J-S39002-16

2016 PA Super 193

DAWN M. CUBANO IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JONAS M. SHEEHAN, M.D., MOKSHA 

RANASINGHE, M.D., MILTON S. 

HERSHEY MEDICAL CENTER, A/K/A 

HERSHEY MEDICAL CENTER, A/K/A 

HERSHEY MEDICAL CENTER, AND PENN 

STATE HERSHEY NEUROSURGERY

Appellees No. 2055 MDA 2015

Appeal from the Order Entered October 26, 2015

In the Court of Common Pleas of Dauphin County

Civil Division at No: 2013-CV-08035-MM

BEFORE: STABILE, PLATT,*and STRASSBURGER,*JJ.

OPINION BY STABILE, J.: FILED AUGUST 29, 2016

Appellant, Dawn M. Cubano, appeals from the order entered on 

October 26, 2015 in the Court of Common Pleas of Dauphin County, granting 

the motion for summary judgment filed by Appellees, Jonas M. Sheehan, 

M.D., Moksha Ranasinghe, M.D., Milton S. Hershey Medical Center, a/k/a 

Hershey Medical Center, a/k/a Hershey Medical Center, and Penn State 

Hershey Neurosurgery. Upon review, we quash the appeal as untimely filed.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The trial court provided the following factual and procedural 

background:

This case arises from an elective surgery that [Appellant] 

underwent on October 9, 2008 to treat her back and leg pain. 

Postoperatively, Appellant complained of moderate to severe low 

back pain. Appellant was discharged from the [Appellee] Medical 

Center on October 10, 2008, but alleges that she began to 

experience new post-surgical symptoms of severe burning, 

tingling and numbness of her right side from her buttocks to her 

toes from October 11 through 13, 2008. 

On October 15, 2008, Appellant went to the [Appellee] 

Medical Center, and [Appellee Sheehan] performed a second 

surgery on Appellant the next day. Appellant alleges that, after 

this second surgery, she awoke with new and disabling 

symptoms including bowel constipation, severe neuropathic 

rectal and bowel pain, urinary retention, numbness extending 

from her right buttock to her toes and a total lack of voluntary 

dorsiflexion in her right foot and toes resulting in complete right 

foot drop. 

Appellant brought claims sounding in medical professional 

negligence, alleging that the two [Appellee] physicians, an 

attending and a Resident in the specialty of neurosurgery, were 

negligent in performance of her spine surgery.[1] It is 

undisputed that Appellant has not procured any expert reports to 

support her claims. By Order dated July 6, 2015, Appellant’s 

expert reports were due by August 28, 2015, which [Appellees] 

agreed to extend to September 11, 2015. Dispositive Motions 

were to be filed on or before October 16, 2015, “with Briefs as 

directed by the [c]ourt.” Trial was set for the week of November 

2, 2015. 

On September 17, 2015, Appellees filed a Motion for 

Summary Judgment based on Appellant’s failure to provide any 

____________________________________________

1 We note Appellant’s action was initially filed in York County but was 

transferred to Dauphin County as requested by Appellees based on forum

non conveniens.
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expert reports by the extended deadline of September 11, 2015. 

In her pretrial statement, Appellant admitted that she had not 

obtained an expert report that supported her case against 

Appellees. Moreover, Appellant’s counsel admitted that there 

were no experts who were preparing a report on behalf of 

Appellant. . . . 

Appellant never filed a Motion for extension of the case 

management deadlines, nor did she file an Objection to the 

November 2, 2015 trial listing. As a result, this case was 

attached to the November 2[] trial term, and this [c]ourt held a 

Pre-trial conference on October 19, 2015. Appellee[s’] Motion 

for Summary Judgment was discussed, and Appellant’s counsel 

again admitted that he had been unable to locate an expert who 

was willing to write a favorable opinion for Appellant and testify 

on her behalf. Due to the fact that trial was to start on 

November 2, 2015, and there was no dispute that Appellant had 

not produced a timely expert report, this [c]ourt did not direct 

the parties to file briefs, but instead made a ruling based on the 

Appellee[s’] Motion, relevant case law, and representations of 

Appellant’s counsel both at the Pre-Trial Conference and in 

Appellant’s response to Appellee[s’] Motion. Our reasoning for 

granting Appellee[s’] Motion for Summary Judgment is set forth 

in our October 23, 2015 Order[.]2

Trial Court Rule 1925(a) Opinion, 1/22/16, at 1-3 (unnumbered).

