J-S12036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLUE WILKINS,                                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                    Appellant                :
                                             :
              v.                             :
                                             :
DEPUTY DISTRICT ATTORNEY KRISTIE             :
M. FALBO                                     :            No. 1013 MDA 2016

                   Appeal from the Order entered June 7, 2016
                in the Court of Common Pleas of Dauphin County,
                        Civil Division, No(s): 2016 CV 3946

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED APRIL 13, 2017

        Glue Wilkins (“Wilkins”), pro se, appeals from the Order dismissing,

with prejudice, his pro se civil Complaint (“the Complaint”), filed against

Kristie M. Falbo, Esquire (“Falbo”), a Dauphin County Deputy District

Attorney, as being frivolous under Pennsylvania Rule of Civil Procedure

240(j).1 We affirm.




1
    Rule 240(j) provides, in relevant part, as follows:

       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 … it is
       satisfied that the action, proceeding or appeal is frivolous.

Pa.R.C.P. 240(j)(1); see also Neitzke v. Williams, 490 U.S. 319, 325
(1989) (superseded by statute) (explaining that “a litigant whose filing fees
and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.”).
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      In December 2014, the Commonwealth charged Wilkins with barratry.

See 18 Pa.C.S.A. § 5109 (providing that “[a] person is guilty of a

misdemeanor of the third degree if he vexes others with unjust and

vexatious suits.”). On September 25, 2015, Wilkins pled guilty to barratry

(hereinafter referred to as “the criminal case”).   The trial court sentenced

Wilkins to one year of probation, with the condition that he not engage in

any further vexatious lawsuits.2 Wilkins filed a pro se direct appeal, and this

Court dismissed the appeal for the failure of Wilkins’s brief to comply with

several Rules of Appellate Procedure.     See Commonwealth v. Wilkins,

2016 Pa. Super. Unpub. LEXIS 1957 (Pa. Super. 2016) (judgment order).

      On May 20, 2016, Wilkins filed the Complaint.       Wilkins then filed a

Petition for leave to proceed in forma pauperis.     Thereafter, Wilkins filed

various pro se documents that are not relevant to this appeal.

      On June 7, 2016, the trial court entered an Order dismissing the

Complaint as frivolous under Rule 240(j).     Wilkins filed a timely Notice of

Appeal, in response to which the trial court ordered him to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Wilkins timely




2
  Wilkins is an inmate incarcerated at the State Correctional Institution at
Fayette, serving a term of 12 to 24 years in prison for, inter alia, attempted
murder.

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filed a pro se document entitled “Questions for Review.”3

      The Statement of Questions Presented section of Wilkins’s pro se brief

presents four vague and confusing issues, none of which pertain to the trial

court’s dismissal of the Complaint.     Brief for Appellant at 1.   For ease of

disposition, we incorporate Wilkins’s issues herein by reference. See id.

      “Our review of a decision dismissing an action pursuant to Pa.R.C.P.

240(j) is limited to a determination of whether the plaintiff’s constitutional

rights have been violated and whether the trial court abused its discretion or

committed an error of law.”     Ocasio v. Prison Health Servs., 979 A.2d

352, 354 (Pa. Super. 2009). For purposes of Rule 240(j), a frivolous action

or proceeding has been defined as one that “lacks an arguable basis either in

law or in fact.” Id. (quoting Neitzke, 490 U.S. at 325). “Under Rule 240(j),

an action is frivolous if, on its face, it does not set forth a valid cause of

action.” Ocasio, 979 A.2d at 354 (citation and quotation marks omitted).

Rule 240(j) requires that a trial court review the action to determine frivolity

prior to addressing the merits of the complaint. Id.




3
   In its Pa.R.A.P. 1925(a) Opinion, the trial court accurately explains that
“[t]his document included numerous ‘questions’ that do not pertain to the
instant appeal and are not applicable to th[e] [] dismissal of the action as
frivolous.” Trial Court Opinion, 7/11/16, at 1 (unnumbered); see also
Ferris v. Harkins, 940 A.2d 388, 397 (Pa. Super. 2007), vacated on other
grounds, 961 A.2d 56 (Pa. 2008), (observing that “when the appellant
provides a concise statement which is too vague to allow the trial court an
opportunity to identify the issues raised on appeal, he/she has provided the
functional equivalent of no Concise Statement at all.” (citation and quotation
marks omitted)).

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      In his somewhat incoherent and confusing Argument section, Wilkins

largely challenges his allegedly unlawfully induced guilty plea and sentence

imposed in the criminal case.    Nowhere, however, does he challenge the

dismissal of the Complaint pursuant to Rule 240(j).4

      In its Opinion, the trial court addressed the dismissal of the Complaint

as follows:

      [The] Complaint is largely unintelligible and includes references
      to numerous statutes that do not appear to relate to any
      purported cause of action.       Upon thorough review of the
      Complaint, [the trial c]ourt is at a loss to identify any actual
      claims against [Falbo] or facts that allege that [Falbo] engaged
      in any wrongdoing that caused [Wilkins] harm.[5] [Wilkins]
      seeks compensatory damages in the amount of $25,000;
      punitive damages in the amount of $100,000; and declarative
      damages as deemed appropriate by the [c]ourt.

            [Wilkins] does not provide any factual or legal basis in
      support of any claim against [Falbo], and [the trial c]ourt cannot
      decipher what claim [Wilkins] is purporting to bring. [Wilkins]
      has also failed to state how he incurred damages as a result of
      any purported wrongdoing of [Falbo]. Finally, [Wilkins] has not
      set forth any facts or legal authority that would sustain a claim
      for punitive damages against [Falbo].



4
  Moreover, the only claim that Wilkins levels against Falbo (who, the
Complaint alleges, was the prosecutor involved in the criminal case) is that
she (1) ignored a prior plea agreement that Wilkins had entered into with a
separate District Attorney in the criminal case; and (2) therefore “clearly
neglected or failed to perform a duty of office[,]” and “cannot continue in
furtherance of conduct by the Office of [the] Dauphin County District
Attorney that led to a wrongful conviction.” Brief for Appellant at 4.
5
  Indeed, the Complaint barely mentions Falbo, aside from listing her as the
Defendant, and stating that “[Falbo] notified [Wilkins] that the[] [District
Attorney’s Office] would not be correcting any errors in the criminal history
record information.” Complaint, 5/20/16, at 1, 3 (emphasis and quotation
marks omitted).

                                 -4-
J-S12036-17

             Based upon [the trial court’s] review of [the] Complaint,
      we were satisfied that the Complaint did not set forth a valid
      cause of action against [Falbo]. [The] Complaint has no basis in
      law or fact that would arguably entitle [Wilkins] to relief. As
      such, prior to acting upon [Wilkins’s] Petition for Leave to
      Proceed in Forma Pauperis, [the trial court] dismissed his action
      as frivolous pursuant to Pa.R.C.P. 240(j).

Trial Court Opinion, 7/11/16, at 2-3 (unnumbered, footnote added).

      The trial court’s above analysis is supported by the record, and its

determination that the Complaint is frivolous is sound.         We discern no

violation of Wilkins’s constitutional rights, or abuse of discretion by the trial

court in dismissing the Complaint with prejudice. See Ocasio, 979 A.2d at

356 (noting that Rule 240(j) is not unconstitutional, and holding that the

trial court did not abuse its discretion in dismissing the pro se plaintiff’s

complaint against the prison medical provider, with prejudice, as it was

frivolous and could not be amended to bring a cause of action against the

defendants). Accordingly, none of Wilkins’s issues on appeal entitle him to

relief, and we affirm the Order dismissing the Complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




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