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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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




____________________________________________


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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