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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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