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 Common 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 

incarcerated. 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 intentional infliction of emotional distress. We affirm.

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

U.S.C. §1983 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. Cmwlth. 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 participated in various prison activities 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 that 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, 2015, Young received a notice 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 reported 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 

because of this behavior, Young was barred from activities programs for six 

months. Id. On March 9, 2015, Young received another notice that he had also 
3

been removed from the Residents Betterment Organization, an inmate 

organization.2 Complaint, ¶12; Exhibit C.

In response to both notices, 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 alleged that Corbacio accepted Surotchak’s false statements. 

Complaint, ¶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 unlawful 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 the 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 Corrections, (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 

Corrections. Complaint, ¶¶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 Corbacio 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. PA. 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 that 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 addressed in the grievances, and they may not be appealed. The trial 

court concluded that the complaint was 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 Statement of Errors Complained of on Appeal pursuant to PA. 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 

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).

PA. 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, liberally 

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, liberally construed, 

Young stated a Section 1983 conspiracy claim against Surotchak and Corbacio by 

alleging that Surotchak conveyed false information to Corbacio, who authorized 

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

infliction of emotional distress claim by alleging that Surotchak’s false 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 PA. 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, this 23rd 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 County, Civil Division, No. S-1110-2015, August 24, 2015).

 _____________________________________

 MARY HANNAH LEAVITT, President Judge