                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Brown,                                :
                                 Appellant :
                                            :
      v.                                    :
                                            :
York County Prison (Medical Department), :
Prison Health Services, Inc., c/k/a Corizon :
Health, Inc., Sandra M. Ulerick,            :
Jennifer Miosi, Ashley Doe, and Jane Doe :                                No. 569 C.D. 2015


                                                         ORDER


                     NOW, February 19, 2016, upon consideration of appellees’

application for reargument seeking reconsideration of the December 30, 2015

opinion and order, reconsideration is granted. To the extent the application seeks

reargument, the reargument application is denied.

                     The opinion and order filed December 30, 2015 are withdrawn.1

                     The attached opinion and order are entered.



                                                                     _____________________________
                                                                     MARY HANNAH LEAVITT,
                                                                     President Judge



1
    Judge Wojcik did not participate in the decision of this case.
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Brown,                           :
                  Appellant            :
                                       :   No. 569 C.D. 2015
            v.                         :
                                       :   Submitted: October 16, 2015
York County Prison (Medical            :
Department), Prison Health Services,   :
Inc., c/k/a Corizon Health, Inc.,      :
Sandra M. Ulerick, Jennifer Miosi,     :
Ashley Doe, and Jane Doe               :


BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                 FILED: February 19, 2016


            Lamar Brown (Brown) appeals, pro se, from the September 30, 2014,
order of the Court of Common Pleas of York County (trial court) which sustained the
preliminary objections filed by York County Prison, Prison Health Services, Inc.,
Sandra M. Ulerick, and Jennifer Miosi (collectively, Appellees) and dismissed
Brown’s complaint as untimely. Appellees have filed motions to dismiss Brown’s
appeal.


                                   Background
            On October 20, 2003, Brown entered a guilty plea to three counts of
robbery in violation of section 3701 of the Crimes Code, 18 Pa. C.S. §3701. In
October 2007, Brown filed a post-conviction motion contesting his guilty plea,
arguing that he was on medication that affected his ability to knowingly and
intelligently enter a guilty plea.   Brown’s court-appointed attorney attempted to
obtain from Appellees Brown’s medical records dating from 2003, but was
unsuccessful, and on October 31, 2011, the trial court denied Brown’s motion.


                                   Civil proceedings
             On November 4, 2013, Brown filed a complaint against Appellees,
alleging fraud, professional negligence, failure to train employees, and violations of
his First and Fourteenth Amendment rights. Brown alleged that Appellees destroyed
or lost his medical records, which would have confirmed that he was given
medications that affected his ability to knowingly and intelligently enter a guilty plea.
             In March 2014, Appellees filed preliminary objections to Brown’s
complaint, asserting, among other things, that Brown’s claims were barred by the
two-year statute of limitations for tort actions and by governmental immunity.
Brown did not file any response. The trial court sustained the preliminary objections
by order dated September 30, 2014, and dismissed Brown’s complaint on the ground
that his claims were filed five days beyond the two-year statute of limitations.
             Brown filed a notice of appeal with the Superior Court, which initially
dismissed the appeal because Brown failed to complete and file a docketing statement
pursuant to Pa.R.A.P. 3517. Brown then filed an application for reconsideration,
which the Superior Court granted. Subsequently, the Superior Court transferred the
matter to this Court. On December 1, 2014, Brown filed a statement of errors
complained of on appeal, asserting that his complaint was timely filed under the
prisoner mailbox rule.



                                            2
              In August 2015, Appellees filed motions to dismiss, alleging that Brown
had waived the sole issue he seeks to raise on appeal. Subsequently, this Court
granted Appellees’ applications to suspend the briefing schedule pending resolution
of the issues presented in their motions to dismiss. On August 25, 2015, Brown filed
a response to the applications for relief, arguing that Appellees’ preliminary
objections did not contain a notice to plead and therefore no responsive pleading was
required. On August 31, 2015, this Court ordered that the motions to dismiss be
decided along with the merits of the appeal.


                                    Prisoner mailbox rule
              On appeal, Brown argues that his complaint was timely filed according
to the prisoner mailbox rule, under which a prisoner’s pro se appeal is deemed filed at
the time it is given to prison officials or placed in the prison mailbox. Brown asserts
that on October 15, 2013, he sealed his complaint in an envelope, addressed it to the
York County Prothonotary, and filled out a cash slip, which reflects the date and the
recipient of the envelope. A copy of the cash slip, a copy of an envelope addressed to
Brown from the Office of the Prothonotary of York County, and a copy of a
handwritten note are attached to Brown’s brief as Exhibits A, B, and C.1 Relying on
the prisoner mailbox rule, Brown contends that his complaint was filed when it was
given to prison authorities on October 15, 2013, two weeks prior to the expiration of
the statute of limitations on October 31, 2013.
              In Smith v. Pennsylvania Board of Probation and Parole, 683 A.2d 278
(Pa. 1996), our Supreme Court held that state appellate courts should consider a pro

       1
          Appellees note that these documents were not submitted to the trial court and thus are not
part of the official record transmitted to this Court.



                                                 3
se inmate’s appeal from a governmental agency decision to be filed when the appeal
is given to prison officials or placed in the prison mailbox. In its opinion, the court
took notice of the special circumstances of an appellant who is incarcerated at the
time of his appeal and who acts pro se. The court also noted the following language
of the United States Supreme Court in Houston v. Lack, 487 U.S. 266 (1988):

             The situation of prisoners seeking to appeal without the aid
             of counsel is unique. Such prisoners cannot take the steps
             other litigants can take to monitor the processing of their
             notices of appeal and to ensure that the court clerk receives
             and stamps their notices of appeal before the 30-day
             deadline. Unlike other litigants, pro se prisoners cannot
             personally travel to the courthouse to see that the notice is
             stamped “filed” or to establish the date on which the court
             received the notice. Other litigants may choose to entrust
             their appeals to the vagaries of the mail and the clerk’s
             process for stamping incoming papers, but only the pro se
             prisoner is forced to do so by his situation. And if other
             litigants do choose to use the mail, they can at least place
             the notice directly into the hands of the United States Postal
             Service (or a private carrier); and they can follow its
             progress by calling the court to determine whether the
             notice has been received and stamped, knowing that if the
             mail goes awry they can personally deliver notice at the last
             moment or that their monitoring will provide them with
             evidence to demonstrate either excusable neglect or that the
             notice was not stamped on the date the court received it.

Smith, 683 A.2d at 281 (quoting Houston, 487 U.S. 270-71).
             Acknowledging that Houston involved an interpretation of a federal rule
of procedure, the court in Smith concluded that the observations and concerns
articulated in Houston were equally applicable to pro se prisoners in this
Commonwealth. Thus, in Smith the court held that “in the interest of fairness, a pro
se prisoner’s appeal shall be deemed to be filed on the date that he delivers the appeal



                                           4
to prison authorities and/or places his notice of appeal in the institutional mailbox.”
Smith, 683 A.2d at 281.
               Subsequently, in Commonwealth v. Jones, 700 A.2d 278 (Pa. 1996), our
Supreme Court expanded its holding in Smith and held that the prisoner mailbox rule
applied not only to appeals from agency decisions but to all appeals filed by pro se
prisoners. On appeal, Brown claims that this matter is controlled by the holding in
Jones, and he argues that his complaint should be deemed timely filed under the
prisoner mailbox rule.2
               Where a trial court dismisses a complaint based on preliminary
objections, this Court’s review is limited to determining whether the trial court
committed an error of law or an abuse of discretion. Podolak v. Tobyhanna Township
Board of Supervisors, 37 A.3d 1283, 1286-87 (Pa. Cmwlth. 2012). In this instance,
the trial court sustained Appellees’ preliminary objections based on the statute of
limitations and did not address immunity or any other grounds for dismissal asserted
by Appellees.


                                              Waiver
               Preliminarily, we address Appellees’ collective argument that Brown
waived the question of whether the prisoner mailbox rule applies to the filing of his
complaint because Brown failed to raise this issue before the trial court. Pa.R.A.P.
302(a) states: “Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Appellees argue that Brown did not attempt to assert a


       2
         We note that in Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super. 2001), the Superior Court
held that the prisoner mailbox rule applies to all pro se filings by incarcerated litigants, including
civil matters.



                                                  5
claim based on the prisoner mailbox rule prior to his appeal to this Court, and they
note that Brown did not respond to Appellees’ preliminary objections and has not
identified in his appellate brief where that issue was preserved.
              “[Pa.R.A.P.] 302(a) clearly states that issues not raised in the trial court
are waived and cannot be raised for the first time on appeal.” Siegfried v. Borough of
Wilson, 695 A.2d 892, 894 (Pa. Cmwlth. 1997).                     Pennsylvania courts “have
consistently held that issues not raised in the court below are waived and cannot be
raised for the first time [on appeal].” Commonwealth v. Piper, 328 A.2d 845, 847
(Pa. 1974); Siegfried, 695 A.2d at 894. Indeed, an appellate court may sua sponte
refuse to address an issue raised on appeal that was not raised and preserved below,
or pursuant to opposing counsel’s motion to dismiss for failure to preserve the
question below pursuant to Pa.R.A.P. 1972(a)(5).3 Siegfried, 695 A.2d at 894. In
addition, we have previously held that issues that were not raised before the trial
court cannot be raised in a statement of errors complained of. Commonwealth v.
Deloach, 714 A.2d 483, 486 n.8 (Pa. Cmwlth. 1998); Rutledge v. Department of
Transportation, 508 A.2d 1306, 1307-08 (Pa. Cmwlth. 1986).

              However, affirmative defenses, including statute of limitations, are
governed by Rule 1030, which provides in relevant part as follows:

              (a) Except as provided by subdivision (b), all affirmative
              defenses including but not limited to the defenses of accord
              and satisfaction, arbitration and award, consent, discharge
              in bankruptcy, duress, estoppel, failure of consideration, fair
              comment, fraud, illegality, immunity from suit,

       3
         Pa.R.A.P. 1972(a)(5) states: “Except as otherwise prescribed by this rule, subject to Rule
123 (applications for relief), any party may move . . . [t]o dismiss for failure to preserve the
question below, or because the right to an appeal has been otherwise waived.”




                                                6
               impossibility of performance, justification, laches, license,
               payment, privilege, release, res judicata, statute of frauds,
               statute of limitations, truth and waiver shall be pleaded in a
               responsive pleading under the heading “New Matter”. A
               party may set forth as new matter any other material facts
               which are not merely denials of the averments of the
               preceding pleading.

Pa.R.C.P. No. 1030(a). Subsection (a) of Rule 1030 “is very broad and is designed
for the purpose of putting plaintiffs on notice of what defenses to prepare for.”
Kituskie v. Corbman, 714 A.2d 1027, 1032 n.8 (Pa. 1998).

               Rule 1028 governs preliminary objections, and subsection (a) sets forth
the limited grounds that may be asserted.4 As highlighted by a note to Rule 1028(a),
the defense of the bar of a statute of frauds or statute of limitations can be asserted
only in a responsive pleading as new matter under Rule 1030.

               On appeal, however, Brown does not challenge Appellees’ preliminary
objections on that basis. Rather, in his response to Appellees’ motions to dismiss
based on waiver, Brown argues that he did not waive the application of the prisoner
mailbox rule by failing to respond to Appellees’ preliminary objections because the
preliminary objections did not include a notice to plead.                   We have previously
recognized that where a preliminary objection raises an issue that cannot be decided
from the facts of record, the preliminary objection must be endorsed with a notice to


       4
          Rule 1028(a) states that preliminary objections may be filed by any party to any pleading
and are limited to the following grounds: (1) lack of personal or subject matter jurisdiction;
improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a
pleading to conform to law or rule of court, or inclusion of scandalous or impertinent matter; (3)
insufficient specificity in a pleading; (4) legal insufficiency of a pleading; (5) lack of capacity to
sue, nonjoinder of a necessary party or misjoinder of a cause of action; (6) pendency of a prior
action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory
remedy; and (8) a full, complete and adequate non-statutory remedy at law. Pa.R.C.P. No. 1028(a).




                                                  7
plead or no response will be required under Pa.R.C.P. No. 1029(d).5 Corbett v.
Desiderio, 698 A.2d 134, 137 (Pa. Cmwlth. 1997). See also Cooper v. Church of St.
Benedict, 954 A.2d 1216, 1221 (Pa. Super. 2008) (when an issue raised cannot be
decided based on facts of record, i.e., the complaint, the preliminary objections must
be endorsed with a notice to plead, otherwise all the averments in the preliminary
objections are deemed denied).
              Here, none of the Appellees’ preliminary objections, with the exception
of the preliminary objections of Appellee Prison Health Services, Inc., contain a
notice to plead. To the extent that the parties’ preliminary objections were not
endorsed with a notice to plead, all of the allegations in the preliminary objections,
and specifically the allegation as to the date of filing of the complaint, were denied by
Brown by operation of the Pennsylvania Rules of Civil Procedure. Consequently,
Brown’s failure to file a formal response to the preliminary objections lacking such
notice to plead does not constitute a waiver of the prisoner mailbox rule. However,
Brown’s failure to file a response to the preliminary objections of Appellee Prison
Health Services, Inc., mandates a contrary result, including the dismissal of Brown’s
appeal insofar as it relates to them.
              Because the record before the trial court presented contested issues of
fact as to when the complaint was filed for purposes of the prisoner mailbox rule, the
trial court erred in dismissing Brown’s complaint as untimely as to the remaining
Appellees. Accordingly, we grant the motion of Prison Health Services, Inc., to
dismiss Brown’s appeal insofar as it relates to them, deny the remaining Appellees’



       5
          Rule 1029(d) states that “averments in a pleading to which no responsive pleading is
required shall be deemed denied.”



                                              8
motions to dismiss, vacate the trial court’s order, and remand the matter to the trial
court for further proceedings as to the remaining Appellees.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamar Brown,                                :
                         Appellant          :
                                            :    No. 569 C.D. 2015
            v.                              :
                                            :
York County Prison (Medical                 :
Department), Prison Health Services,        :
Inc., c/k/a Corizon Health, Inc.,           :
Sandra M. Ulerick, Jennifer Miosi,          :
Ashley Doe, and Jane Doe                    :


                                       ORDER


            AND NOW, this 19th day of February, 2016, the motion of Prison
Health Services, Inc., c/k/a Corizon Health Services, Inc., to dismiss the appeal of
Lamar Brown insofar as it relates to them is granted. The motions to dismiss filed
by York County Prison (Medical Department), Sandra M. Ulerick, and Jennifer
Miosi are denied. The September 30, 2014, order of the Court of Common Pleas
of York County is vacated and the matter is remanded to that court for further
proceedings consistent with this opinion.
            Jurisdiction relinquished.



                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge
