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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEVEN LEBOON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALAN MCLIVAIN, JR. AND ALAN
MCILVAIN COMPANY
No. 3562 EDA 2016
Appeal from the Order Entered November 14, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2016-01945
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 07, 2018
Steven LeBoon appeals from the November 14, 2016 order dismissing
this action under Pa.R.C.P. 233.1. We affirm.
For ease of disposition, we set forth the pertinent facts in chronological
order. In September 2008, Appellant was hired to be the human resources
manager of Appellee Alan Mcllvain Company (the "Company"). On May 6,
2009, during a strike by rank and file workers, Appellant injured his shoulder
and back while removing lumber from a table. Appellant filed a workers'
compensation claim, which was denied by the workers' compensation carrier
of the Company, Liberty Mutual Insurance Company ("Liberty Mutual"),
* Retired Senior Judge specially assigned to the Superior Court.
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because there was no medical documentation to support the existence of an
injury. Appellant was scheduled to undergo surgery on June 11, 2009, and
Liberty Mutual asked for an independent medical examination, which was
conducted by board -certified orthopedic surgeon Dr. Richard George
Schmidt. Dr. Schmidt concluded that Appellant sustained a transient strain
of his shoulders and lower back on May 6, 2009, and that the injury was
resolved.
On December 31, 2009, the workers' compensation judge concluded
that tearing uncovered during Appellant's shoulder surgery was the result of
the May 9, 2009 incident, found him totally disabled, and awarded him
monthly disability benefits based upon his weekly wages on May 6, 2009. At
that time, the Company had the ability to take an appeal from the decision
to the Workers' Compensation Appeal Board. Appellant and the Company
settled the workers' compensation claim for a lump sum payment of
$185,000, and they executed an agreement indicating that it fully and
completely resolved any workers' compensation claim involving Appellant,
including the May 6, 2009 injury, but did not relate to legal or administrative
proceedings as to different legal matters.
Appellant thereafter instituted a pro se action in state court against Dr.
Schmidt, Liberty Mutual, and another company involved in processing his
workers' compensation claim for the Company. The state action was
dismissed after the defendants filed preliminary objections, and we affirmed
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on appeal. LeBoon v. Schmidt, 46 A.3d 828 (Pa.Super. 2012)
(unpublished memorandum). Dr. Schmidt then brought a civil action against
Appellant for abuse of process, which was docketed in Bucks County civil
division at 2013-00951. Appellant already filed an appeal in case number
2013-00951 relating to discovery issues, and we affirmed on appeal.
Schmidt v. Leboon, 134 A.3d 484 (Pa.Super. 2015) (unpublished
memorandum).
Appellant twice sued Dr. Schmidt in federal court. One of those
actions was duplicative of Appellant's state lawsuit in that it was premised
upon an allegation that Dr. Schmidt perjured himself during the workers'
compensation proceeding when he testified that Appellant was not disabled
based upon the May 9, 2006 incident, and the other federal case was
instituted after Dr. Schmidt successfully prevented Appellant from publishing
a book about Dr. Schmidt's participation in the workers' compensation
proceeding. LeBoon v. Schmidt, 2013 WL 1395928 at n.1 (E.D. Pa. 2013)
is the second action and mentions the previous case, LeBoon v. Schmidt,
Civ. A. No. 11-25 (E.D. Pa.).
Appellant additionally brought a pro se lawsuit against the Company in
federal court alleging that he was terminated from his position based upon
his workplace injury in violation of the federal Americans with Disabilities Act
and the Pennsylvania Human Relations Act. Leboon v. Alan McIlvain Co.,
2013 WL 12182023 (E.D. Pa. June 4, 2013). The Company's defense in that
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matter was that it decided to terminate Appellant's employment for work
performance reasons on April 30, 2009, but waited until May 8, 2009, to
implement that decision due to the union strike. Id. The federal
discrimination lawsuit proceeded to trial. On the first day, Appellant was
unable to proceed with questioning his witnesses, and the matter was
rescheduled for the following day, when Appellant failed to appear, alleging
that he had experienced car problems. The federal action was dismissed
after Appellant was unable to substantiate the existence of mechanical
problems with his car and the trial court concluded that Appellant could have
arrived at trial on public transportation. LeBoon v. Alan McIlvain
Company, 2014 WL 11429345 (E.D.Pa. 2014), affirmed, 628 Fed.Appx. 98
(3d Cir. 2015), cert. denied, 136 S.Ct. 2493 (2016), rehearing denied, 137
S.Ct. 25 (2016).
On January 22, 2015, while litigating his appeal in the federal case,
Appellant filed another workers' compensation claim and maintained that the
Company's defense in that federal lawsuit entitled him to another award of
workers' compensation benefits because its defense constituted a breach of
the settlement agreement reached in the workers' compensation action. On
March 30, 2015, the workers' compensation judge denied that claim on res
judicata grounds. See Defendants, Alan Mcllvain, Jr. and Alan Mcllvain
Company's Motion To Dismiss Pursuant To Pennsylvania Rule Of Civil
Procedure 233.1 and Motion To Stay Proceedings, 05/12/16, at Exhibit 15.
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On July 21, 2015, Appellant filed yet another workers' compensation claim,
which was dismissed only days later based upon a finding that it was
frivolous and vexatious. Id. at Exhibit 16.
Appellant thereafter, on March 28, 2016, filed the present pro se
action against the Company and its president, Appellee Alan Mcllvain Jr., for
breach of contract, and he sought six million dollars in damages for that
breach. Appellant's allegations in this lawsuit are that the Company's
defense in Appellant's federal discrimination lawsuit breached the settlement
agreement reached in his first workers' compensation action. The same day,
Appellant filed a preemptive motion, claiming that this case could not be
assigned to the Honorable Jeffrey L. Finley because Judge Finley was the
presiding judge in action number 2013-00951, which was Dr. Schmidt's
lawsuit against Appellant for abuse of process. Judge Finley scheduled a
hearing on the recusal motion, and denied it after Appellant failed to appear.
Appellant appealed from denial of the recusal motion, and that appeal was
sua sponte quashed as interlocutory. Order of Court, 1462 EDA 2016 (filed
August 1, 2016).
On May 2, 2016, Appellant filed a ten-day notice of intent to take
default judgment. On May 12, 2016, Appellees filed preliminary objections
as well as a motion seeking a stay and dismissal of this case under Pa.R.C.P.
233.1, based upon its frivolity. On May 16, 2016, Appellant attempted to
enter a default judgment against Appellees in the amount of six million
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dollars since they had not answered his complaint. The prothonotary
refused to enter a default judgment because the May 12, 2016 preliminary
objections were pending. Appellant filed an appeal from the prothonotary's
refusal to enter default judgment, and that appeal was quashed sua sponte.
Order of Court, 1545 EDA 2016 (filed August 2, 2016).
The trial court herein thereafter granted the Pa.R.C.P. 233.1 motion.
This appeal followed, and Appellant raises the following issues:
Issue 1. Was it an abuse of discretion by the clerks of the court
to not accept LEBOON's $6,000,000 default judgment for
Appellee number 1 (Alan Mcllvain Jr) so it would not be docketed
or granted an index?
Issue 2. Was it an abuse of discretion of the clerks of the court
to suppress LEBOON's default judgment court filing and not
record it on the docket?
Issue 3. Should the court have nullified the clerks of the court by
reassignment of the case to a new judge to eliminate the judicial
conflict of interest?
Issue 4. Did the court abuse its discretion by dismissing
Appellee #1 (Alan Mcllvain Jr) when they did not submit any
formal objections or responses to the complaint?
Issue 5. Did the court abuse LEBOON's 14th Amendment rights
of due process by allowing Appellee #1 not to respond and follow
any rules of law by no submissions of preliminary objection and
response to the complaint?
Issue 6. Did the court abuse its discretion (within 2 1/2 hours)
after receiving word that LEBOON had garnered three Zurich Life
Insurance subpoenas to acquire discovery from its original
source and then dismiss the action as frivolous?
Issue 7. Did the court abuse its discretion by refusing to accept
that new causation of tort that was created by the sworn
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testimony of Alan Mcllvain Jr (Appellee #1) establishing the
breach of contract of the Compromise and Release Agreement?
Appellant's brief at 12-13.
Appellant's seventh issue raises a challenge to the propriety of the trial
court's grant of the Pa.R.C.P. 233.1 motion. We address that contention
first as its resolution is the central issue in this appeal. The rule allows a
defendant to file a motion to dismiss any action filed by a pro se plaintiff
based upon frivolity when: "(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 court proceeding."
Pa.R.C.P. 233.1.1 We review a trial court's decision to dismiss a case under
Pa.R.C.P. 223.1 pursuant to an abuse of discretion standard. Coulter v.
Ramsden, 94 A.3d 1080 (Pa.Super. 2014).
The Rule's explanatory note delineates that the Supreme Court
enacted it in response to complaints that certain litigants abuse our legal
system by repeatedly filing claims against the same defendant and that it
was designed to spare a defendant from having to expend time and
1 The trial court herein also precluded Appellant from instituting further
litigation against Appellees. See Pa.R.C.P. 233.(c) (if a Rule 233.1 motion is
granted, the trial court is permitted to "bar the pro se plaintiff from pursuing
additional pro se litigation against the same or related defendants raising the
same or related claims without leave of court.").
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resources to defend repetitive pro se litigation. The comment further
observes that lawyers are subject to disciplinary rules that prevent them
from filing baseless lawsuits while pro se plaintiffs do not operate under the
same constraints.
In Coulter, we acknowledged the import of these comments, noting
that the specific purpose of this Rule is to stop a notable increase "in serial
lawsuits of dubious merit filed by pro se litigants[.]" Id. at 1087. The rule
provides for dismissal even when the elements of res judicata or collateral
estoppel would not apply. Id. Specifically, its language prohibits the
bringing of a lawsuit based on related, rather than identical, claims.
Additionally, it does not mandate that the prior action actually proceeded to
final judgment, only that it was resolved against the pro se litigant. Id.
