             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George Gilmore,                                  :
                                                 : No. 1301 C.D. 2016
                                 Appellant       : Submitted: January 13, 2017
                                                 :
                         v.                      :
                                                 :
Kenneth Cameron,                                 :
Doretta Chencharik                               :
and Sergeant Morrison                            :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                                FILED: June 20, 2017



                 George Gilmore appeals pro se the order of the Clearfield County
Court of Common Pleas (trial court) dismissing his complaint with prejudice
pursuant to Pa. R.C.P. No. 240(j)(1).1 We affirm.



       1
           Pa. R.C.P. No. 240(j)(1) states:

                 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.

A frivolous action or proceeding has been defined as one that “lacks an arguable basis either in
law or in fact.” Id., Note (citing Neitzke v. Williams, 490 U.S. 319 (1989)).
                Gilmore is an inmate presently housed at the State Correctional
Institution (SCI), Dallas. Gilmore alleges that in September 2013, while he was
housed at SCI, Houtzdale, he gave a pair of defective Timberland boots to the mail
supervisor at the facility to be shipped for return and replacement by the company.
In April 2014, he filed a grievance against Kenneth Cameron, the facility’s
superintendent, Doretta Chencharick, the superintendent’s assistant, and Sergeant
Morrison, the property sergeant at the facility’s Receiving and Delivery
Department (collectively, Prison Officials) because the boots had allegedly not
been shipped back to Timberland at that time. Ultimately, in July 2014, Gilmore
had exhausted the grievance process without relief and the replacement boots were
purportedly destroyed because Gilmore had filed the grievances and a federal
lawsuit.
                On December 12, 2014, Gilmore filed a complaint in the trial court,
docketed at No. 2015-91-CD, against the Prison Officials seeking compensatory
and punitive damages for the confiscation and destruction of his replacement boots
and an application to proceed in forma pauperis. On January 22, 2015, the trial
court issued an opinion and order dismissing the complaint with prejudice pursuant
to Pa. R.C.P. No. 240(j)(1).2

      2
          As the trial court explained:

                       [Gilmore’s] Complaint seeks relief for the confiscation of
                shoes by prison officials. [Gilmore] avers that he was sent a pair
                of shoes by the shoe manufacturer as a replacement for defective
                shoes. [Gilmore’s] original shoes were within prison regulations,
                however, the documents that [Gilmore] has included with his
                Complaint indicate that the replacement shoes were not within
                prison regulations.     As such, the replacement shoes were
                confiscated by prison officials. [Gilmore] pursued relief for the
                confiscation of his shoes through the prison grievance system and
(Footnote continued on next page…)
                                                2
              On May 13, 2016, Gilmore filed another complaint in the trial court in
assumpsit, docketed at No. 2016-889-CD, against the Prison Officials “seeking
damages based upon ‘the reckless, deliberately indifferent, outrageous, malicious,
negligent and wrongful conduct’ of the [Prison Officials] in the mishandling and
destruction of [Gilmore’s] Timberland boots.” Trial Court 6/7/16 Order at ¶2.
Gilmore sought “judgment against the [Prison Officials] ‘in excess of one hundred
fifty thousand dollars . . .’ plus punitive damages, attorney fees and costs.” Id. at
¶3. Gilmore also filed a petition for leave to proceed in forma pauperis.
              However, the trial court noted that “[t]he earlier case was filed [at]
No. 2015-91-CD in the Office of the Clearfield County Prothonotary;” that “[b]y
Opinion and Order of January 22, 2015[,] the Court dismissed the Complaint with
prejudice under [Pa. R.C.P. No. 240(j)(1)]”; and that in the prior case, Gilmore
“submitted what in essence is the same case raising various claims against prison


(continued…)

              was denied relief. As a result of this [Gilmore] has filed a
              complaint against the prison officials for: breach of contract,
              violation of the Pennsylvania Unfair Trade Practices and
              Consumer Protection Law (UTPCPL), [Act of December 17, 1968,
              P.L. 1224, as amended, 73 P.S. §§201-1 – 201-9.3], breach of the
              Uniform Commercial Code (UCC), [13 Pa. C.S. §§1101-9809],
              intentional infliction of emotional distress, destruction of property,
              harassment, racial intimidation, and fraud. [Gilmore] seeks
              $5000.00 in compensatory damages from each [of the prison
              officials] and $1000.00 per [prison official] in punitive damages.
              These claims are frivolous on their face and will be summarily
              dismissed by the Court. [Perhaps the most appropriate course of
              conduct for [Gilmore] is to seek replacement shoes from the
              manufacturer that do conform to prison regulations].

Trial Court 1/22/15 Opinion and Order at 2.


                                                3
officials as a result of the destruction of the same Timberland boots.” Trial Court
6/7/16 Order at ¶¶4, 5. The trial court also explained that Gilmore “did not appeal
this dismissal to either the Pennsylvania Superior Court or Commonwealth Court”
and that “[a]s such, the dismissal is final. By law [Gilmore] cannot file another
lawsuit raising claims against prison officials based upon destruction of the same
Timberland boots.” Id. at ¶¶6, 7. The trial court concluded that, “[a]s such, the pro
se Complaint in the case at bar is legally inappropriate and frivolous” and issued
the order dismissing Gilmore’s complaint with prejudice pursuant to Pa. R.C.P.
No. 240(j)(1). Id. at ¶¶8, 9. Gilmore then filed the instant appeal of the trial
court’s order.3
                On appeal, Gilmore argues that the trial court erred in failing to
transmit a copy of its January 22, 2015 order dismissing with prejudice the
complaint filed at No. 2015-91-CD because it precluded him from timely
appealing that order or seeking leave to amend his complaint under Pa. R.C.P. No.
1033,4 and that the court erred by not allowing Gilmore to amend his complaint



       3
          Our review of an order disposing of a petition for leave to proceed in forma pauperis
and the underlying complaint pursuant to Pa. R.C.P. No. 240(j)(1) is limited to determining
whether the trial court violated a party’s constitutional rights, abused its discretion or committed
an error of law. Thomas v. Holtz, 707 A.2d 569, 570 (Pa. Cmwlth. 1998).

       4
           Pa. R.C.P. No. 1033(a) states, in relevant part:

                  A party, either by filed consent of the adverse party or by leave of
                 court may at any time change the form of action . . . or otherwise
                 amend the pleading. The amended pleading may aver transactions
                 or occurrences which have happened before or after the filing of
                 the original pleading, even though they give rise to a new cause of
                 action or defense.



                                                   4
under Pa. R.C.P. No. 1033 because it would “serve no legal purpose.”5 Trial Court
8/18/16 Order at ¶5. Importantly, in this appeal, Gilmore does not argue that the
trial court erred in dismissing the complaint as frivolous pursuant to Pa. R.C.P. No.
240(j)(1).
               However, the certified record demonstrates that Gilmore never sought
leave to appeal nunc pro tunc the trial court’s January 22, 2015 order dismissing
the complaint at No. 2015-91-CD based on its failure to properly serve him with
the order,6 nor leave to amend the complaint at No. 2016-889-CD pursuant to

       5
        Gilmore first raised both of these claims in his Pa. R.A.P. 1925(b) Concise Statement of
Errors Complained of on Appeal. The trial court rejected the claims stating, “whether or not
[Gilmore] received an Order in the other case is not relevant to this case” and that “[p]ermitting
amendment of the pro se Complaint will serve no legal purpose.” Trial Court 8/18/16 Order at
¶5. The trial court also explained that it “has no jurisdiction to litigate this matter pursuant to
Bronson v. Central Office Review Committee, 721 A.2d 357 (Pa. 1998).” Id. at ¶6.

       6
         The Supreme Court has stated that “an appeal cannot be extended as a matter of grace
or mere indulgence.” Union Electric Corporation v. Board of Property Assessment, Appeals &
Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000). Rather:

                       Allowing an appeal nunc pro tunc is a recognized
               exception to the general rule prohibiting the extension of an appeal
               deadline. This Court has emphasized that the “principle emerges
               that an appeal nunc pro tunc is intended as a remedy to vindicate
               the right to an appeal where that right has been lost due to certain
               extraordinary circumstances.” Commonwealth v. Stock, [679 A.2d
               760, 764 (Pa. 1996)]. Generally, in civil cases, an appeal nunc pro
               tunc is granted only where there was “fraud or a breakdown in the
               court’s operations through a default of its officers.” Bass [v.
               Commonwealth, 401 A.2d 1133, 1135 (Pa. 1979)]; see also Stock,
               [] 679 A.2d at 763; Hanoverian, Inc. v. Lehigh County Bd. of
               Assessment, 701 A.2d 288, 289 (Pa. [Cmwlth.] 1997) (“[A] court
               may not extend that time period or allow an appeal nunc pro tunc
               absent a showing that extraordinary circumstances involving fraud,
               or its equivalent, duress, or coercion caused the delay in filing an
               appeal.”).
(Footnote continued on next page…)
                                                5
Pa. R.C.P. No. 1033.7 It cannot be said that the trial court erred or abused its
discretion by failing to grant the specified relief when Gilmore never asked the


(continued…)


Union Electric Corporation, 746 A.2d at 584. Although the trial court’s failure to serve Gilmore
with the order dismissing his complaint at No. 2015-91-CD may well constitute such a
“breakdown in the court’s operations” warranting the grant of an appeal nunc pro tunc, as
outlined above, Gilmore never sought such relief.

