K. Tolbert v. J. Rogers

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Tolbert, :

Appellant :

: No. 1657 C.D. 2024

v. :

: Submitted: March 3, 2026

Joseph Rogers :

BEFORE: HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE DUMAS FILED: April 6, 2026

Keith Tolbert (Appellant), proceeding pro se, purports to appeal from

an order issued by the Court of Common Pleas of Montgomery County (trial court)

on March 6, 2024, which granted a motion to dismiss filed by Joseph Rogers

(Appellee). Upon close examination of the circumstances leading to this appeal, we

quash.

I. BACKGROUND1

Appellant was an inmate incarcerated at the State Correctional Institute

at Phoenix (SCI-Phoenix). Appellee, who was employed by the Pennsylvania

1

Unless stated otherwise, we derive this background from Appellant’s complaint and construe

the pleadings in his favor. See Compl., 6/14/20. We extract procedural details from the trial

court’s opinion and docket entries. See Trial Ct. Op., 9/12/24; Montgomery Cnty. Case No. 2020-

12183, Docket.

Department of Corrections (Department), worked at SCI-Phoenix as an activities

manager.

On November 23, 2019, while playing basketball in the west

gymnasium, Appellant slipped and fell because the floor was “extremely dirty,

slippery and having no grip . . . .” Compl., 6/14/20, ¶7. Further, in falling to the

floor, Appellant was elbowed on the right side of his face and skull. Appellant

suffered multiple fractures and was left severely disfigured.

Appellant filed a grievance but was unsuccessful in securing

administrative relief. Thereafter, he commenced this action by filing a complaint in

three counts, asserting negligence, assumpsit, and the negligent infliction of

emotional distress. Appellant sought $1,500,000 in compensatory and punitive

damages.

Appellant was unable to properly serve his complaint.2 Following

several extensions, on May 17, 2021, the trial court sustained preliminary objections

asserting improper service but nonetheless granted Appellant leave to perfect service

of his reinstated complaint within 30 days. See Trial Ct. Order, 5/17/21. Appellant

did not serve his complaint until February 14, 2023, nearly two years later.

On March 10, 2023, Appellee filed a motion to dismiss, asserting

Appellant’s failure to comply with the court’s prior order and that the relevant statute

of limitations had expired on November 23, 2021. See Mot. to Dismiss, 3/10/23

(citing 42 Pa.C.S. § 5523). Ultimately, the trial court granted the motion, noting

Appellant’s failure to comply with the court’s earlier order but not addressing

Appellees’ statute of limitations claim. See Trial Ct. Order, 3/6/24.

2

Appellant promptly served Appellee. See Montgomery Cnty. Sheriff’s Order for Service,

8/14/20. However, per statute and court rule, Appellant was also required to serve the complaint

on the Office of Attorney General. See 42 Pa.C.S. § 8523(b); Pa.R.Civ.P. 422(a).

2

On August 29, 2024, Appellant filed a notice of appeal.3 Thereafter,

the trial court issued an opinion reasoning that Appellant’s appeal was untimely. See

Trial Ct. Op., 9/12/24. The court explained that it had forwarded via certified mail

its order granting Appellee’s motion to dismiss and that delivery was confirmed on

April 8, 2024. Id. at 2. According to the trial court, even relying on the date

Appellant received its order, Appellant had untimely filed his notice of appeal more

than four months later. Id. at 2 (citing Pa.R.A.P 903(a)).

Upon review, this Court directed the parties to address the timeliness of

the appeal in their principal briefs. See Cmwlth. Ct. Order, 2/5/25.

II. ISSUES

Appellant raises two issues. First, Appellant asserts that this Court

should consider his appeal timely. See Appellant’s Br. at 5 (unpaginated). In

support, he describes a series of unfortunate events beyond his control which

prevented a timely filing.4 See id. at 10-13. Appellant construes these events as a

3

The appeal was initially docketed at Superior Court. However, Superior Court granted an

application filed by Appellee to transfer the appeal to this Court. See Order, Sup. Ct. No. 2319

EDA 2024, 12/9/24; see also Appl. to Transfer, 10/10/24 (citing, inter alia, 42 Pa.C.S. §

762(a)(1)).

