J-S49035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELWOOD SMALL                                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

RENATO DIAZ, M.D., ET AL,

                        Appellee                  No. 2060 MDA 2013


              Appeal from the Order Entered October 16, 2013
              In the Court of Common Pleas of Luzerne County
                     Civil Division at No(s): 2006-14185


BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 28, 2015

     Appellant, Elwood Small, appeals pro se from an order entering

summary judgment on October 16, 2013. On appeal, Appellant challenges a

prior, interlocutory order entered on March 12, 2008 that sustained

preliminary objections filed by the Pennsylvania Department of Corrections

(DOC). After careful review, we affirm.

     Appellant is an inmate within the state correctional system.         In

December 2004 and January 2005, Appellant was confined at the State

Correctional Facility at Retreat in Luzerne County.   The defendants in this

case are Prison Health Services, Inc. (PHS), Renato Diaz, M.D., Stephen

Evans, D.O., and DOC.

     The factual background in this case is straightforward.       Appellant

alleges that on December 20, 2004, he sustained injuries after he slipped
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and fell on a broken ceramic floor tile while working in the kitchen at

SCI-Retreat.     Appellant claims that DOC’s failure to maintain the floor

surface caused the deteriorated condition that caused his fall. Appellant also

asserts that in January 2005, medical personnel employed by DOC at

SCI-Retreat failed to inform him to stop wearing a sling that he was using to

treat a shoulder injury sustained in his fall.        Because of this, Appellant

continued to wear the sling for five weeks, which caused reduced flexion in

his shoulder.

       The procedural history of this case is slightly more complicated.

Appellant commenced this action on December 26, 2006 by filing a praecipe

for writs of summons directed to defendants PHS and Drs. Diaz and Evans.

On May 1, 2007, Appellant filed his original complaint. Appellant’s original

complaint named the three previously referenced defendants as well as

DOC.    Thereafter, Appellant filed amended complaints on June 18, 2007,

September 19, 2007, and October 26, 2007.

       DOC   filed   preliminary   objections   to   Appellant’s   third   amended

complaint on December 20, 2007. In addition to insufficient specificity and

failure to include certificates of merit, DOC’s preliminary objections argued

that the two-year statute of limitations on negligence actions barred

Appellant’s claims.     See 42 Pa.C.S.A. § 5524.         In response, Appellant

submitted      preliminary   objections   to    DOC’s    preliminary       objections

maintaining, pursuant to Pa.R.C.P. 1030(a), that DOC should have raised its

statute of limitations defense as “new matter” within a responsive pleading

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and not within its preliminary objections.          See Pa.R.Civ.P. 1030(a) (“all

affirmative defenses including but not limited to the … statute of limitations

… shall be pleaded in a responsive pleading under the heading ‘New

Matter’”).    By letter dated January 4, 2008, the Prothonotary of Luzerne

County returned Appellant’s preliminary objections unfiled, explaining that

such filings must be submitted together with a supporting brief. Letter from

Prothonotary, 1/4/08.        The Prothonotary’s letter further explained that if

Appellant sought to file his objections, he needed to return them with a

supporting memorandum.           Id.    The record does not reflect that Appellant

filed his preliminary objects along with a brief in support.        On March 12,

2008, the trial court entered an order that sustained DOC’s preliminary

objections and dismissed Appellant’s claims.1

       On November 28, 2012, the remaining defendants, PHS and Drs. Diaz

and Evans, moved for summary judgment.               The trial court granted their

motion on October 16, 2013. Thereafter, Appellant filed a notice of appeal

on November 15, 2013.

____________________________________________


1
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal and it issued no opinion setting forth its rationale
for sustaining DOC’s preliminary objections. Our review of the record,
however, reveals that Appellant eventually filed certificates of merit from a
chiropractor. In addition, insufficient specificity of pleading (the other basis
of DOC’s objections) ordinarily is not a dispositive ground for relief but
allows a pleader to amend his submission. As such, we read the trial court’s
order as based on the determination that the two-year statute of limitations
applicable to negligence actions barred Appellant’s claims.



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J-S49035-15



      Appellant alleges on appeal that the trial court erred in sustaining

DOC’s preliminary objections on statute of limitations grounds.       Before we

undertake a substantive review of Appellant’s claim, we address a

procedural irregularity that appears in the record and which Appellant

alludes to in his brief. See Appellant’s Brief at 4 (statute of limitations is an

affirmative defense that should have been asserted as new matter rather

than by way of preliminary objections).

      As stated previously, DOC filed preliminary objections on the strength

of its contention that Appellant’s claims fell outside the two-year limitations

period.   Where a litigant asserts the statute of limitations by way of

preliminary objections, we have previously observed:

      The existence of a statute of limitation which cuts off a remedy
      does not constitute a defect in the “form of service.”
      Farinacci v. Beaver County Indus. Development Authority,
      511 A.2d 757 (Pa. 1986) (emphasis added).               Thus, an
      affirmative defense of a statute of limitations is not properly
      raised in preliminary objections; it is properly raised in new
      matter. Id.; Pa.R.C.P. 1028; 1030. Additionally, a statute of
      limitations affirmative defense cannot be raised in preliminary
      objections in the nature of a demurrer, unless the particular
      statute of limitations is nonwaivable. Reuben v. O'Brien, 372,
      445 A.2d 801 (Pa. Super. 1982). When a defendant raises a
      waivable statute of limitations via preliminary objections, the
      proper challenge is to file preliminary objections to strike the
      defendant's preliminary objections for failure of a pleading to
      conform to law or rule of court. Farinacci, supra; Pa.R.C.P.
      1028(a)(2).

Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004).

      This rule is subject to waiver, however. “Where a party erroneously

asserts substantive defenses in preliminary objections rather than to raise

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these defenses by answer or in new matter, the failure of the opposing party

to file preliminary objections to the defective preliminary objections, raising

the erroneous defenses, waives the procedural defect and allows the trial

court to rule on the preliminary objections.” Richmond v. McHale, 35 A.3d

779, 782-783 (Pa. Super. 2012), quoting Preiser v. Rosenzweig, 614 A.2d

303, 305 (Pa. Super. 1992).

      In this case, DOC erroneously asserted the statute of limitations in its

preliminary objections and Appellant responded by objecting to DOC’s filing.

The Prothonotary, however, rejected Appellant’s submission on grounds that

the local rules of court for Luzerne County require that all preliminary

objections be accompanied by a brief.      Letter from Prothonotary, 1/4/08;

Luz.C.R.P. 1028(c)(1) (requiring comprehensive brief to accompany all

preliminary objections).    Rule 239.5 of the Pennsylvania Rules of Civil

Procedure directs the courts of common pleas to promulgate local rules

governing the manner in which preliminary objections are scheduled,

argued, and decided, including whether briefs must be submitted. Pa.R.C.P.

239.5.   Since the Prothonotary properly rejected Appellant’s objections

pursuant to local and statewide procedural rules and since Appellant never

resubmitted his objections along with a brief, Appellant waived any objection

to the form and content of DOC’s preliminary objections and the trial court

was free to rule on its submission. Richmond, supra.




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      We turn now to consider the substance of Appellant’s claims.           The

standard of review we apply when considering an order sustaining

preliminary objections is well settled.

      [O]ur standard of review of an order of the trial court overruling
      or [sustaining] preliminary objections is to determine whether
      the trial court committed an error of law. When considering the
      appropriateness of a ruling on preliminary objections, the
      appellate court must apply the same standard as the trial court.

      Preliminary objections in the nature of a demurrer test the legal
      sufficiency of the complaint.       When considering preliminary
      objections, all material facts set forth in the challenged pleadings
      are admitted as true, as well as all inferences reasonably
      deducible therefrom.      Preliminary objections which seek the
      dismissal of a cause of action should be sustained only in cases
      in which it is clear and free from doubt that the pleader will be
      unable to prove facts legally sufficient to establish the right to
      relief. If any doubt exists as to whether a demurrer should be
      sustained, it should be resolved in favor of overruling the
      preliminary objections.

Richmond, 35 A.3d at 783.

      The statute of limitations for personal injury actions is two-years. 42

Pa.C.S.A. § 5524.    Here, Appellant’s complaint alleged that he sustained

injuries when he tripped and fell on a broken floor tile in the kitchen at SCI-

Retreat on December 20, 2004.         Appellant also alleged that unidentified

medical personnel employed by DOC failed to execute a medical order issued

by a prison physician in January 2005.       Since Appellant did not file his

complaint against DOC until May 1, 2007, his negligence claims against the

Department are barred by the applicable statute of limitations.




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       In his brief, Appellant argues that the discovery rule tolls the

limitations period in this case. Specifically, Appellant asserts that it was not

until March 7, 2007 that he knew or had reason to know that he sustained

an injury.2      See Appellant’s Brief at 4; Appellant’s Reply Brief at 1.

Appellant never raised this issue before the trial court. Hence, Appellant has

waived this contention and he is not entitled to relief.      Pa.R.A.P. 302(a)

(issues not raised before the trial court cannot be raised for the first time on

appeal).

       Order affirmed.       Motion to dismiss appeal filed by Department of

Corrections denied.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




____________________________________________


2
  Despite this assertion, we note that Appellant filed writs of summons
against the original defendants, PHS and Drs. Diaz and Evans, in December
2006.



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