           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dana Young,                                  :
                      Appellant              :
                                             :
               v.                            :    No. 1464 C.D. 2015
                                             :    Submitted: January 15, 2016
Greg Surotchak, John Corbacio,               :
John Kerestes and Dorina Varner              :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                           FILED: March 23, 2016

               Dana Young, pro se, appeals an order of the Court of Common Pleas
of Schuylkill County (trial court) that denied his petition to proceed in forma
pauperis and dismissed his complaint against Greg Surotchak, John Corbacio, John
Kerestes and Dorina Varner, prison officials at SCI-Mahanoy where Young is
incarcerated. In doing so, the trial court held that the complaint was frivolous
because it failed to state a cause of action.1 On appeal, Young contends that the
trial court erred, asserting that his complaint stated a claim for retaliation,
conspiracy and intentional infliction of emotional distress. We affirm.
               On June 22, 2015, Young filed a civil rights complaint under 42
U.S.C. §1983 alleging that the prison’s Activities Specialist, Greg Surotchak, made

1
  Pennsylvania Rule of Civil Procedure 240(j) “permits a trial court, prior to ruling on an [in
forma pauperis] request, to dismiss an action where the trial court is satisfied that the action is
frivolous.” Pelzer v. Wrestle, 49 A.3d 926, 928 n.1 (Pa. Cmwlth. 2012). The relevant text of
Rule 240(j) is set forth infra.
a false accusation against Young in order to remove him from the prison’s
activities programs.   The complaint alleged that Surotchak did so to retaliate
against Young for exercising his constitutional right to free speech, thereby
intentionally inflicting emotional distress upon Young. In addition, the complaint
alleged that Surotchak had conspired with the prison’s Activities Manager, John
Corbacio, to remove Young from the prison’s activities programs. In support,
Young’s complaint averred the following relevant facts.
            Young participated in various prison activities programs, including
conditioning and senior fitness classes. On February 23, 2015, at the end of a
conditioning class, Surotchak told Young that he had observed Young sitting and
doing nothing for 20 minutes; Surotchak reminded Young that he needed to
participate in order to remain in the class. Complaint, ¶7. On February 27, 2015,
Young learned that he had been removed from the conditioning and senior fitness
classes. Complaint, ¶8. The next day, Young submitted an inquiry about his
removal to Corbacio. Complaint, ¶9.
            On March 5, 2015, Young received a notice of “Removal from
Activities Department Programs.”      Complaint, ¶10.     The Notice contained
Surotchak’s statement that he had reminded Young on February 23, 2015, that if he
did not participate, he would be replaced with someone on the waiting list.
Surotchak reported that Young replied, “That’s crazy” and “Well then kick me out,
I don’t give a fuck.” Complaint, ¶11; Exhibit A. The Notice informed Young that
because of this behavior, Young was barred from activities programs for six
months. Id. On March 9, 2015, Young received another notice that he had also




                                        2
been removed from the Residents Betterment Organization, an inmate
organization.2 Complaint, ¶12; Exhibit C.
              In response to both notices, Young filed grievances and appeals,
which were denied.3 Complaint, ¶¶11, 13-23. Young alleges that Surotchak lied;
Young denies making the statements that got him removed from the programs.
Young acknowledges that Surotchak’s version of the incident was found more
credible than Young’s denial. Complaint, ¶14.
              Young’s complaint alleged that he was removed from activities
programs “on the basis of statements he never made.” Complaint, ¶¶24, 26. The
complaint also alleged that Corbacio accepted Surotchak’s false statements.
Complaint, ¶31.       The complaint alleged that Surotchak unlawfully retaliated
against Young for exercising his First Amendment right to free speech; that
Surotchak and Corbacio engaged in an unlawful conspiracy to remove Young from
activities programs; and that Surotchak’s conduct resulted in the intentional
infliction of emotional distress upon Young.4 The complaint sought an award of
damages exceeding $35,000 per defendant and any other relief the trial court
deemed proper.

2
  Young filed a petition for review in the nature of a complaint in mandamus in this Court’s
original jurisdiction alleging that the Department of Corrections violated his due process rights
by removing him from the Residents Betterment Organization. Concluding that Young was not
deprived of any interest protected by due process, we sustained the Department’s demurrer and
dismissed the petition for review. See Young v. Department of Corrections, (Pa. Cmwlth., No.
365 M.D. 2015, filed February 24, 2016).
3
  The complaint identified defendant John Kerestes as the facility manager at SCI-Mahanoy and
defendant Dorina Varner as the chief grievance officer for the Pennsylvania Department of
Corrections. Complaint, ¶¶4-5. The complaint alleged that Kerestes and Varner denied Young’s
grievance appeals. Complaint, ¶¶16-23.
4
  The complaint included claims against Kerestes and Varner, but Young has pursued only the
claims against Surotchak and Corbacio on appeal.


                                               3
               With his complaint, Young filed a petition for leave to proceed in
forma pauperis. Pennsylvania Rule of Civil Procedure 240(j)(1) directs the trial
court to first determine whether the action is frivolous before acting on the petition.
If satisfied that the action is frivolous, the court may dismiss it. P A. R.C.P. No.
240(j)(1).5 For purposes of Rule 240(j), an action is deemed frivolous if it lacks an
“arguable basis either in law or in fact.” Lichtman v. Glazer, 111 A.3d 1225, 1227
n.5 (Pa. Cmwlth. 2015) (citation omitted).
               On June 25, 2015, the trial court issued an order denying the petition
for leave to proceed in forma pauperis and dismissing the complaint with
prejudice. The trial court noted that central to Young’s complaint is that the
defendants explained why Young had been removed from the activities programs
for six months. The assertion in Young’s complaint that those reasons were false
has been addressed in the grievances, and they may not be appealed. The trial
court concluded that the complaint was frivolous because it had no arguable basis
in law or in fact and did not state a cause of action for which relief can be granted.
               Young appealed to this Court. The trial court ordered Young to file a
Concise Statement of Errors Complained of on Appeal pursuant to PA. R.A.P.
1925(b).

5
 Specifically, Rule 240(j)(1) states 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 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).
PA. R.C.P. No. 240(j)(1) and note (emphasis added).


                                                4
              In his August 12, 2015, Statement, Young contends that the trial court
improperly dismissed the complaint as frivolous for three reasons. First, liberally
construed, Young stated a Section 1983 retaliation claim by alleging that
Surotchak removed Young from activites programs on the basis of Young’s
speech, which is protected by the First Amendment. Second, liberally construed,
Young stated a Section 1983 conspiracy claim against Surotchak and Corbacio by
alleging that Surotchak conveyed false information to Corbacio, who authorized
the removal. Third, liberally construed, Young stated a Section 1983 intentional
infliction of emotional distress claim by alleging that Surotchak’s false allegations
were extreme and outrageous. On August 24, 2015, the trial court issued a Rule
1925(a) opinion that addressed these three issues.
              In his appeal to this Court, Young raises the identical three issues.6
The trial court has ably and thoroughly addressed each issue. Accordingly, we
affirm the trial court for the reasons set forth in the opinion of the Honorable James
P. Goodman in Dana Young v. Greg Surotchak, et al, (Court of Common Pleas of
Schuylkill County, Civil Division, No. S-1110-2015, August 24, 2015).

                                       _____________________________________
                                       MARY HANNAH LEAVITT, President Judge




6
  “Our review of a trial court order dismissing an action pursuant to PA. R.C.P. No. 240(j) is
limited to determining whether an appellant’s constitutional rights have been violated and
whether the trial court abused its discretion or committed an error of law.” Pelzer, 49 A.3d at
929 n.3.


                                              5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dana Young,                          :
                  Appellant          :
                                     :
            v.                       :   No. 1464 C.D. 2015
                                     :
Greg Surotchak, John Corbacio,       :
John Kerestes and Dorina Varner      :


                                   ORDER

            AND NOW, this 23rd day of March, 2016, the order of the Court of
Common Pleas of Schuylkill County in the above-captioned matter, dated June 25,
2015, is AFFIRMED for the reasons set forth in the opinion of the Honorable
James P. Goodman in Dana Young v. Greg Surotchak, et al, (Court of Common
Pleas of Schuylkill County, Civil Division, No. S-1110-2015, August 24, 2015).

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
