              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael J. Pendleton,              :
                      Appellant    :
                                   :
                  v.               :
                                   :
Randall B. Todd; Raymond A. Novak; :        No. 202 C.D. 2016
Kate Barkman; and Mary Beth Perko  :        Submitted: June 10, 2016


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                  FILED: September 14, 2016

            Michael J. Pendleton (Pendleton), pro se, appeals from the Allegheny
County Common Pleas Court’s (trial court) January 19, 2016 Memorandum and
Order dismissing his “[c]ivil [r]ights [c]omplaint” (Complaint) as frivolous and
dismissing his request to proceed in forma pauperis as moot. Pendleton raises two
issues for this Court’s review: (1) whether the trial court erred by denying his
application to proceed in forma pauperis; and, (2) whether the trial court erred when
it dismissed his Complaint as frivolous. After review, we affirm.
            Pendleton is an inmate at State Correctional Institution Somerset,
serving a life sentence for second-degree murder, and a concurrent term of 10 to 20
years for criminal conspiracy. On November 3, 2015, Pendleton, pro se, filed his
Complaint against four defendants: The Honorable Randall Todd (Todd), a sitting
judge; Raymond A. Novak (Novak), the now-retired judge who presided over
Pendleton’s jury trial and sentencing; Kate Barkman (Barkman), the former
Allegheny County Department of Court Records Director; and Mary Beth Perko
(Perko), the court reporter who transcribed Pendleton’s criminal trial (collectively,
Defendants). In conjunction with his Complaint, Pendleton filed an application for
leave to proceed in forma pauperis.
         Pendleton’s Complaint alleges, inter alia:

         []7. . . . . [Pendleton] at the time he was a juvenile was
         never lawfully arrested through valid warrant, as no valid
         warrant was ever issued or signed by a magistrate or judge,
         nor has [Pendleton] ever received a preliminary hearing.
         [Pendleton] has a [Post Conviction Relief Act1 (]PCRA[)]
         Petition [c]urrently [p]ending in the [trial court] based on
         [n]ewly-[d]iscovered [f]acts.
         []8. . . . [Pendleton’s] continued illegal and unlawful
         detention amounts to false imprisonment and assault and
         battery.
         ....
         []10. On or between March 23, 1999 and March 25, 1999[,]
         while employed and/or associated with [the trial court] as a
         [c]ourt reporter/stenographer[,] Perko did impair and/or
         pervert the administration of law or other governmental
         function by physical interference or obstacle and breech
         [sic] her official duty, when [] Perko conspired with []
         Novak to conceal and cover-up [sic] fraud during
         [Pendleton’s] criminal trial where they agreed to not
         transcribe the notes of testimony and events of the trial
         proceedings on [M]arch 25, 1999.
         []11.     [] Perko, deliberately failed to record and/or
         transcribe what took place and/or transpired during
         [Pendleton’s] [j]ury trial on M[a]rch 25, 1999. [] Perko,
         knowing that her conduct was unlawful, has denied and
         impeded [Pendleton’s] exercise and enjoyment of rights and
         privileges, statutory and rule based rights of access to the
         court. . . . [] Perko, certifies that [the] transcript[] end[s],
         and there is no record of a jury verdict, a polling of jury, or
         guilty plea colloquy. There is [sic] no March 25, 1999
         transcripts in [Pendleton’s] underlying criminal case.
         ....
         []13. On or between March 23, 1999 and March 25, 1999,
         while employed as a [trial court j]udge, [] Novak did
         interfere with and commit official oppression, when he

1
    42 Pa.C.S. §§ 9541-9546.
                                        2
conspired with [] Perko to deprive [Pendleton] of his rights
under the Fourteenth Amendment to the Constitution of the
United States and Article 1, §§ 1, 6, 9 and 26 of the
Pennsylvania Constitution, where [] Novak and Perko
agreed not to record and/or deliberately omitted from the
record testimony during the March 25, 1999 trial
proceedings, which occurred outside the presence of
[Pendleton]. [] Novak and Perko failed to record the
answer to juror’s questions.
[]14. [] Novak has tampered with [Pendleton’s] trial
transcripts to conceal and cover-up the manifest injustice
which occurred on March 25, 1999, where [] Novak
conspired with [] Perko to conceal the trial proceedings
which occurred on March 25, 1999, by failing to transcribe
the notes of testimony in violation of clearly established
federal law as announced by the United States Supreme
Court. . . . The conspiracy entered and completed by []
Novak and Perko has denied [Pendleton] meaningful access
to appellate review and amounts to official oppression and
governmental interference[,] resulting in [Pendleton’s]
denial of access to the court. . . .
[]15. [] Todd’s failure to provide [Pendleton] with a correct
copy of trial transcripts from March 25, 1999 amounts to
official oppression[], where [] Todd has obstructed
[Pendleton’s] access to the court’s [sic] by refusing to find
[Pendleton’s] constitutional rights were violated where the
trial transcripts are non-existent for March 25, 1999, when
the Commonwealth alleges a guilty plea was entered, when
no signed guilty plea exists, nor guilty plea colloquy
appears on the face of the record. [] Todd in furtherance of
[] Novak and Perko’s original conspiracy has denied
[Pendleton’s] every request for [the M]arch 25, 1999
transcripts or equivalent picture of the events of March 25,
1999.
[]16. [] Todd knows and/or should know that no transcripts
exist of the March 25, 1999 trial proceedings. As a result of
this knowledge[, ] Todd has failed to discharge his oath of
office to uphold the Constitution of the United States and
has conspired with [] Novak and Perko, to conceal manifest
injustice, which resulted in a juvenile defendant being
sentenced to life without the possibility of parole for a
criminal homicide he did not commit and was not legally

                             3
             convicted of committing. As a result [] Todd has tampered
             with the official criminal records to conceal the miscarriage
             of justice.
             []17. [] Barkman, has continued to interefere [sic] with
             [Pendleton’s] access to the court, by refusing to docket
             and/or accept [Pendleton’s] request for his transcripts of
             March 25, 1999. [] Barkman conspiring with [] Novak,
             Perko and Todd has failed to file [Pendleton’s] request for
             transcripts from March 25, 1999, knowing that such
             transcripts does [sic] not exist, which verification would
             support the vacating of [Pendleton’s] judgment of
             conviction and sentence warranting a new criminal trial. []
             Barkman has engaged in official oppression and denial of
             access to the court. [] Barkman, has illegally entered in the
             criminal docket of [Pendleton’s] underlying criminal case,
             that he plead [sic] guilty on March 25, 1999, when no such
             guilty plea was ever entered, amounting to falsification of
             official records, to conceal and cover-up [] Novak and
             Perko’s original conspiracy to deprive [Pendleton] of his
             constitutional rights secured by the Constitution of the
             United States and Pennsylvania. [Pendleton] has been
             denied his Due Process and Equal Protection rights, and has
             denied [Pendleton] a forum to be heard.
Complaint ¶¶ 7-8, 10-11, 13-17 (citations omitted).

             On December 21, 2015 and January 13, 2016, Defendants filed
preliminary objections to the Complaint. By January 19, 2016 Memorandum and
Order the trial court dismissed the Complaint as frivolous and declared Pendleton’s in
forma pauperis application moot.2 The trial court explained:

             A review of the docket . . . reveals a clerical error in that it
             appears to indicate that [Pendleton] pleaded guilty on
             March 25, 1999. The docket has been corrected. Although
             the official jury trial transcript inexplicably does not include
             the announcement of the jury verdict, I have reviewed the
             official court papers in this case and take judicial notice of
             the accuracy of the above[-]stated portion of the


      2
         The trial court’s Memorandum and Order makes no mention of the Defendants’
preliminary objections, nor is there any indication in the dockets that they were ruled on.
                                            4
               Memorandum of the Superior Court.[3]           Moreover,
               [Pendleton] admits he was convicted of second-degree
               murder in at least one post-sentence motion filed on his
               behalf.

Trial Ct. Op. at 3. Pendleton appealed to this Court.4
               Pendleton argues that the trial court erred by denying his request to
proceed in forma pauperis5 and dismissing his Complaint as frivolous. We disagree.
               Initially, Pennsylvania Rule of Civil Procedure No. 240(j)(1) provides in
pertinent part:

               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 pauperis, the court
               prior to acting upon the petition may dismiss the action,
               proceeding or appeal if the allegation of poverty is untrue or
               if it is satisfied that the action, proceeding or appeal is
               frivolous.


       3
          The trial court quoted the following language from the Superior Court’s memorandum
opinion in Commonwealth v. Pend[le]ton, (Pa. Super., No. 370 WDA 2014, filed September 25,
2014), slip. op. at 2:

               On March 25, 1999, a jury found [Pendleton] guilty of second-degree
               murder, robbery, firearms not to be carried without a license,
               prohibited offensive weapon, and criminal conspiracy.             The
               conviction stems from [Pendleton’s] shooting of a jitney driver,
               Kenneth Wright, in the back of the neck with a sawed-off shotgun,
               during the commission of a robbery, when [Pendleton] was fourteen
               years old. On May 4, 1999, the trial court sentenced [Pendleton] to a
               term of life imprisonment without parole for the homicide conviction,
               and a concurrent term of not less than ten nor more than twenty years’
               incarceration on the criminal conspiracy conviction. This Court
               affirmed the judgment of sentence on April 14, 2000, and our
               Supreme Court denied allowance of appeal on August 14, 2000.
Id. (footnote omitted); See Trial Ct. Op. at 1.
        4
           “Our scope of review is limited to determining whether constitutional rights have been
violated, whether the trial court abused its discretion, or whether the trial court committed an error
of law.” Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015).
        5
          Notably, the trial court did not deny Pendleton’s in forma pauperis application, but instead
concluded that based upon its disposition of the matter, the application was moot.
                                                  5
                Note: A frivolous action or proceeding has been
                defined as one that ‘lacks an arguable basis either in
                law or in fact.’ Neitzke v. Williams, 490 U.S. 319,
                [326] . . . (1989).

Pa.R.C.P. No. 240(j)(1).
            Section 9542 of the PCRA provides:

            This subchapter provides for an action by which persons
            convicted of crimes they did not commit and persons
            serving illegal sentences may obtain collateral relief. The
            action established in this subchapter shall be the sole
            means of obtaining collateral relief and encompasses all
            other common law and statutory remedies for the same
            purpose that exist when this subchapter takes effect,
            including habeas corpus and coram nobis. This subchapter
            is not intended to limit the availability of remedies in the
            trial court or on direct appeal from the judgment of
            sentence, to provide a means for raising issues waived in
            prior proceedings or to provide relief from collateral
            consequences of a criminal conviction.            Except as
            specifically provided otherwise, all provisions of this
            subchapter shall apply to capital and noncapital cases.
42 Pa.C.S. § 9542 (emphasis added). Our Supreme Court has explained:
            [T]he General Assembly intended that claims that could be
            brought under the PCRA must be brought under that Act.
            No other statutory or common law remedy ‘for the same
            purpose’ is intended to be available; instead, such remedies
            are explicitly ‘encompassed’ within the PCRA.
            This Court has repeatedly and uniformly given effect to this
            plain language contained in the PCRA.
                   By its own language, and by judicial decisions
                   interpreting such language, the PCRA provides
                   the sole means for obtaining state collateral
                   relief. Where, as here, a defendant’s post-
                   conviction claims are cognizable under the
                   PCRA, the common law and statutory
                   remedies now subsumed by the PCRA are not
                   separately available to the defendant.



                                          6
            Commonwealth v. Yarris, . . . 731 A.2d 581, 586 ([Pa.]
            1999) [(citations omitted)].

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001).
            Here, Pendleton filed a civil rights action seeking the following relief:

            a) Decla[ra]tory judgment finding that no [M]arch 25, 1999
               trial transcripts exist in [Pendleton’s] underlying
               criminal case;
            b) Decla[ra]tory judgment that no signed guilty plea
               colloquy or guilty plea transcript exists for [M]arch 25,
               1999 in [Pendleton’s] underlying criminal case;
            c) Decla[ra]tory judgment finding that no [j]ury verdict
               exists in the certified record of [Pendleton’s] underlying
               criminal case rendered on [M]arch 25, 1999;
            d) Declaratory judgment finding [D]efendants[’] actions
               both jointly and severally . . . violated [Pendleton’s] . . .
               First, Sixth, Eighth, and Fourteenth Amendment rights . .
               ..
            e) Preliminary and/or permanent injunction which: (i)
               [e]njoins [Defendants] from creating, altering, or
               tampering with the certified record in [Pendleton’s]
               underlying criminal case; [and,] (ii) [e]njoins [] Todd
               from further deliberation over [Pendleton’s] underlying
               and/or pending state habeas corpus petition filed in
               [Pendleton’s] underlying criminal case.
            f) any other relief . . . just and necessary to deter future
               violations.
Complaint at VI.
            In Keller v. Kinsley, 609 A.2d 567 (Pa. Super. 1992), our Superior Court
addressed circumstances similar to the instant action. There, a prisoner brought an
action claiming he was unjustly convicted based upon false allegations and, therefore,
sought money damages, a new jury trial and other relief. The prisoner also “filed a
[p]etition to proceed in forma pauperis, in a civil proceeding, which was denied
based upon the trial court’s conclusion that the claims raised in [the prisoner’s]

                                           7
complaint were a direct collateral attack on [his] criminal conviction and thus could
not be properly raised in a civil suit.”6 Id. at 567.
               On appeal, the Superior Court reviewed the complaint. It concluded that
“the major contention raised in [the prisoner’s] complaint is that he was unjustly
convicted[,]” and that “from the allegations contained in his complaint and from the
type of relief he has requested, that [the prisoner] is attempting to collaterally attack
his criminal conviction through means of a civil action.” Id. at 568. The Court held
that the PCRA “is the only means by which [the prisoner] could collaterally attack his
conviction[,]” and therefore, the Court affirmed the trial court’s dismissal of the
prisoner’s complaint. Id.
               In Guarrasi v. Scott, 25 A.3d 394 (Pa. Cmwlth. 2011), a prisoner filed a
petition for review in this Court’s original jurisdiction “seeking declaratory relief
against seven Bucks County judges, officials or employees . . . who [were] designated
as open-records officers or appeals officers for [Right To Know Law7] purposes.” Id.
at 397. The prisoner

               [sought] an order that (a) declare[d] his common law and
               constitutional rights of access to the requested documents,
               and (b) require[d the d]efendants to forward these
               documents to him.         [The prisoner] also [sought] a
               declaration that [the d]efendants violated his common law,
               statutory and constitutional rights by denying him access to
               these documents. [The prisoner] also [sought] additional
               declaratory relief against past and present . . . [c]ommon
               [p]leas judges.

Id.
               This Court explained:


       6
          As in the case sub judice, “the [trial] court’s decision to deny [the prisoner’s] request to
proceed in forma pauperis was based on its belief that the claims set forth in [the] complaint were
frivolous[.]” Keller, 609 A.2d at 567.
        7
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
                                                  8
              [A p]laintiff may not use a civil action for declaratory
              judgment . . . to collaterally attack the legality of his
              criminal proceedings . . . . Keller. The PCRA is the sole
              means ‘by which persons convicted of crimes they did not
              commit and persons serving illegal sentences’ may obtain
              collateral relief. 42 Pa.C.S. § 9542. Keller. Therefore, [a
              p]laintiff must raise all his common law constitutional
              claims against [the d]efendants in his PCRA petition.
              For this reason, to the extent [the prisoner’s] civil action . . .
              alleges [the d]efendants violated his common law and
              constitutional rights in the criminal proceedings against
              him, the civil action fails to state a cognizable claim.

Guarrasi, 25 A.3d at 402 (citation and footnote omitted).
              Based on a thorough review of Pendleton’s Complaint and his brief, it is
clear that his civil action is a collateral attack on the legality of his conviction, which
Pennsylvania law makes clear may only be raised by a PCRA petition and not by a
civil complaint. Thus, because Pendleton’s civil action fails to state a cognizable
claim, the trial court did not err in dismissing Pendleton’s Complaint as frivolous and
denying his request to proceed in forma pauperis as moot.8
              For all of the above reasons, the trial court’s order is affirmed.




       8
          In light of our holding, we need not address the Defendants’ judicial immunity and quasi-
judicial immunity claims.
                                                9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael J. Pendleton,              :
                      Appellant    :
                                   :
                  v.               :
                                   :
Randall B. Todd; Raymond A. Novak; :    No. 202 C.D. 2016
Kate Barkman; and Mary Beth Perko  :


PER CURIAM
                                 ORDER

            AND NOW, this 14th day of September, 2016, the Allegheny County
Common Pleas Court’s January 19, 2016 Memorandum and Order is affirmed.
