L. Brown v. York County Prison (Medical Department)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

Appellant :

: No. 569 C.D. 2015

v. :

: Submitted: October 16, 2015

York County Prison (Medical :

Department), Prison Health Services, :

Inc., c/k/a Corizon Health, Inc., :

Sandra M. Ulerick, Jennifer Miosi, :

Ashley Doe, and Jane Doe :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: December 30, 2015

Lamar Brown (Brown) appeals, pro se, from the September 30, 2014,

order of the Court of Common Pleas of York County (trial court) which sustained the

preliminary objections filed by York County Prison, Prison Health Services, Inc.,

Sandra M. Ulerick, and Jennifer Miosi (collectively, Appellees) and dismissed

Brown’s complaint as untimely. Appellees have filed motions to dismiss Brown’s

appeal.

Background

On October 20, 2003, Brown entered a guilty plea to three counts of

robbery in violation of section 3701 of the Crimes Code, 18 Pa. C.S. §3701. In

October 2007, Brown filed a post-conviction motion contesting his guilty plea,

arguing that he was on medication that affected his ability to knowingly and

intelligently enter a guilty plea. Brown’s court-appointed attorney attempted to

obtain from Appellees Brown’s medical records dating from 2003, but was

unsuccessful, and on October 31, 2011, the trial court denied Brown’s motion.

Civil proceedings

On November 4, 2013, Brown filed a complaint against Appellees,

alleging fraud, professional negligence, failure to train employees, and violations of

his First and Fourteenth Amendment rights. Brown alleged that Appellees destroyed

or lost his medical records, which would have confirmed that he was given

medications that affected his ability to knowingly and intelligently enter a guilty plea.

In March 2014, Appellees filed preliminary objections to Brown’s

complaint, asserting, among other things, that Brown’s claims were barred by the

two-year statute of limitations for tort actions and by governmental immunity.

Brown did not file any response. The trial court sustained the preliminary objections

by order dated September 30, 2014, and dismissed Brown’s complaint on the ground

that his claims were filed five days beyond the two-year statute of limitations.

Brown filed a notice of appeal with the Superior Court, which initially

dismissed the appeal because Brown failed to complete and file a docketing statement

pursuant to Pa.R.A.P. 3517. Brown then filed an application for reconsideration,

which the Superior Court granted. Subsequently, the Superior Court transferred the

matter to this Court. On December 1, 2014, Brown filed a statement of errors

complained of on appeal, asserting that his complaint was timely filed under the

prisoner mailbox rule.

2

In August 2015, Appellees filed motions to dismiss, alleging that Brown

had waived the sole issue he seeks to raise on appeal. Subsequently, this Court

granted Appellees’ applications to suspend the briefing schedule pending resolution

of the issues presented in their motions to dismiss. On August 25, 2015, Brown filed

a response to the applications for relief, arguing that Appellees’ preliminary

objections did not contain a notice to plead and therefore no responsive pleading was

required. On August 31, 2015, this Court ordered that the motions to dismiss be

decided along with the merits of the appeal.

Prisoner mailbox rule

On appeal, Brown argues that his complaint was timely filed according

to the prisoner mailbox rule, under which a prisoner’s pro se appeal is deemed filed at

the time it is given to prison officials or placed in the prison mailbox. Brown asserts

that on October 15, 2013, he sealed his complaint in an envelope, addressed it to the

York County Prothonotary, and filled out a cash slip, which reflects the date and the

recipient of the envelope. A copy of the cash slip, a copy of an envelope addressed to

Brown from the Office of the Prothonotary of York County, and a copy of a

handwritten note are attached to Brown’s brief as Exhibits A, B, and C.1 Relying on

the prisoner mailbox rule, Brown contends that his complaint was filed when it was

given to prison authorities on October 15, 2013, two weeks prior to the expiration of

the statute of limitations on October 31, 2013.

In Smith v. Pennsylvania Board of Probation and Parole, 683 A.2d 278

(Pa. 1996), our Supreme Court held that state appellate courts should consider a pro

1

Appellees note that these documents were not submitted to the trial court and thus are not

part of the official record transmitted to this Court.

