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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

GLUE WILKINS , : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellant :
:
v. :
: DEPUTY DISTRICT ATTORNEY KRISTIE M. FALBO :
: No. 1013 MDA 2016
Appeal from the Order entered June 7, 2016 in the Court of Common Pleas of Dauphin County, Civil Division, No(s): 2016 CV 3946

BEFO RE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J. : FILED APRIL 13, 2017
Glue Wilkins (“Wilkins”), pro se , appeals from the Order dismissing,

with prejudice, his pro se civil Complaint (“the Complaint”), filed against
Kristie M. Falbo, Esquire (“Falbo”), a Dauphin County Deputy District
Attorney, as being frivolous under Pennsylvania Rule of Civil Procedure
240(j). 1 We affirm.

1 Rule 240(j) provides, in relevant part, 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 ... it is satisfied that the action, proceeding or appeal is frivolous.
Pa.R.C.P. 240(j)(1); see also Neitzke v. Williams , 490 U.S. 319, 325 (1989) (superseded by statute) (explaining that “ a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”)

.J

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In December 2014, th e Commonwealth charged Wilkins with barratry.

See 18 Pa.C.S.A. § 5109 (providing that “[a] person is guilty of a
misdemeanor of the third degree if he vexes others with unjust and
vexatious suits.”). On September 25, 2015, Wilkins pled guilty to barratry
(hereinafter referred to as “the criminal case”). The trial court sentenced
Wilkins to one year of probation, with the condition that he not engage in
any further vexatious lawsuits. 2 Wilkins filed a pro se direct appeal, and this
Court dismissed the ap peal for the failure of Wilkins’s brief to comply with
several Rules of Appellate Procedure. See Commonwealth v. Wilkins , 2016 Pa. Super. Unpub. LEXIS 1957 (Pa. Super. 2016) (judgment order).
On May 20, 2016, Wilkins filed the Complaint. Wilkins then fi led a
Petition for leave to proceed in forma pauperis . Thereafter, Wilkins filed

various pro se documents that are not relevant to this appeal.

On June 7, 2016, the trial court entered an Order dismissing the
Complaint as frivolous under Rule 240(j). W ilkins filed a timely Notice of
Appeal, in response to which the trial court ordered him to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Wilkins timely

2 Wilkins is an inmate incarcerated at the State Correctiona l Institution at Fayette, serving a term of 12 to 24 years in prison for, inter alia , attempted murder.J

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filed a pro se document entitled “Questions for Review.” 3

The State ment of Questions Prese nted section of Wilkins’s pro se brief
presents four vague and confusing issues, n one of which pertain to the trial
court’s dismissal of the Complaint . Brief for Appellant at 1. For ease of
disposition, we incorporate Wilkins’s iss ues herein by reference. See id.
“Our review of a decision dismissing an action pursuant to Pa.R.C.P.
240(j) is limited to a determination of whether the plaintiff’s constitutional
rights have been violated and whether the trial court abused its discretio n or

committed an error of law.” Ocasio v. Prison Health Servs. , 979 A.2d
352, 354 (Pa. Super. 2009). For purposes of Rule 240(j), a frivolous action
or proceeding has been defined as one that “lacks an arguable basis either in

law or in fact.” Id. ( quo ting Neitzke , 490 U.S. at 325). “Under Rule 240(j),

an action is frivolous if, on its face, it does not set forth a valid cause of

action.” Ocasio , 979 A.2d at 354 (citation and quotation marks omitted).
Rule 240(j) requires that a trial court review th e action to determine frivolity
prior to addressing the merits of the complaint. Id.

3 In its Pa.R.A.P. 1925(a) Opinion, the trial court accurately explains that “[t]his document included numerous ‘questions’ that do not pertain to the instant appeal and are not applicable to th[e] [] dismissal of the action as frivolous.” Trial Court Opinion, 7/11/16, at 1 (unnumbered); see also Ferris v. Harkins , 940 A.2d 388, 397 (Pa. Super. 2007), vacated on other grounds , 961 A.2d 56 (Pa. 2008), (observing that “w hen the appellant provides a concise statement which is too vague to allow the trial court an opportunity to identify the issues raised on appeal, he/she has provided the functional equivalent of no Concise Statement at all.” (citation an d quotation marks omitted)).J

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In his somewhat incoherent and confusing Argument section, Wilkins
largely challenges his allegedly unlawfully induced guilty plea and sentence
imposed in the criminal case. Nowhere, however, does he challenge the
dismissal of the Complaint pursuant to Rule 240(j). 4

In its Opinion, the trial court addressed the dismissal of the Complaint

as follows:
[The] Complaint is largely unintelligible and includes references to numerous statutes that do not appear to relate to any purported cause of action. Upon thorough review of the Complaint, [the trial c]ourt is at a loss to identify any actual claims against [Falbo] or facts that allege that [Falbo] engaged in any wrongdoi ng that caused [Wilkins] harm. [ 5 ] [Wilkins] seeks compensatory damages in the amount of $25,000; punitive damages in the amount of $100,000; and declarative damages as deemed appropriate by the [c]ourt.
[Wilkins] does not provide any factual or legal ba sis in support of any claim against [Falbo], and [the trial c]ourt cannot decipher what claim [Wilkins] is purporting to bring. [Wilkins] has also failed to state how he incurred damages as a result of any purported wrongdoing of [Falbo]. Finally, [Wilki ns] has not set forth any facts or legal authority that would sustain a claim for punitive damages against [Falbo].

4 Moreover, the only claim that Wilkins levels against Falbo (who, the Complaint alleges, was the prosecutor involved in the criminal case) is that she (1) ignored a prior plea agreement that Wilkins had entered into with a sep arate District Attorney in the criminal case; and (2) therefore “clearly neglected or failed to perform a duty of office[,]” and “cannot continue in furtherance of conduct by the Office of [the] Dauphin County District Attorney that led to a wrongful convi ction.” Brief for Appellant at 4.

5 Indeed, the Complaint barely mentions Falbo, aside from listing her as the Defendant, and stating that “[Falbo] notified [Wilkins] that the[] [District Attorney’s Office] would not be correcting any errors in the crimi nal history record information.” Complaint, 5/20/16, at 1, 3 (emphasis and quotation marks omitted).J

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- Based upon [the trial court’s] review of [the] Complaint, we were satisfied that the Complaint did not set forth a valid cause of action a gainst [Falbo]. [The] Complaint has no basis in law or fact that would arguably entitle [Wilkins] to relief. As such, prior to acting upon [Wilkins’s] Petition for Leave to Proceed in Forma Pauperis , [the trial court] dismissed his action as frivolous pu rsuant to Pa.R.C.P. 240(j).
Trial Court Opinion, 7/11/16, at 2

- 3 (unnumbered, footnote added).
The trial court’s above analysis is supported by the record, and its
determination that the Complaint is frivolous is sound. We discern no

violation of Wilki ns’s constitutional rights, or abuse of discretion by the trial
court in dismissing the Complaint with prejudice. See Ocasio , 979 A.2d at
356 (noting that Rule 240(j) is not unconstitutional, and holding that the

trial court did not abuse its discretion i n dismissing the pro se plaintiff’s
complaint against the prison medical provider, with prejudice, as it was
frivolous and could not be amended to bring a cause of action against the
defendants). Accordingly, none of Wilkins’s issues on appeal entitle him to
relief, and we affirm the Order dismissing the Complaint.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2017