J.A. Paluch, Jr. v. J.S. Shaffer ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James A. Paluch, Jr., :
:
Appellant :
:
v. : No. 2126 C.D. 2014
: Submitted: May 22, 2015
John S. Shaffer, Tanya Brandt, :
Lance Couturier, John M. DiLeonardo, :
Sylvia Gibson, David Markley, Frederick :
Mave, Lori Prinkley, David Roberts, :
Shirley Smeal-Moore :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: August 25, 2015
James A. Paluch, Jr. appeals from an Order of the Court of Common
Pleas of Somerset County (Trial Court) denying without prejudice his petition for
leave to proceed in forma pauperis (Petition). Because the Order was not an
appealable order under our Rules of Appellate Procedure, we quash this appeal.
On October 22, 2014, Paluch filed the Petition and a praecipe for writ
of summons to commence a civil action naming Appellees as defendants. In the
Petition, Paluch stated:
1. On August 27, 2007, [Plaintiff] commenced a civil
action at law in this trial court against several employees
of the [Department of Corrections] for civil rights and
other tort claims which remains pending...
2. Pursuant to our Commonwealth’s discovery rule,
[Plaintiff] has discovered the names of other persons who
were involved in the violation of his constitutional and
civil rights who must answer for their misconduct.
...
4. [Plaintiff] has a need to file an independent action at
this time and in time to conform to the applicable statute
of limitations.
(Record Item (R. Item) 1, Petition ¶¶1, 2.)
On October 29, 2014, the Trial Court entered the Order denying the
Petition without prejudice. (R. Item 2, Order.) In the Order, the Trial Court
explained that it appeared upon review of the Petition “that the cause of action will
be barred by the statute of limitations against the various defendants arising out of
conduct dating to 2007” and directed that Paluch “shall plead an applicable
exception to the ‘discovery rule[’] for which the court may deem the allegations to
be less than frivolous.” (Id.) Paluch promptly appealed the Order to this Court,
arguing that the Trial Court erred in dismissing the Petition without waiting for a
complaint to be filed as required by Rule of Civil Procedure 240(j)(2)1 and violated
1
Rule 240(j) provides:
(1) If, simultaneous with the commencement of an action or proceeding or the
taking of an appeal, a party has filed a petition for leave to proceed in forma
pauperis, the court prior to acting upon the petition may dismiss the action,
proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that
the action, proceeding or appeal is frivolous.
(2) If the petitioner commences the action by writ of summons, the court shall not
act on the petition for leave to proceed in forma pauperis until the complaint is
filed. If the complaint has not been filed within ninety days of the filing of the
petition, the court may dismiss the action pursuant to subdivision (j)(1).
2
his right of access to the courts and due process rights by subjecting his Petition to
a merits review when he has only filed a praecipe for writ of summons.
As a threshold matter, we must first address whether the Trial Court’s
Order denying the Petition is an appealable order.2 Generally, an appeal may be
taken only from a final order. Rae v. Pennsylvania Funeral Directors Association,
977 A.2d 1121, 1124-25 (Pa. 2009); In re Estate of Rowley, 84 A.3d 337, 340 (Pa.
Cmwlth. 2013). The purpose of limiting appellate review to final orders is to
prevent piecemeal determinations and the consequent protraction of litigation. In
re Sheriff’s Excess Proceeds Litigation, 98 A.3d 706, 717 (Pa. Cmwlth. 2014);
Brophy v. Philadelphia Gas Works, 921 A.2d 80, 86 (Pa. Cmwlth. 2007). A final
order is any order that either (i) “disposes of all claims and of all parties,” (ii) is
expressly defined as a final order by statute, or (iii) disposes of less than all claims
but is certified by the lower tribunal as final because an immediate appeal would
facilitate resolution of the entire case. Pa. R.A.P. 341(b), (c); Rae, 977 A.2d at
1125. The Order in question is not expressly defined in a statute as a final order
and was not certified as final by the Trial Court, and therefore we must determine
whether the order “disposes of all claims and of all parties.” Pa. R.A.P. 341(b)(1).
An order denying a petition to proceed in forma pauperis is ordinarily
considered a final, appealable order because such an order effectively deprives the
Pa. R.C.P. No. 240(j) (emphasis added). Section 6602(e)(2) of the Prison Litigation Reform Act
authorizes a trial court to “dismiss prison conditions litigation at any time, including prior to
service on the defendant, if the court determines [that]...[t]he prison conditions litigation is
frivolous.” 42 Pa. C.S. § 6602(e)(2).
2
In a February 23, 2015 per curiam order, this Court directed the parties to address the
appealability of the Trial Court’s Order in their briefs. Whether an order is appealable is a
question of law, as to which our standard of review is de novo and our scope of review is
plenary. Rae v. Pennsylvania Funeral Directors Association, 977 A.2d 1121, 1126 n.8 (Pa.
2009).
