             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                           :
                    Appellant             :
                                          :
             v.                           : No. 1347 C.D. 2016
                                          : Submitted: May 5, 2017
Mike Zaken; Deputy Dialesandro;           :
Tracy Shawley; Irma Vihlidal; Capt.       :
Schrader; A.J. Morris; Lt. Stickles;      :
Sgt. Trout; B. Jordan; Kyle Guth;         :
Farley Toothman; Susan K. White;          :
and Sherry Wise                           :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                              FILED: September 21, 2017

             Alton D. Brown (Brown), pro se, appeals an order of the Greene
County Court of Common Pleas (trial court) that dismissed his complaint pursuant
to Section 6602 of the statute commonly known as the Prison Litigation Reform
Act, 42 Pa. C.S. §6602. On appeal, Brown contends that the trial court erred in
dismissing his complaint as frivolous and abused its discretion in denying his
request to proceed in forma pauperis. Because the trial court did not file a Rule
1925(a) opinion explaining its rationale, we are constrained to remand.
             On May 16, 2016, Brown filed a complaint in mandamus against
employees of the Department of Corrections (Department Employees) 1 and several

1
 The named Department Employees are Mike Zaken, DSFM; Deputy Dialesandro, DSCS; Tracy
Shawley, Grievance Coordinator; Irma Vihlidal, Chief Health Care Administrator; Captain
(Footnote continued on the next page . . . )
judicial officers.2 The complaint alleged that Brown was transferred to the State
Correctional Institution at Greene (SCI Greene) in retaliation for civil and criminal
complaints he had filed against the Department. The complaint further alleged that
Department Employees subjected Brown to physical and psychological abuse on
numerous occasions by, for example, preventing him from accessing his legal files
and property; delaying or denying him medical care; placing him on a diet;
denying him access to the law library; using chemical gas on him; not giving him
legal and hygiene packages; subjecting him to retaliatory searches and seizures;
denying him access to his medical records; and falsifying documents related to
him. Complaint at 3-6, ¶9.
             The complaint alleged that Judge Toothman, White, and Wise
(collectively, Court Employees) supported the actions of Department Employees
by hindering Brown’s attempts to pursue civil remedies through the courts.
Complaint at 3, ¶8. Specifically, the complaint alleged that Court Employees, inter
alia, failed to acknowledge receipt of or docket his complaint and motion for
preliminary injunction in an unrelated civil action; failed to act on a motion filed in
that case in March 2015; refused to file his petition for review challenging denial
of his private criminal complaint; and barred him from pursuing any further
litigation against certain individuals without leave of court. Complaint at 6-7, ¶10.



(continued . . . )
Schrader, RHU Commander; A.J. Morris, RHU Property Lieutenant; Lieutenant Stickles, RHU
F-Block Lieutenant; Sergeant Trout, RHU F-Block Sergeant; B. Jordan, RHU F-Block Property
Officer; and Kyle Guth, Medical Records Supervisor.
2
  The complaint named as defendants the Honorable Farley Toothman, President Judge of the
Court of Common Pleas of Greene County; Susan K. White, Prothonotary; and Sherry Wise,
Clerk. They have not filed a brief in this appeal.


                                           2
              Brown sought mandamus relief on the basis that Department
Employees had a mandatory duty to abide by the Department’s rules and
regulations; comply with the 1st, 8th and 14th Amendments of the United States
Constitution, as well as the corresponding provisions of the Pennsylvania
Constitution; and comply with state and federal health codes. Brown also asserted
that Judge Toothman had a mandatory duty to abide by the Code of Judicial
Conduct, enforce all court rules, and uphold Article VI, Section 3 of the
Pennsylvania Constitution.3 Likewise, White and Wise had a mandatory duty to
uphold he Pennsylvania Constitution and had no authority to reject timely filed
documents. In the complaint’s prayer for relief, Brown sought declaratory and
injunctive relief. He also filed a petition to proceed in forma pauperis.
              On June 16, 2016, before any response to the complaint was filed, the
trial court denied Brown’s petition to proceed in forma pauperis and dismissed his
complaint.4 Order, 6/16/2016, at 1 (Dayich, J.); C.R. Item No. 5. The trial court
stated the following two reasons for dismissing the complaint:




3
  This Section states, in relevant part:
        Senators, Representatives and all judicial, State and county officers shall, before
        entering on the duties of their respective offices, take and subscribe the following
        oath or affirmation before a person authorized to administer oaths.
        “I do solemnly swear (or affirm) that I will support, obey and defend the
        Constitution of the United States and the Constitution of this Commonwealth and
        that I will discharge the duties of my office with fidelity.”
PA. CONST. art.VI, §3.
4
  On that same day, Judge Toothman sua sponte issued an order stating that all current and future
matters regarding Brown’s case be automatically referred to the Office of Court Administrator
for assignment or reassignment. Order, 6/16/2016, at 1 (Toothman, J.); Certified Record (C.R.)
Item No. 18.


                                               3
                 That [Brown] has been deemed an abusive litigator by several
                 courts pursuant to 42 Pa. C.S.[] §6602(f);[5]
                 AND FURTHER this court determines the complaint to be
                 frivolous under 42 Pa. C.S.[] §6602(e)(2).[6]

Order, 6/16/2016, at 1; C.R. Item No. 5.



5
    Section 6602(f) of the Prison Litigation Reform Act states:
        (f) Abusive litigation.--If the prisoner has previously filed prison conditions
        litigation and:
                 (1) three or more of these prior civil actions have been dismissed
                 pursuant to subsection (e)(2); or
                 (2) the prisoner has previously filed prison conditions litigation
                 against a person named as a defendant in the instant action or a
                 person serving in the same official capacity as a named defendant
                 and a court made a finding that the prior action was filed in bad
                 faith or that the prisoner knowingly presented false evidence or
                 testimony at a hearing or trial;
        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.
42 Pa. C.S. §6602(f). This provision is commonly referred to as the “three strikes rule.”
6
  Section 6602(e) of the Prison Litigation Reform Act states:
        (e) Dismissal of litigation.--Notwithstanding any filing fee which has been paid,
        the court shall dismiss prison conditions litigation at any time, including prior to
        service on the defendant, if the court determines any of the following:
                 (1) The allegation of indigency is untrue.
                 (2) The prison conditions litigation is frivolous or malicious or
                 fails to state a claim upon which relief may be granted or the
                 defendant is entitled to assert a valid affirmative defense, including
                 immunity, which, if asserted, would preclude the relief.
        The court may reinstate the prison conditions litigation where the dismissal is
        based upon an untrue allegation of indigency and the prisoner establishes to the
        satisfaction of the court that the untrue information was not known to the prisoner.
42 Pa. C.S. §6602(e).


                                                  4
               On July 5, 2016, Brown filed a notice of appeal, with an application to
proceed in forma pauperis in his appeal. On that same day, Brown filed for
reconsideration of the June 16, 2016, order and a motion for recusal of Judge
Toothman. On July 19, 2016, the trial court denied Brown’s petition to proceed in
forma pauperis, stating that he “has been deemed an abusive litigator by several
courts pursuant to 42 Pa. C.S.[] §6602(f).” Order, 7/19/2016, at 1 (Dayich, J.);
C.R. Item No. 13.7          The trial court reserved ruling on Brown’s motion for
reconsideration until he paid the appropriate court fees. Id. Subsequently, on
August 4, 2016, the trial granted Brown in forma pauperis status for purposes of
this appeal. Order, 8/4/2016, at 1 (Dayich, J.); C.R. 11. The trial court did not file
an opinion in support of its June 16, 2016, order pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, PA. R.A.P. 1925(a).
               On appeal,8 Brown raises three issues.9 First, he contends that the trial
court’s failure to file a Rule 1925(a) opinion explaining the reasons for its June 16,
2016, order has hindered his ability to frame his issues for his appeal and this
Court’s ability to conduct meaningful appellate review. Second, Brown contends
that the trial court abused its discretion in denying his request for leave to proceed
in forma pauperis. Third, Brown alleges that the trial court erred in dismissing his




7
  On that same day, Judge Toothman sua sponte issued an order that all current and future
matters regarding this case be automatically referred to the Office of Court Administrator for
assignment or reassignment. Order, 7/19/2016, at 1 (Toothman, J.); C.R. 12.
8
  In reviewing the trial court’s decision, we must determine whether constitutional rights have
been violated, the trial court abused its discretion, or the trial court committed an error of law.
Bailey v. Wakefield, 933 A.2d 1081, 1083 n. 4 (Pa. Cmwlth. 2007).
9
  For purposes of this opinion, we have rearranged the order of Brown’s issues on appeal.


                                                5
complaint as frivolous under Section 6602(e)(2) of the Prison Litigation Reform
Act, 42 Pa. C.S. §6602(e)(2).10
               Brown first contends that he was prejudiced by the trial court’s failure
to file a Rule 1925(a) opinion setting forth the reasons for its decision dismissing
Brown’s complaint as frivolous and because he has been deemed an abusive
litigator. Brown states the absence of a Rule 1925(a) opinion leaves him “without
a meaningful context within which to make his arguments on appeal.” Brown’s
Brief at 5.     In addition, he asserts that this Court does not have sufficient
information to conduct a meaningful review of the trial court’s order.
               Rule 1925 of the Pennsylvania Rules of Appellate Procedure
establishes “procedures intended to produce trial court opinions that adequately
address alleged errors on appeal, so that the appellate court has the benefit of the
trial court’s analysis on the precise issues raised.” G. Ronald Darlington et al.,
PENNSYLVANIA APPELLATE PRACTICE §1925:1, Volume 20A (2016-2017 ed.); see
also PA. R.A.P. 1925. To that end, Rule 1925(a)(1) requires the trial court to “file
of record at least a brief opinion of the reasons for the order, or for the rulings or
other errors complained of, or shall specify in writing the place in the record where
such reasons may be found.” PA. R.A.P. 1925(a)(1).11


10
   Although Department Employees filed a brief in opposition to Brown’s appeal, they do not
address any of the arguments raised by Brown. Instead, Department Employees argue that this
case is moot because the trial court granted him in forma pauperis status and he “was permitted
to continue with the litigation at the lower court level despite the original [in forma pauperis]
order because that order was vacated and further activity then took place.” Department Brief at
10. The Department is mistaken. The trial court initially denied Brown’s request for in forma
pauperis status on appeal; thereafter, the trial court reversed course and granted him in forma
pauperis status on appeal. This action by the trial court had no effect on its prior order of June
16, 2016, denying Brown’s petition to proceed in forma pauperis before the trial court.
11
   Rule 1925(a)(1) of the Pennsylvania Rules of Appellate Procedure states:
(Footnote continued on the next page . . . )
                                                6
                 The requirements of Rule 1925(a) are satisfied “as long as the trial
court provides at least a short statement indicating the reasons for the ruling.”
Miller Development Corporation v. Union Township Municipal Authority, 666
A.2d 391, 395 (Pa. Cmwlth. 1995). Where, however, “the trial court [does] not
satisfy the requirements of Rule 1925(a), the proper course is to remand to the trial
court with instructions to prepare a proper opinion and return it to the reviewing
panel.”    Id.     “Only by this remand can the issues be properly framed after
consideration and explanation by the court below.” Dresner v. Povlow, 406 A.2d
350, 351 (Pa. Super. 1979).
                 Here, the trial court issued a conclusory order stating that Brown’s
complaint was frivolous under Section 6602(e)(2) of the Prison Litigation Reform
Act. The trial court did not file a Rule 1925(a) opinion, and the reasons for its
decision do not readily appear of record. Without an explanation of why the
complaint is frivolous, this Court is unable to conduct meaningful appellate review
of the trial court’s order and Brown’s issues on appeal.                            See generally
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998) (“The absence of a trial

(continued . . . )
       (1) General rule.--Except as otherwise prescribed by this rule, upon receipt of the
       notice of appeal, the judge who entered the order giving rise to the notice of
       appeal, if the reasons for the order do not already appear of record, shall forthwith
       file of record at least a brief opinion of the reasons for the order, or for the rulings
       or other errors complained of, or shall specify in writing the place in the record
       where such reasons may be found.

       If the case appealed involves a ruling issued by a judge who was not the judge
       entering the order giving rise to the notice of appeal, the judge entering the order
       giving rise to the notice of appeal may request that the judge who made the earlier
       ruling provide an opinion to be filed in accordance with the standards above to
       explain the reasons for that ruling.
PA. R.A.P. 1925(a)(1).


                                                  7
court opinion poses a substantial impediment to meaningful and effective appellate
review.”).12 Accordingly, we must remand this case to the trial court to prepare a
Rule 1925(a) opinion.
               For the above stated reasons, the matter is remanded to the trial court
with instructions to prepare a Rule 1925(a) opinion.

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge

Judge Cosgrove did not participate in the decision in this case.




12
   Additionally, if the trial court elects to dismiss Brown’s complaint under the “three strikes
rule” in Section 6602(f)(1) of the Prison Litigation Reform Act, it must first allow him the
opportunity to pay the filing fee. See Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012).
The trial court would also have to explain in its Rule 1925(a) opinion why any request by Brown
for injunctive relief or a temporary restraining order does not satisfy the requirement in Section
6602(f) that such a request make a “credible allegation that the prisoner is in imminent danger of
serious bodily injury.” 42 Pa. C.S. §6602(f).


                                                8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                          :
                   Appellant             :
                                         :
            v.                           : No. 1347 C.D. 2016
                                         :
Mike Zaken; Deputy Dialesandro;          :
Tracy Shawley; Irma Vihlidal; Capt.      :
Schrader; A.J. Morris; Lt. Stickles;     :
Sgt. Trout; B. Jordan; Kyle Guth;        :
Farley Toothman; Susan K. White;         :
and Sherry Wise                          :


                                     ORDER

            AND NOW, this 21st day of September, 2017, the above-captioned
matter is REMANDED to the Court of Common Pleas of Greene County with the
instruction that it prepare an opinion in accordance with Pennsylvania Rule of
Appellate Procedure 1925(a) within thirty (30) days of the date of this Order.
            The Chief Clerk shall send a copy of this Order to the Honorable
Louis M. Dayich, Judge of the Court of Common Pleas of Greene County and to
the Prothonotary of Greene County.
            Jurisdiction retained.

                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge
