                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez,                                  :
                              Appellant         :
                                                :
                      v.                        :
                                                :
City of Reading and                             :    No. 1770 C.D. 2016
Thomas K. Flemming                              :    Submitted: March 10, 2017


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                           FILED: August 2, 2017

               Ramon Vasquez (Vasquez) appeals pro se from the Berks County
Common Pleas Court’s (trial court) July 7, 2016 order granting the City of Reading’s
(City) and City Police Officer Thomas Flemming’s (Flemming) Motion to Dismiss
pursuant to Pennsylvania Rule of Civil Procedure No. (Rule) 233.1 (Motion) and
dismissing Vasquez’ Complaint against the City and Flemming (Complaint). There
are two issues before this Court: (1) whether the trial court failed to give Vasquez an
opportunity to respond to the Motion, and (2) whether Vasquez’ Complaint was a
frivolous serial lawsuit.1 After review, we affirm.
               Vasquez is an inmate at the State Correctional Institution at Somerset.
On August 13, 2015, Vasquez filed a complaint in the United States District Court for
the Eastern District of Pennsylvania (U.S. District Court) seeking monetary damages
from the City, Flemming, Vasquez’ ex-girlfriend, a magisterial district judge, a
security guard, a City resident and an off-duty police officer (first lawsuit). Vasquez


       1
         Vasquez presents three additional issues in his brief’s Statement of Questions Involved: (1)
whether Flemming, as a trained police officer, failed to view the totality of the circumstances; (2)
whether the federal tribunal was impartial in its dismissal of Vasquez’ first lawsuit; and (3) whether
the claims in Vasquez’ first lawsuit were time-barred. See Vasquez Br. at 4. Because those issues
do not relate to the Rule 233.1 dismissal, they are not properly before the Court.
sought to proceed in forma pauperis. In his first lawsuit, Vasquez asserted claims
against the City and Flemming arising from a criminal complaint they had filed
against him for the unauthorized use of an automobile and the alleged events
resulting therefrom, including false arrest, false imprisonment, and malicious
prosecution under Section 1983 of the Civil Rights Act (Section 1983), 42 U.S.C. §
1983, as well as claims based on his June 19, 2013 arrest. On August 11, 2015, the
U.S. District Court granted Vasquez leave to proceed in forma pauperis, and
dismissed his claims against the City and Flemming with prejudice pursuant to
Section 1915(e)(2)(B)(ii) of the Prison Litigation Reform Act, 28 U.S.C. §
1915(e)(2)(B)(ii), due to his failure to state a claim upon which relief may be granted.
               On December 7, 2015, Vasquez filed the Complaint in the trial court
seeking monetary damages under Section 1983. In the Complaint, Vasquez alleged
that the City and Flemming were liable for conducting an unreasonable search and
seizure, false arrest and false imprisonment in violation of the Fourth Amendment,
malicious use of process, assault, intentional infliction of emotional distress,
negligence, and respondeat superior negligence. On June 30, 2016, the City and
Flemming filed the Motion. On July 7, 2016, the trial court granted the City and
Flemming’s Motion and dismissed Vasquez’ Complaint with prejudice. Vasquez
appealed to the Superior Court. The Superior Court issued a Rule to Show Cause as
to whether Vasquez’ appeal was timely filed, and whether the appeal should have
been filed in this Court. By November 1, 2016 order, this Court accepted Vasquez’
appeal as timely filed.2




       2
         A trial court’s grant of a motion to dismiss pursuant to Rule 233.1 is subject to an abuse of
discretion review standard. Coulter v. Ramsden, 94 A.3d 1080 (Pa. Super. 2014). To the extent an
appeal involves interpretation of the rules of civil procedure, this Court’s standard of review is de
novo. Id.
                                                  2
               Initially, Rule 233.1(a) provides:

               Frivolous Litigation.            Pro Se Plaintiff.           Motion to
               Dismiss
               (a) Upon the commencement of any action filed by a pro se
               plaintiff in the court of common pleas, a defendant may
               file a motion to dismiss the action on the basis that
               (1) the pro se plaintiff is alleging the same or related
               claims which the pro se plaintiff raised in a prior action
               against the same or related defendants, and
               (2) these claims have already been resolved pursuant to
               a written settlement agreement or a court proceeding.

Pa.R.C.P. No. 233.1(a) (text bold emphasis added).
               Vasquez first argues that the trial court violated his due process rights by
not giving him an opportunity to respond to the Motion. Although Vasquez stated the
issue in his “STATEMENT OF QUESTIONS INVOLVED” as: “Whether the [trial] court
failed to give [Vasquez] an equal opportunity to be heard in response to [the Motion]”
(Vasquez Br. at 4), the assertions in his “ARGUMENT FOR THE APPELLANT”
(Vasquez Br. at 15), refer to his lack of opportunity to present the merits of his case.
See Vasquez Br. at 17-19. It appears Vasquez is requesting a remand to the trial court
to present the merits of his Complaint, rather than the merits of the Motion.3 Because
the merits of his underlying case were not before the trial court, a remand is not
warranted. Moreover, as the trial court opined: “[Vasquez] had no grounds for relief
available even if he had filed a response to [the Motion].”4 Trial Court Op. at 4.


       3
           Vazquez maintains: “Judgment should be reversed and remanded due to the trial court’s
abuse of discretion of [Vasquez’] right to due process[;]” and “because denying a fair opportunity to
litigate his claims goes against the rudimentary of justice.” Vasquez Br. at 17, 19.
         4
           Vasquez does refer to the fact that this litigation is his first state court action. See Vasquez
Br. at 18. To the extent he may be implying that because the first lawsuit was filed in federal court
it cannot be the same, that argument has no merit. See Coulter v. Ramsden, 94 A.3d 1080 (Pa.
Super. 2014) (wherein the trial court dismissed the petitioner’s action under Rule 233.1 in state
                                                    3
              This Court notes that the better practice would have been for the trial
court to have given Vasquez the right to respond to the Motion; however, Vasquez’
due process rights were protected by his ability to file a motion for reconsideration.
Because any order is subject to appeal and reconsideration, Pa.R.A.P. 1701, and a
trial court has 30 days to modify or rescind its order, 42 Pa.C.S. § 5505, Vasquez’
due process rights were not violated when the Motion was granted.
              Vasquez next contends that his Complaint should not have been
dismissed under Rule 233.1 because it was not a serial lawsuit. However, Rule 233.1
refers to “same or related claims . . . raised in a prior action against the same or
related defendants” which “have already been resolved pursuant to . . . a court
proceeding.” Pa.R.C.P. No. 233.1(a) (emphasis added). The word “serial” does not
appear in Rule 233.1 as it is not limited to numerous filings, but rather, duplicative
filings. Because Vasquez’ Complaint was “filed by a pro se plaintiff” in “common
pleas” court alleging “the same or related claims” which were “raised in a prior action
against the same or related defendants,” and those “claims have already been
resolved,” the Complaint was properly subjected to Rule 233.1. Id.
              In the instant case, Vasquez’ “INTRODUCTION” in his first lawsuit’s
complaint states in its entirety:

              This is a civil rights action filed by [Vasquez], seeking
              monetary damages under [Section] 1983, alleging illegal
              search [and] seizure, false arrest and imprisonment in
              violation of the fourth amendment to the United States
              [C]onstitution, deprivation of equal protection & due
              process in violation of the fourteenth amendment of the
              United States [C]onstitution, deprivation of right to counsel
              in violation of the sixth amendment to the United States
              [C]onstitution; The plaintiff also alleges the torts of
              defamation, assault [and] battery, malicious abuse of

court because a federal court had dismissed a similar action on the basis that petitioner was a
vexatious litigant).


                                              4
                process, intentional infliction of mental distress, negligence,
                and negligence respondeat superior[.]

Supplemental Reproduced Record (S.R.R.) at 34b.                   The “INTRODUCTION” in
Vazquez’ Complaint states in its entirety:5

                This is a civil rights action filed by [Vasquez], seeking
                monetary damages under [Section] 1983, alleging illegal
                search & seizure, false arrest and imprisonment in
                violation of the fourth Amendment to the United States
                Constitution, deprivation of equal protection of law, life,
                liberty, and property without due process in violation of
                the fourteenth amendment to the United States
                Constitution[.] The plaintiff also alleges the torts of
                malicious abuse of process, assault, intentional infliction
                of mental distress, negligence, and negligence
                respondeat superior.

S.R.R. at 5b (emphasis added).
                The allegations against Flemming in the first lawsuit, see S.R.R. at 45b-
46b, ¶¶ 6, 8-10, are virtually identical to the allegations against Flemming in the
Complaint. See S.R.R. at 15b-17b, ¶¶ 1, 4, 7-8. Further, the allegations against the
City in the first lawsuit, see S.R.R. at 49b-51b, ¶¶ 25, B.4-5, C.2, are virtually
identical to the allegations against the City in the Complaint. See S.R.R. at 15b-16b,
¶¶ 2-3, 5-6. Consequently, the claims raised in the Complaint are the “same or
related claims . . . raised in a prior action against the same or related defendants[.]”
Pa.R.C.P. No. 233.1(a). Since the U.S. District Court dismissed Vasquez’ claims
against the City and Flemming with prejudice pursuant to Section 1915(e)(2)(B)(ii)
of the Prison Litigation Reform Act, the aforementioned claims “have already been
resolved pursuant to . . . a court proceeding.” Id. Accordingly, the trial court
properly dismissed the Complaint under Rule 233.1.
                For all of the above reasons, the trial court’s order is affirmed.


      5
          The Complaint is hand-written in all capital letters.
                                                    5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ramon Vasquez,                           :
                          Appellant      :
                                         :
                   v.                    :
                                         :
City of Reading and                      :      No. 1770 C.D. 2016
Thomas K. Flemming                       :


PER CURIAM

                                      ORDER

             AND NOW, this 2nd day of August, 2017, the Berks County Common
Pleas Court’s July 7, 2016 order is affirmed.
