J. S36020/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


MICHAEL J. MELNICK                :               IN THE SUPERIOR COURT OF
                                  :                    PENNSYLVANIA
                   Appellant      :
                                  :
              v.                  :
                                  :
THE PENNSYLVANIA STATE UNIVERSITY :               No. 1823 MDA 2015

               Appeal from the Order Entered September 23, 2015
                 In the Court of Common Pleas of Centre County
                         Civil Division No(s): 2013-3325

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 24, 2016

        Appellant, Michael J. Melnick, appeals pro se from the Order entered in

the Centre County Court of Common Pleas on September 23, 2015, granting

the Motion for Summary Judgment filed by Appellee, The Pennsylvania State

University, on statute of limitations grounds, and dismissing Appellant’s

Amended Complaint with prejudice. We affirm.

        The relevant facts and procedural history are as follows. On December

18, 2006, approximately six months after Appellee terminated Appellant

from Appellee’s Master of Science in Computer Science program for failing to

maintain the minimum required grade point average, Appellant filed a

complaint with the Pennsylvania Human Relations Commission (“PHRC”). In

his complaint, Appellant alleged that Appellee failed to accommodate and/or


*
    Former Justice specially assigned to the Superior Court.
J.S36020/16


discriminated against Appellant on the basis of his disability.   The PHRC

closed Appellant’s claim on April 10, 2008, concluding that Appellant did not

establish a basis for relief.

      On August 26, 2013, Appellant filed a pro se1 Complaint in the Centre

County Court of Common Pleas purporting to raise a discrimination claim

under the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq.

On September 18, 2013, Appellee filed Preliminary Objections to the

Complaint, which the trial court sustained in part and overruled in part on

December 13, 2013.

      On December 31, 2013, Appellant amended his Complaint.          In the

Amended Complaint, Appellant alleged he suffered from a disability (Crohn’s

Disease), that Appellant and his parents informed Appellee of his need to be

accommodated for the effects of his medical condition on his academic

performance, and Appellee did not provide an accommodation as was

reasonable.

      On January 17, 2014, Appellee filed an Answer with New Matter to

Appellant’s Amended Complaint, to which Appellant filed a Reply on February

5, 2014.

      On May 27, 2014, Appellant sent Appellee a first set of Requests for

Production of Documents. On September 4, 2014, the court entered a Case


1
 Private counsel represented Appellant during Appellant’s PHRA claim, but
Appellant has been pro se at all times since.



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Management Order setting the discovery deadline in the case for December

5, 2014.    Appellant sent a second set of Requests for Production of

Documents on September 15, 2014, and a first set of Interrogatories on

November 3, 2014, a mere 33 days before the discovery deadline. The first

set of Interrogatories contained 273 questions and subparts.

     On November 10, 2014, Appellant filed Motions to Extend Discovery

Deadline and to Compel.    Appellee filed a Motion for Protective Order on

November 14, 2014, seeking to prevent it from being required to provide

responses to Appellant’s discovery requests. The trial court held a hearing

on the parties’ Motions on December 18, 2014, after which it denied

Appellant’s Motions and granted Appellee’s Motion.   In doing so, the court

concluded that Appellant failed to demonstrate either “materiality [or] due

diligence with respect to the requested discovery, and the interrogatories

served on [Appellee] are clearly excessive given their number and the

limited time [Appellee] had to produce a response.”        Trial Ct. Order,

12/18/2014.

     After completing discovery, Appellee filed a Motion for Summary

Judgment on March 27, 2015, in which it averred that Appellant’s cause of

action was not timely filed and was barred by the two-year statute of

limitations provided for in the PHRA.   Appellee also averred that Appellant

failed to set forth a prima facie case of disability discrimination based on

failure to accommodate.



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     Appellant filed a response to Appellee’s Motion for Summary Judgment

on April 27, 2015.   The trial court held a hearing on Appellee’s Motion on

August 27, 2015. On September 23, 2015, the trial court granted Appellee’s

Motion   for   Summary    Judgment    and   dismissed   Appellant’s   Amended

Complaint with prejudice. Appellant timely appealed on October 19, 2015.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant raises the following seven issues on appeal:

         [1.]     Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion in granting Appellee’s
         Motion for Summary Judgment and dismissing Appellant’s
         Amended Complaint with prejudice?

