J-S77032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GENNARO RAUSO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
PIERRE LATOUR III, :
:
Appellee : No. 1491 EDA 2018
Appeal from the Order Entered March 13, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171200232
BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 25, 2019
Gennaro Rauso pro se appeals from the order entered on March 13,
2018, which sustained preliminary objections filed by Pierre LaTour, III, and
dismissed Rauso’s complaint with prejudice. Upon review, we vacate the order
and remand for proceedings consistent with this memorandum.
We set forth the following relevant factual and procedural history of this
case. LaTour is an attorney who represented Rauso with respect to a 2010
criminal matter in the United States District Court for the Eastern District of
Pennsylvania. Rauso claims that he and LaTour entered into an agreement
whereby LaTour would represent Rauso for $15,000. Rauso claims he made
an initial payment of $5,000, and paid an additional $2,500 for a private
* Retired Senior Judge assigned to the Superior Court.
J-S77032-18
investigator. While represented by LaTour, Rauso entered into a guilty plea
on these charges and was sentenced on June 20, 2011. Rauso remains
incarcerated.
On December 5, 2017, Rauso pro se filed the civil complaint in this case
against LaTour claiming that LaTour’s representation of Rauso was inadequate
in numerous respects. Specifically, Rauso set forth claims for unjust
enrichment, breach of contract, and conversion. See Complaint, 12/5/2017,
at 14-16. On January 24, 2018, LaTour filed preliminary objections to the
complaint, which included a claim that this action was barred by the statute
of limitations.
On February 13, 2018, Rauso filed a motion for extension of time to file
a response to the preliminary objections. The trial court granted that motion
and permitted Rauso an additional 45 days from the date of the order to file
a response. Prior to the end of the allotted 45-day period, on March 13, 2018,
the trial court sustained LaTour’s preliminary objections and dismissed the
complaint with prejudice. Rauso timely filed a notice of appeal. The trial court
did not order Rauso to file a concise statement of errors complained of on
appeal, but did author an opinion pursuant to Pa.R.A.P. 1925, concluding that
Rauso’s claims are barred by the statute of limitations.
On appeal, Rauso contends the trial court erred by not permitting him
to file a response to the preliminary objections, by not developing an
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J-S77032-18
evidentiary record, and by not providing him the opportunity to amend his
complaint. See Rauso’s Brief at 5, 8-11.
After careful review, we agree with Rauso that he was deprived of the
opportunity to respond to the preliminary objections. The trial court’s order
was clear. Rauso was to have 45 days, or until April 2, 2018, to file a
response. Nevertheless, the trial court sustained the preliminary objections
on March 13, 2018, a mere 28 days later. Rauso was entitled additional time
to file that response; therefore, we vacate the order of the trial court and
remand for proceedings consistent with this memorandum.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2019
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