3

se inmate’s appeal from a governmental agency decision to be filed when the appeal

is given to prison officials or placed in the prison mailbox. In its opinion, the court

took notice of the special circumstances of an appellant who is incarcerated at the

time of his appeal and who acts pro se. The court also noted the following language

of the United States Supreme Court in Houston v. Lack, 487 U.S. 266 (1988):

The situation of prisoners seeking to appeal without the aid

of counsel is unique. Such prisoners cannot take the steps

other litigants can take to monitor the processing of their

notices of appeal and to ensure that the court clerk receives

and stamps their notices of appeal before the 30-day

deadline. Unlike other litigants, pro se prisoners cannot

personally travel to the courthouse to see that the notice is

stamped “filed” or to establish the date on which the court

received the notice. Other litigants may choose to entrust

their appeals to the vagaries of the mail and the clerk’s

process for stamping incoming papers, but only the pro se

prisoner is forced to do so by his situation. And if other

litigants do choose to use the mail, they can at least place

the notice directly into the hands of the United States Postal

Service (or a private carrier); and they can follow its

progress by calling the court to determine whether the

notice has been received and stamped, knowing that if the

mail goes awry they can personally deliver notice at the last

moment or that their monitoring will provide them with

evidence to demonstrate either excusable neglect or that the

notice was not stamped on the date the court received it.

Smith, 683 A.2d at 281 (quoting Houston, 487 U.S. 270-71).

Acknowledging that Houston involved an interpretation of a federal rule

of procedure, the court in Smith concluded that the observations and concerns

articulated in Houston were equally applicable to pro se prisoners in this

Commonwealth. Thus, in Smith the court held that “in the interest of fairness, a pro

se prisoner’s appeal shall be deemed to be filed on the date that he delivers the appeal

4

to prison authorities and/or places his notice of appeal in the institutional mailbox.”

Smith, 683 A.2d at 281.

Subsequently, in Commonwealth v. Jones, 700 A.2d 278 (Pa. 1996), our

Supreme Court expanded its holding in Smith and held that the prisoner mailbox rule

applied not only to appeals from agency decisions but to all appeals filed by pro se

prisoners. On appeal, Brown claims that this matter is controlled by the holding in

Jones, and he argues that his complaint should be deemed timely filed under the

prisoner mailbox rule.2

Where a trial court dismisses a complaint based on preliminary

objections, this Court’s review is limited to determining whether the trial court

committed an error of law or an abuse of discretion. Podolak v. Tobyhanna Township

Board of Supervisors, 37 A.3d 1283, 1286-87 (Pa. Cmwlth. 2012). In this instance,

the trial court sustained Appellees’ preliminary objections based on the statute of

limitations and did not address immunity or any other grounds for dismissal asserted

by Appellees.

Waiver

Preliminarily, we address Appellees’ collective argument that Brown

waived the question of whether the prisoner mailbox rule applies to the filing of his

complaint because Brown failed to raise this issue before the trial court. Pa.R.A.P.

302(a) states: “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Appellees argue that Brown did not attempt to assert a

2

We note that in Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001), the Superior Court

held that the prisoner mailbox rule applies to all pro se filings by incarcerated litigants, including

civil matters.

5

claim based on the prisoner mailbox rule prior to his appeal to this Court, and they

note that Brown did not respond to Appellees’ preliminary objections and has not

identified in his appellate brief where that issue was preserved.

“[Pa.R.A.P.] 302(a) clearly states that issues not raised in the trial court

are waived and cannot be raised for the first time on appeal.” Siegfried v. Borough of

Wilson, 695 A.2d 892, 894 (Pa. Cmwlth. 1997). Pennsylvania courts “have

consistently held that issues not raised in the court below are waived and cannot be

raised for the first time [on appeal].” Commonwealth v. Piper, 328 A.2d 845, 847

(Pa. 1974); Siegfried, 695 A.2d at 894. Indeed, an appellate court may sua sponte

refuse to address an issue raised on appeal that was not raised and preserved below,

or pursuant to opposing counsel’s motion to dismiss for failure to preserve the

question below pursuant to Pa.R.A.P. 1972(a)(5).3 Siegfried, 695 A.2d at 894. In

addition, we have previously held that issues that were not raised before the trial

court cannot be raised in a statement of errors complained of. Commonwealth v.

Deloach, 714 A.2d 483, 486 n.8 (Pa. Cmwlth. 1998); Rutledge v. Department of

Transportation, 508 A.2d 1306, 1307-08 (Pa. Cmwlth. 1986).

