J-S32016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES D. SCHNELLER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARJORIE ZITOMER, G. RICHARD
SCHNELLER, T. SERGEANT PEPPER,
ESQ., HEPBURN, WILLCOX, HAMILTON &
PUTNAM, LLP, WACHOVIA BANK, N.A.,
ALLEVA FUNERAL HOME
Appellee No. 3344 EDA 2016
Appeal from the Order Entered September 22, 2016
In the Court of Common Pleas of Chester County
Civil Division at No: 2007-05040-CA
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD*, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 18, 2017
Appellant, James D. Schneller, appeals pro se from the September 22,
2016 order entered in the Court of Common Pleas of Chester County denying
Appellant’s motion for adjudication of pending matters. Following review,
we affirm.
Our review of the record reveals that Appellant initiated a pro se civil
action on May 25, 2007 against Appellees, Marjorie Zitomer, G. Richard
Schneller, T. Sergeant Pepper, Esq. (“Pepper”), Hepburn, Willcox, Hamilton
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*
Former Justice specially assigned to the Superior Court.
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& Putnam, LLP (“Hepburn, Willcox”) (collectively “Appellees”), Wachovia
Bank, N.A., and Alleva Funeral Home. By order entered June 15, 2007, the
complaint was dismissed as frivolous, without prejudice to file an amended
complaint within twenty days. On July 3, 2007, Appellant filed an amended
complaint. On July 24, 2007, Appellant filed various certificates of merit
pursuant to Pa.R.C.P. 1042.3, including certificates of merit relating to
Appellees Pepper and Hepburn, Willcox. See Docket Entries, 7/24/07.
On September 14, 2007, counsel entered an appearance on behalf of
Pepper and Hepburn, Willcox and filed a praecipe for entry of non pros for
failure to file certificates of merit against those parties within the sixty-day
period prescribed by Rule 1042.3. On September 18, 2007, counsel filed a
praecipe to withdraw the praecipe for entry of non pros, acknowledging he
was unaware that Appellant requested an extension of time for filing
certificates of merit. Id., 9/14/07 and 9/18/07.
On October 26, 2007, counsel for Pepper and Hepburn, Willcox filed
preliminary objections to Appellant’s amended complaint. Id., 10/26/07.
On November 8, 2007, after learning that Appellant’s requested extension
for filing certificates of merit had been denied, Pepper’s counsel filed another
praecipe for entry of non pros and a judgment of non pros was entered in
favor of Pepper that same day. Id., 11/8/07. The parties subsequently filed
various documents, including Appellant’s petition to strike the judgment of
non pros and his motion to lift non pros, id., 12/17/07 and 12/19/07, and
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Pepper’s response to the motion to lift. Id., 1/09/08. In his response to
Appellant’s motion to lift, Pepper explained:
In the present case, [Appellant’s] motion to strike non pros
judgment entered in favor of [] Pepper offers no reasonable
explanation for [Appellant’s] failure to file a certificate of merit
with respect to his professional liability claims against [] Pepper.
What the motion offers, instead, are nonsensical and irrelevant
accusations that lack any real and reasonable explanation at
their core. [Appellant’s] motion, therefore, fails to satisfy the
requirement of Pa.R.Civ.P. 3051(b)(2) and must be denied.
Moreover, given the long and unsuccessful history of
[Appellant’s] identical claims against [] Pepper, as well as the
fact that these claims stem from events that occurred in 2002
and so are clearly barred by the applicable statute of limitation,
[Appellant] cannot demonstrate the he presents any meritorious
cause of action. Consequently, [Appellant] also cannot satisfy
the mandatory requirement of Pa.R.Civ.P. 3051(b)(3) and his
motion must be denied for this reason.
Pepper’s Response to Appellant’s Motion to Lift Non Pros, 1/9/08, at 8.
In the interim, Appellant filed a second amended complaint on
November 16, 2007. Id., 11/16/07. Appellees filed preliminary objections
and a brief in support.1 Id., 1/31/08. Appellant filed preliminary objections
to Appellees’ preliminary objections. Id., 2/27/08. By order entered March
24, 2008, the trial court sustained Appellees’ preliminary objections and
dismissed Appellant’s complaint with prejudice and without leave to file a
third amended complaint. Id., 3/24/08. Whether by virtue of the entry of a
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1
Appellees jointly filing preliminary objections included Pepper, Hepburn,
Willcox, Marjorie Zitomer, and G. Richard Schneller.
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non pros judgment in favor of Pepper on November 8, 2007, or by virtue of
the March 24, 2008 order sustaining preliminary objections and dismissing
Appellant’s second amended complaint, it is clear that no claims against
Pepper remained after March 24, 2008.
By order entered June 20, 2008, the trial court granted a motion for
judgment on the pleadings filed by Appellee Alleva Funeral Home. Id.,
6/20/08. On October 14, 2010, the trial court sustained preliminary
objections filed by the sole remaining defendant, Appellee Wachovia Bank,
and dismissed Appellant’s complaint with prejudice and without leave to file
an amended complaint. Id., 10/14/10. Appellant timely filed an appeal to
this Court on November 15, 2010.2 By order entered November 19, 2010,
the trial court directed Appellant to file a Rule 1925(b) statement within 21
days of the order. Appellant filed his Rule 1925(b) statement on December
14, 2010, beyond the 21-day period provided in the court’s order. Among
Appellant’s 13 assertions of error were claims that the non pros entered for
Pepper constituted error and that the failure to enter judgment of non pros
for Hepburn, Willcox “caus[ed] the case to feasibly not be ended.”
Appellant’s Rule 1925(b) Statement, 12/14/10, at ¶¶ 5, 6.
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2
The appeal filed on Monday, November 15, 2010, was timely because the
final day for filing an appeal was November 13, 2010, a Saturday.
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Also on December 14, unaware that Appellant filed an untimely Rule
1925(b) statement, the trial court issued its Rule 1925(a) opinion,
announcing that Appellant failed to preserve any issues for appeal. Once
aware of the late filing, the trial court issued a supplemental opinion
explaining that, even if Appellant’s 1925(b) had been timely filed, the
statement was too vague to preserve any issues for appellate review. By
order dated February 15, 2011, this Court dismissed the appeal and denied
Appellant’s motion for remand.3 Schneller v. Zitomer et al, No. 3144 EDA
2010 (Pa. Super. filed February 15, 2011).
Although all matters asserted in Appellant’s action were concluded
when this Court dismissed Appellant’s appeal in 2011, Appellant
nevertheless filed a request for an administrative conference on July 8,
2013. See Docket Entries, 7/8/13. The trial court responded, noting that
the record reflected that the case had been terminated. See Trial Court
Correspondence, 7/9/13, at 1. The trial court indicated that further
consideration of the administrative conference request would be given if
Appellant advised the court as to parties who were still active and the claims
against such parties. Id. By letter dated August 21, 2013, Appellant
explained to the trial court that he had filed praecipes regarding his motion
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3
This Court cited Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996 (Pa.
2001), in support of dismissal. Order, 2/15/11, at 1. In Sahutsky, our
Supreme Court held that the failure to file a petition for relief from a
judgment of non pros waives claims of error.
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to lift non pros and had filed a sanctions motion after this Court dismissed
his appeal in 2011. However, Appellant did not identify parties purported to
be active or identify claims against any parties.
On December 11, 2013, Appellant filed a notice of appeal to this Court.
In his docketing statement, rather than indicate the date of an order
appealed from, Appellant simply stated, “Judge refuses to adjudge.”
Docketing Statement, 1/7/14, at 1. By order entered February 3, 2014, this
Court quashed the appeal. Schneller v. Zitomer et al, No. 3447 EDA 2013
(Pa. Super. filed February 3, 2014). This Court also denied Appellant’s
motion for reconsideration. Order, 3/20/14.
More than two years later, on March 29, 2016, Appellant filed a motion
for adjudication of pending matters. By order entered September 22, 2016,
the trial court denied the motion, noting that “[t]he complaint in this case
has been dismissed with prejudice as to all defendants by prior orders of this
court. Accordingly, all filings by [Appellant] subsequent to the final dismissal
of the final remaining defendant are legal nullities and require no further
adjudication.” Order, 9/22/16, at 1 n.1. The instant appeal followed. The
trial court issued a Rule 1925(a) opinion, explaining in pertinent part:
This case was initiated by the filing of a complaint on May 25,
2007. The last defendant to have the case dismissed was
Wachovia Bank (now Wells Fargo) as to whom the complaint was
dismissed with prejudice over six (6) years ago by order of
October 14, 2010. The case was ended as to defendant Alleva
Funeral Home by order entered June 20, 2008, and as to all
other defendants, . . . by order entered on March 24, 2008,
wherein the complaint was “DISMISSED with prejudice as to
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defendants T. Sergeant Pepper, Hepburn Willcox Hamilton &
Putnam, L.L.P., Marjorie Zitomer and G. Richard Schneller and
without leave to file a third amended complaint.” (emphasis
added.)
....
Since the Superior Court dismissed plaintiff’s previous appeal
after the case had been terminated as to all defendants by
various orders over the years, we believe that our determination
that all of plaintiff’s subsequent filings are legal nullities which
require neither further attention from nor action by this court is
correct.
Trial Court Opinion, 11/10/16, at 1-2 (emphasis in original).
In his brief, Appellant presents three issues:
A. Does the Court have subject matter jurisdiction over this
appeal on a basis of finality of the order appealed from?
B. Has the trial court, in the decision to deny [Appellant’s]
motion for adjudication of pending matters decided in legal
error, partiality, pre-judgment, abuse of discretion,
unreasonable and inaccurate application of law, and in
derogation to constitutional rights, at a level requiring
reversal by the Court?
C. Is the Court fully and urgently justified to grant Appellant’s
application for peremptory mandamus and writ of prohibition?
Appellant’s Brief at 8 (capitalization removed).
Because we read Appellant’s challenge of the trial court’s order as
presenting a question of law, we review the trial court’s ruling de novo and
the scope of our review is plenary. See, e.g., Stamerro v. Stamerro, 889
A.2d 1251, 1257 (Pa. Super. 2005).
In his first issue, Appellant asks this Court to confirm the existence of
subject matter jurisdiction over this appeal based on a final order of the trial
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court. As an appeal from a final order of the trial court, this Court does have
jurisdiction over this appeal. 42 Pa.C.S.A. § 742. However, as the trial
court correctly indicates, the claims against all parties were previously
terminated, rendering Appellant’s subsequent filings—including his motion
for adjudication of pending matters—legal nullities. Therefore, while we
have jurisdiction over the appeal, it is apparent there were no “pending
matters” for the trial court to adjudicate in response to Appellant’s motion.
Therefore, the existence of jurisdiction is of no moment, except that it
empowers us to affirm the trial court’s order denying Appellant’s motion. In
doing so, we also find that Appellant’s remaining issues are moot.4
Sifting through Appellant’s voluminous filings over several years, it
becomes apparent that Appellant believes a non pros issue relative to
Pepper has remained unresolved since 2008. However, as noted above,
there is no issue unresolved as to Pepper. Again, by order entered March
24, 2008, the trial court sustained Appellees’ preliminary objections and
dismissed Appellant’s amended complaint with prejudice as to Appellees.
Consequently, even in absence of any claimed confusion relating to the non
pros issue, all claims asserted against Pepper in Appellant’s second amended
complaint were extinguished by the trial court’s March 24, 2008 order.
Therefore, we conclude, as did the trial court, that Appellant’s filings—
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4
As a result, Appellant’s Application for Writ of Mandamus is denied.
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including his motion for adjudication of pending matters—are legal nullities
that do not require or merit any further action from this Court.
Order affirmed.5
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5
Article 1, Section 11 of the Pennsylvania Constitution requires that “[a]ll
courts shall be be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and
right and justice administered without sale, denial or delay.” Const. Art. 1,
§ 11, PA. CONST Art. 1, § 11. It is clear that the courts of this
Commonwealth have been open to Appellant. As a panel of this Court
observed in an unpublished memorandum in 2008:
This Court will not rehash the voluminous procedural history in
this case beyond the following brief description: Over the past
five years, 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. In fact, this is the third time
Schneller has appeared before this Court in this matter.
Schneller v. Main Line Hospitals, Inc., No. 1147 EDA 2007 (Pa. Super.
filed December 2, 2008). By our count, since 2008, Appellant has filed
appeals in this Court at more than two dozen dockets numbers. He has filed
a similar number of appeals in the Commonwealth Court and petitions for
allowance of appeal with our Supreme Court. In addition, he has initiated at
least eleven pro se actions in the United States District Court for the Eastern
District of Pennsylvania relating to the 2002 death of his mother and the
administration of her estate. See Schneller v. Zitomer, 2015 WL 115569
(E.D. Pa. January 8, 2015).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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Schneller, J. v. Zitomer, M.
Combined Opinion