The order from which Appellant purports to appeal was entered on 

October 26, 2015. Therefore, Appellant was required to file the appeal no 

later than November 25, 2015. See Pa.R.A.P. 903(a) (an appeal “shall be 

filed within 30 days after the entry of the order from which the appeal is 

____________________________________________

2 Although the Rule 1925(a) opinion and the Dauphin County “Complete 

Case History” suggest the date of the order was October 23, 2015, which 

was a Friday, we note that the date of the order was actually Monday, 

October 26, 2015, “the day on which the clerk ma[de] the notation in the 

docket that notice of entry of the order has been given as required by 

Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). 
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taken”). “An appeal permitted by law as of right from a lower court to an 

appellate court shall be taken by filing a notice of appeal with the clerk of 

the lower court within the time allowed by Rule 903 (time for appeal).” 

Pa.R.A.P. 902. 

The docket reflects that Appellant filed her appeal on November 27, 

2015, thirty-two days after entry of the order and two days beyond the 

rule’s deadline.3 On its face, the appeal is untimely under Pa.R.A.P. 903(a). 

As such, this Court is divested of jurisdiction and we must quash the appeal. 

Cheathem v. Temple University Hosp., 743 A.2d 518, 521 (Pa. Super. 

1999); Valley Forge Ctr. Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 

245 (Pa. Super. 1997); see also Pa.R.A.P. 105(b) (appellate court may not 

enlarge time for filing a notice of appeal). 

We note that this Court issued an order on January 28, 2016, 

directing Appellant to show cause, within ten days, why the appeal should 

not be quashed as untimely filed. Appellant’s counsel responded, indicating 

that he filed a motion for reconsideration of the trial court’s grant of 

summary judgment and learned, through research, that the motion did not 

stay the thirty-day period for filing an appeal. Appellant’s Response to Rule 

to Show Cause, 2/8/16, at ¶ 6. He explained that he “waited some time 

before filing [the] Notice of Appeal pending the [trial court’s] treatment of 

____________________________________________

3 Thanksgiving fell on Thursday, November 26, 2015.
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[Appellant’s] Motion [for] Reconsideration and called the Dauphin County 

Prothonotary on November 24, 2015 to learn of its denial” and to learn the 

actual date of the court’s order granting summary judgment. Id. at ¶ 7. 

Given that information, counsel determined that the notice of appeal had to 

be filed by the following day and “[a]ccordingly . . . forwarded Appellant’s 

Notice of Appeal to the Prothonotary of Dauphin County by Federal Express 

overnight delivery with a cover letter requesting an email confirmation of 

timely receipt.” Id. at ¶¶ 8-9.4 Counsel expected the notice of appeal 

would be docketed upon receipt and that he would receive an email on 

November 25 confirming receipt. Id. at ¶ 11. He could not explain “why 

the Notice of Appeal was not docketed by the Dauphin County Prothonotary 

on November 25th but state[d] that he did everything in his power to assure 

that it would be.” Id. at ¶ 12. He asked this Court to treat the notice of 

appeal as timely filed nunc pro tunc. Id. at 3. 

This Court issued an order on February 26, 2016, documenting 

counsel’s response to the Rule to Show Cause and acknowledging the 

documentation submitted in support. The Order indicated that the issue 

would be referred to this panel; that the January 28, 2016 show cause order 

____________________________________________

4 With his response, counsel submitted documentation dated November 24, 

2015, ostensibly completed by his office, for Federal Express overnight 

package delivery service to the Dauphin County Prothonotary. He did not 

attach any documentation from Federal Express reflecting the date of 

delivery or any email communication from the Prothonotary indicating 

receipt of the package. 
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was discharged; and that this panel “may revisit the issue and may find the 

appeal is defective.” Order, 2/26/16, at 1. The Order also advised Appellant 

that she should be prepared to address the issue in her brief in the event 

this matter would be submitted on briefs. Id. 

Appellant’s brief was filed three days later, on February 29, 2016, and 

did not address the issue of timeliness. However, after Appellees argued in 

their brief that the appeal should be quashed as untimely, Appellant did 

briefly address the issue as follows:

[Appellant’s] Notice of Appeal was timely. She did not send her 

Notice by regular mail as noted in case law cited by [Appellees] 

but rather by Federal Express Priority Overnight delivery on 

Tuesday, November 24th for timely delivery to the Prothonotary 

of Dauphin[] County, Pennsylvania on February [sic] 25th as 

planned. [Appellant] used a highly reliable priority service with 

every expectation of both timely delivery and timely docketing.

