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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
-2-
J-A09033-17
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
-3-
J-A09033-17
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.
-4-
J-A09033-17
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
-5-
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
-6-
J-A09033-17
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
-7-
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
-8-
J-A09033-17
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
-9-
J-A09033-17
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.
* * *
- 10 -
J-A09033-17
[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
- 11 -
J-A09033-17
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
- 12 -
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
- 13 -
J-A09033-17
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
- 14 -
J-A09033-17
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
- 15 -
J-A09033-17
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
- 16 -