J.D. Schneller v. Prothonotary of Montgomery County, individually, and in his official capacity, and his employees, in their individual and official capacities

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller, :

Appellant :

: No. 1316 C.D. 2016

v. :

: Submitted: June 16, 2017

Prothonotary of Montgomery County, :

individually, and in his official :

capacity, and his employees, :

in their individual and official :

capacities :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: September 12, 2017

James Schneller (Schneller) appeals, pro se,1 from the July 11, 2016

order of the Court of Common Pleas of Montgomery County (trial court), which

sustained the preliminary objections of the Prothonotary of Montgomery County

(Prothonotary) to Schneller’s complaint in mandamus seeking to compel the

Prothonotary to accept and file a notice of appeal. We affirm.

Background

On April 22, 2010, the trial court issued an order dismissing a lawsuit

that Schneller filed on behalf of his deceased parents against American International

Group, Inc. (the “AIG Case”). On May 20, 2010, Schneller attempted to file a notice

1

All statements and discussion regarding “Schneller” in this opinion pertain to legal action

that he has taken while proceeding pro se.

of appeal with the Prothonotary from this order. However, by letter dated May 24,

2010, the Prothonotary notified Schneller that his notice of appeal would not be

accepted for filing because the trial court had previously entered a prohibitory,

preliminary injunction on July 16, 2009, in a separate but related matter, enjoining

Schneller from:

[R]epresenting the Estates of George H. Schneller or

Marjorie Schneller, or making claims on their behalf, or

claims on his behalf involving his observations of the

medical care and treatment of his parents . . . in the

Montgomery County Court of Common Pleas unless such

filing is executed by an attorney in good standing and

admitted to practice law in the Commonwealth of

Pennsylvania.

(Supplemental Reproduced Record (S.R.R.) at 37b-38b.)2 The language of the

preliminary injunction was framed broadly and applied to “any filings” by Schneller,

(S.R.R. at 38b), and, on September 19, 2012, the preliminary injunction was

converted into a permanent injunction. See Schneller v. Fox Subacute at Clara Burke

and Debbie McCoy, (Pa. Super., No. 3184 EDA 2012, filed August 15, 2014)

(unreported), slip op. at 1-2, 9.

2

The trial court summarized the factual basis for the preliminary injunction as follows:

Since 2003, Schneller has filed twenty-two (22) lawsuits and fifty-

seven (57) appeals in state and federal courts related to medical

treatment and other services provided to his now-deceased parents,

George and Marjorie Schneller. Schneller has been wholly

unsuccessful in the litigation, and has been censured by Judges of the

Superior Court, the Commonwealth Court and the Montgomery

County Court of Common Pleas for his lack of respect for the finality

of orders and repeated filing of the same meritless and/or time-barred

claims against these defendants as shall be shown herein.

(S.R.R. at 25b, ¶¶ 1-2.)

2

In its August 15, 2014 decision, the Superior Court upheld the

permanent injunction and “expressed its displeasure with [Schneller’s] serial pro se

filings.” Slip op. at 8. Quoting a panel decision rendered in 2008, the Superior Court

noted: “Over the past five years, [i.e., 2003 to 2008] Schneller has filed an

astounding 22 lawsuits and 57 appeals in state and federal courts related to medical

treatment and other services provided to his now deceased parents, George and

Marjorie Schneller.” Id. (citation omitted). After recounting the fact that Schneller

still had five active cases in the trial court, the Superior Court concluded that the trial

court did not err in “dismissing [these] pending frivolous cases and enjoining

[Schneller] from initiating additional pro se cases.” Id.; see Pa.R.C.P. No. 233.1(c)

(stating that with respect to frivolous litigation, “the court may bar the pro se plaintiff

from pursuing additional pro se litigation against the same or related defendants

raising the same or related claims without leave of court.”).

In the interim, on January 2, 2014, approximately three and a half years

after the Prothonotary declined to accept for filing Schneller’s notice of appeal in the

AIG Case, Schneller attempted to file a praecipe for an adverse order under Pa.R.A.P.

