J. D. Schneller v. J. P. Durante, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA James D. Schneller, : Appellant : : v. : : John P. Durante, Sheriff of Montgomery : County : No. 1720 C.D. 2007 Submitted: January 11, 2008 OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: March 19, 2008 James D. Schneller appeals from the May 1, 2007 order issued by Judge S. Gerald Corso of the Court of Common Pleas of Montgomery County, which denied the petition of Schneller to proceed in forma paurperis in his complaint in mandamus against John P. Durante, Sheriff of Montgomery County.1 Schneller questions whether the trial court abused its discretion in declining his motions for reconsideration and rehearing and request for a hearing, in effectively dismissing the complaint pursuant to Pa. R.C.P. No. 240(j) and in effectively dismissing pursuant to Pa. R.C.P. No. 240(j) on a jurisdictional basis of lack of clear right to the writ. Schneller also states an objection to this Court's jurisdiction. Schneller's complaint in mandamus alleges that he is the sole living plaintiff in a civil action at No. 03-20979 in Montgomery County naming himself and the Estate of George H. Schneller as plaintiffs against Main Line Hospitals, Inc. d/b/a Bryn Mawr Hospital, Dr. Lisa Marcucci, Jane Doe and Jane Doe as defendants. As indicated in the October 24, 2005 opinion of Judge Stephen R. 1 This case is being considered seriately with the appeal in Schneller v. Donnelly, Prothonotary of Montgomery County, No. 1713 C.D. 2007, with which it shares several issues. Barrett, he entered an order July 18, 2005 that denied Schneller's petition to strike the judgment of non pros entered after Bryn Mawr Hospital filed its praecipe pursuant to Pa. R.C.P. No. 1042.6, relating to entry of judgment of non pros for failure to file certification.2 Rule 1042.6(a) provides: "The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate." Judge Barrett's opinion in support of his order denying Schneller's petition to strike the judgment of non pros notes that Pa. R.C.P. 1042.3(d) provides that a court "upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days" if the motion is filed within the original period. Schneller filed his civil action complaint on October 29, 2003; he would have been required to file a certificate of merit or a motion to extend by December 29, 2003. He actually filed a motion to extend the time for filing on June 1, 2004. Citing Yee v. Roberts, 878 A.2d 906 (Pa. Super. 2005), Judge Barrett indicated that relief from a judgment of non pros taken for failure to file a timely certificate of merit is subject to the same guidelines as the opening of a judgment 2 Pa. R.C.P. No. 1042.3, relating to certificate of merit, provides that in any action based upon an allegation that a licensed professional has deviated from an accepted professional standard, the attorney or the plaintiff if unrepresented shall file within sixty days of filing the complaint a certificate of merit signed by the party or attorney stating that (1) an appropriate licensed professional has supplied a written statement that there is a reasonable probability that the actions of the defendant fell outside professional standards and caused harm or (2) the claim against the defendant is based solely on allegations that other professionals for whom he or she is responsible deviated from an acceptable standard or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. 2 of non pros under Pa. R.C.P. No. 3051.3 Judge Barrett concluded that Schneller did not set forth facts in his petition to show a reasonable explanation for the delay. Schneller's complaint in mandamus, filed April 26, 2007, alleges that he requested service of the complaint in Montgomery County civil action No. 0320979 on Main Line Hospitals, Inc. on December 13, 2005 by handing to employees of the Sheriff's office an order for service and a copy of the complaint, which had been reinstated that day, and that the Sheriff accepted the Order for Service and issued a receipt. Schneller also submitted orders for service in No. 0406045. A return of service showed the number 03-20979 scratched out and replaced by the number 04-06045. The Sheriff has not filed a return of service in No. 03-20979. Paragraph 14 of the complaint in mandamus, R.R. 4, states: The court of common pleas has dismissed plaintiff's complaint No. 03-20979, apparently for reason that the statute of limitations on plaintiff's case was not met by service made by plaintiff in January of 2006. The common pleas [court] has denied that it has jurisdiction over the within matter and has struck all of plaintiff's motions and petitions, including a petition which requested the within action. (Emphasis added.) Schneller sought an order requiring the Sheriff to file a return of service to show service on Main Line Hospitals, Inc. or alternatively to file a return of no service. Schneller filed his petition to proceed in forma pauperis in the mandamus action, and that is the subject of Judge Corso's May 1, 2007 order and his July 11, 2007 opinion in support of the order. Judge Corso stated that the basis 3 Rule 3051 provides that relief from judgment of non pros shall be sought by petition, with all grounds asserted in a single petition, and that if the relief requested includes opening the judgment, the petition shall allege facts showing that the petition is timely filed, that there is a reasonable explanation or legitimate excuse for the inactivity or delay and that there is a meritorious cause of action. 