J-A09033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEAN COULTER                            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
            v.                          :
                                        :
THOMAS FORREST AND DENNIS               :
HOERNER                                 :
                                        :
                  Appellee              :         No. 779 MDA 2016

                Appeal from the Order Entered April 14, 2016
              In the Court of Common Pleas of Dauphin County
                  Civil Division at No(s): 2013-CV-4721-CV


BEFORE:    GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JULY 07, 2017

      Appellant, Jean Coulter, appeals pro se from the order entered in the

Dauphin County Court of Common Pleas, which granted the motion of

Appellees, Thomas Forrest and Dennis Hoerner, to dismiss Appellant’s

complaint. We affirm.

      The relevant facts and procedural history of this case are as follows.

On May 11, 2007, Appellant entered a plea of nolo contedere in the Butler

County Court of Common Pleas to aggravated assault of her minor daughter

(“Victim”). The court sentenced Appellant on July 17, 2007, to fifteen (15)

to thirty (30) months’ incarceration, plus thirty-six (36) months’ probation.

In January 2011, the Butler County Orphans’ Court involuntarily terminated

Appellant’s parental rights to Victim, upon petition of Butler County Children

and Youth Services. While Appellant was on probation, Appellees were her
J-A09033-17


probation officers.

      Following the Butler County proceedings, Appellant filed countless pro

se actions against various individuals and entities involved in those

proceedings, including Appellees, in Pennsylvania state and federal courts.

In each matter Appellant filed against Appellees, she alleged, inter alia,

Appellees improperly imposed on her special conditions of probation,

including requiring her to undergo a mental health evaluation, and engaged

in a criminal conspiracy to deprive Appellant of her constitutional rights.

Appellant unsuccessfully litigated her actions against Appellees.

      In this case, Appellant filed a complaint against Appellees in the

Dauphin County Court of Common Pleas on June 3, 2013.                    On June 26,

2013, Appellees filed preliminary objections to Appellant’s complaint.

Appellant filed an amended complaint on July 15, 2013, and Appellees filed

preliminary objections on August 1, 2013.              In her amended complaint,

Appellant challenged the special conditions of her Butler County probation,

which Appellees purportedly imposed on her, and alleged Appellees violated

her privacy rights. On August 20, 2015, the court issued notice of intent to

terminate the case for inactivity per Pa.R.J.A. 1901.                Appellant filed a

“praecipe   for   administrative   application   for    a   status    conference”   on

September 25, 2015.      On December 8, 2015, Appellees filed a motion to

dismiss Appellant’s amended complaint, pursuant to Pa.R.C.P. 233.1.

      In a separate matter that Appellant had instituted against different


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defendants, the Allegheny County Court of Common Pleas entered an

opinion and an order per Rule 233.1, dated December 17, 2015.          In its

order, the Allegheny County court enjoined Appellant from initiating a pro se

action and filing a pro se pleading in any Pennsylvania state court that: (1)

names as a defendant any individual or entity Appellant had previously

named as a defendant in a state or federal court proceeding; and (2) asserts

or alleges a cause of action or claim Appellant had previously asserted in a

state or federal court proceeding. Under the order, Appellant must obtain

written leave of court or file a bond before she institutes a pro se action.

The order authorizes any Court of Common Pleas to dismiss Appellant’s

noncompliant actions per Rule 233.1 and impose sanctions on Appellant.

     On April 14, 2016, the court in the present matter granted Appellees’

motion and dismissed Appellant’s Dauphin County amended complaint.

Appellant filed on May 5, 2016, a single motion for reconsideration of the

April 14th order and for recusal.     The court declined to entertain and

effectively denied Appellant’s motion on May 9, 2016.     On May 13, 2016,

Appellant timely filed a notice of appeal from the court’s April 14 th order.

The court ordered Appellant, on May 17, 2016, to file a concise statement of

errors complained of on appeal per Pa.R.A.P. 1925(b).       Appellant timely

complied on June 3, 2016.