4

On March 18, 2024, Appellant was placed in administrative segregation, and his legal

materials were destroyed. See Appellant’s Resp. to Trial Ct. Op., dated 9/24/24, Ex. B (Dep’t

Form DC-141 Part 1, 3/18/24 (explaining that Appellant was confined because he posed a danger

to one or more persons)); Appellant’s Br., Ex. C (Dep’t Form DC-154A, 3/18/24 (indicating that

Appellant’s confiscated property was destroyed)). While still in administrative segregation,

Appellant received the trial court’s order on April 8, 2024. Id. at 11, Ex. B (documenting delivery

on 4/8/24). On April 16, 2024, Appellant was released from administrative segregation. Id. at 11.

However, on April 14, 2024, Appellant allegedly suffered a “vertigo-induced fall,” which

precipitated his transfer to SCI-Forest, a facility that could accommodate his qualified disabilities.

Id. at 12; but see id., Ex. D (Dep’t DC-472, 5/13/24 (documenting that Appellant requested follow-

up care for “low back pain from an unwitnessed fall he said happened on 1/14/24. [Appellant]

denied any acute injuries.”)). On May 16, 2024, Appellant filed his notice of appeal in Superior

Court (instead of the trial court). Id., Ex. E (Notice of Appeal, dated 5/9/24, filed 5/16/24).

(Footnote continued on next page…)

3

breakdown in court processes or non-negligent conduct by him. See id. Thus, in his

view, Appellant is entitled to nunc pro tunc relief. See generally id. Appellant

further contends that Appellee has waived any objection to the timeliness of his

appeal. See id. at 13.

Second, on the merits, Appellant asserts that he has pleaded viable

claims in negligence and the negligent infliction of emotional distress. Id. at 5

(expressly withdrawing his claim in assumpsit). In his view, he may amend his

pleadings to “join defendant(s) and more closely align facts with the evidence . . . .”

Id. (citing Pa.R.Civ.P. 1033 (Amendment)). Finally, according to Appellant, the

evidence of record demonstrates that he perfected service upon the Office of

Attorney General within the applicable limitations period. Id. (citing Pa.R.Civ.P.

401(b)).5

Appellant claims he did not receive a response from Superior Court, notifying Appellant that he

had filed his appeal in an improper forum, until mid-August. Id. at 12; but see also id., Ex. E

(Resp. from Sup. Ct., dated 5/17/24 (notifying Appellant of his error)); Appellant’s Resp. to Trial

Ct. Op., Ex. E (Sup. Ct. Letter, dated 6/25/24 (responding to Appellant’s June 17, 2024 inquiry

and informing Appellant that he did not have an active appeal and suggesting that he contact the

trial court)).

5

Rule 401 sets forth procedures governing service of original process. In relevant part, the

Rule provides:

(b)(1) If service within the Commonwealth is not made within the time prescribed

by subdivision (a) of this rule or outside the Commonwealth within the time

prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of

the original process, or a copy thereof, shall continue its validity by designating the

writ as reissued or the complaint as reinstated.

Pa.R.Civ.P. 401(b)(1).

4

III. DISCUSSION6

The timeliness of Appellant’s appeal is a threshold matter that goes to

this Court’s jurisdiction. See Brown v. Greene Cnty. Off. of Dist. Att’y, 255 A.3d

673, 675 (Pa. Cmwlth. 2021). Because the timeliness of an appeal implicates our

jurisdiction, it is an issue that cannot be waived and may be raised at any stage of

the proceedings, or by this Court sua sponte. Weber v. Wyoming Valley W. Sch.

Dist., 668 A.2d 1218, 1221 (Pa. Cmwlth. 1995). Thus, Appellant’s waiver argument

is without merit. Id.

Rule 903(a) of the Pennsylvania Rules of Appellate Procedure provides

that a notice of appeal “shall be filed within 30 days after the entry of the order from

which the appeal is taken.” Pa.R.A.P. 903(a). It is well settled that the time for

filing an appeal “cannot be extended as a matter of grace or mere indulgence.” Bass

v. Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979). Rather, this Court must quash

an untimely appeal unless the appellant can establish extraordinary circumstances.

City of Phila. v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005); Mazyck v. Harris

(Pa. Cmwlth., No. 880 C.D. 2022, filed Sept. 9, 2025), 2025 WL 2601783;7 see

Pa.R.A.P. 105(b); Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001).

An appellant may be permitted to proceed nunc pro tunc if there has

been fraud, a breakdown in the administrative process, or when there is a “non-

negligent failure to file a timely appeal which was corrected within a very short time,

during which any prejudice to the other side of the controversy would necessarily be

minimal.” Bass, 401 A.2d at 1135-36. In particular, nunc pro tunc relief for non-

6

This Court’s review of a trial court decision is limited to whether the trial court abused its

discretion, committed an error of law, or whether constitutional rights were violated. Long v.

Thomas, 619 A.2d 394, 396 (Pa. Cmwlth. 1992).

7

We may cite unpublished decisions of this Court for their persuasive value. 210 Pa. Code §

69.414(a).

5

negligent circumstances “is meant to apply only in unique and compelling cases in

which the appellant has clearly established that [he] attempted to file an appeal, but

unforeseeable and unavoidable events precluded [him] from actually doing so.”

Criss, 781 A.2d at 1160 (denying nunc pro tunc relief because appellant’s counsel

failed to account for potential delays in mail delivery during the holiday season); but

see, e.g., Bass, 1134-36 (granting nunc pro tunc relief where appeal was filed four

days late due to the secretary’s sudden illness).

In this case, the trial court issued its order granting Appellee’s motion

to dismiss on March 6, 2024. See Trial Ct. Order, 3/6/24. Appellant did not appeal

until August 29, 2024. See Notice of Appeal, 8/29/2024. Thus, it is patently

untimely. Pa.R.A.P. 903(a).

Nevertheless, we have reviewed the record for evidence of a breakdown

in the administrative process or non-negligent circumstances that would warrant

nunc pro tunc relief.8 The docket reflects that Rule 2369 notice issued on March 6,

2024. Montgomery Cnty. Case No. 2020-12183, Docket Entry No. 56. Clearly,

however, the trial court’s initial attempts to mail the order to Appellant were

unsuccessful. See id., Docket Entry Nos. 57 & 58 (indicating that delivery failed

and order was returned to the trial court). To remedy this, the trial court delivered

the order via certified mail. Trial Ct. Op. at 2. Appellant acknowledges that he

received the order on April 8, 2024. Appellant’s Br. at 11; Ex. B (return receipt,

documenting delivery on 4/8/24). Based on this breakdown in the administrative

8

Appellant has not alleged fraud. See generally Appellant’s Br.

9

Pennsylvania Rule of Civil Procedure 236 requires that a prothonotary immediately give

written notice of the entry of an order. Pa.R.Civ.P. 236(a)(2). Additionally, “[t]he prothonotary

shall note in the docket the giving of the notice and, when a judgment by confession is entered, the

mailing of the required notice and documents. Pa.R.Civ.P. 236(b). Absent notice, the 30-day

appeal period does not commence. Frazier v. City of Phila., 735 A.2d 113, 115 (Pa. 1999); Brown

v. Hollis (Pa. Cmwlth., No. 511 C.D. 2021, filed March 3, 2023), 2023 WL 2342537.

6

process, we conclude that the appeal period commenced on this date. See Frazier,

735 A.2d at 115.

Due to his confinement in administrative segregation, as well as health

concerns requiring medical attention, Appellant maintains that he was unable to

appeal until May 16, 2024. See Appellant’s Br. at 11-12. Further, because he lacked

access to legal assistance, Appellant erroneously filed his notice of appeal in

Superior Court, instead of the trial court. Id. According to Appellant, Superior Court

erred in processing his appeal because it merely returned his notice of appeal to him,

instead of transferring the notice to the trial court for prompt filing. Id. at 12 (citing

Pa.R.A.P. 751(a)), Ex. E (Resp. from Sup. Ct., dated 5/17/24).

We recognize a further breakdown in the administrative process. Rule

902(a) of the Pennsylvania Rules of Appellate Procedure provides that appeals from

a trial court to an appellate court “shall be taken by filing a notice of appeal with the

clerk of the trial court . . . .” Pa.R.A.P. 902(a). However, if an appellant mistakenly

files his notice of appeal directly in the appellate court, Rule 905(a) mandates a

specific corrective procedure: “the clerk shall immediately stamp it with the date of

receipt and transmit it to the clerk of the court which entered the order appealed from

. . . .” Pa.R.A.P. 905(a); see, e.g., Howard v. Com., Dep’t of Transp., 73 A.3d 648,

650 (Pa. Cmwlth. 2013); Frankenberry v. Ferguson (Pa. Cmwlth., No. 105 C.D.

7

2017, filed July 12, 2017), 2017 WL 2960380.10 For these reasons, we deem the

effective date of Appellant’s appeal to be May 16, 2024.11

Thus, properly framed, Appellant’s appeal period commenced on April

8, 2024, and he untimely filed his notice of appeal 38 days later on May 16, 2024.

In reviewing Appellant’s description of events that occurred during this period, we

discern no non-negligent circumstances that would excuse Appellant’s delay. On

April 16, 2024, Appellant was released from administrative segregation, long before

his notice of appeal was due. See Appellant’s Br. at 11. Therefore, the time spent

in administrative segregation did not impact Appellant’s ability to file a notice of

10

As noted by Appellant, Rule 751 also supports transfer:

(a) General rule. If an appeal or other matter is taken to or brought in a court or

magisterial district which does not have jurisdiction of the appeal or other matter,

the court or magisterial district judge shall not quash such appeal or dismiss the

matter, but shall transfer the record thereof to the proper court of this

Commonwealth, where the appeal or other matter shall be treated as if originally

filed in transferee court on the date first filed in a court or magisterial district.

(b) Transfers by prothonotaries. An appeal or other matter may be transferred

from a court to another court under this rule by order of court or by order of the

prothonotary of any appellate court affected.

Pa.R.A.P. 751; 42 Pa.C.S. § 5103.

11

Appellant is a pro se prisoner; therefore, the prisoner mailbox rule applies. See Kittrell v.

Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2014); Commonwealth v. Jones, 700 A.2d 423 (Pa.

1997); Smith v. Pa. Bd. of Prob. & Parole, 683 A.2d 278 (Pa. 1996). Under this rule, a prisoner’s

pro se appeal or other legal document is deemed filed when given to prison officials or deposited

in the prison mailbox, regardless of the date the filing reaches the court. See Kittrell, 88 A.3d at

1097; Jones, 700 A.2d at 426; Smith, 683 A.2d at 281-82. In order to benefit from the rule, the

inmate bears the burden of proving that he timely deposited his filing in the prison mailbox or with

prison officials. Kittrell, 88 A.3d at 1097 (suggesting, e.g., that a prison-issued cash slip reflecting

a postal charge may be sufficient).

We recognize that the notice of appeal Appellant filed in Superior Court is dated May 9, 2024.

Appellant has not invoked the prisoner mailbox rule, nor has he offered reasonably verifiable

evidence that would constitute proof of mailing. Accordingly, we decline to recognize May 9,

2024, as the date of filing. See, e.g., Mazyk. Nevertheless, even if we accepted this date, it would

not render Appellant’s appeal timely.

8

appeal. Additionally, although Appellant asserts that he suffered a medical injury

on April 14, 2024, he has provided this Court with evidence that clearly contradicts

his assertion. See id., Ex. D (Dep’t DC-472, 5/13/24 (documenting that Appellant

requested follow-up care on May 13, 2024, for “low back pain from an unwitnessed

fall he said happened on 1/14/24. [Appellant] denied any acute injuries.”)). Based

on this evidence, Appellant has not established diligent efforts to file an appeal, and

we conclude that he is not entitled to nunc pro tunc relief. See Criss, 781 A.2d at

1160.

IV. CONCLUSION

The trial court issued its order on March 6, 2024, and Appellant did not

appeal until August 29, 2024. Appellant has documented breakdowns in the

administrative process, and we have adjusted the operative dates of his appeal

period. Effectively, for jurisdictional purposes, Appellant’s appeal period

commenced on April 8, 2024, and he filed his appeal on May 16, 2024. Appellant

has failed to establish any further non-negligent circumstances that would support

his request for nunc pro tunc relief. Criss, 781 A.2d at 1159. Appellant untimely

appealed the trial court’s decision granting Appellee’s motion to dismiss Appellant’s

complaint. Pa.R.A.P. 903(a). Accordingly, we quash.12 Frempong, 865 A.2d at

317.

LORI A. DUMAS, Judge

12

As we lack jurisdiction over this appeal, we may not consider Appellant’s substantive

claims.

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Tolbert, :

Appellant :

: No. 1657 C.D. 2024

v. :

:

Joseph Rogers :

ORDER

AND NOW, this 6th day of April, 2026, the appeal of Keith Tolbert

from the order issued by the Court of Common Pleas of Montgomery County on

March 6, 2024, is QUASHED.

LORI A. DUMAS, Judge