Appellant’s Reply Brief at 1. Appellant does not cite any authority to support 

her contention that enlisting the services of Federal Express, and relying on 

Federal Express to deliver the package overnight, satisfies the requirement 

of Rule 902 to file a notice of appeal with the clerk of the lower court within 

the time allowed by Rule 903. With respect to Rule 902, this Court has 

stated:

The rule provides of no exceptions. In fact, the rule emphasizes 

that the filing of a timely notice of appeal is the sine qua non of 

a proper appeal from a final order by stating that “[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. . . .” This 

clearly implies that the only failure that does affect the validity of 

the appeal is the failure to file a timely notice of appeal. It is 

this failure that we have no jurisdiction to excuse.
J-S39002-16

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Thermo–Guard, Inc. v. Cochran, 596 A.2d 188, 192 (Pa. Super. 1991) 

(emphasis in original) (superseded by statute on other grounds).

Appellees acknowledge that our courts will permit an untimely appeal 

in extraordinary circumstances through an appeal nunc pro tunc. Appellees’ 

Brief at 14. However Appellant did not file an appeal nunc pro tunc but 

simply asked, in her response to this Court’s Rule to Show Cause, that we 

treat the appeal as nunc pro tunc. Regardless, Appellant has not identified 

any extraordinary circumstances that prevented a timely filing of the appeal. 

Her counsel did not explain why, for example, he did not file a notice of 

appeal simultaneously with the motion for reconsideration. Nor does he 

explain why he simply did not drive to the Dauphin County Courthouse, not 

even 40 miles from his office, to file the appeal in person.5 Instead, he 

waited until November 24 to contact the Dauphin County Prothonotary, 

learned that the motion for reconsideration had been denied, and learned 

____________________________________________

5 We take judicial notice of the distance between counsel’s office and the 

Dauphin County Courthouse, which according to Google maps is 37.7 miles. 

See https://www.google.com/maps. See Pa.R.E. 201; United States v. 

Perea-Rey, 680 F.3d 1179, 1182 n. 1 (9th Cir. 2012) (“We take judicial 

notice of a Google map . . . as a ‘source whose accuracy cannot reasonably 

be questioned,’ at least for the purpose of determining the general location 

of the [defendant’s] home.”). See also Nascone v. Spudnuts, Inc., 735 

F.2d 763, 773 (3d Cir. 1983) (taking judicial notice of the distance between 

Western Pennsylvania and Utah). Further, weather records indicate the 

temperature at the Capital City Airport during business hours on November 

24 and 25, 2015 ranged from the mid-30s to low 50s with no precipitation 

measured on either day. See https://www.wunderground.com.
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that the October 23 order was actually docketed on October 26, making the 

deadline for filing an appeal the next day, November 25.6 Appellant’s 

Response to Rule to Show Cause, 2/8/16, at ¶¶ 6-8. He then enlisted the 

services of Federal Express to deliver the notice of appeal, id. at ¶ 9, even 

though the rules clearly do not designate Federal Express overnight service 

as an accepted method of preserving an appeal or as an alternate method of 

filing a notice of appeal with the clerk. Cf. Mapu v. Nicholson, 397 F.3d 

1375 (Fed. Cir. 2005) (rejecting use of Federal Express as an equivalent to 

the U.S. Postal Service for preserving an appeal from a decision of the Board 

of Veterans’ Appeals). 

Because her appeal was not timely filed, the appeal must be quashed.7 

Appeal quashed. 

____________________________________________

6

It is not lost on us that had the October 23 order been entered on the day 

it was issued rather than on October 26, the deadline for filing an appeal 

would have passed before counsel contacted the Prothonotary on November 

24.

7 Even if her appeal were not quashed, Appellant would not be entitled to 

relief. Appellant’s cross motion for summary judgment was filed beyond the 

court-imposed deadline for filing dispositive motions. Appellant did not seek 

an extension of that deadline or request that the case be continued from the 

November 2 trial list. The trial court properly refused to consider the 

untimely motion. Further, even if timely, the claims Appellant sought to 

preserve were claims of negligence for post-operative pain and suffering that 

were not within the range of ordinary experience so as to eliminate the need 

for an expert report. At the very least, her claims raised genuine issues of 

material fact that would compel denial of summary judgment. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2016