J-S58044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLUE WILKINS                             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
             v.                          :
                                         :
HONORABLE RICHARD A. LEWIS,              :
PRESIDENT JUDGE; EDWARD M.               :
MARSICO, JR., DISTRICT ATTORNEY          :
DAUPHIN COUNTY COURT OF                  :
COMMON PLEAS                             :
                                         :
                   Appellees             :         No. 387 MDA 2017

                  Appeal from the Order December 21, 2016
              In the Court of Common Pleas of Dauphin County
                  Civil Division at No(s): 2016 CV 8564 MD


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 06, 2018

      Appellant, Glue Wilkins, appeals pro se from the order entered in the

Dauphin County Court of Common Pleas, which denied his petition to

proceed in forma pauperis (“IFP”) and dismissed his complaint as frivolous

per Pa.R.C.P. 240(j). For the following reasons, we affirm.

      The trial court provided some of the relevant facts and procedural

history of this appeal as follows.

         The initiation of this matter is quite convoluted. It appears
         Appellant filed a Writ of Mandamus with the caption, “Glue
         Wilkins, Petioner [sic] v. Honorable Richard A. Lewis,
         President Judge, Honorable Edward M. Marisco, Jr., District
         Attorney Dauphin County Court of Common Pleas,
         Respondent” in the Commonwealth Court of Pennsylvania.
         A Writ of Mandamus is a civil action to enforce a right or to
         compel performance of a public act or duty in which the
J-S58044-17


         party has an interest. When filing a writ of mandamus, the
         plaintiff is required to name as defendants such officers in
         their official capacities as are concerned in the act or duty.

         On October 17, 2016, the Commonwealth Court
         transferred the matter to the Court of Common Pleas of
         Dauphin County for appropriate action. Since the pleading
         is titled Writ of Mandamus, the Dauphin County
         Prothonotary opened the instant docket on November 9,
         2016. On November 28, 2016, Appellant filed a Motion for
         that [sic] the Twelfth [sic] Judicial District Has Finally
         Docketed the Exculpatory Medical Report on November 2,
         2016, along with a Petition for Leave to Proceed in Forma
         Pauperis. On December 13, 2016, Appellant filed three (3)
         additional motions−(1) Motion for Judicial Notice that
         Superior Court Averment of Lack of Final Appealble [sic]
         PCRA Order is Estoppel by Pias [sic]; (2) Motion for Judicial
         Notice of General Supervisory Powers of President Judge;
         and (3) Motion for Judicial Notice of AOPC Estoppel by the
         Record.

         After reviewing Appellant’s Writ of Mandamus, his Petition
         to Proceed in Forma Pauperis (“IFP”), and additional
         motions, this [c]ourt dismissed the instant action with
         prejudice because the action is frivolous.

(Trial Court Opinion, filed March 31, 2017, at 1-2) (internal citation to record

and two footnotes omitted).     The court’s order was dated December 21,

2016, but filed on December 22, 2016.        Appellant’s notice of appeal was

therefore due on or before January 21, 2017.        Appellant filed a notice of

appeal, which the court docketed on January 27, 2017. In response to this

Court’s rule to show cause, filed June 1, 2017, Appellant provided a time-

stamped notice of appeal indicating he had actually filed his appeal on

January 18, 2017.    The notice of appeal contained in the certified record

indicates an original time-stamped filing date of January 18, 2017, which is


                                     -2-
J-S58044-17


then “crossed out” and a new stamp placed on the document indicating a

filing date of January 27, 2017.    We cannot tell from the record why the

appeal papers were modified in this manner.            Therefore, we deem

Appellant’s appeal timely filed on January 18, 2017.

      Appellant raises three issues for our review:

         WHETHER PRELIMINARY HEARING TRANSCRIPT EXIST?

         WHETHER,   PURSUANT    TO  COMMONWEALTH    LAW,
         APPELLANT HAS A “RIGHT” TO A COMPLETE RECORD ON
         APPEAL?

         WHETHER DEFENDANTS ARE THE PROPER PARTIES?

(Appellant’s Brief at 1).

      An order that denies IFP status and dismisses a companion complaint

as frivolous is final and appealable. Grant v. Blaine, 582 Pa. 1, 868 A.2d

400 (2005); Crosby Square Apartments v. Henson, 666 A.2d 737

(Pa.Super. 1995). Rule 240 of the Pennsylvania Rules of Civil Procedure in

relevant part provides:

         Rule 240. In Forma Pauperis

         (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 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.

            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, 109 S.Ct.
         1827, 104 L.Ed.2d 338 (1989).

                                     -3-
J-S58044-17



Pa.R.C.P. 240(j) (emphasis added) and Note. “Appellate review of a decision

dismissing   an   action   pursuant   to   Pa.R.C.P.   240(j)   is   limited   to    a

determination of whether an appellant’s constitutional rights have been

violated and whether the trial court abused its discretion or committed an

error of law.”    Bell v. Mayview State Hosp., 853 A.2d 1058, 1060

(Pa.Super. 2004).

     A lawsuit is frivolous under Pa. R.C.P. No. 240(j) if, on its face, it does

not set forth a valid cause of action.”     Id. (quoting McGriff v. Vidovich,

699 A.2d 797, 799 (Pa.Cmwlth. 1997), appeal denied, 553 Pa. 693, 717

A.2d 1030 (1998)). A complaint does not state a valid cause of action if it

cannot be understood. Bennett v. Beard, 919 A.2d 365, 367 (Pa.Cmwlth.

2007).   An incomprehensible complaint denies the defendant notice of the

material facts, which the defendant needs to prepare a defense.                     Id.

Consequently, an illegible complaint is frivolous as a matter of law.               Id.

Moreover, whether the complaint is intelligible is a question of fact that we

will not disturb, absent an abuse of discretion or error of law. See Capital

Academy Charter School v. Harrisburg School Dist., 934 A.2d 189, 195

(Pa.Cmwlth. 2007), appeal denied, 596 Pa. 756, 947 A.2d 738 (2008).

Likewise, “Assertions of legal rights and obligations in a complaint may be

construed as conclusions of law, which have no place in a pleading.”

DelConte v. Stefonick, 408 A.2d 1151, 1153 (Pa.Super. 1979). Although

the rules of civil procedure are meant to be liberally construed, liberal

                                      -4-
J-S58044-17


interpretation “does not entail total disregard of those rules concerning

pleading.” Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa.Super. 1993).

     Instantly, the trial court explained:

        Primarily, the instant action is frivolous because it relates
        to his criminal docket, and Appellant continues to inundate
        the judicial system with frivolous and incoherent filings in
        attempt to collaterally attack the criminal docket.         In
        addition, Appellant is seeking to compel the Clerk of Court
        (Dale Klein, Esquire) to file a preliminary hearing transcript
        from October 14, 2002 to docket number CP-22-CR-3382-
        2002. Although Appellant is seeking to compel the Clerk of
        Court to perform a duty, he fails to name Dale Klein,
        Esquire as a party to the action. Therefore, Appellant’s
        writ is defective [for] failure to name an indispensable
        party.

        Further, Magisterial District Courts are not a court of
        record in Pennsylvania. Therefore, there is no record of
        what occurred before a Magisterial District Judge (“MDJ”)
        unless the parties request a court reporter to transcribe
        the proceeding. In the instant action, Appellant is seeking
        to compel the Clerk of Court to perform a discretionary
        act. This is an improper form of relief under a writ of
        mandamus. A writ of mandamus is used to compel an
        individual to perform a required duty−not a discretionary
        act.    Accordingly, the current action is frivolous as
        Appellant is seeking relief that he is not entitled to.

                                 *    *      *

        As stated above, the initiation of this action was somewhat
        convoluted as it was opened by a Commonwealth Court
        Order based upon Appellant’s filing in that court.       In
        reviewing Appellant’s Petition for IFP, this [c]ourt found
        the action to be frivolous because (1) he failed to name an
        indispensable party, i.e. the Clerk of Court; and (2) he is
        seeking relief that is improper through a writ of
        mandamus. As such, this [c]ourt dismissed the action
        pursuant to Pa.R.C.P. 240(j) on December 21, 2016.

(Trial Court Opinion at 2) (internal citation to record omitted). The record

                                     -5-
J-S58044-17


supports the court’s decision to dismiss Appellant’s case as frivolous.

Finally, the docket entries in Appellant’s criminal case reflect an order

entered on July 31, 2017, directing the clerk of court to docket the

preliminary hearing transcript and make it a part of the record in the

criminal case.     Therefore, Appellant’s claim is now moot.   See Deutsche

Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa.Super. 2005) (stating:

“Generally, an actual claim or controversy must be present at all stages of

the judicial process for the case to be actionable or reviewable…”); J.S. v.

Whetzel, 860 A.2d 1112, 1118 (Pa.Super. 2004) (stating: “If events occur

to eliminate the claim or controversy at any stage in the process, the case

becomes moot.        An issue can become moot during the pendency of an

appeal due to an intervening change in the facts of the case or due to an

intervening change in the applicable law. An issue before a court is moot if

in ruling upon the issue the court cannot enter an order that has any legal

force or effect”). Accordingly, we affirm.1

        Order affirmed.




____________________________________________


1   Appellant’s open motion for contempt is denied.



                                           -6-
J-S58044-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2018




                          -7-
