             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caine Pelzer,                                   :
                                                :
                                Appellant       :
                                                :
                v.                              : No. 471 C.D. 2019
                                                : Submitted: January 17, 2020
Global Tel Link Corporation                     :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                              FILED: April 27, 2020


                 Caine Pelzer (Inmate) appeals the order of the Fayette County Court
of Common Pleas (trial court) denying his motion to proceed in forma pauperis
(IFP),1 and dismissing Inmate’s complaint within 30 days in the absence of his
payment of the filing fees and the class action count of Inmate’s complaint, based
upon the court’s determination that Inmate is an “abusive litigator” under the
provisions of Section 6602(f)(1) of the Prison Litigation Reform Act (PLRA), 2
commonly known as the “three strikes rule.” We affirm.

       1
           Pa. R.C.P. No. 240(j)(1) states, in relevant part, “If, simultaneous with the
commencement of an action or proceeding . . . a party has filed a petition for leave to proceed
[IFP], the court prior to acting upon the petition may dismiss the action . . . if it is satisfied that
the action . . . is frivolous.”

       2
           42 Pa. C.S. §6602(f)(1). Subsection (f)(1) states, in pertinent part:

                 If the prisoner has previously filed prison conditions litigation and
                 [] three or more of these prior civil actions have been dismissed
                 pursuant to subsection (e)(2) [(relating to the filing of prison
                 conditions litigation that is frivolous or malicious or fails to state a
(Footnote continued on next page…)
               Inmate is housed at the State Correctional Institution at Fayette. On
March 7, 2019, he filed a four-count complaint against Global Tel Link
Corporation (GTL) relating to a tablet that he and other prisoners purchased from
GTL. In the complaint, he asserted fraud and breach of contract claims, including
a class action claim based on unfair trade practices, consumer protection law
violations, fraud, false advertising, misrepresentation, negligence, and interference
with contractual relations. That same day, Inmate filed a motion to proceed IFP in
the trial court. On April 8, 2019, the trial court filed the instant order denying
Inmate’s motion to proceed IFP, dismissing the complaint within 30 days in the
absence of his payment of the filing fees, and dismissing the class action count of
the complaint. Inmate then filed this appeal of the trial court’s order, 3 and the trial


(continued…)

               claim upon which relief may be granted or in which the defendant
               may assert a valid affirmative defense precluding relief),] the court
               may dismiss the action. The court shall not, however, dismiss a
               request for preliminary injunctive relief or a temporary restraining
               order which makes a credible allegation that the prisoner is in
               imminent danger of serious bodily injury.

“Section 6602(f) is commonly referred to as the ‘three strikes rule,’ pursuant to which a trial
court may dismiss a prisoner’s [IFP] complaint where the prisoner has a history of filing
frivolous litigation.” Brown v. Bradford, 194 A.3d 1141, 1145 n.4 (Pa. Cmwlth. 2018) (citation
omitted).

       3
          “Appellate review of a decision dismissing an action pursuant to Pa. R.C.P. No.
240(j)(1) is limited to determining whether an appellant’s constitutional rights have been violated
and whether the trial court abused its discretion or committed an error of law.” Jones v. Doe,
126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015). “An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as
shown by the evidence or the record, discretion is abused.” Commonwealth v. Burns, 988 A.2d
684, 689 (Pa. Super. 2009) (citations omitted).


                                                2
court issued an order stating that it was relying on its April 8, 2019 order and that
no further opinion would be issued. See Trial Court 6/18/2019 Order.
              On appeal,4 Inmate first claims that the trial court abused its discretion
in dismissing the first two counts of the complaint against GTL sounding in fraud
and breach of contract under Section 6602(f)(1) of the PLRA because no civil
rights claims are raised, and no governmental party is being sued. Specifically,
Inmate asserts that, at a minimum, the trial court should have conducted a hearing
or explained in an order or opinion why Inmate does not fall within an exception to
the “three strikes rule” of the PLRA or how the instant contract action constitutes
“prison conditions litigation” under the PLRA.
              However, Section 6601 of the PLRA defines “prison conditions
litigation,” in relevant part, as “[a] civil proceeding arising in whole or in part
under Federal or State law with respect to the conditions of confinement or the
effects of actions by a government party on the life of an individual confined in
prison,” 42 Pa. C.S. §6601 (emphasis added). Counts I and II of the complaint
allege,5 in relevant part:

              26. Upon information and belief, GTL is illegally using
              a third-party beneficiary to interfere with business
              licenses and contracts.



       4
          On December 23, 2019, GTL indicated that it did not participate below and will not
participate in this appeal.

       5
          As the Pennsylvania Supreme Court has explained, “Pennsylvania is a fact-pleading
state. ‘At a minimum, a pleader must set forth concisely the facts upon which his cause of action
is based.’ The complaint must not only apprise the defendant of the claim being asserted, but it
must also summarize the essential facts to support the claim.” McShea v. City of Philadelphia,
995 A.2d 334, 339 (Pa. 2010) (citations omitted).


                                               3
27. Upon information and belief [the Pennsylvania
Department of Corrections (DOC)] is acting as an agent
of [GTL] even though the [DOC] is immune from
liability or acted and continues to act at [GTL’s] instance.

28. Upon information and belief, GTL and third-party
actors continue to benefit substantially in [the] millions
of dollars from an increase in prisoners being enrolled in
the tablet program and being prevented from asserting
their rights as a consumer.

29. Upon information and belief, [GTL] engaged the
[DOC] in contracts that conflict with the Terms and
Agreement set out to [Inmate] and similarly situated
prisoners.

30. As a matter of law and upon information and belief
[GTL] made the [DOC] direct beneficiaries of the tablet
program resulting in kickbacks when GTL makes over
$4.3 million in revenue.

31. Upon information and belief, GTL knows that the
[DOC] has no policy governing the tablet program.

                           ***

43. [GTL] is fraudulently and deceptively selling
defective products (GTL Tablets) to prisoners such as
[Inmate] and similarly situated individuals, then
absolving [itself] from liability through agreements
prisoners in PA don’t know they entered into due to
third-party interference.

                           ***

51. [GTL],      its   partners,     affiliates,  agents,
subsidiaries/agents, employees or representatives
fraudulently sold a GTL Tablet to [Inmate] and similarly
situated prisoners in Pennsylvania with the intent of
defrauding [Inmate] of the tablet’s quality, capability,
operation and performance of the software and
equipment.

                             4
                          ***

54. [GTL] has contracted with both [Inmate] and
similarly situated prisoners and the [DOC], a third-party
entity that GTL knows is a part of the executive branch
of the Commonwealth and is immune from being sued in
this context[.]
                           ***

56. [GTL] then provides the GTL tablet to the [DOC,
which] syncs the tablet and withholds the tablet from
[Inmate] and similarly situated prisoners which is done at
the direction of GTL to interfere with prospective
contractual relations between GTL and prisoners enrolled
as consumers.

57. [GTL] provides the [DOC] with annual revenue for
music, e-messaging, games, lobby deposit fees and e-
books up to $4,350,000 in commission per month which
continually increases in commission when revenue per
month reaches $4,850,000 and beyond.

58. [GTL’s] own language of [its] contractual relations
state[s,] “YOU ACKNOWLEDGE AND AGREE THAT
THE FACILITY, AND NOT GTL, WILL BE
RESPONSIBLE FOR DETERMINING WHETHER
YOUR GTL DEVICE WILL BE RETURNED TO YOU
FOLLOWING YOUR RELEASE OR TRANSFER
FROM THE FACILITY. . . .”

59. [GTL’s] own language of [its] contractual relations
state[s,] “THERE IS A RISK THAT YOUR GTL
DEVICE WILL NOT BE RETURNED TO YOU BY
THE FACILITY. . . .”

                          ***

61. [GTL] created incentives for the [DOC], an immune
third party to stop [Inmate] and similarly situated
prisoners from doing business with GTL, includ[ing] the
following:


                            5
              (a) Directing the [DOC] to withhold tablets after
             prisoners purchased them to toll contractual timeframes;

              (b) [GTL’s] failure to provide policies stopping the
             [DOC] from interfering with business relations of
             [Inmate] and [GTL];

              (c) Failure to remove specific language enabling the
             [DOC] to prevent [Inmate] and similarly situated
             prisoners from having their GTL Tablets once the Tablets
             are purchased;

              (d) [GTL’s] failure to stop the [DOC] from keeping
             [Inmate] and similarly situated prisoners away from
             kiosk machines to enter timely tickets, or tickets
             whatsoever;

                                        ***

              (f) [GTL’s] failure to inform [Inmate] and similarly
             situated prisoners of the [DOC’s] possible interference
             before [GTL] tablets were purchased;

               (g) [GTL’s] failure to inform [Inmate] and similarly
             situated prisoners of the existing conflict of interest
             between the [DOC’s] lucrative kickbacks and [Inmate’s]
             rights as [a] consumer[] which was orchestrated by GTL;

              (h) [GTL’s] directing the [DOC] to intercept incoming
             and outgoing e-mails of [Inmate] and similarly situated
             prisoners discussing personal business deals without
             notification;

               (i) [GTL’s] collectively directing the [DOC] through
             acts or omissions to engage in conduct that prevents
             [Inmate] and similarly situated prisoners from asserting
             rights regarding the tablet program, including services
             purchased through the same.
Complaint ¶¶26-31, 43, 51, 54, 56-59, 61(a)-(d), (f)-(i).
             Based on the foregoing, it is clear that Inmate bases liability in Counts
I and II, at least in part, on the actions of the DOC and its employees at the
                                          6
facilities in which he has been housed acting in concert with GTL. In asserting his
claim in this appeal, Inmate “overlooks the disjunctive ‘or’ in [S]ection 6601,
which provides for two separate ways in which a civil proceeding can be
considered prison conditions litigation.” Brown v. PA. Dept. of Corrections, 58
A.3d 118, 124 (Pa. Cmwlth. 2012). “The first is where the lawsuit involves ‘the
conditions of confinement,’ and the second concerns actions by a ‘government
party’ that affect a prisoner.” Id.
                 Likewise, as alleged herein, Inmate’s fraud and contract claims raised
in Counts I and II are based, in part, on the actions of the DOC and its employees.
These allegations are clearly encompassed within “the effects of actions by a
government party on the life of an individual confined in prison” portion of the
definition of “prison conditions litigation” contained in Section 6601 of the PLRA.
See, e.g., Brown v. Bradford, 194 A.3d 1141, 1146 (Pa. Cmwlth. 2018) (“Clearly,
these actions are those of government parties affecting [the inmate’s] life while
confined in prison and as such, fall within the definition of prison conditions
litigation.”).     Moreover, it is undisputed that Inmate qualifies as an abusive
litigator.6 As a result, Counts I and II of Inmate’s complaint fall squarely within
that definition and the “three strikes rule” of Section 6602(f)(1), and the trial court
did not abuse its discretion in denying his application for IFP status with respect to
these counts on this basis.7

       6
         See, e.g., Pelzer v. Wolf (Pa. Cmwlth., No. 472 C.D. 2019, filed March 9, 2020), slip op.
at 3 (“On April 8, 2019, the trial court denied [Inmate’s] motion because it determined he was an
‘abusive litigator.’ In reaching its decision, the trial court relied on Pelzer v. Pennsylvania
Department of Corrections (Pa. Cmwlth., No. 309 C.D. 2017, filed October 16, 2017) [] in
which this Court concluded [Inmate] was an abusive litigator.”).

       7
           As this Court has stated:
(Footnote continued on next page…)
                                                7
              Inmate next claims that the trial court abused its discretion in denying
his motion for IFP status without inquiring into whether he could pay to prosecute
the case. Again, Inmate asserts that “at a minimum, the Court should have either
conducted a hearing or explained in an order or an opinion that [Inmate] does not
fit into an exception of the PLRA three strikes rule or why the trial court seemingly
deemed a complaint regarding contract claims ‘prison conditions litigation.’” Brief
of Appellant at 10. However, as outlined above, Counts I and II of Inmate’s
complaint clearly fall within the “three strikes rule” of Section 6602(f)(1) of the
PLRA and the trial court did not abuse its discretion in dismissing the complaint on
this basis.
              Finally, Inmate claims that the trial court abused its discretion in
dismissing the class action claim in Count III of the complaint prior to a motion for
certification of the class. However, as this Court has explained:

(continued…)

                      Under [S]ection 6602(f)(1) of the [] PLRA, commonly
              referred to as the “three strikes rule,” a court can revoke a
              plaintiff’s [IFP] status if the plaintiff filed three or more civil
              actions involving prison conditions and these civil actions have
              been dismissed as frivolous or malicious or for failure to state a
              claim. When a plaintiff’s [IFP] status is revoked, a court may
              dismiss the plaintiff’s complaint if the plaintiff thereafter fails to
              pay the filing fees and costs associated with the litigation. Because
              [the inmate] already has “three strikes” for purposes of the []
              PLRA, the only way [that] he can avoid [the] revocation of his
              [IFP] status is if his complaint seeks injunctive relief and sets forth
              “a credible allegation that [he] is in imminent danger of serious
              bodily injury.”

Brown, 58 A.3d at 121 (citations and footnote omitted). Inmate does not seek injunctive relief in
the instant matter and there is no allegation that he paid the required filing fees and costs
associated with this litigation.


                                                8
             [T]he federal courts in addressing substantially similar
             class action requirements have held that a prisoner
             proceeding pro se, such as [the inmate], may not
             commence a class action lawsuit. See, e.g., Awala v.
             New Jersey [Department] of Corrections, 227 [F. App’x]
             133, 134 (3d Cir. 2007) (affirming the District Court
             where the District Court dismissed [the inmate’s]
             complaint and amended complaint under 28 U.S.C.
             §§1915(e)(2)(B) & 1915A(b) concluding that a pro se
             prisoner without formal training in the law would not be
             able to adequately represent the interests of the class and
             maintain the suit as a class action); Caputo v. Fauver,
             800 F. Supp. 168, 170 (D. N.J. 1992), aff’d, 995 F.2d 216
             (3d Cir. 1993) (stating that “[e]very court that has
             considered the issue has held that a prisoner proceeding
             pro se is inadequate to represent the interests of his
             fellow inmates in a class action.”). Hence, any putative
             class action claims should be dismissed.
Mobley v. Coleman, 65 A.3d 1048, 1050 n.1 (Pa. Cmwlth. 2013). As a result, the
trial court also did not abuse its discretion in dismissing Count III of Inmate’s
complaint.
             Accordingly, the trial court’s order is affirmed.




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Caine Pelzer,                        :
                                     :
                        Appellant    :
                                     :
            v.                       : No. 471 C.D. 2019
                                     :
Global Tel Link Corporation          :


PER CURIAM

                                    ORDER


            AND NOW, this 27th day of April, 2020, the order of the Fayette
County Court of Common Pleas dated April 8, 2019, is AFFIRMED.
