           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Alexander,                              :
                               Appellant      :
                                              :
               v.                             :   No. 870 C.D. 2016
                                              :   Submitted: December 16, 2016
Corrections Officer Volkert,                  :
Tracy Brokenshire, Mailroom                   :
Supervisor, Nancy Wilson, Business            :
Manager SCI Coal Township,                    :
Keri Moore, Deputy Grievance                  :
Officer, Dorina Varner, Chief                 :
Grievance Officer, Vincent Mooney,            :
Superintendent                                :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: April 20, 2017

               Appellant Keith Alexander (Appellant) appeals from an order of the
Court of Common Pleas of Northumberland County (trial court), denying his
petition to proceed in forma pauperis and dismissing his complaint as frivolous.
For the reasons that follow, we affirm on alternative grounds.
               At all times relevant to the instant matter, Appellant was an inmate
incarcerated        at   the   State   Correctional   Institution   at   Coal   Township
(SCI-Coal Township). In his complaint, Appellant named several officers and
employees of SCI-Coal as Defendants: Corrections Officer Volkert, Mailroom
Supervisor Tracy Brokenshire, Business Manager Nancy Wilson, Deputy
Grievance Officer Keri Moore, Chief Grievance Officer Dorina Varner, and
Superintendent Vincent Mooney (collectively, Appellees). Appellant seeks money
damages, alleging that Appellees violated his constitutional rights by refusing or
failing to deliver his legal mail. The facts of this case are somewhat intertwined
with a prior action filed on December 4, 2015, by Appellant in this Court, which
we dismissed. Alexander v. Dunkelberger, (Pa. Cmwlth., No. 563 M.D. 2015,
filed June 15, 2016) (Alexander I). In Alexander I, Appellant alleged that the
Northumberland County Clerk of Courts (Clerk of Courts) had refused to file his
civil complaint, dated October 7, 2015, which he attached as an exhibit to his
December 4, 2015 complaint filed with this Court.
             On June 15, 2016, we issued an order dismissing Appellant’s
complaint in Alexander I. In the June 15, 2016 order, we noted that we had
received an appeal from a May 4, 2016 order of the trial court—i.e., the appeal
now before this Court—apparently dismissing the October 7, 2015 complaint,
which Appellant alleged the Clerk of Courts had refused to file. Accordingly, we
dismissed Appellant’s complaint against the Clerk of Courts as moot.            On
June 29, 2016, Appellant filed a motion for reconsideration. On July 12, 2016, we
issued an order denying Appellant’s motion for reconsideration and noting that the
motion lacked a certificate of service.
             With regard to the matter now before this Court, an examination of
the certified record on appeal indicates that, on March 31, 2016, Appellant
apparently re-filed his October 7, 2015 complaint, including a civil cover sheet and




                                          2
a praecipe to proceed in forma pauperis.1 By order dated May 4, 2016, the trial
court, apparently construing Appellant’s complaint filed on March 31, 2016, as an
amended complaint, dismissed Appellant’s complaint pursuant to Pa. R.C.P.
No. 240(j)(1) as a frivolous action that lacks an arguable basis in law.2                          On
May 16, 2016, Appellant filed a notice of appeal from the trial court’s May 4, 2016
order. In accordance with Pa. R.A.P. 905(a)(4),3 the Chief Clerk of this Court
transmitted the filing, stamped with the date of receipt, to the trial court with
instruction to process the document in accordance with Pa. R.A.P. 905(a)(4). By
order dated July 22, 2016, the trial court ordered Appellant to file and serve a
concise      statement      of    errors    complained        of    on    appeal,     pursuant      to


       1
          It appears that the Clerk of Courts had originally refused to file the October 7, 2015
complaint because it failed to conform to several administrative filing requirements including
failure to attach a civil cover sheet and failure to pay the filing fee or attach a praecipe to proceed
in forma pauperis.
       2
           Pennsylvania Rule of Civil Procedure No. 240 (j)(1) provides, in pertinent part:
               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
           Pennsylvania Rule of Appellate Procedure 905(a)(4) provides, in pertinent part:
               If a notice of appeal is mistakenly filed in an appellate court, or is
       otherwise filed in an incorrect office within the unified judicial system, the clerk
       shall immediately stamp it with the date of receipt and transmit it to the clerk of
       the court which entered the order appealed from, and upon payment of an
       additional filing fee the notice of appeal shall be deemed filed in the trial court on
       the date originally filed.



