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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


DWAYNE ANDERSON                             :     IN THE SUPERIOR COURT OF
         Appellant                          :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
                                            :
JOHN W. PERSON                              :
                                            :     No. 3757 EDA 2015

               Appeal from the Order Entered September 16, 2015
              In the Court of Common Pleas of Philadelphia County
             Civil Division No(s): August Term, 2015 No. 150803144


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. *

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 21, 2016

        Appellant, Dwayne Anderson, appeals pro se from the September 16,

2015 Order entered in the Philadelphia County Court of Common Pleas

dismissing his Complaint as frivolous pursuant to Pa.R.C.P. 240(j).      After

careful review, we affirm.1



*
    Former Justice specially assigned to the Superior Court.
1
   Appellant has also filed a Motion for Court’s Order seeking an Order to
compel the Prothonotary of this Court to ensure that this Court’s “decision
be sent to [Appellant] the proper and traditional way, via U.S. Mail.” Motion
for Court’s Order, 5/13/16, at 2. In the Motion, Appellant claims that he
received a letter from this Court on April 19, 2016, notifying him that “the
Court’s decision in this appeal will be sent to [him] by e-mail only[,]” but
that as an incarcerated individual, he does not have an e-mail address. Id.
at 1. In fact, this Court’s letter dated April 13, 2016 notified Appellant that
if he has an e-mail address on the docket, the Court’s decision in this appeal
will be sent to him by e-mail only. Accordingly, Appellant’s Motion for
Court’s Order is denied.
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     The trial court recounted the facts and procedural history as follows:

        On August 25, 2015, [Appellant] commenced this action by
        Complaint.   Contemporaneously with the filing of the
        Complaint, [Appellant] filed a Motion to Proceed In Forma
        Pauperis.

        The Complaint alleges [Appellee] John Person is a Deputy
        Prothonotary for the Pennsylvania Supreme Court. In April
        2015, [Appellant] filed a Petition for Writ of Mandamus in
        the Supreme Court, Eastern Division[ ] ; the Petition
        requested the Supreme Court use its mandamus authority
        to order the Philadelphia Court of Common Pleas to take
        certain actions in the matter of Dwayne Anderson v.
        Aramark Services, Inc., January Term 2015 No. 1750.
        By letter dated June 3, 2015, [Appellee] informed
        [Appellant] that if he wished to continue his Petition for
        Mandamus, he would need to serve it on all parties by no
        later than June 17, 2015, and provide to the Supreme
        Court the following: 1) a copy of [Appellant’s] inmate
        account statement;[ ] 2) a certificate of service for the
        Petition for Writ of Mandamus; and 3) an Amended Petition
        for Writ of Mandamus containing the trial court docket
        number in Anderson v. Aramark. [Appellant] alleges
        that on June 15, 2015, he sent a letter to [Appellee]
        providing a copy of his inmate account statement and
        explaining that he was unable to serve his Petition because
        prison officials denied him the ability to make copies. The
        Complaint alleges that on June 18, 2015, [Appellee] wrote
        [Appellant] a letter “[informing him], without reason(s)
        that    his   subject    Mandamus      Petition  had   been
        discontinued.” Complaint at p. 2 (brackets in original).

        [Appellant’s] Complaint alleges the following causes of
        action: 1) discrimination; 2) violation of [Appellant’s]
        rights under the Fourteenth Amendment to the United
        States Constitution; 3) denial of [Appellant’s] right of
        access to the courts; 4) violation of [Appellant’s] First
        Amendment rights; and 5) violation of [Appellant’s] right
        to due process. Central to each of these causes of action
        is [Appellant’s] allegation that [Appellee] treated him
        differently based on [Appellant’s] status as an incarcerated
        individual. See Complaint at p.2 (stating “The described
        actions of [Appellee] constituted discrimination on the


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         basis of my status as an incarcerated person”) (emphasis
         in original).

         By Order docketed September 16, 2015, this [c]ourt
         dismissed [Appellant’s] Complaint pursuant to Rule 240(j).

Trial Ct. Op., 1/8/16, at 1-2.

      Appellant timely appealed from the Order dismissing his Complaint.

The trial court did not order Appellant to file a Concise Statement of Matters

Complained of on Appeal.

      On appeal, Appellant claims the trial court erred in dismissing the

underlying action. Appellant’s Brief at 6. In support of this claim, Appellant

argues that the trial court “made no findings of fact or conclusions of law to

support his order of dismissal of this action as frivolous and that [his] action

does not state a claim against [Appellee] under the First and Fourteenth

Amendments to the United States Constitution.” Id.

      “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

Hospital, 853 A.2d 1058, 1060 (Pa. Super. 2004).

      Rule 240(j)(1) provides:

         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



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

Pa.R.C.P. 240(j)(1).   As the note to Rule 240(j)(1) explains, “[a] frivolous

action or proceeding has been defined as one that ‘lacks an arguable basis

either in law or in fact.’”   Id. at Note (quoting Neitzke v. Williams, 490

U.S. 319 (1989)). Moreover, “an action is frivolous ‘if, on its face, it does

not set forth a valid cause of action.’”    Bell, 853 A.2d at 1060 (quoting

McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth. 1997)).               “As we

review Appellant’s complaint for validity under Rule 240, we are mindful that

a pro se complaint should not be dismissed simply because it is not artfully

drafted.” Id.

      The trial court offered the following explanation for dismissing

Appellant’s Complaint as frivolous:

         In this case, the Complaint alleges [Appellee] violated
         numerous of [Appellant’s] constitutional rights and
         otherwise discriminated against [Appellant] based on
         [Appellant’s] status as an incarcerated individual.
         However there are absolutely no facts alleged to
         support this allegation. (emphasis added).              The
         Complaint implicitly alleges [Appellant] is an incarcerated
         individual, and that [Appellee] was aware [Appellant] was
         incarcerated; however, it does not allege any facts to show
         that [Appellant’s] status as an incarcerated individual
         played a role in the decision to discontinue the case.
         Indeed, the Complaint explicitly states, [Appellee’s] letter
         of June 18, 2015 informed [Appellant] “without reason(s),
         that [his] subject Mandamus Petition has been
         discontinued.” Complaint at p.2 (brackets and emphasis
         added by trial court). Furthermore, there are no factual
         allegations to support the conclusion that [Appellee] was
         the individual who caused [Appellant’s] Petition to be
         marked discontinued; rather, the Complaint simply states


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         that [Appellee] was the author of the June 18, 2015 letter.
         In the absence of an allegation that [Appellee] made the
         decision to discontinue [Appellant’s] Petition, [Appellant’s]
         Complaint appears to be nothing more than an attempt to
         shoot the proverbial messenger.

Trial Ct. Op. at 3.

      The trial court dismissed Appellant’s Complaint because it was

frivolous in that it lacked sufficient factual allegations to support a

discrimination claim.   In merely stating baldly that the trial court failed to

support its decision with adequate findings of fact or conclusions of law,

Appellant fails to demonstrate how the court’s frivolity determination

requires reversal. As such, Appellant has not met his burden of convincing

us that the trial court’s decision was improper. The York Grp., Inc. v.

Yorktowne Caskets, Inc., 924 A.2d 1234, 1246 (Pa. Super. 2007) (“[T]he

appealing party bears the burden of establishing that the trial court’s

decision is erroneous.”). Accordingly, we affirm the order of the trial court.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2016




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