are dated December 15 and 27, 2021. Notice of Appeal & attachment. 

The docket does not reflect any previously filed Notice of Appeal. See Notice of 

Appeal, attachment; Br. of Appellants, Ex. E (trial court statement) at 1 (stating that 

the Notice of Appeal was filed December 13, 2021).3

On March 11, 2022, this Court issued an order observing that the appeal 

appeared to be untimely and directing the parties to address the issue of untimeliness 

in their briefs on the merits of their appeal.4 Other than including the statement of 

facts quoted above, however, Appellants did not comply with this Court’s order. 

Specifically, Appellants did not list timeliness as an issue on appeal and did not 

discuss it anywhere in the argument section of their brief; nor did they otherwise

2 As this Court has explained, the 30-day appeal period “does not commence until an order 

is ‘entered’ by the trial court . . . , [and] a trial court’s order is not ‘entered’ until that order has 

been entered by the Prothonotary on the docket and notice of the order’s entry has been given to 

the parties by the Prothonotary . . . . ” Gomory v. Dep’t of Transp., Bureau of Motor Vehicles, 704 

A.2d 202, 204 (Pa. Cmwlth. 1998) (additional citation omitted).

3 We also note that the appeal was not properly perfected, as the Notice of Appeal was not 

served on the trial court judge. See Pa.R.A.P. 1925(a)(1); Br. of Appellants, Ex. C (trial court 

order dated January 10, 2022) at 1 n.1.

4 Appellees elected not to file a brief or otherwise participate in the appeal.
4

point to any record evidence or offer any legal argument or citation to legal authority 

in support of their bare averments of fact. As such, Appellants have failed to support 

their implicit suggestion that we should consider the appeal as timely although it was 

filed six months after the trial court’s dismissal order.

In Watkins v. Workers’ Compensation Appeal Board (Ingram’s Drain 

& Sewer Cleaning Inc.) (Pa. Cmwlth., No. 895 C.D. 2018, filed March 11, 2019), 

this Court considered a similar timeliness issue.5 As in this case, we issued an order 

in Watkins directing the parties to address in their briefs the potentially untimely 

appeal. However, the petitioner failed to address the timeliness issue, in 

contravention of this Court’s order. See id., slip op. at 2. We first observed that 

where an appeal is untimely, we lack subject matter jurisdiction to consider it. Id., 

slip op. at 2-3 (first citing Riverlife Task Force v. Planning Comm’n of City of 

Pittsburgh, 966 A.2d 551, 559 (Pa. 2009); and then citing Tishok v. Dep’t of Educ., 

133 A.3d 118, 122 n.2 (Pa. Cmwlth. 2016) (stating that “failure to timely appeal is 

a jurisdictional defect that cannot be waived”)). We then noted that, although the 

petitioner stated in a pro se letter that he did not receive the appealed order in the 

mail, the record indicated that the order had been mailed, and there was no evidence 

indicating that the mailing was returned as undeliverable. Watkins, slip op. at 1-2

n.1. We observed that it is the appellant’s burden to demonstrate an excuse for an 

untimely appeal. Id. (citing Roman-Hutchinson v. Unemployment Comp. Bd. of 

Rev., 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009) (stating, “the claimant bears a 

heavy burden to justify an untimely appeal”)). We further observed that an 

appellant’s failure to present a developed timeliness argument in his brief, 

5 We cite this unreported decision as persuasive authority pursuant to Section 414(a) of this 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
5

particularly where that failure contravenes the appellate court’s express order, 

waives any timeliness argument. Watkins, slip op. at 2 n.1 (citing Commonwealth 

v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating, “where an appellate brief fails to 

provide any discussion of a claim with citation to relevant authority or fails to 

develop the issue in any other meaningful fashion capable of review, that claim is 

waived”)). We therefore quashed the appeal in Watkins. Id., slip op. at 3.

We find our analysis in Watkins applicable and persuasive here. 

Appellants here, like the petitioner in Watkins, failed to offer any support for their 

assertion that they did not receive notice of the trial court’s dismissal order. As in 

Watkins, the docket here demonstrated the mailing of the order and did not indicate 

that the mailing was returned as undeliverable. Thus, the record here, as in Watkins, 

failed to sustain Appellants’ heavy burden of demonstrating an excuse for their 

untimely appeal. Moreover, like the petitioner in Watkins, Appellants here have 

waived any argument regarding such an excuse by failing to offer a developed 

argument in their brief.

For these reasons, this Court lacks subject matter jurisdiction over this 

appeal. Accordingly, the appeal is quashed as untimely filed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rasheed Nifas and Garry Mason, :

Appellants :

:

v. :

:

Thomas McGinley, Renee Foulds, :

Anthony Luscavage, Karen Merritt- : No. 1467 C.D. 2021

Scully, and Blanche Milo :

O R D E R

AND NOW, this 8th day of May, 2023, the appeal of Rasheed Nifas 

and Garry Mason from the order of the Court of Common Pleas of Northumberland 

County dated June 9, 2021, is QUASHED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge