J-S18046-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF MARJORIE C. SCHNELLER,                  IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA

APPEAL OF: JAMES D. SCHNELLER
                                                      No. 1987 EDA 2016


                  Appeal from the Order Entered May 25, 2016
                In the Court of Common Pleas of Chester County
                  Orphans’ Court at No(s): File No. 1502-0612


BEFORE: PANELLA, SOLANO and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 12, 2017

        Appellant, James D. Schneller, appeals pro se from the order entered

in the Chester County Court of Common Pleas denying exceptions to the

order denying his “motion to dissolve the preliminary injunction entered on

June 10, 2009.”1      Appellant contends that the orphans’ court improperly

directed the orphans’ court clerk to refuse his filings attempting to reopen

the Estate of Marjorie C. Schneller (“Estate”). We dismiss the appeal.

        For the purposes of the present appeal, we note that proceedings on

the Estate commenced in the orphans’ court on April 19, 2002. The docket

indicates that a status report indicating “administration complete” was filed

on February 4, 2005.       During that time, Appellant, acting pro se, raised


*
    Former Justice specially assigned to the Superior Court.
1
  The trial court entered the identical order in Estate of George H.
Schneller. Appellant’s appeal from that order is also before this panel. See
Estate of George H. Schneller, 1981 EDA 2016.
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numerous objections to the administration of the Estate and sought leave to

file civil actions on behalf of executrix, Marjorie Zitomer (“Zitomer”).

Appellant notes that:

         [a] lengthy litigation was for a large portion the result of
         [Appellant’s] competent challenge to improper and
         unlawful administration of the trust estates, which inflicted
         heavily on [Appellant’s] and the trustors[’] rights, claiming
         serious violations of the intent of the trustors and the law.
         Appeals occurred.

                                     ***

         . . . Appellant has, since before the two year limit of time
         after the deaths, litigated, pro se, certain intentional tort
         actions in Southeastern Pennsylvania courts regarding the
         medical treatment and lack thereof to the settlors, to
         whom [A]ppellant was, without doubt, caregiver and
         trusted provider in residence.[2]

Appellant’s Brief at 8, 9.

      According to Appellant, he filed a pro se application for appointment of

an administrator, as well as an application to proceed in forma pauperis.

The orphans’ court docket, however, reveals that only an application to

proceed in forma pauperis was filed. On June 10, 2009, the orphans’ court

entered the following order:

            AND NOW, this 10th day of June, 2009, [Appellant’s]
         pro se Application to Proceed in Forma Pauperis filed June
         4, 2009 is DENIED.

         The administration was completed in both estates per the
         Status Reports filed in each Estate on February 4, 2005,

2
 According to Appellant, his parents died “five months apart in 2001 and
2002.” Appellant’s Brief at 8.



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         and the Clerk of the Orphans’ Court is directed to refuse all
         further petitions or pleadings that attempt to re-open
         either estate.

Order, 6/10/09.3 On July 9, 2009, Appellant filed a notice of appeal to this

Court from the order dated June 10, 2009.       That appeal was docketed at

2123 EDA 2009.

      Meanwhile, Appellant filed a petition for review.    The orphans’ court

issued an order on April 8, 2010, filed April 9, 2010, which provided:

         AND NOW this 8th day of April, 2010, James D. Schneller’s
         Petition for review is Dismissed, in conformity with the
         June 10, 2009, Order . . . as the instant petition seeks to
         relitigate and/or reopen the referenced estate.[fn1]
            [fn1]
                I further note that [Appellant] filed an appeal at
            Superior Court docket 2123 EDA 2009, the entire
            record of this case is with the Superior Court. We
            are divested of jurisdiction.

Order, 4/8/10.

      On June 7, 2010, in 2123 EDA 2009, this Court affirmed the June 10,

2009 order of the orphans’ court.4 This Court opined:

            The administration of the estates of Marjorie C. and
         George Schneller, Appellant[’s] parents, were completed
         per status reports filed on February 4, 2005. (Order,
         6/10/09). On June 4, 2009, Appellant filed under the
         docket numbers of each estate a pro se application to
         proceed in forma pauperis.     Although the applications

3
  We note that the trial court issued the order directing the orphans’ court
clerk to refuse Appellant’s petitions or pleadings that attempt to reopen the
estates before the promulgation of Pa.R.C.P. 233.1. See infra at n.8.
4
  Appellant filed a petition for reargument on June 21, 2010.        This Court
denied the petition on August 12, 2010.



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         alluded to a petition for his appointment as administrator,
         no such petition was attached, included in the record, or
         entered on the docket. On June 10, 2009, the trial court
         entered the instant order in Marjorie’s estate:[fn1] (1)
         denying the application to proceed in forma pauperis; and
         (2) directing the clerk of the Orphans’ Court “to refuse all
         further petitions or pleadings that attempt to re-open
         either estate.” (Id.).

             A petition to proceed in forma pauperis “may not be
         filed prior to the commencement of an action.” Pa.R.C.P.
         240(c). Because there is no active litigation in the Estate
         of Marjorie C. Schneller, we AFFIRM the court’s order
         denying the petition, as it was improperly filed. See id.
              [fn1]
                  Although Appellant attempted to file petitions to
              proceed in forma pauperis under both parents’
              estates, he took an appeal only from the order
              entered under his mother’s estate, citing “the size of
              the fee for appeal” and requesting this Court to
              extend review to the order entered in his father’s
              estate. We decline to do so.

Estate   of     Marjorie   C.   Schneller,   2123    EDA   2009   (unpublished

memorandum at 1-2) (Pa. Super. June 7, 2010).

     On November 22, 2010, Appellant filed a motion for entry of judgment

and for correction of the record. On December 1, 2010, the orphans’ court

entered the following order:

         AND NOW, this 1st day of December 2010, upon
         consideration of the Motion for Entry of Judgment and
         Correction of the Record, it is hereby Ordered that:

         1. This [c]ourt’s [o]rder dated April 8, 2010 (filed April 9,
         2010) is hereby reaffirmed as though originally entered
         this date.

         2. The [c]ourt declines to issue a direction to the Clerk of
         the Orphans’ Court to enter the alleged “Petition for



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         Appointment of Administrator . . . filed on or about June 3,
         2009 [sic]”.

Order, 12/1/10 (footnote omitted).

      On December 30, 2010, Appellant filed a notice of appeal from the

orders entered on June 10, 2009, April 9, 2010, and December 1, 2010.

That appeal was docketed at 326 EDA 2011.          On February 9, 2011, the

orphans’ court requested that the appeal of all the referenced orders should

be dismissed, asserting:

         [Appellant] appeals to the Superior Court from this court’s
         order of December 1, 2010.[fn1]

                                 *    *    *

         [Appellant] appealed from the orders entered December 1,
         2010, April 9, 2010 and June 10, 2009.[fn2] The June 7,
         2010 Superior Court Order affirmed Judge Ott’s June 10,
         2009 Order. Thus, a further appeal of that Order is
         precluded by res judicata. Res judicata applies not only to
         claims actually litigated, but also to claims which could
         have been litigated during the first proceeding if they were
         part of the same cause of action.
            [fn1]
                 [Appellant] also appeals from the orders dated
            April 9, 2010 and June 10, 2009.
            [fn2]
                [Appellant] filed the instant appeal in the Estate
            of Marjorie C. Schneller only. He did not file an
            appeal in the Estate of George Schneller.

Orphans’ Ct. Op., 2/9/11, at 1-2 (citation omitted).   On March 30, 2011,

Zitomer, the executrix of the Estate, filed in this Court a counseled motion to

quash the appeal asserting that (1) Appellant was relitigating a claim

regarding the filing of his petition for appointment of administrator that was



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decided in 2123 EDA 2009, and (2) Appellant’s Rule 1925(b) statement was

defective. Zitomer’s Motion to Quash Appeal, 3/30/11. On May 11, 2011, in

a per curiam order, this Court summarily granted “the motion to quash.”

Order, 326 EDA 2011, 5/11/11.

      On October 11, 2012, Appellant filed a petition for writ of mandamus

requesting an order to compel the clerk of the court to accept Appellant’s

application for a rehearing regarding his parent’s estate. See Schneller v.

Clerk of Orphans’ Court of Chester Cnty., 1901 C.D. 2014, 2015 WL

5457711 at *1 (Pa. Cmwlth. Aug. 5, 2015) (unpublished memorandum).

The trial court granted the orphans’ court motion for summary judgment and

dismissed Appellant’s petition in light of the June 10, 2009 order.      Id.

Appellant took an appeal, and the Commonwealth Court affirmed the trial

court’s order concluding:

         Here, the trial court issued the June 10, 2009, order
         prohibiting the Orphans’ Court from accepting further
         filings. The Superior Court affirmed the June 10, 2009,
         order. Because the estates have been closed since 2005,
         and the trial court has ordered they not be re-opened, the
         trial court properly granted the Orphans’ Court’s motion for
         summary judgment.

Id. at *2.

      On March 22, 2016, Appellant filed the instant motion averring that

“[t]he June 10, 2009, order directing the Clerk of the Orphans court to

‘refuse all further petitions or pleadings that attempt to re-open either

estate’ is a permanent injunction, and holds most if not all of the traits of



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preliminary injunction or special injunction.”   Motion of Beneficiary James

Schneller to Dissolve Injunction, 3/22/16, at 3.      On April 19, 2016, the

orphans’ court denied the motion.5         On May 6, 2016, Appellant filed

exceptions to the April 19th order, which the court denied on May 25, 2016.6

This appeal followed.7

      Appellant raises the following issue for our review:

         Has the trial court, in the decision to deny motion to
         dissolve injunction and to deny exceptions to that denial,
         shown legal error, partiality, pre-judgment, abuse of
         discretion, unreasonable and inaccurate application of law,
         and failure to make factual findings supported by
         competent evidence, at a level requiring reversal by the
         court?

Appellant’s Brief at 7.

      Appellant argues that the orphans’ court erred in denying his motion to

dissolve the filing injunction. He contends that the injunction failed to meet

5
   The court, noting that the administration of the estates was completed on
February 4, 2005, found that Appellant’s “present motion to dissolve
‘Injunction’ is another attempt to relitigate or reopen the estates.” Order,
4/19/16, at 1 n.1. In the alternative, the court concluded that Appellant
failed to establish extraordinary circumstances for reopening the estates.
Id.
6
   See Pa.O.Ct.R. 7.1 (rescinded effective Sept. 1, 2016). In the case sub
judice, former Rule 7.1 applied and provided, inter alia, if exceptions are
filed, no appeal shall be filed until the disposition of exceptions. If the
exceptions are not decided within 120 days, they are denied by operation of
law and the appeal period begins to run on the 121st day. See Rule 7.1(f).
Effective September 1, 2016, the Orphans’ Court rules were amended and
the filing of exceptions is no longer permitted. See Pa.O.Ct.R. 8.2.
7
  The orphans’ court did not direct Appellant to submit a Pa.R.A.P. 1925(b)
statement.



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the standards for the issuance of an injunction under Pa.R.C.P. 1532 and

was issued without the required procedural safeguards of a hearing and

opportunity to respond.     Id. at 17, 19.    Appellant thus insists that the

orphans’ court erred in failing to docket the alleged petition for appointment

as administrator and denying his petition to proceed in forma pauperis.

Appellant has also filed in this Court a petition for mandamus requesting,

inter alia, that we direct the clerk of the orphans’ court to accept his various

filings and require the orphans’ court to conduct additional fact-finding

regarding the status of the Estate. We dismiss the instant appeal and deny

the application for mandamus.