         [2.]     Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion in holding that the
         January 5, 2010 email is functionally equivalent to a
         closure letter and/or that the date of notice from the PHRC
         closing Appellant’s Complaint occurred prior to August 31,
         2011?

         [3.]     Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion in holding that the content
         of a November 30, 2010 email indicate[d] that Appellant
         was aware of possible statute of limitations issues and/or
         that Appellant’s attorney “reiterated” information related to
         the statute of limitations in the email?

         [4.]    Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion in holding that a letter
         dated December 20, 2011[,] notifying Appellant that his
         request for a Preliminary Hearing with the PHRC was
         denied is consistent with the statute of limitations
         beginning to run on January 5, 2010?

         [5.]      Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion and/or prejudiced
         Appellant by the appearance of impropriety when it failed
         to disclose that, prior to being elected to the [c]ourt, Judge


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         Ruest was formerly an attorney and partner at McQuaide
         Blasko, the same law firm that is representing Appellee?

         [6.]     Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion when it denied Appellant’s
         Motion to Extend Discovery and granted Appellee’s Motion
         for Protective order on December 18, 2014?

         [7.]     Whether the [t]rial [c]ourt committed an error of
         law and/or abused its discretion to the extent it relied on
         incorrect and/or misleading statements made on behalf of
         Appellee, both written in its Brief in Support of its Motion
         for Summary Judgment and given orally during argument
         on August 27, 2015, concerning emails between Appellant
         and his former counsel dated November 28 and 30, 2010?

Appellant’s Brief at 4-6.

      As Appellant’s first four issues on appeal are interrelated, we address

them together. In those issues, Appellant challenges the trial court’s order

entering summary judgment in favor of Appellee.         Appellant essentially

argues that the trial court erred in determining that there was no genuine

issue of material fact concerning when Appellant had notice that the PHRC

had closed his PHRA discrimination claim. He claims the trial court erred in

establishing that Appellant had notice that his PHRA claim was closed not

later than January 5, 2010, and in concluding that the statute of limitations

for filing a civil complaint set forth in the PHRA ran prior to his filing his

Complaint.

      Appellant avers that the date upon which he became aware that the

PHRC closed his case is a fact disputed by the parties. He argues that he

became aware that the PHRC had closed his case no earlier than August 31,



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2011, when he received an email informing him that the PHRC had sent him

a letter on April 10, 2008 notifying him that his case was closed, and

possibly as late as September 2, 2011, when he actually received a copy of

the April 10, 2008 letter. He claims that he timely filed his Complaint within

two years of that date on August 26, 2013. Id. at 20. Appellee argues, on

the other hand, that the trial court correctly determined that Appellant

received notice via email from the PHRC on January 5, 2010, that it had

closed his case. Appellee concludes, therefore, that Appellant’s Complaint is

untimely.

      Summary judgment is appropriate (1) whenever there is no genuine

issue of material fact as to a necessary element of the cause of action or

defense which could be established by additional discovery or expert report;

or (2) if, after the completion of discovery relevant to the motion, including

the production of expert reports, an adverse party who will bear the burden

of proof at trial has failed to produce evidence of facts essential to the cause

of action or defense which in a jury trial would require the issues to be

submitted to a jury. Pa.R.C.P. 1035.2(1)-(2).

      This Court’s scope of review of the trial court’s grant of summary

judgment, as with questions of law generally, is plenary.        ADP, Inc. v.

Morrow Motors, Inc., 969 A.2d 1244, 1246 (Pa. Super. 2009). We may

not disturb the order of the trial court unless it is established that the court

committed an error of law or an abuse of discretion. Id. In evaluating the



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grant of summary judgment, we may reverse only where the trial court

erred in concluding that the matter presented no genuine issue as to any

material fact and that the moving party was entitled to judgment as a

matter of law.      Id.   We review the record in the light most favorable to

Appellant as the non-moving party.

        It is undisputed that Appellant’s discrimination claim is subject to a

two-year statute of limitations.2     The language of the statute is clear that

“[a]n action under this subsection [of the PHRA] shall be filed within two



2
    With respect to its statute of limitations, the PHRA, provides as follows:

           (c) (1) In cases involving a claim of discrimination, if a
           complainant invokes the procedures set forth in this act,
           that individual's right of action in the courts of the
           Commonwealth shall not be foreclosed. If within one (1)
           year after the filing of a complaint with the Commission,
           the Commission dismisses the complaint or has not
           entered into a conciliation agreement to which the
           complainant is a party, the Commission must so notify the
           complainant. On receipt of such a notice the complainant
           shall be able to bring an action in the courts of common
           pleas of the Commonwealth based on the right to freedom
           from discrimination granted by this act.