301 in the AIG Case. When the Prothonotary rejected this praecipe for filing,

Schneller, on February 20, 2014, attempted file a praecipe under Pa.R.C.P. No. 227.4

for entry of judgment in the AIG Case, but the Prothonotary again declined to file a

praecipe. (S.R.R. at 11b.) Schneller then filed an appeal to the Superior Court,

purporting to appeal the April 22, 2010 order dismissing his suit in the AIG Case by

way of the “Refusal of the [Prothonotary] to Accept or Docket the Praecipes For

Entry of Adverse Order and For Entry of Judgment.” Id. In a brief per curiam order

dated May 16, 2014, the Superior Court denied the appeal and our Supreme Court

3

later denied allowance of appeal. See Schneller v. AIG, (Pa., No. 420 MAL 2014,

filed October 21, 2014) (per curiam).

On December 4, 2015, Schneller filed the instant complaint with the trial

court, asserting a single count for a writ of mandamus and seeking to compel the

Prothonotary to accept his notice of appeal from the April 22, 2010 order in the AIG

Case. (S.R.R. at 8b-18b.)3 On February 19, 2016, the Prothonotary filed preliminary

objections to Schneller’s complaint, contending, among other things, that the

mandamus claim was time-barred and/or failed to state a claim upon which relief can

be granted.

On July 11, 2016, the trial court entered an order sustaining all of the

Prothonotary’s preliminary objections. In its Pa.R.A.P. 1925(a) opinion, the trial

court concluded that Schneller failed to state a viable mandamus claim because the

factual averments did not establish a clear legal right to relief, a corresponding duty

on the Prothonotary, and/or the absence of an adequate remedy at law. In doing so,

the trial court stated, and apparently clarified, that this was the only basis upon which

it granted the Prothonotary’s preliminary objections. While noting that Schneller

sought to order the Prothonotary to accept his notice of appeal in the AIG Case more

than five years after the Prothonotary declined to do so, the trial court, citing Curley

v. Wetzel, 82 A.3d 418 (Pa. 2013) (Curley II) (per curiam), determined that

3

Schneller previously filed similar mandamus actions against the Prothonotary of Chester

County, alleging that the prothonotary refused to file his notice of appeal in a civil action against an

attorney regarding the attorney’s handling of his parents’ estates and refused to accept the filing of

an application for rehearing to re-open his parents’ estates. In both appeals, this Court affirmed the

trial court’s order dismissing Schneller’s complaints as frivolous under Pa.R.C.P. No. 240(j)(1).

See Schneller v. Clerk of Orphans’ Court of Chester County, (Pa. Cmwlth., No. 1901 C.D. 2014,

filed August 5, 2015) (unreported); Schneller v. Prothonotary of Chester County, (Pa. Cmwlth., No.

557 C.D. 2013, filed October 29, 2013) (unreported).

4

Schneller’s mandamus claim was not barred by the six month statute of limitations

set forth in section 5522(b)(1) of the Judicial Code, 42 Pa.C.S. §5522(b)(1).

Nonetheless, the trial court opined “that is a case which cries out for the finality of a

time limitation such as provided by a statute of limitations.” (Trial court op. at 4

n.6.)4

Discussion

Before this Court,5 Schneller argues that the Prothonotary has a

mandatory legal duty to accept and file his notice of appeal in the AIG Case and

asserts that the Prothonotary improperly raised the statute of limitations defense by

way of preliminary objections.

4

In addition, the trial court noted that its order sustaining the preliminary objections did not

explicitly “dismiss the complaint with prejudice,” and thus the order was not a final, appealable

order. (Trial court op. at 3.) We disagree. Although the order did not specify whether the

complaint was dismissed, or dismissed with or without prejudice, the order did not grant Schneller

leave to amend. Because a fair reading of the trial court’s Pa.R.A.P. 1925(a) opinion reflects the

trial court’s belief that any amendment would not cure the deficiencies in the complaint, the order

had the practical effect of putting Schneller out of court. Notably, Schneller concurs in this

assessment and disavows any want or need to amend his complaint. (Brief for Schneller at 23-29.)

In these circumstances, we conclude that the trial court’s order suffices as a final order. See Fizz v.

Kurtz, Dowd & Nuss, Inc., 519 A.2d 1037, 1038 n.1 (Pa. Super. 1987); Jones v. Nissenbaum,

Rudolph & Seidner, 368 A.2d 770, 771 (Pa. Super. 1976); cf. Werner v. Zazyczny, 681 A.2d 1331,

1338 (Pa. 1996); Unger v. Hampton Township, 263 A.2d 385, 387 n.1 (Pa. 1970).

5

When an appellate court reviews an order ruling on preliminary objections in the nature of

a demurrer, our standard of review is de novo and our scope of review is plenary. Mazur v. Trinity

Area School District, 961 A.2d 96, 101 (Pa. 2008). In reviewing the matter, this Court must accept

as true all material facts set forth in the complaint and all inferences reasonably deducible

therefrom, and determine whether the law says with certainty that no recovery is possible. Black v.

Shrewsbury Borough, 675 A.2d 381, 383 (Pa. Cmwlth. 1996). “[W]here any doubt exists, it should

be resolved in favor of overruling the demurrer.” Id.

5

It is well-settled that this Court may affirm the trial court’s order on any

basis appearing in the record, Feldman v. Lafayette Green Condominium Association,

806 A.2d 497, 502 n.3 (Pa. Cmwlth. 2002), and we do so here on the ground that

Schneller’s mandamus claim is barred by the statute of limitations.6

As a general rule, Pa.R.C.P. No. 1030(a) provides that the statute of

limitations is an affirmative defense that must be pled as “new matter,” id., and

should not be asserted during the preliminary objections stage. However, this Court

has held that, although “the statute of limitations is to be pled as new matter, it may

be raised in preliminary objections where the defense is clear on the face of the

pleadings and the responding party does not file preliminary objections to the

preliminary objections.” Petsinger v. Department of Labor and Industry, 988 A.2d

748, 758 (Pa. Cmwlth. 2010).

Here, a review of the complaint reveals that the statute of limitations was

clearly implicated as a defense. After the Prothonotary asserted the statute of

limitations in its preliminary objections, Schneller did not file preliminary objections

to the Prothonotary’s preliminary objections, seeking to strike those preliminary

objections for prematurely raising the defense. Instead, Schneller filed a response to

the Prothonotary’s preliminary objections and, in a supporting memorandum of law,

he challenged the propriety and timeliness of the statute of limitations defense.

(Reproduced Record at 87a-97a.) Even so, the way Schneller lodged his objection

was an insufficient method to contest the manner by which the Prothonotary asserted

the statute of limitations, and Schneller has consequently waived the procedural

6

During the course of this appeal, Schneller filed an application to strike the Prothonotary’s

Supplemental Reproduced Record. Perceiving no principled legal or factual basis to do so, we deny

the application.

6

defect. See Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth.

2014) (“[A]lthough [the plaintiff] objected to the immunity defense in its response to

the preliminary objections, [plaintiff] did not properly object by filing its own

preliminary objection to strike Defendants’ preliminary objection and the immunity

defense.”) (emphasis in original); see also Philadelphia Fraternal Order of

Correctional Officers v. Rendell, 701 A.2d 600, 607 (Pa. Cmwlth. 1997).

Having determined that the trial court properly considered – and that we

can now appropriately evaluate – the merits of the Prothonotary’s statute of

limitations defense, we observe that, in at least two precedential cases, this Court has

held that mandamus actions are typically subject to the six-month time limitation set

forth in section 5522(b)(1) of the Judicial Code, 42 Pa.C.S. §5522(b)(1). See

Township of Bensalem v. Moore, 620 A.2d 76, 80 (Pa. Cmwlth. 1993) (holding that a

mandamus action commenced over one year after the statute of limitations began to

run was “clearly barred” by section 5522(b)(1)); Fleming v. Rockwell, 500 A.2d 517,

519 (Pa. Cmwlth. 1985) (“[T]he six-month limitations period was controlling in the

instant suit, because it was commenced as an action in mandamus.”). This provision

provides that the following must be commenced within six months: “action[s]

against any officer of any government unit for anything done in the execution of his

office, except an action subject to another limitation specified in this subchapter.” 42

Pa.C.S. §5522(b)(1). Under Pennsylvania law, “the statute of limitations begins to

run as soon as the right to institute and maintain a suit arises,” Dalrymple v. Brown,

701 A.2d 164, 167 (Pa. 1997) (citation omitted), and “mandamus will not lie where

the relief sought is barred by a statute of limitations.” Petsinger, 988 A.2d at 759.

