J-S39032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DR. K. BERNARD SCHADE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PHILIP LAUER : No. 649 EDA 2020
Appeal from the Order Entered January 14, 2020
In the Court of Common Pleas of Monroe County Civil Division at No(s):
No. 2019-05028
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 23, 2020
Dr. K. Bernard Schade (Schade) appeals pro se from the order filed in
the Court of Common Pleas of Monroe County (trial court) granting the Motion
for Judgment on the Pleadings in his criminal malpractice action against his
previous attorney, Philip Lauer (Lauer), because it was not filed within the
applicable statute of limitations. We affirm.
I.
We take the following background facts and procedural history from the
trial court’s October 18, 2019 and January 14, 2020 opinions, this Court’s
November 3, 2016 memorandum in Schade’s criminal appeal and our
independent review of the certified record. Because the allegations in this
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* Retired Senior Judge assigned to the Superior Court.
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matter involve Lauer’s legal representation of Schade in his prior consolidated
criminal cases, 681-2014 and 917-2014, we briefly describe the pertinent
history of that litigation.
A.
Lauer entered his appearance in Schade’s criminal cases on April 2 and
24, 2014. On July 15, 2014, with Lauer’s assistance, Schade entered a
negotiated guilty plea to one count of Statutory Sexual Assault and two counts
of Possession of Child Pornography.1 The plea related to Schade having sexual
relations with a person less than sixteen years of age between 1995 and 1997
and his possession of 1,101 images of child pornography. In exchange, the
Commonwealth nolle prossed the charges of Rape-Forcible Compulsion,
Involuntary Deviate Sexual Intercourse with Person Less than Sixteen Years
of Age, Aggravated Indecent Assault with Person Less than Sixteen Years of
Age, Corruption of Minors and 1,099 additional counts of possessing child
pornography. (See Commonwealth v. Schade, 2016 WL 6519102,
unpublished memorandum, at *1 (Pa. Super. filed Nov. 3, 2016)). At a
January 7, 2015 hearing, the court found Schade to be a Sexually Violent
Predator and sentenced him to an aggregate term of not less than fifty-four
nor more than 120 months’ incarceration.
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1 18 Pa.C.S. §§ 3122.1(a) and 6312(d), respectively.
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On April 29, 2015, Schade filed a pro se petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9542-9546, which the court
dismissed as prematurely filed on May 11, 2015. On May 21, 2015, Lauer
filed a Petition to Withdraw as Counsel. On June 24, 2015, before the court
ruled on the Motion to Withdraw, Wieslaw T. Niemoczynski, Esquire (new
counsel) entered his appearance on behalf of Schade. On July 7, 2015, new
counsel filed a counseled PCRA petition alleging the ineffective assistance of
Lauer in unlawfully inducing his guilty plea. After a hearing, the PCRA court
denied the petition. On November 3, 2016, this Court affirmed the PCRA
court, finding after our own independent review, that:
Although Appellant alleges that ineffective assistance of
counsel induced him to plead guilty, the record belies that
statement. … Based upon our review of record and the totality
of the circumstances, we conclude that Appellant knowingly and
voluntarily entered the guilty plea. … [W]e conclude that Mr.
Lauer acted reasonably in advising Appellant to accept the guilty
plea and that Appellant knowingly, voluntarily, and intelligently
participated in the colloquy. Thus, no manifest injustice occurred.
(Id. at *4). The Pennsylvania Supreme Court denied further review on August
2, 2017. (See id., appeal denied, 169 A.3d 1082 (Pa. 2017)).
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B.
On July 1, 2019 Schade filed a criminal malpractice Complaint against
Lauer, alleging that Lauer breached his implicit contract2 when he “failed to
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2 Criminal malpractice actions can sound in trespass or assumpsit. An action
in trespass is similar to a civil professional malpractice claim and requires the
following elements:
(1) The employment of the attorney;
(2) Reckless or wanton disregard of the defendant’s interest on
the part of the attorney;
(3) The attorney’s culpable conduct was the proximate cause of
an injury suffered by the defendant/plaintiff, i.e., “but for” the
attorney’s conduct, the defendant/plaintiff would have obtained
an acquittal or a complete dismissal of the charges;
(4) As a result of the injury, the criminal defendant/plaintiff
suffered damages;
(5) Moreover, a plaintiff will not prevail in an action in criminal
malpractice unless and until he has pursued post-trial remedies
and obtained relief which was dependent upon attorney error;
additionally, although such finding may be introduced into
evidence in the subsequent action it shall not be dispositive of the
establishment of culpable conduct in the malpractice action.
[An action in assumpsit] is a contract claim and the attorney’s liability in this
regard will be based on terms of that contract. Thus, if an attorney agrees to
provide his or her best efforts and fails to do so an action will accrue. Of
course, an attorney who agrees for a fee to represent a client is by implication
agreeing to provide that client with professional services consistent with those
expected of the profession at large. … It does not require a determination by
an appellate court of ineffective assistance of counsel, nor does the client need
to prove innocence.
Tucker, infra at 115.
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exercise the ordinary skill and knowledge possessed by attorneys in the
community, relating to [the] time-barred [sexual assault] claims … and the
pornography allegations” and “did not understand nor grasp the relevant law,
facts and evidence but … negligently, carelessly and unskillfully” advised him
to plead guilty instead of going to trial. (Complaint, 7/01/19, at 5, Paragraph
12, at 9, Paragraph 22, at 11, Paragraphs 29-30; see id. at 12, Paragraph
33).
Lauer filed an Answer and New Matter, alleging, among other affirmative
defenses, that Schade’s claims were barred by the applicable statute of
limitations. (See Answer and New Matter, 8/01/19, at 7, Paragraph 4).
Schade filed Preliminary Objections to Lauer’s Answer and New Matter,
claiming, in pertinent part, that Paragraphs six through thirty-nine of Lauer’s
New Matter should be stricken for lack of specificity. The trial court overruled
the Preliminary Objections on October 18, 2019.
On November 18, 2019, Schade filed a Motion for Reasonable
Accommodation in which he requested that Lauer serve him with all pleadings
and motions at Smart Communications/PA DOC, SCI Coal Township,
K. Bernard Schade, MA 1290, P.O. Box 33028, St. Petersburg, Florida, 33733,
due to his incarceration. The court granted the Motion on November 19, 2019.
On November 27, 2019, Lauer filed a Motion for Judgment on the
Pleadings on the ground that Schade’s lawsuit was barred by the statute of
limitations. Lauer served Schade at the address identified in the Motion for
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Reasonable Accommodation. Schade failed to respond. On January 14, 2020,
the court granted the Motion for Judgment on the Pleadings based on its
review of the pleadings and relevant documents attached thereto, and the
Moton’s substantive argument that the action was barred by the statute of
limitations.
Schade filed a Motion to Open and Vacate Judgment due to Lack of
Notice, arguing that he was not served with the Motion for Judgment on the
Pleadings. On January 31, 2020, the trial court denied the Motion to Open,
noting that Schade’s “lack of a response to the Motion and lack of a brief did
not impact the grounds for granting [Lauer’s] Motion for Judgment on the
Pleadings.” (Order, 1/31/20). This appeal follows.
II.
Schade argues that the trial court erred in overruling his Preliminary
Objections to Paragraphs six through thirty-nine of Lauer’s New Matter,3
granting Lauer’s Motion for Judgment on the Pleadings on the basis of the
statute of limitations and in denying his Motion to Open the Judgment for lack
of notice. (See Schade’s Brief, at 5-6).
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3 Lauer suggests that we quash Schade’s appeal from the Order overruling his
Preliminary Objections as an impermissibly interlocutory appeal. (See Lauer’s
Brief, at 10-11). However, because it is well-settled that, “[o]nce an appeal
is filed from a final order, all prior interlocutory orders become reviewable[,]”
we decline to do so. In re Bridgeport Fire Litigation, 51 A.3d 224, 229
(Pa. Super. 2012) (citation omitted).
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A.
Schade’s first issue is that the trial court erred or abused its discretion
when it overruled his Preliminary Objections to paragraphs six through thirty-
nine of Lauer’s New Matter because they “fail to comply with Pennsylvania
Rule of Civil Procedure 1019 as a matter of law.” (Id. at 13). He argues that
the trial court “refus[ed] to comport with stare decisis” and legal precedent
when it “fail[ed] to strike or dismiss [this] factually unsupported new matter[],
properly objected to by [Schade], without setting forth reasons to depart from
controlling precedent.” (Id. at 11).
As a preliminary matter, because we “cannot decide moot or abstract
questions, nor can we enter a judgment or decree to which effect cannot be
given[,]” we must decide whether this issue is moot as suggested by Lauer.
Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012) (citation and internal
quotation marks omitted); (see Lauer’s Brief, at 13-14). “An issue before a
court is moot if in ruling upon the issue the court cannot enter an order that
has any legal force or effect.” Weindel, supra at 277.
[T]his Court will decide questions that otherwise have been
rendered moot when one or more of the following exceptions to
the mootness doctrine apply: 1) the case involves a question of
great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the
controversy will suffer some detriment due to the decision of the
trial court.
Lico, Inc. v. Dougal, 216 A.3d 1129, 1132 (Pa. Super. 2019) (citation
omitted).
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Instantly, the New Matter challenging the violation of the statute of
limitations was contained in paragraph four and the court granted Judgment
on the Pleadings based solely on that paragraph. (See Schade’s Brief, at 13);
(Lauer’s Answer and New Matter, at 7, Paragraph 4). Therefore, the trial
court’s ruling as to paragraphs six through thirty-nine are moot.
Moreover, none of the exceptions under which we can consider a moot
issue applies. This case does not involve a question of great public importance
because it is a private dispute involving Lauer’s representation of Schade. The
issue of preliminary objections based on Rule 1019 is not capable of repetition
that will elude appellate review in this case. Finally, Schade will not suffer
detriment from the court’s ruling on paragraphs six through thirty-nine of the
Complaint because they bore no impact on its grant of Judgment on the
Pleadings having been solely decided on the statute of limitations issue. Even
if we were to find that the court erred in overruling the Preliminary Objections
to those paragraphs’ defenses raised in Lauer’s New Matter, any order
reversing the court’s finding as to them would have no force or effect.
Accordingly, because we cannot decide moot questions or issue orders
with no force or effect, Schade’s Preliminary Objections issue is moot.
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B.
Next, Schade claims that the trial court erred in granting Lauer’s Motion
for Judgment on the Pleadings.4 He raises two arguments in support of this
allegation, maintaining that, (1) based on Bailey v. Tucker, 621 A.2d 108
(Pa. 1993), the trial court erred in determining the date when the statute of
limitations began to run, and (2) the applicability of the statute of limitations
was an issue for a jury. (See Schade’s Brief, at 18, 26, 30).
1.
Schade contends that under Tucker, the statute of limitations for
bringing a criminal malpractice claim5 did not begin to run until his new
counsel filed a PCRA petition alleging trial counsel’s ineffective assistance on
July 7, 2015. Because he filed his Complaint on July 3, 2019, it was brought
within the four-year statute of limitations. Schade misinterprets the holding
of Tucker.
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4 “Our standard of review over a decision sustaining a judgment on the
pleadings requires us to determine whether, on the facts averred, the law
makes recovery impossible.” Cagey v. Commonwealth, 179 A.3d 458, 463
(Pa. 2018) (citation omitted).
5 Schade abandons any claim that his Complaint satisfied the two-year statute
of limitations for criminal malpractice action brought in tort and focuses only
on the four-year limitation period for criminal malpractice claims brought
under a contract theory. See 42 Pa.C.S. § 5525(a)(8) (Four-year statute of
limitations applies to breach of contract claims).
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Tucker observed first that, “[w]ith regard to the respective statutes of
limitations, the rule in this Commonwealth is that the statutory period
commences at the time the harm is suffered or, if appropriate, at the time the
alleged malpractice is discovered.” Tucker, supra at 115 (footnote omitted).
“In the context of a criminal malpractice action, the time when the harm is
suffered will, in the typical case, be easily identifiable, i.e., the date of
sentencing.” Id. at 115-16. However, because the defendant’s actions are
presumed to be the legal cause of that harm, “the date a defendant becomes
aware that his counsel may have been responsible for the harm will likely be
harder to pinpoint.” Id. at 116. In light of this, Tucker established that
“[t]he appropriate starting point [from which the statute of limitations period
commences] is the termination of the attorney-client relationship, since at
that point the aggrieved defendant is aware of the injury (i.e., the conviction),
and is on clear notice to investigate any alternate cause of that harm which
he believes to exist.” Id. (footnote omitted); see also M.A. v. Brabender,
839 A.2d 1133 (Pa. 2003) (“Under Bailey, … it is clear that, in criminal legal
malpractice actions, the statute of limitations begins to run on the date of
sentencing, or no later than the termination date of the attorney/client
relationship.”).
In Tucker, Bailey was convicted of first-degree murder on April 13,
1970. Tucker was his trial counsel. On July 19, 1973, represented by new
counsel, Bailey filed a petition under the Post–Conviction Hearing Act alleging,
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inter alia, that he had been denied effective assistance of counsel. On
November 18, 1978, after a re-trial, Bailey was found guilty of voluntary
manslaughter. On October 22, 1980, Bailey commenced the criminal legal
malpractice case against Tucker. We affirmed the trial court’s dismissal of the
action because it was not filed within the applicable statute of limitations.
After setting forth what needs to be made out to sustain a criminal
malpractice action, our Supreme Court likewise dismissed the action because
it was not filed within the statute of limitations, observing that “[o]n July 19,
1973, represented by new counsel, appellant filed a petition under the Post–
Conviction Hearing Act alleging, inter alia, that he had been denied effective
assistance of counsel. Therefore, the statute of limitations began to run no
later than July 19, 1973, since on that date appellant was clearly on notice of
appellee’s alleged dereliction. The instant malpractice action was commenced
on October 22, 1980, well beyond any applicable period of limitation.”
Tucker, supra at 253-54 (footnote omitted.).
However, this did not amend Tucker’s holding that time in a criminal
malpractice action began at sentencing or when the attorney/client
relationship ended, because so many years later, it had to calculate when the
relationship ended, and that relationship had to end “no later than” when the
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Post-Conviction Hearing Act petition was filed. In short, that statement was
merely an evidentiary finding.6
In this case, Schade was sentenced in the underlying criminal matter on
January 7, 2015. Lauer filed a Petition to Withdraw on May 21, 2015, which
the court scheduled for a hearing. On June 24, 2015, before the court could
rule on the Petition to Withdraw, new counsel filed his Entry of Appearance,
and on June 30, 2015, the court dismissed the Petition to Withdraw as moot
because of new counsel’s Entry of Appearance. Because 42 Pa.C.S.
§ 5525(a)(8) required that action had to be filed within four years, the statute
of limitations would have expired on January 7, 2019 (four years after
sentencing) or, at the very latest, in June 2019, four years after Lauer filed a
Petition to Withdraw, new counsel filed his Entry of Appearance, and the court
dismissed the Petition to Withdraw as moot. Accordingly, the trial court did
not err when it granted Judgment on the Pleadings because Schade’s action
was more than four years after all the aforesaid events.
a.
We also find Schade’s argument that, although he retained new counsel
to represent him post-sentencing, the attorney/client relationship with Lauer
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6 Tucker involved a second, related case, Trice v. Morzenter. In that case,
Trice was convicted on March 25, 1975, on drug-related offenses. He filed a
pro se petition to vacate his sentence on November 3, 1978. The Court held
that, “at least as of that date, [trial counsel’s] services had been terminated,
and the statute of limitations … had begun to run.” Id. at 254.
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had not ended because he had not “relieved” him of his duties, to be
completely unavailing. (See Schade’s Brief, at 19). He provides no authority
for this argument and, in fact, admits that upon retaining new counsel, whom
he began paying on April 28, 2015, this counsel “developed issues of Lauer’s
previously unknown to [him].” (Schade’s Brief, at 33); (see also Complaint,
at Exhibit A). In fact, the exhibits attached to his own Complaint reveal that
Schade made his last payment to Lauer on May 20, 2015. (See Complaint,
at Exhibit A). We do not find this argument legally persuasive.
b.
Finally, we observe that Schade’s reliance on Pennsylvania Rule of
Criminal Procedure 120 for his argument that the attorney/client relationship
had not terminated is likewise unavailing. Rule 120 provides, in pertinent
part, that “[c]ounsel for a defendant may not withdraw his or her appearance
except by leave of court” after filing a motion to withdraw.
Pa.R.Crim.P. 120(B)(1)-(2). “[T]he court shall determine whether new
counsel is entering an appearance, new counsel is being appointed to
represent the defendant, or the defendant is proceeding without counsel.”
Pa.R.Crim.P. 120(B)(3).
Here, as previously noted, Lauer filed a Petition to Withdraw as Counsel
in the underlying criminal proceedings on May 21, 2015, and new counsel
entered his appearance on June 24, 2015. On June 30, 2015, the trial court
dismissed Lauer’s petition to withdraw as moot because new counsel already
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had entered his appearance. Schade contends that the attorney/client
relationship never ended because Lauer was never expressly granted leave to
withdraw and, therefore, in spite of new counsel’s entry of appearance, he
remained (and presumably remains) Schade’s representative. However,
contrary to Schade’s protestation, first, because Lauer’s representation did
end when new counsel entered his appearance and, second, because the trial
court dismissed Lauer’s Petition to Withdraw as moot because new counsel
had entered his appearance, is the functional equivalent of allowing him to
withdraw under Rule 120. See Commonwealth v. Wamsher, 577 A.2d 595,
600 (Pa. Super. 1990) (rejecting “rigidly literal construction” of Rules of
Criminal Procedure that would lead to absurd or unreasonable result).
For all of these reasons, Schade’s argument that the trial court erred in
granting the Motion for Judgment on the Pleadings because it miscalculated
the date on which Lauer’s service was terminated and the statute of limitations
began to run lacks merit.
2.
We next turn to Schade’s argument that the court erred in granting the
Motion for Judgment on the Pleadings because he pled applicability of the
discovery rule, which was an issue of fact for the jury. (See Schade’s Brief,
at 30-34).
First, we observe that this issue is a red herring. The “discovery rule”
arises in civil matters such as “creeping disease” and medical malpractice
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cases as an exception to the rule that the statute of limitations begins to run
from the date the harm is suffered, and “arises from the inability of an injured
person, despite the exercise of due diligence, to know of the injury or its
cause.” Ingenito v. AC & S, Inc., 633 A.2d 1172, 1174 (Pa. Super. 1993),
appeal denied, 668 A.2d 113 (Pa. 1995) (citations omitted). “In creeping
diseases cases … the statute of limitations begins to run when the injured
person knows, or reasonably should know: (1) that he has been injured, and
(2) that his injury has been caused by another party's conduct.” Id. (citations
omitted); see Nicolau v. Martin, 195 A.3d 880 (Pa. 2018) (discovery rule
applicable in medical malpractice case when parties disputed whether plaintiff
should have reasonably known if injuries were caused by misdiagnosis).
“Where the issue involves a factual determination regarding what is a
reasonable time for plaintiff to discover his injury and its cause, the issue is
usually for the jury.” Id. at 1175 (citations omitted). The court may decide
the issue where “the undisputed facts lead unerringly to the conclusion that
the time it took to discover an injury or its cause was unreasonable as a matter
of law[.]” Id. (citations omitted).
However, as explained previously, Tucker held that, “in criminal legal
malpractice actions, the statute of limitations begins to run on the date of
sentencing, or no later than the termination date of the attorney/client
relationship.” Brabender, supra at 1136 (noting that, “[b]y contrast, in civil
legal malpractice actions, the statute of limitations begins to run either at the
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time the harm is suffered or alternatively at the time the alleged malpractice
is discovered.”) (citation omitted). Here, this was a date the trial court could
determine from the pleadings and documents attached thereto. See Rubin
v. CBS Broadcasting, Inc., 170 A.3d 560, 564 (Pa. Super. 2017) (On a
motion for judgment on the pleadings, “[i]n determining if there is a dispute
as to facts, the court must confine its consideration to the pleadings and
relevant documents.”).
Accordingly, we conclude that the trial court properly granted Judgment
on the Pleadings because, “on the facts averred, the law makes recovery
impossible.” Cagey, supra at 464 (citation omitted).
C.
Next, we turn to Schade’s argument that the court erred in denying his
Motion to Open the Judgment7 because he was not provided notice of the
Motion for Judgment on the Pleadings. (See Schade’s Brief, at 26).8 He
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7A ruling on a petition to open a judgment is committed to the trial court’s
wide discretion and will not be disturbed unless that discretion was manifestly
abused. See Cintas Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915,
919 (Pa. 1997).
8 On its face, this issue appears to be one of the grounds on which Schade
alleges that the court erred in granting the Motion for Judgment on the
Pleadings. (See Schade’s Brief, at 26). However, since Schade raised this
issue in his Motion to Open, we interpret it as going to that request for relief.
In violation of our Rules, this section of Schade’s brief does not provide any
pertinent citation to authorities or discussion thereof and, therefore, is waived.
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maintains that neither Lauer’s Motion for Judgment on the Pleadings nor the
court’s briefing order contained his Department of Corrections (DOC) number,
“almost as if it were a concerted effort to deceive [him].” (Id. at 28). In his
Motion to Open, Schade maintained that he did not receive notice of Lauer’s
Motion for Judgment on the Pleadings until he received the order of judgment.
(See Motion to Open and Vacate Judgement Due to Lack of Notice, 1/30/20,
at 1).
[I]f a petition to open a judgment is to be successful, it must meet
the following test: (1) the petition to open must be promptly filed;
(2) the failure to appear or file a timely answer must be excused;
and (3) the party seeking to open the judgment must show a
meritorious defense.
Cintas Corp., supra at 919 (citations omitted).
Here, on November 14, 2019, Schade filed a Motion for a Reasonable
Accommodation Regarding Rule 1026.9 In the Motion, Schade stated that
pursuant to a new DOC policy, Lauer was required to serve him with all
pleadings and motions via U.S. First Class Mail at Smart Communications/PA
DOC, SCI Coal Township, K. Bernard Schade, MA 1290, P.O. Box 33028, St.
Petersburg, Florida 33733. (See Motion for Reasonable Accommodation, at
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(See id. at 26-29); Pa.R.A.P. 2101, 2119(a)-(b). Moreover, for the reasons
discussed above, it would not merit relief.
9 Pursuant to Rule 1026, “every pleading subsequent to the complaint shall be
filed within twenty days after service of the preceding pleading[.]” Pa.R.C.P.
1026(a).
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2, Paragraph 3). Schade requested that because the new policy causes a
delay in receiving mail, he be permitted to provide any responses to motions
within twenty days’ receipt of the pleading from the DOC’s mail system to be
in compliance with Rule 1026. (See id. at 3). The court granted the Motion
and the Certificate of Service10 attached to the Motion for Judgment on the
Pleadings reflects that Lauer served Schade at the requested address.
Therefore, Schade failed to provide a valid excuse for his failure to
respond to the Motion for Judgment on the Pleadings. See Cintas Corp.,
supra at 919. Moreover, the trial court’s January 30, 2020 order denying
Schade’s Motion to Open reflects that the court granted the Motion for
Judgment on the Pleadings on the merits of the statute of limitations
argument, not for Schade’s failure to respond. As discussed more fully
elsewhere in this decision, Schade does not have a meritorious defense to the
statute of limitations issue. See id. The court did not manifestly abuse its
discretion in denying Shade’s Motion to Open. See id.
To reiterate, Schade’s argument challenging the Order overruling his
Preliminary Objections is moot and his challenges to the Orders granting
Lauer’s Motion for Judgment on the Pleadings and denying his Motion to Open
lack merit.
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10Civil Procedure Rule 208.2 provides, in pertinent part, that “[a] motion shall
include a certificate of service which sets forth the manner of service including
the name of an attorney of record … and the address at which service was
made[.]” Pa.R.C.P. 208.2(a)(4).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2020
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