3
litigant of a forum to pursue his claims. Grant v. Blaine, 868 A.2d 400, 402-03
(Pa. 2005); Commonwealth v. Lepre, 18 A.3d 1225, 1226 n.3 (Pa. Super. 2011);
Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa. Super. 2006). However, in this
instance, the Trial Court denied the Petition without prejudice, giving Paluch an
opportunity to amend the Petition to explain why his claims would not be barred
by the statute of limitations. In Hionis v. Concord Township, 973 A.2d 1030 (Pa.
Cmwlth. 2009), we addressed the appealability of a trial court order sustaining
preliminary objections and granting leave to file an amended complaint within 20
days. We held that, despite the fact that the appellant did not wish to amend the
complaint as permitted and instead desired immediate appellate review of the
dismissal of the complaint, the order was not final because it did not dispose of “all
claims.”3 Id. at 1035 (quoting Pa. R.A.P. 341(b)(1)); see also Mier v. Stewart, 683
A.2d 930, 930 (Pa. Super. 1996) (“For finality to occur, the trial court must dismiss
with prejudice the complaint in full.”). We recognized that, while some previous
cases had held that an order sustaining preliminary objections with leave to amend
could be immediately appealable where the plaintiff represented on appeal that he
could not amend the pleading to satisfy the trial court, these cases were decided
prior to the 1992 amendments to Rule 341, which imposed stricter limits on
appealability by requiring that a final order must dispose of all claims and all
parties. Hionis, 973 A.2d at 1034-35 (distinguishing Westbury Realty Corp. v.
Lancaster Shopping Center, Inc., 152 A.2d 669 (Pa. 1959), and Local No. 163 v.
Watkins, 207 A.2d 776 (Pa. 1965)); see also Pa. R.A.P. 341, Note.
3
We also held that the order dismissing the complaint without prejudice was not appealable for
the additional reason that the trial court had not disposed of the claims against one of the
defendants. Hionis, 973 A.2d at 1035.
4
In accordance with Hionis, we conclude that the Order here is not a
final, appealable order. In dismissing the Petition, the Trial Court did not dispose
of all the claims Paluch intended to assert against the Appellees; instead, the Trial
Court made a provisional determination that the statute of limitations would act as
a bar to Paluch’s claims, but gave Paluch an opportunity to cure the defects in an
amended Petition. Cf. Commonwealth v. Waller, 682 A.2d 1292, 1295 (Pa. Super.
1996) (holding that the dismissal of charges without prejudice was an interlocutory
and non-appealable order because the Commonwealth could cure the defect and
refile the charges). We recognize that in Hionis the order provided that the
appellant must amend the complaint within 20 days, and we advised that the
appellant could file a praecipe with the trial court to dismiss the complaint with
prejudice after the expiration of this period and then appeal. Hionis, 973 A.2d at
1035-36. Nevertheless, the fact that the Trial Court here did not set a deadline
does not alter that the Order did not definitively dismiss the Petition and it is
therefore not a final, appealable order; the general rule that “a final order is
required before an appeal may be taken is fundamental to the exercise of
jurisdiction by the appellate court and is rigorously applied.” In re Sheriff’s Excess
Proceeds Litigation, 98 A.3d at 706 (quoting Brophy, 921 A.2d at 86).
Furthermore, we conclude that the procedural process outlined in Hionis of
converting the Trial Court’s interlocutory order to a final, appealable order by
filing a praecipe with the trial court to dismiss the complaint with prejudice is also
applicable here.
We further conclude that the Trial Court’s Order is not appealable as
an interlocutory or collateral order. An interlocutory order is appealable as of right
only when it falls in certain enumerated categories, or by permission of the trial
5
court where the issue relates to a controlling question of law. Pa. R.A.P. 311; Pa.
R.A.P. 312. The Order denying the Petition is not within one of these enumerated
categories and the Trial Court did not grant Paluch permission to appeal the Order.
A collateral order, which is appealable as of right, is an order that is (i) separable
from and collateral to the main cause of action, (ii) involves an issue too important
to be denied review, and (iii) presents an issue that will be irreparably lost if
review is postponed. Pa. R.A.P. 313(a), (b). Regardless of whether the first two
criteria are satisfied, the issue presented in this appeal will not be irreparably lost if
we postpone review as Paluch can appeal following the Trial Court’s ultimate
determination on his Petition.
Accordingly, Paluch’s appeal of the Order denying the Petition is
quashed.
____________________________________
JAMES GARDNER COLINS, Senior Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James A. Paluch, Jr., :
:
Appellant :
:
v. : No. 2126 C.D. 2014
:
John S. Shaffer, Tanya Brandt, :
Lance Couturier, John M. DiLeonardo, :
Sylvia Gibson, David Markley, Frederick :
Mave, Lori Prinkley, David Roberts, :
Shirley Smeal-Moore :
ORDER
AND NOW, this 25th day of August, 2015, the appeal in the above-
captioned matter is hereby QUASHED.
____________________________________
JAMES GARDNER COLINS, Senior Judge