However, affirmative defenses, including statute of limitations, are

governed by Rule 1030, which provides in relevant part as follows:

(a) Except as provided by subdivision (b), all affirmative

defenses including but not limited to the defenses of accord

and satisfaction, arbitration and award, consent, discharge

in bankruptcy, duress, estoppel, failure of consideration, fair

comment, fraud, illegality, immunity from suit,

3

Pa.R.A.P. 1972(a)(5) states: “Except as otherwise prescribed by this rule, subject to Rule

123 (applications for relief), any party may move . . . [t]o dismiss for failure to preserve the

question below, or because the right to an appeal has been otherwise waived.”

6

impossibility of performance, justification, laches, license,

payment, privilege, release, res judicata, statute of frauds,

statute of limitations, truth and waiver shall be pleaded in a

responsive pleading under the heading “New Matter”. A

party may set forth as new matter any other material facts

which are not merely denials of the averments of the

preceding pleading.

Pa.R.C.P. No. 1030(a). Subsection (a) of Rule 1030 “is very broad and is designed

for the purpose of putting plaintiffs on notice of what defenses to prepare for.”

Kituskie v. Corbman, 714 A.2d 1027, 1032 n.8 (Pa. 1998).

Rule 1028 governs preliminary objections, and subsection (a) sets forth

the limited grounds that may be asserted.4 As highlighted by a note to Rule 1028(a),

the defense of the bar of a statute of frauds or statute of limitations can be asserted

only in a responsive pleading as new matter under Rule 1030.

On appeal, however, Brown does not challenge Appellees’ preliminary

objections on that basis. Rather, in his response to Appellees’ motions to dismiss

based on waiver, Brown argues that he did not waive the application of the prisoner

mailbox rule by failing to respond to Appellees’ preliminary objections because the

preliminary objections did not include a notice to plead. We have previously

recognized that where a preliminary objection raises an issue that cannot be decided

from the facts of record, the preliminary objection must be endorsed with a notice to

4

Rule 1028(a) states that preliminary objections may be filed by any party to any pleading

and are limited to the following grounds: (1) lack of personal or subject matter jurisdiction;

improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a

pleading to conform to law or rule of court, or inclusion of scandalous or impertinent matter; (3)

insufficient specificity in a pleading; (4) legal insufficiency of a pleading; (5) lack of capacity to

sue, nonjoinder of a necessary party or misjoinder of a cause of action; (6) pendency of a prior

action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory

remedy; and (8) a full, complete and adequate non-statutory remedy at law. Pa.R.C.P. No. 1028(a).

7

plead or no response will be required under Pa.R.C.P. No. 1029(d).5 Corbett v.

Desiderio, 698 A.2d 134, 137 (Pa. Cmwlth. 1997). See also Cooper v. Church of St.

Benedict, 954 A.2d 1216, 1221 (Pa. Super. 2008) (when an issue raised cannot be

decided based on facts of record, i.e., the complaint, the preliminary objections must

be endorsed with a notice to plead, otherwise all the averments in the preliminary

objections are deemed denied).

Here, to the extent that the parties’ preliminary objections were not

endorsed with a notice to plead, all of the allegations in the preliminary objections,

and specifically the allegation as to the date of filing of the complaint, were denied by

Brown by operation of the Pennsylvania Rules of Civil Procedure. Consequently,

Brown’s failure to file a formal response to Appellees’ preliminary objections does

not constitute a waiver of the prisoner mailbox rule.

Because the record before the trial court presented contested issues of

fact as to when the complaint was filed for purposes of the prisoner mailbox rule, the

trial court erred in dismissing Brown’s complaint as untimely. Accordingly, we

vacate the trial court’s order and remand the matter to the trial court for further

proceedings.

________________________________

PATRICIA A. McCULLOUGH, Judge

5

Rule 1029(d) states that “averments in a pleading to which no responsive pleading is

required shall be deemed denied.”

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

Appellant :

: No. 569 C.D. 2015

v. :

:

York County Prison (Medical :

Department), Prison Health Services, :

Inc., c/k/a Corizon Health, Inc., :

Sandra M. Ulerick, Jennifer Miosi, :

Ashley Doe, and Jane Doe :

ORDER

AND NOW, this 30th day of December, 2015, the September 30,

2014, order of the Court of Common Pleas of York County is vacated and the

matter is remanded to that court for further proceedings. The motions to dismiss

filed by York County Prison (Medical Department), Prison Health Services, Inc.,

c/k/a Corizon Health, Inc., and Sandra M. Ulerick, and Jennifer Miosi are denied.

Jurisdiction relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge