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 Co mmon 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

incarcera ted. 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 inten tional infliction of emotional distress. We affirm.

On June 22, 2015, Young filed a civil rights complaint under 42

U.S.C. §1 9 83 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. Cmw lth. 2012). The relevant text of Rule 240(j) is set forth infra

.2

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 partic ipated in various prison a ctivities 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 th at 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, 20 15, Young received a n otice 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 re ported 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

be cause of thi s behavior, Young was barred from activities programs for six

months. Id . On March 9 , 2015, Young received another n otice that he had also3

been removed from the Residents Betterment Organization, an inmate
organization. 2 Complaint, ¶12; Exhi bit C.

In response to both n otices, 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 a lleged that Corbacio accepted Surotchak’s false statements

. Compla int, ¶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 unlawf ul 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 th e 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 Correct ions , (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 Correct ions. Complain t, ¶¶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 Corbaci o on appeal.4 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 tha t 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 ad dressed in the grievances, and they may not be appealed. The tr ial
court concluded that the complaint wa s 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 Stat ement of Errors Complained of on Appeal pursuant to P A . 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

argua ble basis either in law or in fact.” Neitzke v. Williams , 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

P A . R.C.P. No. 240(j)(1) and note (emphasis added).5 In his August 12, 2015, Statement, Young contends that the trial court
improperly dismissed the complaint as frivolous for three reasons. First, liber ally
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, liber ally construed,
Young stated a Section 1983 conspiracy claim against Su rotchak and Corbacio by
alleging that Surotchak conveyed false information to Corbacio

, who authorized

the removal. Third, liber ally construed, Young stated a Section 1983 intentional

infliction of emotional d istress claim by alleging that Surotchak’s fal se 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 P A

. 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.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dana Young, :

Appellant :

:

v. : No. 1464 C.D. 2015

: Greg Surotchak, John Corbacio, : John Kerestes and Dorina Varner :

O R D E R

AND NOW, th is 23 rd 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 Cou nty, Civil Division, No. S

- 1110

- 2015, August 24, 2015).

_____________________________________ MARY HANNAH LEAVITT, President Judge