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HomeMy WebLinkAbout2012-0080 JAMES A. PALUCH, JR., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JOHN A. PALAKOVICH, ET. AL., : DEFENDANTS : NO. 12-0080 CIVIL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) Ebert, Jr., J., July 20, 2012 – FACTS On March 22, 2012, pro se petitioner, James A. Paluch, Jr., filed a complaint and a Petition for Leave to Proceed in Forma Pauperis. On March 30, 2012, this Court filed an Order of Court denying the Plaintiff’s Petition for Leave to Proceed in Forma Pauperis. This Court found that the Plaintiff’s claims sound in tort and that the alleged actions of the Defendants upon which the Plaintiff based his claim took place prior to November 1, 2009. The Plaintiff did not file his request for Writ of Summons to commence this action until January 9, 2012. This Court found that pursuant to 42 Pa.C.S.A. 5524, the statute of limitations for a tort claim is 2 years, and the Plaintiff failed to file his cause of action within the 2 year statute of limitation; therefore, he is now time barred as a matter of law. As such, the Plaintiff’s Petition for Leave to Proceed in Forma Pauperis is frivolous. On April 1, 2012, the Plaintiff filed a Motion for Reconsideration, and on April 17, 2012, this Court denied said motion. On April 19, 2012, the Plaintiff filed a Notice of Appeal with the Pennsylvania Superior Court. On May 23, 2012, this Court ordered the Appellant (pro se Plaintiff, James A. Paluch, Jr.) to file a concise statement of the errors complained of on appeal on or before June 13, 2012. The Appellant filed a “Motion for Jj Leave for Enlargement of Time to File Concise Statement for Appeal”, and on June 18, 2012, this Court granted such request and ordered the concise statement of errors complained of on appeal to be filed on or before July 13, 2012. On July 13, 2012, the Appellant filed a “Second Motion for Leave to Modify Time to File Concise Statement for Appeal”. We have not issued any Order dealing with this request. The Plaintiff avers that he has been held in solitary confinement and cannot get to a prison law library to research this Court’s alleged errors. Frankly, the Superior Court had requested that the original record to include this opinion be filed on June 25, 2012. Since this Court has no idea when the Plaintiff will be released from solitary confinement, further extensions of time to file his concise statement of errors complained of on appeal seem fruitless. Technically, given the Plaintiff’s failure to comply with this Court’s order to file a Concise Statement of Errors Complained of on Appeal, the Superior Court could hold that Plaintiff has waived his objections to our previous Order. Realistically, the only apparent legitimate claim the Plaintiff could have of error is that this Court, as a matter of law, erred when it held that the Plaintiff’s lawsuit is barred by the statute of limitations. This question obviously can be decided based on the dates found in the Plaintiff’s 43 page, 491 paragraph handwritten pro se civil complaint. Accordingly, even though he has not filed a concise statement of errors complained of on appeal, we file this opinion in support of our prior order of March 30, 2012. DISCUSSION In Ocasio v. Prison Health Services, this Honorable Court has held that “[o]ur review of a decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a 2 Jj determination of whether the Plaintiff's constitutional rights have been violated and whether the trial court abused its discretion or committed an error of law.” 979 A.2d 352, 354 (Pa. Super. Ct. 2009); Bell v. Mayview State Hospital, 853 A.2d 1058, 1060 (Pa.Super.2004) (citing McGriff v. Vidovich, 699 A.2d 797, 798 n. 2 (Pa.Cmwlth.1997)). Rule 240 provides for a procedure by which a person who is without the financial resources to pay the costs of litigation may proceed in forma pauperis. The obligation of the trial court when a party seeks to proceed under Pa.R.C.P. 240 is as follows: (j) If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma the court prior to acting upon the petition may dismiss the action pauperis, , if it is satisfied that proceeding or appeal if the allegation of poverty is untrue or the action, proceeding or appeal is frivolous . Emphasis added. “A frivolous action or proceeding has been defined as one that ‘lacks an arguable basis either in law or in fact.’ ” 979 A.2d at 354 (quoting Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). In the present case, this Court found that the statute of limitations of 2 years had run between the time of the alleged torts, prior to November 1, 2009, and the filing of the writ of summons to commence the action, on January 9, 2012. Therefore, this Court found the Petition for Leave to Proceed in Forma Pauperis was not warranted, given the fact that the underlying complaint was frivolous because it lacked an arguable basis in law, based on the expiration of the statute of limitation. This Court did not commit an error of law in denying the Appellant’s petition on the basis that the petition was frivolous because the writ of summons to commence the 3 Jj action was filed outside of the statute of limitations. As such, the Appellant’s appeal should be denied. By the Court, M. L. Ebert, Jr., J. James A. Paluch, Jr., BQ-3769, Pro Se Plaintiff SCI-Greene 175 Progress Drive Waynesburg, PA 15370 Randall N. Sears, Esquire PA Dept. of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 4