     Appellant raises four issues for our review:

        IS [PA.R.C.P.] 233.1 UNCONSTITUTIONAL WITH RESPECT
        TO BOTH THE UNITED STATES CONSTITUTION AS WELL

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          AS THE PENNSYLVANIA CONSTITUTION, AS IT IS
          “UNCONSTITUTIONALLY VAGUE” AND EXCEEDS THE RULE-
          MAKING AUTHORITY OF THE PENNSYLVANIA SUPREME
          COURT?

          DID THE TRIAL COURT [COMMIT AN] ERROR OF LAW AND
          ABUSE OF DISCRETION WHEN DISMISSING [APPELLANT’S
          COMPLAINT] UNDER [PA.R.C.P.] 233.1(D), AS THE TRIAL
          COURT’S PERSONAL RESEARCH NEVER UNCOVERED ANY
          PRIOR ORDER OF ANY COURT WHICH WAS VIOLATED BY
          APPELLANT IN THE INSTANT MANNER?

          DID THE TRIAL COURT [COMMIT AN] ERROR OF LAW AND
          ABUSE OF DISCRETION WHEN DISMISSING [APPELLANT’S
          COMPLAINT] UNDER [PA.R.C.P.] 233.1(A), AS…APPELLEES
          FAILED TO PROVIDE SUPPORT FOR THEIR CLAIM THAT
          “RELATED” CLAIMS AGAINST “RELATED” DEFENDANTS
          WERE EVER “RESOLVED” IN ANY PRIOR MATTER[?]

          DID THE TRIAL COURT COMMIT [AN] ERROR OF LAW AND
          ABUSE OF DISCRETION WHEN REFUSING TO RECUSE—
          EVEN WHEN REFUSING TO CONSIDER APPELLANT TIMELY
          FILED [A] MOTION FOR RECUSAL—BASED SOLELY ON
          [APPELLANT’S] FAILURE TO COMPLY WITH A LOCAL RULE
          WHICH IS CLEARLY INAPPLICABLE FOR MOTIONS FOR
          RECUSAL AND RECONSIDERATION?

(Appellant’s Brief at 2-3).1

____________________________________________


1
  While this appeal was pending, a panel of this Court issued an opinion in
another of Appellant’s pro se matters. See Coulter v. Lindsay, 159 A.3d
947 (Pa.Super. 2017). In the opinion, the Court observed Appellant had
initiated pro se at least 91 frivolous cases in this Court and the federal courts
in Pennsylvania. Id. at 955. The Court sua sponte awarded the appellees
attorney’s fees for Appellant’s repeated abuse of the judicial system. Id.
The Court also enjoined Appellant from taking further pro se appeals in civil
matters in this Court without leave of this Court. Id. at 956. While the
injunction does not apply to the present appeal, which originated before the
injunction, Appellant must now comply with this Court’s mandate in Coulter
v. Lindsay.      We incorporate by reference the decision in Coulter v.
Lindsay for purposes of enforcement.



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     Our scope and standard of review are as follows:

        To the extent that the question presented involves
        interpretation of rules of civil procedure, our standard of
        review is de novo.      To the extent that this question
        involves an exercise of the trial court’s discretion in
        granting [a] “motion to dismiss,” our standard of review is
        abuse of discretion.

            Judicial discretion requires action in conformity with
            law on facts and circumstances before the trial court
            after hearing and consideration. Consequently, the
            court abuses its discretion if, in resolving the issue
            for decision, it misapplies the law or exercises its
            discretion in a manner lacking reason. Similarly, the
            trial court abuses its discretion if it does not follow
            legal procedure.

Sigall v. Serrano, 17 A.3d 946, 949 (Pa.Super. 2011) (internal citations

omitted).

     Pennsylvania Rule of Civil Procedure 233.1 provides:

        Rule 233.1. Frivolous Litigation.          Pro Se Plaintiff.
        Motion to Dismiss

        (a) Upon the commencement of any action filed by a pro
        se plaintiff in the court of common pleas, a defendant may
        file a motion to dismiss the action on the basis that

        (1) the pro se plaintiff is alleging the same or related
        claims which the pro se plaintiff raised in a prior action
        against the same or related defendants, and

        (2) these claims have already been resolved pursuant to
        a written settlement agreement or a court proceeding.

        (b) The court may stay the action while the motion is
        pending.

        (c)   Upon granting the motion and dismissing the action,
        the court may bar the pro se plaintiff from pursuing
        additional pro se litigation against the same or related

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J-A09033-17


          defendants raising the same or related claims without
          leave of court.

          (d) The court may sua sponte dismiss an action that is
          filed in violation of a court order entered under subdivision
          (c).

             Note: A pro se party is not barred from raising
             counterclaims or claims against other parties in
             litigation that the pro se plaintiff did not institute.

          (e) The provisions of this rule do not apply to actions
          under the rules of civil procedure governing family law
          actions.

Pa.R.C.P. 233.1.

        In her first issue, Appellant argues our Supreme Court lacked authority

to promulgate Rule 233.1.          Appellant submits Rule 233.1 violates her

substantive rights.      Appellant avers Rule 233.1 is unconstitutionally void.

Appellant contends what matters are “related” and “resolved” under Rule

233.1 is unclear.       Appellant concludes that this Court should reverse the

order    dismissing     her   amended      complaint   and   remand      for   further

proceedings. We disagree.

        “We review the constitutionality of a rule of civil procedure de novo

and our scope of review is plenary.”         Coulter v. Lindsay, 159 A.3d 947,

952-53     (Pa.Super.    2017)   (citing    Laudenberger     v.   Port    Auth.    of

Allegheny Cty., 496 Pa. 52, 436 A.2d 147, 150-57 (1981)).

          The Pennsylvania Constitution provides that our “Supreme
          Court shall have the power to prescribe general rules
          governing practice, procedure and the conduct of all courts
          ...if such rules are consistent with this Constitution and
          neither abridge, enlarge[,] nor modify the substantive

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          rights of any litigant.” Pa. Const. Art. IV, § 10(c). Our
          Supreme Court has held that when determining if a rule is
          substantive or procedural in nature, we must…seek to
          determine the purpose of the rule in order to properly
          characterize its nature.

Coulter, supra at 953 (some internal quotation marks and citations

omitted). Those Rules of Civil Procedure, which have the fundamental goal

of uncluttering the courts, are procedural in nature. Laudenberger, supra

at 151.     The Supreme Court of Pennsylvania is not “prevented from

exercising its duty to resolve procedural questions merely because of a

collateral effect on a substantive right.” Id. at 155.

      “The purpose behind Rule 233.1 is to ease congestion in the courts by

eliminating frivolous pro se litigation.     [T]hat purpose makes the rule

procedural and not substantive. … Any effect upon [a litigant]’s substantive

rights is collateral as Rule 233.1 preserves [a litigant]’s right to at least one

prior substantive presentation of her claims.”           Coulter, supra at 953

(internal citations omitted).

      As to whether a rule of civil procedure is vague:

          A vague rule offends the United States and Pennsylvania
          constitutions’ due process clauses if it “result[s] in
          arbitrary and discriminatory enforcement in the absence of
          explicit guidelines for [its] application[.]” In re William
          L., 477 Pa. 322, 383 A.2d 1228, 1232 (1978).

Id. at 953. Rule 233.1 does not

          mandate the technical identity of parties or claims imposed
          by res judicata or collateral estoppel; rather, it merely
          requires that the parties and the claims raised in the
          current action be “related” to those in the prior action and

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J-A09033-17


         that those prior claims have been “resolved.” Pa.R.C.P.
         233.1(a).    These two terms are noteworthy in their
         omission of the technical precision otherwise associated
         with claim and issue preclusion; whereas parties and/or
         claims are to be identical under the purview of those
         doctrines, Rule 233.1 requires only that they be sufficiently
         related to inform the trial court, in the exercise of its
         discretion, whether the plaintiff’s claim has in fact been
         considered and resolved.          The drafting committee’s
         recourse to the word “resolved” in this context is equally
         significant. In the Rule’s requirement that the matter
         ha[s] been resolved pursuant to a written settlement
         agreement or a court proceeding, the language assures
         that the pro se litigant is availed of a chance to address his
         claim subject to the contractual guarantee of a settlement
         agreement or to the procedural safeguards that attend a
         court proceeding. It does not require, however, that the
         matter has progressed to a final judgment on the
         merits…nor does it require the identity of the quality or
         capacity in the persons for or against whom the claim is
         made….

Gray v. Buonopane, 53 A.3d 829, 836 (Pa. Super. 2012), appeal denied,

619 Pa. 716, 64 A.3d 632 (2013) (some internal quotation marks and

citations omitted).

         Rule 233.1 is not vague so as to result in arbitrary and
         discriminatory enforcement. To the contrary, Rule 233.1
         provides very specific guidelines for when a trial court may
         dismiss a pro se complaint. First, the complaint must be
         related to, or the same, as a previously filed complaint by
         the plaintiff. … A complaint is related when it deals with
         the same subject matter as a previous complaint.
         Similarly, Rule 233.1’s requirement that the previous
         litigation be “resolved” is not vague. A claim is resolved
         when there has been a definite decision thereon.

Coulter, supra at 953-54 (internal footnote and citation omitted).

      Instantly, the purpose of Rule 233.1 is procedural.      See id.    To the

extent Rule 233.1 affects a pro se litigant’s substantive rights, the effect is

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collateral.   Id.    Therefore, our Supreme Court had the authority to

promulgate Rule 233.1.       See Laudenberger, supra.           Additionally, Rule

233.1 is not vague. See Coulter, supra. Specifically, the words “related”

and “resolved” under Rule 233.1 are not nebulous.            See id.    Accordingly,

Appellant’s constitutionality claim merits no relief.

      In her second and third issues combined, Appellant argues the trial

court sua sponte took judicial notice of the Allegheny County Rule 233.1

order.   Appellant contends the Allegheny County order did not apply to

Appellant’s current action, because she filed her Dauphin County complaint

before the Allegheny County court entered its order.          Appellant avers the

claims she raised against Appellees in the present matter were not

previously resolved. Appellant concludes this Court should reverse the order

dismissing    Appellant’s   amended     complaint      and   remand     for   further

proceedings. We disagree.

      Pennsylvania Rule of Evidence 201(b) governs judicial notice of

adjudicative facts, in pertinent part, as follows:

          Rule 201. Judicial Notice of Adjudicative Facts

                                   *    *     *

          (b) Kinds of Facts That May Be Judicially Noticed.
          The court may judicially notice a fact that is not subject to
          reasonable dispute because it:

          (1) is generally known within the trial court’s territorial
          jurisdiction; or

          (2) can   be   accurately    and   readily    determined     from

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         sources whose accuracy cannot reasonably be questioned.

         (c) Taking notice. The court:

         (1) may take judicial notice on its own…

                                  *     *      *

         (d) Timing. The court may take judicial notice at any
         stage of the proceedings.

                                  *     *      *

Pa.R.E. 201(b), (c), (d). “[A] court may not ordinarily take judicial notice in

one case of the records of another case, whether in another court or its own,

even though the contents of those records may be known to the court.”

220 Partnership v. Philadelphia Elec. Co., 650 A.2d 1094, 1097

(Pa.Super. 1994).

      Instantly, the trial court reasoned as follows concerning its dismissal of

Appellant’s amended complaint under Rule 233.1:

         The Honorable John C. Reed entered an [Opinion and]
         Order [dated December 17, 2015,] in the Allegheny Court
         of Common Pleas that permanently bars [Appellant] from
         filing any pro se civil action in any Court of Common Pleas
         in Pennsylvania unless she meets certain conditions.
         Appellant is further barred from filing any pro se pleadings
         in any state court that names as a defendant any person
         that she had previously named as a defendant. Finally, it
         was ordered that all [j]udges of any Court of Common
         Pleas in Pennsylvania may enforce the provisions of this
         Order, including dismissing actions pursuant to Pa.R.C.P.
         233.1(a) and imposing sanctions. Judge Reed sent this
         Opinion and Order to Dauphin County Court of Common
         Pleas President Judge Richard A. Lewis, who provided it to
         the undersigned for review.

                                  *     *      *

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        [A]ppellant has a long history of filing vexatious and
        spurious pro se litigation against various individuals and
        organizations, including Appellees. All of Appellant’s prior
        lawsuits have been dismissed or quashed by the respective
        courts, and, when appealed, the appellate courts have
        either affirmed the decisions of the trial courts, or quashed
        the appeals. After examining this history of vexatious
        litigation, Judge Reed entered an Order pursuant to
        Pa.R.C.P. 233.1(c) dismissing Appellant’s claims and
        barring Appellant from pursuing additional pro se litigation
        against the same or related Appellees raising the same or
        related claims without leave of court. Thus, pursuant to
        Pa.R.C.P. 233.1(d), this [c]ourt could sua sponte dismiss
        the above-captioned action.

        However, a sua sponte dismissal was not necessary
        because Appellees filed a Motion to Dismiss pursuant to
        Pa.R.C.P. 233.1(a). Upon review of the Complaint in this
        matter and Judge Reed’s lengthy opinion that set forth a
        thorough history of Appellant’s claims against various
        defendants, including Appellees, it was clear to this [c]ourt
        that Appellant, in the instant litigation, is raising similar
        claims against Appellees that have already been dismissed
        in prior litigation. As such, a dismissal under Pa.R.C.P.
        233.1(a) was proper….

(Trial Court Opinion, filed June 30, 2016, at 1-4) (citations to record

omitted). The record supports the court’s decision.

     Here, the trial court did not take judicial notice of the Allegheny

County order or use that order as dispositive.   Rather, the court reviewed

Judge Reed’s recitation of Appellant’s litigious history for background

information on actions Appellant had previously initiated against Appellees

and related defendants.   Significantly, Appellees established in their Rule

233.1 motion to dismiss that Appellant had filed several pro se actions in

both federal and state courts against Appellees in which Appellant challenged

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the special conditions of her probation and claimed Appellees violated her

constitutional rights. Each court in those prior cases denied Appellant relief.

Therefore, Appellees demonstrated Appellant’s claims against them were

related to claims that: (1) Appellant had raised pro se in a prior action

against Appellees or related defendants; and (2) were previously resolved in

a court proceeding.    See Pa.R.C.P. 233.1(a), supra.      Therefore, the trial

court properly dismissed Appellant’s amended complaint per Rule 233.1(a).

Accordingly, Appellant’s second and third issues merit no relief.

      In her last issue, Appellant argues the trial court failed to consider her

motion for recusal because the motion did not comply with a local rule.

Appellant avers the court’s refusal to consider her motion to recuse is an

abuse of discretion per se.   Appellant concludes this Court should reverse

the order denying her motion for recusal, transfer the case to a different

county, and remand for further proceedings. We disagree.

      Preliminarily, “appellate briefs and reproduced records must materially

conform to the requirements of the Pennsylvania Rules of Appellate

Procedure. This Court may quash or dismiss an appeal if the appellant fails

to conform to the requirements set forth in the Pennsylvania Rules of

Appellate Procedure.” Wilkins v. Marsico, 903 A.2d 1281, 1284 (Pa.Super.

2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007) (citing Pa.R.A.P.

2101). Rule 2119(a) provides:

         Rule 2119. Argument


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J-A09033-17


         (a) General rule. The argument shall be divided into as
         many parts as there are questions to be argued; and shall
         have at the head of each part—in distinctive type or in
         type distinctively displayed—the particular point treated
         therein, followed by such discussion and citation of
         authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

         The argument portion of an appellate brief must include a
         pertinent discussion of the particular point raised along
         with discussion and citation of pertinent authorities. This
         Court will not consider the merits of an argument which
         fails to cite relevant case or statutory authority. Failure to
         cite relevant legal authority constitutes waiver of the claim
         on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013). Where an appellant fails to raise

or develop her issues on appeal properly, or where her brief is wholly

inadequate to present specific issues for review, this Court will not consider

the merits of the claims raised on appeal.     Butler v. Illes, 747 A.2d 943

(Pa.Super. 2000) (holding appellant waived claim where she failed to set

forth adequate argument concerning her claim on appeal; argument lacked

meaningful substance and consisted of mere conclusory statements;

appellant failed to explain cogently or even tenuously assert how trial court

abused its discretion or made error of law). See also Lackner v. Glosser,

892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere to rules

of appellate procedure and arguments which are not appropriately developed

are waived on appeal; arguments not appropriately developed include those

where party has failed to cite any authority in support of contention); Estate

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of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating appellant

must support each question raised by discussion and analysis of pertinent

authority; absent reasoned discussion of law in appellate brief, this Court’s

ability to provide review is hampered, necessitating waiver on appeal);

Commonwealth v. Knox, 50 A.3d 732 (Pa.Super. 2012), appeal denied,

620 Pa. 721, 69 A.3d 601 (2013) (reiterating failure to cite to legal authority

to support argument results in waiver).

      Instantly, Appellant presents in her brief no cogent argument or

citations to relevant authority in support of her claim regarding the court’s

denial of her motion to recuse. Specifically, Appellant fails to cite or quote

the Dauphin County Local Rule she claims the court improperly applied.

Appellant does not cite or quote authority for the proposition that the court

abused its discretion per se when it declined to consider her motion for

recusal. Rather, Appellant cites federal case law providing a court abuses its

discretion when it fails to consider evidence in support of a party’s

argument.     Therefore, Appellant’s argument falls short of the requisite

standards.    See Pa.R.A.P. 2119(a), supra; Estate of Whitley, supra.

Appellant’s failure to present a cogent argument and cite relevant authority

in support of her fourth issue constitutes waiver. See id.

      Nevertheless, even if Appellant had properly preserved her fourth

issue for our review, she would not be entitled to relief.   “[A] party to an

action has the right to request the recusal of a jurist where that party has a


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reason to question the impartiality of the court.” Goodheart v. Casey, 523

Pa. 188, 198, 565 A.2d 757, 762 (1989).         “Recusal is required wherever

there is substantial doubt as to the jurist’s ability to preside impartially.” In

Interest of McFall, 533 Pa. 24, 35, 617 A.2d 707, 713 (1992).               “[A]

judge’s behavior is not required to rise to a level of actual prejudice, but the

appearance of impropriety is sufficient.” Id. at 34, 617 A.2d at 712.

         It is presumed that the judge has the ability to determine
         whether he will be able to rule impartially and without
         prejudice, and his assessment is personal, unreviewable,
         and final. Where a jurist rules that he…can hear and
         dispose of a case fairly and without prejudice, that decision
         will not be overturned on appeal but for an abuse of
         discretion. The party requesting recusal bears the burden
         of producing evidence that establishes bias, prejudice, or
         unfairness. This evidence must raise a substantial doubt
         as to the jurist’s ability to preside impartially.

In re Bridgeport Fire Litigation, 5 A.3d 1250, 1254 (Pa.Super. 2010)

(internal citations omitted).   “Adverse rulings alone do not…establish the

requisite bias warranting recusal….”    Commonwealth v. Abu-Jamal, 553

Pa. 485, 508, 720 A.2d 79, 90 (1998), cert. denied, 528 U.S. 810, 120 S.Ct.

41, 145 L.Ed.2d 38 (1999).

      Instantly, in her motion for recusal, Appellant asserted, inter alia, the

trial court was not impartial, because the court considered the Allegheny

County Rule 233.1 order when it dismissed her amended complaint. Absent

more, however, the trial court’s decision to dismiss does not raise

substantial doubt as to the court’s impartiality. See In Interest of McFall,

supra. The court properly dismissed Appellant’s amended complaint under

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Rule 233.1, based on Appellee’s motion which included Appellant’s history of

vexatious litigation against Appellees.   See Abu-Jamal, supra. Appellant

failed to meet her burden to establish bias in the court’s decision. See In re

Bridgeport Fire Litigation.      Therefore, even if Appellant had properly

preserved her claim for our review, her fourth issue would merit no relief.

Accordingly, we affirm the order dismissing Appellant’s amended complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2017




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