Weisberg v. Bansley

• Decision Date: 14 February 2023
• Docket Number: 695 MDA 2021,J-A19021-22
• Court: Superior Court of Pennsylvania
• Parties: MATTHEW WEISBERG D/B/A WEISBERG LAW Appellant v. ETHEL BANSLEY F/K/A ETHEL CRISALLI, JOHN APPLETON D/B/A POWELL & APPLETON, P.C. F/D/B/A NOGI, APPLETON, WEINBERGER AND WREN, P.C., NOGI, APPLETON, WEINBERGER AND WREN, P.C., POWELL AND APPLETON, P.C., JOHN MULCAHEY D/B/A MUNLEY LAW, P.C., MUNLEY LAW, P.C., EDWARD MCKARSKI D/B/A LAW OFFICE OF EDWARD MCKARSKI, AND LAW OFFICE OF EDWARD MCKARSKI Appellees

MATTHEW WEISBERG D/B/A WEISBERG LAW Appellant
v.
ETHEL BANSLEY F/K/A ETHEL CRISALLI, JOHN APPLETON D/B/A POWELL & APPLETON, P.C. F/D/B/A NOGI, APPLETON, WEINBERGER AND WREN, P.C., NOGI, APPLETON, WEINBERGER AND WREN, P.C., POWELL AND APPLETON, P.C., JOHN MULCAHEY D/B/A MUNLEY LAW, P.C., MUNLEY LAW, P.C., EDWARD MCKARSKI D/B/A LAW OFFICE OF EDWARD MCKARSKI, AND LAW OFFICE OF EDWARD MCKARSKI Appellees

No. 695 MDA 2021

No. J-A19021-22

Superior Court of Pennsylvania

February 14, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered May 20, 2021 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2020-04432

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

KING, J.

Appellant, Matthew Weisberg d/b/a Weisberg Law, appeals from the order entered in the Lackawanna County Court of Common Pleas, which sustained the preliminary objections filed by Appellees, Ethel Bansley f/k/a Ethel Crisalli ("Bansley"), John Appleton d/b/a Powell & Appleton, P.C., f/d/b/a

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Nogi, Appleton, Weinberger & Wren, P.C., Nogi, Appleton, Weinberger & Wren, P.C., Powell & Appleton, P.C., (collectively, "Appleton Defendants" or "Appleton"), John Mulcahey d/b/a Munley Law, P.C., Munley Law, P.C., (collectively, "Mulcahey Defendants" or "Mulcahey"), Edward McKarski d/b/a Law Office of Edward McKarski, and Law Office of Edward McKarski, (collectively, "McKarski Defendants"), and dismissed Appellant's Dragonetti Act claims.^[1] We affirm.

The relevant facts and procedural history of this case are as follows. In October 2015, the Appleton Defendants, through the Mulcahey Defendants, filed suit against Appellant and Bansley for wrongful use of civil proceedings^[2]

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("the 2015 action") stemming from an earlier legal malpractice suit.^[3] Bansley, through the McKarski Defendants, filed a crossclaim against Appellant on March 11, 2016. Appellant filed preliminary objections to the Appleton Defendants' complaint, which the court sustained and dismissed Appellant from the 2015 action on April 15, 2016. The court subsequently sustained Appellant's preliminary objections to Bansley's crossclaim and dismissed the crossclaim with prejudice on December 12, 2016. On July 10, 2017, the Appleton Defendants filed a praecipe for discontinuance with prejudice. That same day, the clerk entered an order for discontinuance.

Appellant initiated the instant matter on August 5, 2019, by filing a complaint in the Philadelphia County Court of Common Pleas. He thereafter filed an amended and second amended complaint. The second amended complaint filed on January 8, 2020, included count I-wrongful use of civil proceedings against the Appleton Defendants and Mulcahey Defendants; and count II-wrongful use of civil proceedings against the McKarski Defendants and Bansley. Appellant's claims were based on the allegedly improper filing

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of the 2015 action against Appellant, and Bansley's related crossclaim against Appellant. On July 30, 2020, the trial court sustained preliminary objections challenging venue and transferred the matter to Lackawanna County.

On November 16, 2020, Appellees filed preliminary objections which, inter alia, raised a statute of limitations defense asserting that Appellant filed his complaint beyond the applicable two-year statute of limitations. Appellant responded to the preliminary objections, but he did not file preliminary objections to Appellees' preliminary objections or seek to strike the statute of limitations affirmative defense. The court directed the parties to file supplemental briefs regarding the statute of limitations issue and entertained argument on the parties' respective positions on February 19, 2021.

On May 20, 2021, the court issued an order and opinion sustaining Appellees' preliminary objections. The trial court decided that the 2015 action was terminated when the Appleton Defendants voluntarily discontinued it with prejudice on July 10, 2017. The court also found that the instant claims for wrongful use of civil proceedings, filed two years and twenty-six days after termination of the 2015 action, was time barred by the applicable two-year statute of limitations period. Accordingly, the court dismissed Appellant's claims against all defendants. Appellant filed a timely notice of appeal on June 1, 2021. That same day, the court ordered Appellant to file a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Appellant timely filed his concise statement on June 21, 2021.

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Appellant raises two issues on appeal.

1. Whether the trial court erred in taking judicial notice that the Clerk of Judicial Records "immediately gave written notice of the entry of the discontinuance order" to Appellant in the underlying Dragonetti matter where the docket for the underlying Dragonetti matter contradicts such a mailing occurred and Appellant averred in the operative complaint that he did not receive any such mailing?

2. Whether the trial court erred in determining that the final order in the underlying Dragonetti matter was not appealable when it failed to consider the previously-entered, interlocutory orders that aggrieved there-co-defendant, Bansley?

(Appellant's Brief at 4) (unnecessary capitalization omitted).

Preliminarily, we consider whether the trial court had the authority to consider the statute of limitations defense raised in Appellees' preliminary objections. "Generally, a statute of limitations defense is properly raised in new matter and not in preliminary objections." Sayers v. Heritage Valley Med. Grp., Inc., 247 A.3d 1155, 1159 (Pa.Super. 2021) (citing Pa.R.C.P. 1030(a) (stating: "all affirmative defenses including but not limited to the defenses of...statute of limitations...shall be pleaded in a responsive pleading under the heading 'New Matter'")). When a statute of limitations defense is raised via preliminary objections, the proper challenge is to file a preliminary objection to strike the preliminary objection for failing to comply with the rule of court. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.Super. 2004).

However, in Sayers, supra, this Court explained that "while [an] affirmative defense…is generally to be [pled] in new matter, an affirmative

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defense may be raised by way of preliminary objections where it is established on the face of the complaint, or where the plaintiff fails to object to the procedural irregularity." Sayers, supra at 1160 (quoting Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa.Super. 1987), appeal denied, 519 Pa. 667, 548 A.2d 256 (1988)) (emphasis and footnote omitted).

Here, Appellees did not raise the statute of limitations defense in a new matter. Rather, they first raised their statute of limitations defense via preliminary objections to Appellant's second amended complaint after the action was transferred to Lackawanna County. Nevertheless, Appellant did not file preliminary objections to Appellees' preliminary objections, or otherwise object to the procedural irregularity. Therefore, the trial court did not err when it addressed the merits of the statute of limitations issue. See id. Accordingly, we turn to the merits of Appellant's claims.

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