3 for the mandamus action was Schneller's stated belief that his medical malpractice action was dismissed on statute of limitations grounds as a result of the Sheriff's alleged failure to effect timely service. After reviewing the file in the medical malpractice action, however, Judge Corso concluded that the case was dismissed for failure to file certificates of merit against the various defendants and not on statute of limitations grounds. Therefore, the mandamus action lacked legal and factual merit, and Judge Corso denied the petition to proceed in forma pauperis on May 1, 2007 and denied a petition for reconsideration on May 8. Judge Corso noted that where the underlying complaint lacks legal or factual support, a court may deny a petition to proceed in forma pauperis, citing Keller v. Kinsley, 609 A.2d 567 (Pa. Super. 1992), and Pa. R.C.P. No. 240(j). He stated that Judge Barrett, who presided over the underlying medical malpractice action, dismissed the precise claim that formed the basis for the mandamus action.4 Schneller argues that the trial court's denial of leave to proceed in forma pauperis constitutes an abuse of discretion unto itself. Although denial of in forma pauperis status to one who does not qualify does not improperly deny access to the courts, denial to one who does qualify is improper denial of access. Grant v. Blaine, 582 Pa. 1, 868 A.2d 400 (2005). Schneller asserts that his inability to pay has been "overshadowed" by the trial court's finding of lack of legal and factual 4 The Court's review of an order denying an application to proceed in forma pauperis is limited to determining whether constitutional rights were violated or whether the trial court abused its discretion or committed an error of law. Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth. 1998). As in No. 1713 C.D. 2007, Schneller first argues that the trial court abused its discretion in declining his motions for reconsideration and rehearing and a request for a hearing. As the Court noted in No. 1713, however: "Pennsylvania case law is absolutely clear that the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is not reviewable on appeal." Thorn v. Newman, 538 A.2d 105, 108 (Pa. Cmwlth. 1988) (quoting Provident Nat'l Bank v. Rooklin, 378 A.2d 893, 897 (Pa. Super. 1977)). 4 basis, but inability to pay is the reason for the dismissal and thus a deprivation of access to a remedy and of equal treatment. Pa. R.C.P. No. 240(j) provides that if a party commences an action or proceeding or takes an appeal and at the same time files a petition for leave to proceed in forma pauperis, the court before acting on the petition may dismiss the action, proceeding or appeal if the court is satisfied that the action, proceeding or appeal is frivolous. The Note refers to Neitzke v. Williams, 490 U.S. 319, 325 (1989), which defined a frivolous action as one that "lacks an arguable basis either in law or in fact." It has been held that under Rule 240(j) an action is frivolous, and thus subject to dismissal, if on its face it does not set forth a valid cause of action. Bell v. Mayview State Hospital, 853 A.2d 1058 (Pa. Super. 2004). Schneller's arguments based upon Fed. R.C.P. 12(b)(6) and provisions that are not identical to those involved here is not persuasive. Schneller contends that Judge Corso abused his discretion in effectively dismissing the complaint pursuant to Rule 240(j) on a jurisdictional basis of lack of clear right to the writ. He notes that mandamus requires a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other adequate and appropriate remedy at law. Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985). Schneller refers to the allegation of Paragraph 14 of the complaint in mandamus that Judge Barrett dismissed the underlying malpractice action apparently because the statute of limitations was not met by service made by Schneller in January of 2006. Schneller asserts that he had hoped to prove that the judgment of non pros for failure to file certificates of merit was not "definitive" and that the statute of limitations is a "persistent issue" in the proceedings. Furthermore, the professional liability rules did not apply to certain causes of action, pursuant to decisions including Yee, expert testimony was not 5 required as to a substantial number of issues and Schneller had "reenlivened" the case pursuant to authorities including Moore v. John A. Luchsinger, P.C., 862 A.2d 631 (Pa. Super. 2004), and Pa. R.C.P. No. 3051. Schneller recognizes that mandamus must not be used as a substitute for an appeal. Although he did not specifically state questions of deprivations of constitutional rights, he claims that he has been deprived of rights of due process and of equal protection and to access to a remedy for injury under the law of in forma pauperis proceedings, including the apparent authority of the trial court to preliminarily judge sua sponte affirmative defenses and demurrers where such should be fairly adjudicated in answer and response. Finally, Schneller objects to this Court's jurisdiction, and he argues that 42 Pa. C.S. §762(a)(4) does not apply, because that section relates to appeals from courts of common pleas involving: (4) Local government civil and criminal matters. (i) All actions or proceedings arising under any municipality, institution district, public school, planning or zoning code or under which a municipality or other political subdivision or municipality authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any: (A) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof, acting in their official capacity ¦. Schneller asserts that the Sheriff is not a municipality, institution district or public school, that there is not drawn into question the application or interpretation of any statute regulating the affairs of political subdivisions, and that even if the Sheriff is a political subdivision there is no question of interpretation of a statute regulating his affairs. Rather, the crux of the suit is relief from the Sheriff's failure to file a return. 6 The Court agrees with the Sheriff that Judge Corso properly denied in forma pauperis status given the frivolous nature of the complaint in mandamus. As Judge Corso pointed out, the complaint in mandamus was incorrect in asserting that the underlying malpractice action was dismissed on statute of limitations grounds rather than on the basis of Schenller's failure to file a required certificate of merit. The complaint lacks legal support because the docket of the malpractice action reflects that Schneller filed a petition on March 20, 2007 for a finding of lawful service and entry of that service on the docket, thereby seeking the same relief that Schneller now seeks in mandamus. Judge Barrett struck that petition, which had been filed after the entry of the judgment of non pros. As the Sheriff stresses, the judgment of non pros was entered in favor of Main Line Hospitals, Inc. on August 17, 2004, which was over one year before Schneller sought the aid of the Sheriff's office in his effort to re-serve that defendant. The Supreme Court stated in Pennsylvania Dental Ass'n v. Insurance Department, 512 Pa. 217, 227 - 228, 516 A.2d 647, 652 (1986): The writ cannot be used to control the exercise of discretion or judgment by a public official or administrative or judicial tribunal; to review or compel the undoing of an action taken by such an official or tribunal in good faith and in the exercise of legitimate jurisdiction, even though the decision was wrong; to influence or coerce a particular determination of the issue involved; or to perform the function of an appeal or writ of error. Schneller is correct that for mandamus to lie there must be a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other appropriate remedy at law. Equitable Gas Co. Applying those principles here, the Court must agree that the mandamus complaint is nothing more than an attempt to circumvent Judge Barrett's ruling on the similar petition in the malpractice action. 7 The Sheriff raises an issue that the Court should sanction Schneller pursuant to Pa. R.A.P. 2744, which authorizes a court to impose as further costs such damages as may be just, including a reasonable counsel fee and damages for delay, if the court determines that "an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." An appeal is "frivolous" under Rule 2744 if it presents no justiciable question and is readily recognizable as being devoid of merit in that there is little prospect of success. Department of Transportation, Bureau of Driver Licensing v. Moran, 634 A.2d 677 (Pa. Cmwlth. 1993). Although Schneller's appeal is certainly close to meeting this standard and his conduct is close to being vexatious, the Court declines to impose sanctions on him at this time. If he continues to pursue appeals with very little chance of success, however, the result could well be different on another occasion. Finally, the Court rejects Schneller's objection to the jurisdiction of the Court. The proper functioning of the Sheriff's office in each county represents a matter relating to the officers of political subdivisions acting in their official capacity. Accordingly, for the reasons discussed, the Court affirms the order of the Court of Common Pleas. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA James D. Schneller, : Appellant : : v. : : John P. Durante, Sheriff of Montgomery : County : No. 1720 C.D. 2007 ORDER PER CURIAM AND NOW, this 19th day of March, 2008, the order of the Court of Common Pleas of Montgomery County is affirmed.
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