      Preliminarily, we note:

         [T]he law of the case doctrine, [is] a series of rules that
         embody the concept that a court involved in the later
         phases of a litigated matter should not reopen questions
         decided by another judge of that same court or by a higher
         court in the earlier phases of the matter.

In re Estate of Mumma, 125 A.3d 1205, 1214 (Pa. Super. 2015) (citation,

quotation marks and emphasis omitted), appeal denied, 145 A.3d 727 (Pa.

2016).   Moreover, this Court has recognized a court’s authority to enjoin

relitigation of an issue that “has repeatedly been raised” when “necessary

and appropriate.” See Menna v. St. Agnes Medical Ctr., 690 A.2d 299,




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305 (Pa. Super. 1997) (applying 42 Pa.C.S. § 542); see also 42 Pa.C.S. §

323.8

        In the present case, we have jurisdiction over this appeal.      See

Pa.R.A.P. 311(a)(4) (permitting interlocutory appeal as of right from “[a]n

order that grants or denies, modifies or refuses to modify, continues or

refuses to continue, or dissolves or refuses to dissolve an injunction”)

Pa.R.C.P. 1531(c) (stating “[a]ny party may move at any time to dissolve an

injunction.”); see also Pa.R.A.P. 903(a) (establishing general rule that “the

8
   In Menna, this Court pithily characterized the underlying litigation as
follows:

          If at first you don’t succeed, sue, sue again.        This,
          apparently, is appellant’s adopted mantra . . . . While the
          zealous protection of one’s rights is to be admired, there
          comes a time when one’s zealous advocacy can better be
          described as vexatious, malicious and frivolous.

Menna, 690 A.2d at 301.

     Although not applicable in the present case, we note that the
Pennsylvania Supreme Court in 2010 adopted Pa.R.C.P. 233.1, explaining:

          It has come to the attention of the Supreme Court that
          certain litigants are abusing the legal system by repeatedly
          filing new litigation raising the same claims against the
          same defendant even though the claims have been
          previously adjudicated either through settlement or
          through court proceedings. New Rule 233.1 provides relief
          to a defendant who has been subjected to this type of
          repetitive litigation. While attorneys are subject to the
          rules of disciplinary procedure, no analogous rule exists to
          curb this type of abuse when done by a pro se party.

Pa.R.C.P. 233.1 cmt.




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notice of appeal . . . shall be filed within 30 days after the entry of the order

from which the appeal is taken). Nevertheless, it is apparent that Appellant

is   attempting   to   relitigate   whether     his   petition   for   appointment   of

administrator was filed in 2009 and whether he is entitled to proceed in

forma pauperis in his attempts to reopen the Estate. It is further apparent

that in so doing, Appellant seeks to resuscitate his various claims regarding

the administration of the Estate, as well as his ancillary attempts to gain

standing to sue on behalf of the Estate.

       Under the circumstances of this case, we conclude that Appellant’s

present appeal, does not merit further consideration under the doctrine of

the law of the case. Appellant’s motion to dissolve an injunction cannot be

used to revive matters that should have been raised in appeals from prior

orders or which have been previously litigated.            Cf. Nether Providence

Twp. v. Coletta, 133 A.3d 86, 91-92 (Pa. Cmwlth. 2016) (noting “[a]n

injunction may be modified or dissolved upon a showing of changed

circumstances that have occurred since the issuance of the injunction[, such

as] a change in the controlling facts on which the injunction rested or a

change in the law.” (citations omitted)). The Estate has been closed, and

Appellant’s appeals from that matter have been denied. The June 10, 2009

order, which Appellant is presently litigating, has been affirmed by this

Court. Appellant’s collateral challenge to the June 10, 2009 order by petition




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for writ of mandamus has been denied.          In short, we discern no basis to

revisit these decisions and dismiss this appeal.

        Appeal dismissed. Application for mandamus denied.

        Judge Solano did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2017




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