           (2) An action under this subsection shall be filed within two
           years after the date of notice from the Commission closing
           the complaint. Any complaint so filed shall be served on
           the Commission at the time the complaint is filed in court.
           The Commission shall notify the complainant of this
           requirement.

43 P.S. § 962(c)(1)-(2).




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years after the date of notice from the [c]omission closing the complaint.”

43 P.S. § 962(c)(2).

      On the issue of the timeliness of Appellant’s Complaint, the trial court

made the following findings of fact and conclusions of law:

         Here, [Appellant’s] claim with the [PHRC] was closed on
         April 10, 2008. The PHRC issued a closure letter, though
         [Appellant] claims it was not received by [Appellant] or his
         attorney at that time. Almost two years later, [Appellant]
         inquired about his case in an email sent to Yvonne Aguayo
         at the PHRC on January 4, 2010. Ms. Aguayo responded
         on January 5, 2010 stating,

            On 2/15/08, I sent you a letter which indicated that
            we did not find probable cause to support your
            complaint. On 3/7/08, your attorney submitted a
            rebuttal to my findings. On 3/21/08, I responded to
            your attorney’s rebuttal letter. Your case has since
            been closed by our agency.

         In an email dated November 30, 2010, his attorney
         reiterated to [Appellant],

            I explained that you could bring an action in state
            court immediately if you wished, using the date that
            you and I both discovered that your case was closed,
            and arguing that the statute would and should run
            from that time period.

         At that point, [Appellant] and his attorney decided to
         pursue a [p]reliminary [h]earing with the PHRC to reopen
         the case, and if unsuccessful with the PHRC, file in state
         court.    In a different email to his attorney dated
         September 4, 2011, [Appellant] states he received a copy
         of the PHRC closure letter on September 2, 2011, after
         personally requesting it from Ms. Aguayo. He also
         indicated he planned [to submit] a written Request for a
         Preliminary Hearing with the PHRC based on that date. In
         a letter dated December 20, 2011, [Appellant] was notified
         that the PHRC denied his request. [Appellant] first filed his



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       Complaint in the Court of Common Pleas on August 26,
       2013.

                                   ***

       The letter notifying [Appellant] that his case was closed is
       dated April 10, 2008. Therefore, [Appellant] had until April
       10, 2010, to file his Complaint and failed to do so. As
       such, [Appellant’s] claims are time barred.

       Accepting as true, however, that [Appellant] did not
       receive the closure letter in 2008, [Appellant] was notified
       by Ms. Aguayo on January 5, 2010[,] that his case had
       been closed with the PHRC. The statute does not require
       the notification to be in the form of a closure letter, and
       the email from Ms. Aguayo was functionally equivalent to a
       closure letter.    The email made clear the PHRC had
       dismissed the charge and decided not to pursue further
       action. [ ] Viewing the record in the light most favorable
       to [Appellant] he had until January 5, 2012, to file his
       Complaint.

       [Appellant] argues he was exhausting his administrative
       remedy before filing a Complaint in the Court of Common
       Pleas.    An email dated November 30, 2010, between
       [Appellant] and his attorney indicates that [Appellant]
       decided to pursue a [p]reliminary [h]earing with the PHRC.
       Regardless of that decision, his attorney also explained to
       him that he could file a Complaint in state court and argue
       that the statute of limitations would run from when
       [Appellant] and his attorney discovered his case was
       closed. As such, [Appellant] was aware of possible statute
       of limitations issues.

       [Appellant] waited until after he received the closure letter
       on September 2, 2011, to request a [p]reliminary
       [h]earing with the PHRC. In a letter dated December 20,
       2011, [Appellant] was notified that the PHRC denied his
       request.    This letter is consistent with the statute of
       limitations beginning to run on January 5, 2010.
       [Appellant’s] case was already dismissed, and he was
       aware that it was dismissed. The PHRC denied his request
       for a [p]reliminary [h]earing, and his case was not
       reopened.


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           [Appellant] waited to file his Complaint until August 26,
           2013. As such, [Appellant] failed to file his Complaint
           within two years of the date he received notice from the
           [c]omission that his case was closed, and his claims are
           barred by the statute of limitations.

Trial Ct. Op., 9/23/15, at 3-4.

        After a thorough review of the record, including Appellee’s Motion for

Summary Judgment, Appellant’s Response in Opposition, the numerous

appendices thereto, and the Notes of Testimony from the August 27, 2015

hearing, we agree with the trial court that there was no genuine issue of

material fact as to the date by which Appellant had notice of the closure of

his PHRA claim.      We conclude, as did the trial court, that Appellant was

aware no later than January 5, 2010, that his PHRC claim had been closed.

Consequently, Appellant was required to file a Complaint by January 5,

2012.     Appellant’s August 26, 2013 Complaint was, therefore, untimely

under the PHRA’s two-year statute of limitations.

        In his fifth issue on appeal, Appellant claims that the trial court erred

in failing to disclose that Judge Pamela A. Ruest was formerly a partner in

the law firm representing Appellee.3 Appellant has raised this issue for the

first time on appeal, therefore this claim is waived.


3
  Judge Ruest was an attorney with McQuaide Blasko until 2007, when she
was elected to the Centre County Court of Common Pleas. Appellee retained
McQuaide Blasko in 2013, more than five years after Judge Ruest had left
the firm. It is evident that Judge Ruest had no involvement with this matter
as a McQuaide Blasko attorney. It bears noting that Judge Jonathan D.



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     It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Indeed,

our Supreme Court has explained the reasons for this as follows:

        Issue preservation is foundational to proper appellate
        review. Our rules of appellate procedure mandate that
        “[i]ssues not raised in the lower court are waived and
        cannot be raised for the first time on appeal.” Pa.R.A.P.
        302(a). By requiring that an issue be considered waived if
        raised for the first time on appeal, our courts ensure that
        the trial court that initially hears a dispute has had an
        opportunity to consider the issue. Lincoln Philadelphia
        Realty Assoc. v. Bd. or Revision of Taxes of
        Philadelphia, 563 Pa. 189, 203, 758 A.2d 1178, 1186
        (2000). This jurisprudential mandate is also grounded
        upon the principle that a trial court, like an administrative
        agency, must be given the opportunity to correct its errors
        as early as possible. Wing v. Com. Unemployment
        Comp. Bd. of Review, 496 Pa. 113, 117, 436 A.2d 179,
        181 (1981). Related thereto, we have explained in detail
        the importance of this preservation requirement as it
        advances the orderly and efficient use of our judicial
        resources. See generally Dilliplaine v. Lehigh Valley
        Trust Co., 457 Pa. 255, 258–59, 322 A.2d 114, 116–17
        (1974). Finally, concepts of fairness and expense to the
        parties are implicated as well. Id.

In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010). Moreover, where there is

a failure to preserve a claim in the court below, this Court may not address

the claim sua sponte. Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).

     Appellant explains his failure to raise this issue before the trial court by

averring that he first discovered Judge Ruest’s former affiliation with

Grine presided over this matter until he recused himself on April 23, 2015.
Judge Ruest replaced Judge Grine in this matter after Judge Grine had
already denied Appellant’s request for an extension of time of the discovery
deadline.



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Appellee’s counsel’s firm while preparing his Superior Court Docketing

Statement, which he filed on November 4, 2015.4 Appellant’s Brief at 57.

      Appellant does not dispute, and the record indubitably reveals that

Appellant did not raise this claim before the trial court. Accordingly, we may

not consider it now.

      Moreover, even if Appellant had not waived this claim by failing to

raise it before the trial court, Appellant would not be entitled to relief. Here,

Appellant essentially argues that the trial court had an obligation to sua

sponte disclose to Appellant her prior affiliation with McQuaide Blasko, even

though such affiliation ended in 2008 and she was never personally involved

in this case. Appellant has failed to support this claim with citation to any

relevant authority. See Pa.R.A.P. 2119(a).

      In his sixth issue, Appellant claims the trial court erred in entering its

December 18, 2014 Order denying his Motion to Extend Discovery and

granting Appellee’s Motion for Protective Order.      He argues that the trial

court abused its discretion because he sought the extension “well in

advance” of the discovery deadline. Appellant’s Brief at 67.

4
  Notably, Appellant does not claim that he could not have known about
Judge Ruest’s prior affiliation, only that he did not know. In fact, in his
Brief, Appellant cites to articles from the Centre Daily Times and The Daily
Collegian, dating back to 2007, which substantiate his claim that Judge
Ruest was an attorney at McQuaide Blasko, and refers to the presence of
Judge Ruest’s name on McQuaide Blasko letterhead from 2006.              This
information supports the contention that Judge Ruest’s prior employment
history was available to the public and could have been discovered earlier.




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        Our standard of review of a discovery order is well-settled: “Generally,

on review of an order concerning discovery, an appellate court applies an

abuse of discretion standard [and] questions of law are afforded full

appellate review . . . .”      McNeil v. Jordan, 894 A.2d 1260, 1268 (Pa.

2006).

        Our review of the record reflects that Appellant did not begin discovery

until May 27, 2014, nine months after filing a Complaint, when he sent

Appellee his first set of Requests for Production of Documents.                   Then,

Appellant waited almost four months, until September 15, 2014, to send

Appellee a second set Appellant of Requests for Production of Documents,

and another six weeks before sending Appellee a first set of Interrogatories

on November 3, 2014, a mere 33 days before the discovery deadline.

“[F]rom     the   time   his   initial   complaint   was   filed,   [Appellant]    had

approximately four hundred and sixty-seven days to complete discovery.”

Trial Ct. Op., 12/18/14, at 1. With the December 5, 2014 discovery deadline

looming, Appellant filed a Motion for Extension of Time on November 10,

2014.

        Although the court considered Appellant’s pro se status, it concluded

that, “[Appellant] has had over a year and three months to complete his

discovery, and an extension of the deadline is not warranted[.]” Id. at 3.

The court granted Appellee’s Motion for Protective order because it found

Appellant’s discovery requests “clearly excessive and [ ] unrelated to



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[Appellant’s] case. . . .”      Id. at 2-3.    Specifically, with respect to the

interrogatories propounded upon Appellee, the court opined:

         [T]he number of interrogatories sent by [Appellant] to
         [Appellee is clearly excessive. In total, [Appellant] sent
         two hundred and seventy three questions and
         subquestions to [Appellee]. While this may not have been
         an excessive amount of interrogatories at the beginning of
         litigation, [Appellant] sent this voluminous request
         approximately thirty-three days from the close of
         discovery. This is clearly unreasonable. [ ]

         [Appellant] has shown neither materiality nor due diligence
         with respect to the requested discovery, and the
         interrogatories served on [Appellee] are clearly excessive
         given their number and the limited time [Appellant] had to
         produce a response.

Id. at 3 (citations omitted).

      We conclude that the trial court did not abuse its discretion in entering

its December 18, 2014 Order. We agree with the trial court that Appellant’s

discovery requests were unreasonably voluminous, particularly in light of the

fact that Appellant sent them to Appellee more than one year after filing his

Complaint and a mere thirty-three days before the discovery deadline. The

trial court acted appropriately in granting Appellee’s Motion for Protective

Order and denying Appellant’s Motion to Extend Discovery Deadline.

Appellant is, therefore, not entitled to relief on this claim.

      In his last issue, Appellant claims the trial court erred to the extent it

relied on statements, which Appellant characterize as misleading, made by

Appellee in support of its Motion for Summary Judgment.             Specifically,

Appellant complains that Appellee’s counsel misrepresented the contents of


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a November 28, 2010 email between Appellant and his counsel wherein they

discussed statute of limitations issues. Appellant’s brief at 68-72.

      Appellant has failed to support this claim with citation to any relevant

authority. Accordingly, it is waived. See Pa.R.A.P. 2119(a) (waiver results

when an appellant fails to properly develop an issue or cite to any authority

in support of his/her contentions).    Moreover, this claim is nothing more

than mere speculation on Appellant’s part, and is belied by the record. As

the trial court opined,

         The [c]ourt, however, reviewed the entirety of the emails
         in reaching its decision. On page 10 of [Appellee’s] Brief in
         Support of Motion for Summary Judgment, [Appellee]
         properly used an ellipsis to indicate the omission of a word
         or word from the quote in the Brief.             Further, as
         [Appellant] notes in his matters complained of on appeal,
         he specifically informed the [c]ourt of the full quote at the
         hearing. [ ] As such, the [c]ourt did not rely on incorrect
         or misleading statements.

Trial Ct. Op., 12/16/15 at 2.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2016




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