J-S58044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GLUE WILKINS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
HONORABLE RICHARD A. LEWIS, :
PRESIDENT JUDGE; EDWARD M. :
MARSICO, JR., DISTRICT ATTORNEY :
DAUPHIN COUNTY COURT OF :
COMMON PLEAS :
:
Appellees : No. 387 MDA 2017
Appeal from the Order December 21, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2016 CV 8564 MD
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 06, 2018
Appellant, Glue Wilkins, appeals pro se from the order entered in the
Dauphin County Court of Common Pleas, which denied his petition to
proceed in forma pauperis (“IFP”) and dismissed his complaint as frivolous
per Pa.R.C.P. 240(j). For the following reasons, we affirm.
The trial court provided some of the relevant facts and procedural
history of this appeal as follows.
The initiation of this matter is quite convoluted. It appears
Appellant filed a Writ of Mandamus with the caption, “Glue
Wilkins, Petioner [sic] v. Honorable Richard A. Lewis,
President Judge, Honorable Edward M. Marisco, Jr., District
Attorney Dauphin County Court of Common Pleas,
Respondent” in the Commonwealth Court of Pennsylvania.
A Writ of Mandamus is a civil action to enforce a right or to
compel performance of a public act or duty in which the
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party has an interest. When filing a writ of mandamus, the
plaintiff is required to name as defendants such officers in
their official capacities as are concerned in the act or duty.
On October 17, 2016, the Commonwealth Court
transferred the matter to the Court of Common Pleas of
Dauphin County for appropriate action. Since the pleading
is titled Writ of Mandamus, the Dauphin County
Prothonotary opened the instant docket on November 9,
2016. On November 28, 2016, Appellant filed a Motion for
that [sic] the Twelfth [sic] Judicial District Has Finally
Docketed the Exculpatory Medical Report on November 2,
2016, along with a Petition for Leave to Proceed in Forma
Pauperis. On December 13, 2016, Appellant filed three (3)
additional motions−(1) Motion for Judicial Notice that
Superior Court Averment of Lack of Final Appealble [sic]
PCRA Order is Estoppel by Pias [sic]; (2) Motion for Judicial
Notice of General Supervisory Powers of President Judge;
and (3) Motion for Judicial Notice of AOPC Estoppel by the
Record.
After reviewing Appellant’s Writ of Mandamus, his Petition
to Proceed in Forma Pauperis (“IFP”), and additional
motions, this [c]ourt dismissed the instant action with
prejudice because the action is frivolous.
(Trial Court Opinion, filed March 31, 2017, at 1-2) (internal citation to record
and two footnotes omitted). The court’s order was dated December 21,
2016, but filed on December 22, 2016. Appellant’s notice of appeal was
therefore due on or before January 21, 2017. Appellant filed a notice of
appeal, which the court docketed on January 27, 2017. In response to this
Court’s rule to show cause, filed June 1, 2017, Appellant provided a time-
stamped notice of appeal indicating he had actually filed his appeal on
January 18, 2017. The notice of appeal contained in the certified record
indicates an original time-stamped filing date of January 18, 2017, which is
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then “crossed out” and a new stamp placed on the document indicating a
filing date of January 27, 2017. We cannot tell from the record why the
appeal papers were modified in this manner. Therefore, we deem
Appellant’s appeal timely filed on January 18, 2017.
Appellant raises three issues for our review:
WHETHER PRELIMINARY HEARING TRANSCRIPT EXIST?
WHETHER, PURSUANT TO COMMONWEALTH LAW,
APPELLANT HAS A “RIGHT” TO A COMPLETE RECORD ON
APPEAL?
WHETHER DEFENDANTS ARE THE PROPER PARTIES?
(Appellant’s Brief at 1).
An order that denies IFP status and dismisses a companion complaint
as frivolous is final and appealable. Grant v. Blaine, 582 Pa. 1, 868 A.2d
400 (2005); Crosby Square Apartments v. Henson, 666 A.2d 737
(Pa.Super. 1995). Rule 240 of the Pennsylvania Rules of Civil Procedure in
relevant part provides:
Rule 240. In Forma Pauperis
(j) 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).
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Pa.R.C.P. 240(j) (emphasis added) and Note. “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 Hosp., 853 A.2d 1058, 1060
(Pa.Super. 2004).
A lawsuit is frivolous under Pa. R.C.P. No. 240(j) if, on its face, it does
not set forth a valid cause of action.” Id. (quoting McGriff v. Vidovich,
699 A.2d 797, 799 (Pa.Cmwlth. 1997), appeal denied, 553 Pa. 693, 717
A.2d 1030 (1998)). A complaint does not state a valid cause of action if it
cannot be understood. Bennett v. Beard, 919 A.2d 365, 367 (Pa.Cmwlth.
2007). An incomprehensible complaint denies the defendant notice of the
material facts, which the defendant needs to prepare a defense. Id.
Consequently, an illegible complaint is frivolous as a matter of law. Id.
Moreover, whether the complaint is intelligible is a question of fact that we
will not disturb, absent an abuse of discretion or error of law. See Capital
Academy Charter School v. Harrisburg School Dist., 934 A.2d 189, 195
(Pa.Cmwlth. 2007), appeal denied, 596 Pa. 756, 947 A.2d 738 (2008).
Likewise, “Assertions of legal rights and obligations in a complaint may be
construed as conclusions of law, which have no place in a pleading.”
DelConte v. Stefonick, 408 A.2d 1151, 1153 (Pa.Super. 1979). Although
the rules of civil procedure are meant to be liberally construed, liberal
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interpretation “does not entail total disregard of those rules concerning
pleading.” Krajsa v. Keypunch, Inc., 622 A.2d 355, 357 (Pa.Super. 1993).
Instantly, the trial court explained:
Primarily, the instant action is frivolous because it relates
to his criminal docket, and Appellant continues to inundate
the judicial system with frivolous and incoherent filings in
attempt to collaterally attack the criminal docket. In
addition, Appellant is seeking to compel the Clerk of Court
(Dale Klein, Esquire) to file a preliminary hearing transcript
from October 14, 2002 to docket number CP-22-CR-3382-
2002. Although Appellant is seeking to compel the Clerk of
Court to perform a duty, he fails to name Dale Klein,
Esquire as a party to the action. Therefore, Appellant’s
writ is defective [for] failure to name an indispensable
party.
Further, Magisterial District Courts are not a court of
record in Pennsylvania. Therefore, there is no record of
what occurred before a Magisterial District Judge (“MDJ”)
unless the parties request a court reporter to transcribe
the proceeding. In the instant action, Appellant is seeking
to compel the Clerk of Court to perform a discretionary
act. This is an improper form of relief under a writ of
mandamus. A writ of mandamus is used to compel an
individual to perform a required duty−not a discretionary
act. Accordingly, the current action is frivolous as
Appellant is seeking relief that he is not entitled to.
* * *
As stated above, the initiation of this action was somewhat
convoluted as it was opened by a Commonwealth Court
Order based upon Appellant’s filing in that court. In
reviewing Appellant’s Petition for IFP, this [c]ourt found
the action to be frivolous because (1) he failed to name an
indispensable party, i.e. the Clerk of Court; and (2) he is
seeking relief that is improper through a writ of
mandamus. As such, this [c]ourt dismissed the action
pursuant to Pa.R.C.P. 240(j) on December 21, 2016.
(Trial Court Opinion at 2) (internal citation to record omitted). The record
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supports the court’s decision to dismiss Appellant’s case as frivolous.
Finally, the docket entries in Appellant’s criminal case reflect an order
entered on July 31, 2017, directing the clerk of court to docket the
preliminary hearing transcript and make it a part of the record in the
criminal case. Therefore, Appellant’s claim is now moot. See Deutsche
Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa.Super. 2005) (stating:
“Generally, an actual claim or controversy must be present at all stages of
the judicial process for the case to be actionable or reviewable…”); J.S. v.
Whetzel, 860 A.2d 1112, 1118 (Pa.Super. 2004) (stating: “If events occur
to eliminate the claim or controversy at any stage in the process, the case
becomes moot. An issue can become moot during the pendency of an
appeal due to an intervening change in the facts of the case or due to an
intervening change in the applicable law. An issue before a court is moot if
in ruling upon the issue the court cannot enter an order that has any legal
force or effect”). Accordingly, we affirm.1
Order affirmed.
____________________________________________
1 Appellant’s open motion for contempt is denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2018
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