In the present case, we conclude that the trial court properly applied
Pa.R.C.P. 233.1. As outlined in our recitation of the pertinent facts,
Appellant has demonstrated a settled pattern of bringing frivolous pro se
lawsuits. The allegations herein are specious as he himself brought the
lawsuit claiming that he was fired based upon his workplace injury.
Appellant's federal lawsuit forced the Company to defend its actions by
denying that his firing was the result of that injury.
Appellant has attempted to obtain relief on the same grounds raised in
this lawsuit in two prior petitions resolved by a workers' compensation
judge. Appellant's federal action against Appellees was dismissed after
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Appellant first was unable to proceed before a jury and then fabricated a
reason for failing to appear for the rescheduled trial. He has already filed
two improper appeals in the present action. Simply put, Appellant's waste of
judicial resources and harassment of these defendants must be put to an
end. Accordingly, we conclude that the trial court did not abuse its
discretion in dismissing this case pursuant to Pa.R.C.P. 233.1.
We have carefully reviewed the argument portion of Appellant's pro se
brief and have concluded that issues one, two, four, and five in the
statement of issues involved are related. Specifically, they all pertain to
Appellant's factual assertion that Mr. Mcllvain did not file preliminary
objections or a motion to dismiss under Pa.R.C.P. 233.1. He claims that
those documents were presented solely by the attorney for the Company.
Based upon that factual premise, Appellant asserts both that default
judgment should have been entered against Mr. Mcllvain, as he failed to
answer the complaint after being issued notice of Appellant's intent to enter
default, and that Mr. Mcllvain should not have been dismissed from this
action under Pa.R.C.P. 233.1, since he presented no such motion.
Our review confirms that Appellant misapprehends that the motions in
question were joint motions filed by both Appellees by their named counsel,
Marshall Dennehey Warner Coleman & Coggins, which entered its
appearance on behalf of both Appellees. Appellant fails to appreciate that
any lawyer practicing for a firm that has entered its appearance on behalf of
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a party may file a document for that party. The content of both the
preliminary objections and the motion to dismiss establish that they were
filed on behalf of both Appellees. Due to the faulty factual foundation of
issues one, two, four, and five, we find that they are meritless.
Appellant's third question raised on appeal concerns the denial of his
request that Judge Finley recuse himself. Without presenting any case
authority on the subject matter, Appellant asserts that recusal was required
based solely on the fact that Judge Finley was presiding over Dr. Schmidt's
abuse -of -process case against Appellant. We review a trial court's denial of
recusal for an abuse of discretion. Becker v. M.S. Reilly, Inc., 123 A.3d
776 (Pa.Super. 2015). Recusal is warranted when the judge has "a personal
bias or interest which would preclude an impartial review." Id. at 778
(citation omitted). The jurist personally determines whether he or she has
such bias or interest, and this determination is not reviewable by this Court.
Id. Alternatively, a judge must recuse himself "when his participation in the
matter would give the appearance of impropriety." Id. In the present case,
there is no appearance of impropriety created by the mere fact that Judge
Finley is the presiding judge in the Schmidt lawsuit. Hence, this claim fails.
The sixth allegation raised on appeal concerns a subpoena that
Appellant obtained on the same day that the court entered its order to
dismiss this action. The subpoena was obtained against Zurich Life
Insurance to acquire three life insurance policies that it had issued. On
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appeal, Appellant suggests that "the facts, testimony, and production of
evidence (Zurich Life Insurance) will prove that Alan Mcllvain Company has
been exposed to various courts[.]" Appellant's brief at 25.
To the extent that Appellant presents a discernible position either that
life insurance policies establish that Appellees were defendants in lawsuits or
that the fact that Appellees were named as parties in other litigation would
prove that they breached the contract at issue herein, we conclude that the
issue was mooted by the dismissal order. Any type of discovery on the
merits of Appellant's breach of contract cause of action would not be
relevant to the question of whether this action was properly dismissed under
Pa.R.C.P. 233.1. Thus, we reject Appellant's sixth position raised on appeal.
Additionally, to avoid strain on this Court's and Appellees' resources by
Appellant's repetitive and specious filings, we will no longer entertain any
pro se documents presented by Appellant. In this connection, we note that
we could have readily dismissed this appeal because Appellant's brief is
illogical, and replete with legally erroneous assertions. Instead, we have
endeavored to address any recognizable concerns expressed therein. We
are permitted to bar a pro se litigant from filing further appeals when that
litigant has harassed this Court by the repetitive filing of specious litigation.
Winpenny v. Winpenny, 775 A.2d 815, 818 (Pa.Super. 2001) ("Although
due process cannot be set aside for judicial economy, we will not extend due
process beyond its constitutional limits to indulge the fantasized claims of
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appellant."). Given Appellant's two prior patently interlocutory appeals and
the incoherent and legally frivolous nature of his briefs filed herein, we
conclude that this action is necessary in this matter.
Order affirmed. The Prothonotary of the Superior Court of
Pennsylvania is directed not to accept or file any further pro se documents
presented by Steven LeBoon in this matter.
Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 2/7/2018
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