Here, the statute of limitations began to run on the date of the alleged

legal wrong, either May 20, 2010, when the Prothonotary refused to accept in person

7

his notice of appeal for filing in the AIG Case, or May 24, 2010, when the

Prothonotary notified Schneller via letter that she declined the filing due to the

preliminary injunction entered against him. Regardless, Schneller admits that he

received notice of the Prothonotary’s rejection of his filing as of the date of the letter,

(S.R.R. at 10b), and had six months from then to file a mandamus action. However,

Schneller did not file the mandamus complaint until December 4, 2015, well over

five years later, and it is patently untimely. Even if this Court construes the

Prothonotary’s actions in denying Schneller’s praecipes on January 2, 2014, and

February 20, 2014, as giving rise to independent claims for mandamus and disregards

the fact that he was already unsuccessful in pursuing these claims on appeal, the

instant mandamus complaint is still untimely. Concededly, Schneller was aware of

the Prothonotary’s actions in declining to enter the praecipes by the end of February

2014, at the latest, (see S.R.R. at 11b), thus accruing his cause of action – yet, he filed

the present mandamus over a year later. Therefore, according to the allegations of the

complaint, Schneller’s mandamus claim fails as a matter of law because it is time-

barred.

In reaching a contrary conclusion, the trial court read too much into our

Supreme Court’s per curiam order in Curley II and did not correctly evaluate that

decision in light of the background facts of the case.7 In Curley v. Smeal, 41 A.3d

916 (Pa. Cmwlth. 2012) (Curley 1), aff’d but criticized in Curley II, 82 A.3d 418 (Pa.

2013), a prisoner filed a petition for review in our original jurisdiction and alleged

that the Department of Corrections (Department) was unlawfully deducting funds

7

“[T]he axiom that decisions are to be read against their facts prevents the wooden

application of abstract principles to circumstances in which different considerations may pertain.”

Maloney v. Valley Medical Facilities, Inc., 984 A.2d 478, 486 (Pa. 2009) (citations omitted).

8

from his personal inmate account for seven years. Construing the petition as

asserting a mandamus claim, this Court applied the six-month limitations in section

5522(b)(1) of the Judicial Code and concluded that the action was time-barred. On

appeal, our Supreme Court affirmed Curley I, but added: “[T]his Court does not

embrace the Commonwealth Court’s view that this action sounds in mandamus or

that a six-month statute of limitations applies to actions in mandamus in this context.”

Curley II, 82 A.3d at 418 (emphasis added).

In a concurring opinion, then Chief Justice Castille (joined by Justice

Eakin) determined that this Court “misconstrued the pleading as a mandamus action”

and that, “even assuming the action sounded in mandamus, [we] incorrectly invoked

the six-month statute of limitations.” Id. at 418-19 (Castille, C.J., and Eakin, J.,

concurring). On the first point, the Chief Justice stated that the prisoner’s action was

not in the nature of a mandamus claim, which necessarily involves an official’s

inaction and is a legal mechanism to compel the official to act in accordance with a

legal duty. Instead, in the concurrence’s view, the prisoner “specifically sought

review of the affirmative ‘government action’ that had resulted in the deduction of

funds from his inmate account” and requested equitable relief in the form of a

declaration and an injunction (i.e., orders declaring the unlawfulness of the

deductions, ordering reimbursement, and enjoining future deductions), both of which

fell outside the “scope of a mandamus action.” Id. at 419. Concerning his second

observation, the Chief Justice found it difficult to see how a properly-asserted

mandamus action “would lend itself to a period of limitations analysis; since a

mandamus action alleges a failure to act, there is no action to trigger a specific

limitations period.” Id. Nonetheless, the Chief Justice said that affirmance of Curley

9

I was warranted because the prisoner’s petition for review was “time-barred under the

two-year period of limitation he himself claims is controlling.” Id.

In Morgalo v. Gorniak, 134 A.3d 1139 (Pa. Cmwlth. 2016) (en banc),

we overruled our holding in Curley I, in light of Curley II, but explained that Curley

II is limited to inmate deductions cases: “[W]e overrule our holding in Curley I and

declare that inmate account deduction actions are not mandamus actions, nor are they

subject to a six-month limitations period.” Morgalo, 134 A.3d at 1144-45. In doing

so, this Court concluded, consistent with the concurring opinion in Curley II, that

unlawful deduction claims did not sound in mandamus because “mandamus may not

be used to reverse actions the Department has already taken; thus, it cannot be the

basis upon which [we] may order the Department to stop the deductions and return

previously-deducted funds.” Id. at 1145. This Court further concluded that deduction

claims are subject to the two-year statute of limitations contained in section 5524(3)

of the Judicial Code, which applies to “[a]n action for taking, detaining or injuring

personal property, including actions for specific recovery thereof,” 42 Pa.C.S.

§5524(3), reasoning:

Because Section 5524(6) of the Judicial Code applies

specifically to a government unit officer’s non-delivery of

property over which it has exercised dominion, Section

5524(6) of the Judicial Code’s two-year limitations period

applies over Section 5522(b)(1) of the Judicial Code’s six-

month time limit.

134 A.3d at 1149. We ultimately concluded in Morgalo that the prisoner’s petition

for review was untimely under the statute of limitations because the Department

began making deductions from his inmate account in 2008 and the petition was not

filed until 2013.

10

Here, Schneller contends that the Prothonotary failed to accept his notice

of appeal for filing. Unlike the positive, affirmative action of the Department in

Curley, i.e., the conduct needed to deduct money from an inmate’s account, Schneller

contends that the Prothonotary refused to act when the law says that she must act.

The case law of this Commonwealth has long held that these “failure to accept for

filing” claims against a prothonotary sound in mandamus and are capable of

mandamus relief, see, e.g., Commonwealth v. Williams, 106 A.3d 58, 588-89 (Pa.

2014); Thompson v. Cortese, 398 A.2d 1079 (Pa. Cmwlth. 1979), and Schneller

specifically requests a “writ of mandamus, directed to the [Prothonotary], to file and

docket of record the properly prepared and timely notice of appeal.” (S.R.R. at 12b.)

Moreover, neither Curley II nor Morgalo disturbed our precedent concluding that the

six-month limitations period applies to pure mandamus actions alleging that a

governmental official or agency had a mandatory or ministerial duty to do something

but, instead, did nothing.

In Bensalem, a township terminated the employment of a police officer,

who later filed a mandamus complaint contending that a township failed to provide

him with notice and a hearing as required by the Police Tenure Act (Act).8

Reiterating that “mandamus against a municipality properly lies against the municipal

officer whose duty it is to perform the act commanded to be done,” this Court noted

that the police’s officer’s claim was properly one in mandamus seeking to compel the

township to comply with the Act. We held that, because the police officer was

terminated in March 1988 and filed the complaint in November 1989, the action was

“clearly barred” by the six-month period in section 5522(b)(1) of the Judicial Code.

620 A.2d at 79-80.

8

Act of June 15, 1951, P.L. 586, as amended, 53 P.S. §§811-816.

11

The reasoning and result of Bensalem apply to the facts of this case with

full force and control our disposition of Schneller’s mandamus claim. Although the

concurrence in Curley II proposed that mandamus claims are not subject to a statute

of limitations because “a mandamus action alleges a failure to act” and “there is no

action to trigger a specific limitations period,” 82 A.3d at 419, this position represents

a minority of the Supreme Court and is not binding of this Court. On the other hand,

our decision in Bensalem is and, unless or until that case is overruled, its status as

precedent compels our result.

Regarding whether “government action” is necessary to start the running

of the statute of limitations, pursuant to section 5502(a) of the Judicial Code, “[t]he

time within which a matter must be commenced under this chapter shall be computed

. . . from the time the cause of action accrued.” 42 Pa.C.S. §5502(a). A “cause of

action accrues when the injured party is first able to litigate the claim,” Simmons v.

Cohen, 534 A.2d 140, 148 (Pa. Cmwlth. 1987), or, as our Supreme Court put it, “as

soon as the right to institute and maintain a suit arises,” Dalrymple, 701 A.2d at 167

(citation omitted). Here, the alleged wrong occurred at a discrete point in time, when

the Prothonotary refused to accept the notice of appeal for filing, allegedly not doing

that which ought to have been done, and it is at this junction that the claim accrued

because it was the precise moment in which the party was entitled to institute a

lawsuit to compel action. Further, by its very language, the six-month limitation

period in section 5522(b)(1) of the Judicial Code applies to suits against a

government official for “anything done in the execution of his office,” and the

definition of the term “anything” – “any thing whatever,” “to any extent at all”9 – is

9

Webster’s Third New International Dictionary, 97 (Gove ed., 1986).

12

broad enough to encompass the Prothonotary’s conduct, to wit being presented with a

notice of appeal, making a conscious choice not to file it, and informing Schneller of

this choice.

Therefore, we reaffirm Bensalem, and in accordance with the rationale

of that decision, conclude that Schneller’s complaint in mandamus is barred by the

six months statute of limitations in section 5522(b)(1) of the Judicial Code 10

Conclusion

For the reasons stated above, we conclude that the trial court did not err

in sustaining the Prothonotary’s preliminary objections and we affirm the trial court’s

order, which had the effect of dismissing the complaint with prejudice, see supra note

4, albeit on a different rationale than that of the trial court. We also deny Schneller’s

application to strike the Prothonotary’s Supplemental Reproduced Record. See supra

note 6. As mentioned above, Schneller has a prolific history of abusive and frivolous

litigation pertaining to his deceased parents’ care and treatment, and despite repeated

admonishments from the courts and a permanent injunction at the trial court level

10

Although Schneller’s complaint contains a single count seeking a writ of mandamus, the

allegations contained therein and in his appellate brief are replete with assertions that the

Prothonotary acted maliciously and violated his constitutional rights. To the extent that Schneller

could be deemed to have advanced constitutional tort law claims under section 1983, 42 U.S.C.

§1983, or state law intentional tort claims, we conclude that they are barred by the doctrine of quasi-

judicial immunity because the Prothonotary’s refusal to file the notice of appeal was clearly done in

connection with her official duties as an officer of the court, and also pursuant to the trial court’s

order enjoining Schneller from further pro se filings. Lockhart v. Hoenstine, 411 F.2d 455, 459-60

(3d Cir. 1969); accord, e.g., Lyszkowski v. Gibbons, (E.D. Pa., No. 15-2210, filed February 2, 2016)

(unreported), slip op. at 5, 2016 U.S. Dist. LEXIS 11999, at **9-11; Passrella v. Department of

Corrections, (M.D. Pa., Civil No. 3:14-CV-2066, filed February 6, 2015) (unreported), slip op. at 3

& n.1, 2015 U.S. Dist. LEXIS 14558, at **3 & n.1; see also Guarrasi v. Scott, 25 A.3d 394, 405

n.11 (Pa. Cmwlth. 2011); Feingold v. Hill, 521 A.2d 33, 36-38 (Pa. Super. 1987); Kulesa v. Rex,

519 F. App’x 743, 745-46 (3d Cir. 2013).

13

enjoining his litigation activities, he persists onward with his quest. Although this

Court, in this particular appeal, declines to sua sponte impose attorney’s fees against

Schneller under Pa.R.A.P. 2744, we caution Schneller that vexatious and obdurate

litigation violates the rules of appellate procedure. We remind Schneller that the

appellate courts of this Commonwealth, in order to preserve their institutional

integrity and limited resources, are vested with the authority to take appropriate

action against one who knowingly and repeatedly files frivolous appeals. See, e.g.,

Coulter v. Lindsay, __ A.3d __ (Pa. Super, No. 627 WDA 2016, filed April 7, 2017).

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller, :

Appellant :

: No. 1316 C.D. 2016

v. :

:

Prothonotary of Montgomery County, :

individually, and in his official :

capacity, and his employees, :

in their individual and official :

capacities :

PER CURIAM

ORDER

AND NOW, this 12th day of September, 2017, the July 11, 2016 order

of the Court of Common Pleas of Montgomery County is hereby affirmed. The

application filed by James D. Schneller to strike the Supplemental Reproduced

Record filed by the Prothonotary of Montgomery County is denied.