             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Newton Kerns,                            :
                               Appellant       :
                                               :    No. 234 C.D. 2016
                  v.                           :    Submitted: November 10, 2016
                                               :
J.L.R.                                         :

BEFORE:           HONORABLE ROBERT SIMPSON, Judge
                  HONORABLE JULIA K. HEARTHWAY, Judge
                  HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: March 8, 2017

                  Scott Newton Kerns (Kerns), representing himself, appeals from an
order of the Berks County Court of Common Pleas (trial court)1 granting J.L.R.’s
(the victim) motion to dismiss his complaint, and barring him from filing similar
claims against the victim under Pa. R.C.P. No. 233.1. Kerns argues the trial court
was biased, and it erred by disregarding a default judgment obtained against the
victim’s mother and by not requiring an answer. Discerning no error below, we
affirm.


                                        I. Background
                  Kerns is currently incarcerated in State Correctional Institution-
Frackville for sexual assault on the victim when she was a child. He was charged
and pled guilty on May 14, 2001, docketed on the trial court’s criminal docket at
CR-371-2001, to indecent deviate sexual intercourse with a child under 13 years of

         1
             The Honorable Madelyn S. Fudeman presided.
age. He was sentenced to 90 months to 20 years. Records indicate the Superior
Court affirmed the judgment of sentence, and Kerns did not seek further review.
See Commonwealth v. Kerns, 844 A.2d 1282 (Pa. Super. 2003).


              While incarcerated, in 2007 Kerns filed a pro se civil suit (No. 07-
8445) in Berks County naming Richard Joyce Esq., the Muhlenberg Township
Police Department, Gail Chiodo, Esq., the victim, and Tonya Helaine Tharp
(Tharp) (collectively, Defendants) (First Complaint). In the First Complaint, Kerns
alleged the victim made false statements to the police and filed a false police
report, causing Kerns’ alleged false arrest and imprisonment.


              The victim filed preliminary objections to the First Complaint, which
the trial court sustained. Ultimately, the trial court dismissed with prejudice the
First Complaint against the Defendants, including the victim. This Court affirmed
the trial court in Kerns v. Joyce (Pa. Cmwlth., No. 874 C.D 2010, filed December
10, 2010) (unreported), appeal denied, (Pa., No. 78 MAL 2011, filed June 7, 2011).


              In October 2015, Kerns filed the complaint underlying this matter,
(Second Complaint). The Second Complaint contains allegations that are similar
to those raised and dismissed in the First Complaint. Kerns asserted the victim
conspired with her mother (Kerns’ ex-wife) to imprison him for a crime he did not
commit. He alleged the victim “lie[d] to the court and authorities by conspiring
with her mother to put [Kerns] in prison.”            Supplemental Reproduced Record 2

       2
          Because the trial court granted Kerns in forma pauperis status, he was not required to
file a reproduced record.



                                               2
(S.R.R.) at 27b; Second Complaint at ¶6. He also claimed the victim’s mother
admitted his innocence in a separate civil suit in which he obtained a default
judgment.      By allegedly giving false statements, Kerns contends the victim
violated his constitutional rights to due process and liberty.


               In response, the victim filed a motion to dismiss the Second
Complaint under Pa. R.C.P. No. 233.1. In the motion, she explained Kerns filed
the First Complaint against her in 2007, which contained similar allegations
regarding her allegedly false statements.             She asserted the trial court already
resolved those claims when it dismissed the First Complaint. Because the First
Complaint and the Second Complaint contain similar claims against her, which the
trial court resolved in her favor in a court proceeding, she contended dismissal
under Rule 233.1 was appropriate.


               After hearing argument on the motion, the trial court dismissed the
Second Complaint with prejudice pursuant to Rule 233.1. In the same order, the
trial court barred Kerns “from pursuing additional pro se litigation against [the
victim], raising the same or related claims without leave of court.” Tr. Ct., Order,
12/21/15. Kerns appealed the order to this Court.3




       3
          Although the victim notes Kerns should have filed the appeal in Superior Court,
Appellee’s Brief at 2, n.1, no one objects to our jurisdiction. 42 Pa. C.S. §704. Further, we
addressed the trial court’s dismissal of similar litigation involving the victim and Tharp in Kerns
v. Joyce (Pa. Cmwlth., No. 874 C.D 2010, filed December 10, 2010) (unreported). The trial
court’s dismissal of his second complaint against Tharp is also on appeal, now pending at Kerns
v. Tharp (Pa. Cmwlth., No. 669 C.D. 2016, filed March 8, 2017). Thus, we retain jurisdiction in
the interest of judicial economy.



                                                3
               The trial court directed Kerns to file a concise statement of the errors
complained of on appeal under Pa. R.A.P. 1925(b). In its Rule 1925(a) opinion,
the trial court reasoned dismissal under Rule 233.1 was proper because the issues
were fully litigated “for a whole host of procedural and substantive reasons
including … Res Judicata, Collateral Estoppel, Law of the [C]ase Doctrine and
Statute of Limitations.” Tr. Ct., Slip Op., 6/3/16, at 5. The trial court added that
allowing Kerns to relitigate his claims would allow him to re-victimize the victim.


               This Court granted Kerns’ request for in forma pauperis status. The
matter is briefed and ready for our disposition.


                                         II. Discussion
               On appeal,4 Kerns assigns error to the trial court in three respects: (1)
by dismissing the Second Complaint based on bias and prejudice; (2) by
disregarding newly discovered evidence to prove the allegations; and, (3) by not
requiring the victim to answer the Second Complaint.


               As to his first assignment of error, Kerns does not describe any bias or
prejudice shown by the trial court. Because Kerns did not brief this argument, we
need not address it. See Pa. R.A.P. 2119.




       4
         A trial court’s grant of a motion to dismiss pursuant to Pa. R.C.P. No. 233.1 is subject to
an abuse of discretion standard. Coulter v. Ramsden, 94 A.3d 1080, 1086 (Pa. Super. 2014). To
the extent an appeal involves interpretation of the rules of civil procedure, an appellate court’s
standard of review is de novo. Id.



                                                 4
             In his second assignment of error, Kerns claims the trial court was
required to consider new evidence in the form of a default judgment he obtained
against the victim’s mother in another civil proceeding. From our review of his
uncounseled brief, it appears Kerns considers the default judgment an admission
that the victim and her mother conspired to imprison him. See Appellant’s Br. at
6. He contends the trial court abused its discretion in dismissing the Second
Complaint without allowing him to prove his claims based on these admissions.


             It bears emphasis the default judgment is against the victim’s mother,
not the victim. “A default judgment operates as an admission by the defendant of
the truth of all facts well[-]pleaded.” Wilson v. Maryland Cas. Co., 105 A.2d 304,
312 (Pa. 1954) (emphasis added). Further, Kerns offers no grounds for attributing
any alleged admissions to the victim. The alleged admissions, attached to Kerns’
brief as Exhibit B, concern the mother’s actions, not the victim’s actions.


             Moreover, Kerns’ arguments reflect his misapprehension of the basis
of the trial court’s dismissal of the Second Complaint. In his brief, Kerns argues
the merits of the Second Complaint, when the trial court dismissed it based on the
merit of the victim’s motion to dismiss under Rule 233.1.


             Rule 233.1 provides, in pertinent part, as follows:

             (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

                                          5
              (2) these claims have already been resolved pursuant to a
              written settlement agreement or a court proceeding.

              (b) The court may stay the action while the motion is pending.

              (c) Upon granting the motion and dismissing the action, the
              court may bar the pro se plaintiff from pursuing additional pro
              se litigation against the same or related defendants raising the
              same or related claims without leave of court.

              (d) The court may sua sponte dismiss an action that is filed in
              violation of a court order entered under subdivision (c).

Pa. R.C.P. No. 233.1 (emphasis added). In its 2010 Explanatory Comment to the
rule, our Supreme Court explained its purpose to provide relief to defendants from
repetitive litigation filed by pro se plaintiffs.


              Our Superior Court described the applicability of Rule 233.1 as
follows:

              Rule 233.1 was promulgated by our Supreme Court in 2010 to
              stem a noted increase in serial lawsuits of dubious merit filed
              by pro se litigants disaffected by prior failures to secure relief
              for injuries they perceived but could not substantiate.
              Accordingly, the drafting committee constructed the Rule with
              attention to potential manipulation of the legal process by
              those not learned in its proper use, seeking to establish
              accountability for pro se litigants commensurate with that
              imposed upon members of the Bar. Thus, the Rule operates to
              spare potential defendants the need to defend spurious claims,
              first, by allowing the expeditious dismissal of duplicative pro
              se actions and, second, by empowering the trial court to ban
              the pro se litigant's commencement of further actions against
              such defendants.




                                             6
Gray v. Buonopane, 53 A.3d 829, 835 (Pa. Super. 2012), appeal denied, 64 A.3d
632 (Pa. 2013) (emphasis added).


             This Court recognizes “the requirements of Rule 233.1 are not as
stringent as the traditional collateral estoppel requirements.” Guarrasi v.
Gambardella (Pa. Cmwlth., No. 92 M.D. 2014, filed October 17, 2014), 2014 WL
5320555, at *4 (unreported). It is sufficient for a movant for dismissal to establish
the claims were related and that they were resolved. Id.; Gray.


             Here, the claims are related in that they all pertain to the victim’s
statements to the court and authorities that led to Kerns’ conviction for sexual
assault on a child. Specifically, in the First Complaint, Kerns alleged that:

                   20. … [the victim] committed perjury by making 4
             inconsistent statements throughout the entire case.

                   21. … [the victim] made a false police report against
             [Kerns].

                    22. … [the victim], as a result of the false police
             report[,] caused [Kerns] to be falsely arrested and imprisoned.

S.R.R. at 42b. In the Second Complaint, Kerns alleged that:

             6. … [the victim] did lie to the court and authorities by
             conspiring with her mother to put [Kerns] in prison.

             7. … [the victim] knew that she was lying to the court and
             conspiring with her mother when [she] testified at the
             Preliminary Hearing.




                                          7
             8. [the victim] violated the following Pa[.] and U.S.
             constitutional rights, Due Process and Freedom of Liberty.
             [sic] [d]ue to her conspiring with her mother.

             9. [the victim] committed a crime when she lied and
             conspired with her mother to put [Kerns] in prison for a crime
             that she knows [Kerns] did not commit.

                                          [***]

             11. … [the victim] did lie and make up stories to the [Sexual
             Offenders Assessment Board] board member when in fact she
             knew that it was all lies just to satisfy her mother.

S.R.R. at 27b.


             The claims in both the First Complaint and the Second Complaint
allege the victim made false statements to authorities that led to Kerns’ conviction
for sexual assault on the victim. As such, the claims are similar and relate to the
same underlying circumstances.


             The record is also clear that the claims in the First Complaint were
“resolved pursuant to … a court proceeding.” Pa. R.C.P. No. 233.1. The trial
court heard argument on the victim’s preliminary objections to the First Complaint
before sustaining them and dismissing the First Complaint with prejudice. We
affirmed the trial court’s dismissal, and our Supreme Court declined to hear Kerns’
appeal. Kerns v. Joyce.


             We are unpersuaded by Kerns’ argument that the victim was required
to answer the allegations as opposed to filing preliminary objections. Kerns draws
our attention to no authority requiring the trial court to consider the merits of his


                                         8
claims under these circumstances. Indeed, as construed by our sister court, Rule
233.1 does not require that “a matter has progressed to a ‘final judgment on the
merits.’” Gray, 53 A.3d at 836 (citation omitted).


             We review the trial court’s dismissal under an abuse of discretion
standard. Coulter v. Ramsden, 94 A.3d 1080 (Pa. Super. 2014). “[T]he court
abuses its discretion if, in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason [or] if it does not follow legal
procedure.” Id. at 1086.


             We discern no abuse of discretion by the trial court here. The trial
court properly applied Rule 233.1. Rule 233.1 was designed to protect defendants
like the victim from duplicative litigation. Kerns fully litigated the dismissal of the
First Complaint in Kerns v. Joyce. Based on the similarity of the claims, and their
prior resolution by the appellate courts, Rule 233.1 authorized the trial court to
dismiss the Second Complaint on the victim’s motion. Accordingly, the victim
had no obligation to answer Kerns’ allegations.


                                   III. Conclusion
             For the foregoing reasons, the trial court’s order is affirmed.




                                        ROBERT SIMPSON, Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Newton Kerns,                 :
                      Appellant     :
                                    :   No. 234 C.D. 2016
           v.                       :
                                    :
J.L.R.                              :


                                  ORDER

           AND NOW, this 8th day of March, 2017, the order of the Berks
County Court of Common Pleas is AFFIRMED.



                                   ROBERT SIMPSON, Judge