       7
           The Supreme Court has explained:

                        [Pa. R.C.P. No. 1033] allows a party to amend his or her
                pleadings with either the consent of the adverse party or leave of
                the court. Leave to amend lies within the sound discretion of the
                trial court and “the right to amend should be liberally granted at
                any stage of the proceedings unless there is an error of law or
                resulting prejudice to an adverse party.” Connor v. Allegheny
                General Hospital, [461 A.2d 600, 602 (Pa. 1983)].

                        Here, petitioner’s claim fails because he never requested
                that the Commonwealth Court allow him leave to amend [his
                petition for review]. Appellant fails to cite to any case law, and we
                can find none, requiring a court to sua sponte order or require a
                party to amend his pleading. Moreover, a court is not required to
                allow amendment of a pleading if a party will be unable to state a
                claim on which relief could be granted. See Spain v. Vicente, [461
                A.2d 833, 837 (Pa. Super. 1983)] (trial court did not err in refusing
                to permit amendment of defamation complaint to allow more
                specific details since no formal motion to amend was ever made
                and plaintiff’s deposition militated against likelihood of
                establishing claim). Thus, appellant’s claim must fail.

Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996) (footnote omitted).

       The Supreme Court has also recognized that “[p]rison inmates do not have the right to
possess civilian clothing. Indeed, department directives specify exactly what property may be
possessed or purchased either in the prison commissary or through outside sources. See DC-
ADM 815.” Bronson, 721 A.2d at 359-60. DC-ADM 815 §3(C)(1)(n) designates “civilian
(Footnote continued on next page…)
                                                 6
court to do so. See, e.g., Florimonte v. Borough of Dalton, (Pa. Cmwlth. No. 266
C.D. 2001, filed January 27, 2012), slip op. at 6-7 (“Florimonte did not request,
either in her briefs to or in her argument before the trial court, that the trial court
consolidate her 2010 Complaint with her 2003 Complaint as an alternative to
dismissing the 2010 Complaint. Because Florimonte never requested that the trial
court consolidate her claims pursuant to [Pa. R.C.P. No.] 213, we cannot say that
the trial court abused its discretion in not doing so.”).
               Moreover, the foregoing claims were first raised by Gilmore in his
Pa. R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal. “The
law is well settled that issues not raised before the trial court cannot be raised for
the first time on appeal or in a [Pa. R.A.P.] 1925(b) statement of errors complained
of on appeal. Pa. R.A.P. 302(a);[8] Orange Stones Co. v. City of Reading, 32 A.3d
287 (Pa. Cmwlth. 2011).” Kuziak v. Borough of Danville, 125 A.3d 470, 478-79


(continued…)

clothing” as contraband and subsection (C)(8) states that “[a]ll items deemed to be contraband
will be destroyed or otherwise disposed of. . . . When an inmate files a grievance regarding
confiscated contraband, destruction of the property will only occur after the appeal process has
been exhausted.” The exhibits to Gilmore’s complaint demonstrate that the contraband
replacement boots were destroyed after the grievance appeal process had been exhausted and
after the 30-day period had lapsed within which he was directed to provide an address to which
the contraband boots should be shipped. See Plaintiff’s Complaint in Assumpsit at Exhibits D,
E, F. The foregoing militates against the likelihood of establishing a claim. Goodley v. Folino,
(Pa. Cmwlth. No. 2376 C.D. 2010, filed July 1, 2011), slip op. at 7-8; Mitchell v. Webb, (Pa.
Cmwlth. No. 1304 C.D. 2010, filed January 11, 2011), slip op. at 2-3. See Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a) (“Parties may . . . cite an
unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but
not as binding precedent.”).

       8
         Pa. R.A.P. 302(a) states that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”


                                                 7
(Pa. Cmwlth. 2015). As a result, these allegations of error will not be considered
for the first time in this appeal.
              Accordingly, the trial court’s order is affirmed.9




       9
         We may affirm the trial court’s order for any basis appearing in the record. Feldman v.
Lafayette Green Condominium Association, 806 A.2d 497, 502 n.3 (Pa. Cmwlth. 2002).


                                               8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George Gilmore,                      :
                                     : No. 1301 C.D. 2016
                        Appellant    :
                                     :
                  v.                 :
                                     :
Kenneth Cameron,                     :
Doretta Chencharik                   :
and Sergeant Morrison                :


PER CURIAM

                                    ORDER


           AND NOW, this 20th day of June, 2017, the order of the Clearfield
County Court of Common Pleas dated June 7, 2016, at No. 2016-889-CD is
AFFIRMED.