                                                  3
Pa. R.A.P. 1925(b), within 21 days of the date of the order. On August 3, 2016,
Appellant served his concise statement on the trial judge. Appellant did not file his
concise statement with the trial court. On August 8, 2016, Appellant filed a
document in this Court, titled “motion to alert the Honorable Court of status of the
amended complaint that’s a part of [this case].” As an attachment to that filing,
Appellant included a copy of the concise statement served on the trial judge. In his
concise statement, Appellant essentially alleges that the trial court erred in
dismissing his “claims of fraud and embezzlement by state correction officials”
and “violations of his United States Constitutional First Amendment rights, and
Article 1, Section 20 of the Pennsylvania Constitution where the above Defendants
failed to deliver his outgoing legal mail,” and “new matter in which additional
defendants were named who indeed retaliated against Appellant for filing his
complaint by entering his cell and removing other [legal] documents.”
             The trial court, in response to the concise statement served on the trial
judge, filed a statement in lieu of formal opinion. In its statement, the trial court
notes that Appellant’s complaint did not allege claims of fraud, embezzlement, or
retaliation, as noted in Appellant’s concise statement. The trial court, citing Buehl
v. Beard, 54 A.3d 412, 417 (Pa. Cmwlth. 2012), aff’d, 91 A.3d 100 (Pa. 2014),
additionally states that Appellant’s claim that SCI-Coal Township failed to deliver
his legal mail was properly dismissed as frivolous because “the day-to-to
operations of a state correctional institution are matters with which the courts will
not interfere.” (Certified Record (C.R.) at 8.) The trial court, therefore, urges this
Court to quash the instant appeal.
             On appeal, Appellant argues that the trial court erred in dismissing his
complaint as frivolous and lacking in merit pursuant to Pa. R.C.P. No. 240(j)(1).


                                          4
             We need not reach the merits of Appellant’s claims because the record
demonstrates that he failed to properly file his statement of errors complained of on
appeal pursuant to Pa. R.A.P. 1925(b). Although not argued by Appellees, it is
well-settled that this Court may dismiss an appeal sua sponte based on an
appellant’s failure to properly preserve issues for appellate review. Gibraltar
Rock, Inc. v. New Hanover Twp., 118 A.3d 461, 464 (Pa. Cmwlth.), appeal
denied, 128 A.3d 222 (Pa. 2015). Pa. R.A.P. 1925(b) provides that, upon receipt of
a notice of appeal, the trial court may order an appellant to file of record a concise
statement of errors complained of on appeal. The trial court must allow the
appellant at least twenty-one days from the date of the order’s entry for filing and
service of the statement. Upon application of the appellant, the trial court may
extend this deadline or allow a statement to be filed nunc pro tunc. The order must
include:
             (i) the number of days after the date of entry of the
             judge’s order within which the appellant must file and
             serve the Statement; (ii) that the Statement shall be filed
             of record; (iii) that the Statement shall be served on the
             judge pursuant to paragraph (b)(1); [and] (iv) that any
             issue not properly included in the Statement timely filed
             and served pursuant to subdivision (b) shall be deemed
             waived.

Pa. R.A.P. 1925(b)(3).4 If the trial court orders an appellant to file a concise
statement of errors complained of on appeal, the appellant must file the statement
within 21 days of the date of the order unless the trial court allows the appellant
additional time to file. In re Clinton Cnty. Tax Claims Bureau Consol. Return for

      4
         The trial court’s July 22, 2016 order complied with all requirements set forth in
Pa. R.A.P. 1925(b)(3).



                                            5
Sale of September 24, 2012, 109 A.3d 331, 334 (Pa. Cmwlth. 2015). Failure to
comply with the trial court’s order will result in waiver of all issues raised on
appeal. Id.5

                Although Appellant served his order on the trial judge and the trial
judge issued a responsive statement, Appellant failed to conform to the
requirements of Pa. R.A.P. 1925(b)(3), because he failed to file the statement with
the trial court. Appellant’s concise statement has been made part of the record on
appeal     by    virtue   of    its    attachment    as    an    exhibit    to   Appellant’s
August 8, 2016 motion to this Court. Accordingly, because Appellant failed to
comply with the trial court’s order and the requirements of Pa. R.A.P. 1925(b), all
issues on appeal are deemed waived.6
                For the reasons discussed above, we affirm the order of the trial court.




                                      P. KEVIN BROBSON, Judge




       5
         We do not dismiss Appellant’s appeal because the concise statement was untimely filed,
but rather because it was never properly filed with the trial court.
       6
         Because all issues on appeal are deemed waived, we do not express an opinion on the
merits of Appellant’s claims.



                                              6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Alexander,                     :
                       Appellant     :
                                     :
           v.                        :    No. 870 C.D. 2016
                                     :
Corrections Officer Volkert,         :
Tracy Brokenshire, Mailroom          :
Supervisor, Nancy Wilson, Business   :
Manager SCI Coal Township,           :
Keri Moore, Deputy Grievance         :
Officer, Dorina Varner, Chief        :
Grievance Officer, Vincent Mooney,   :
Superintendent                       :



                                   ORDER


           AND NOW, this 20th day of April, 2017, the order of the Court of
Common Pleas of Northumberland County, dismissing Appellant’s complaint, is
hereby AFFIRMED on alternative grounds.




                             P. KEVIN BROBSON, Judge
