IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Lamont Burley, Jr.

, :

Appellant :

:

v. :

: Jason Hilton, Brian Covert, : No. 934 C.D. 2021 and Nicholas Z a

rilla : Submitted: March 25 , 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: June 30, 2022

Keith Lamont Burley, Jr. (Burley) appeals pro se from the Lawrence
County Common Pleas Court’s (trial court) March 23, 2021 order dismissing
Burley’s Amended Complaint ( Amended Complaint) against Jason Hilton (Hilton)

, Brian Covert (Covert) and Nicholas Z a rilla (Zarilla) 1 (collectively, Appellees) with
prejudice. There are two issues before this Court : (1) whether the trial court err ed
by dismissing Burley’s access to court claim on the basis that he was represented by

Thomas F arrell , Esquire (Counsel) at all time material to his criminal case ; and (2)

whether the trial court err ed by dismissing Burley’s claims with prejudice

. After

review, this Court affirms.

1 O ther than in the caption

, Zarilla’s name does not appear in the Amended Complaint.2 Facts
On October 13, 2020, Burley filed the Amended Complaint against
Appellees , therein ass erting only three factual allegations:

(3). [Burley] was an incarcerated citizen; [p] re

- trial de ta inee in the Lawrence C ounty C o rrections from July

- to

- S eptember [] 2019, [a] nd [from] January

- to

- July 2020 [,] [u] nder the care custody, and control of corrections officials [W] arden [] Covert [a] nd Deputy Warden [] Hilton.

( 4). [Covert] [a] nd [Hilton] are legally responsible for the operation of the Lawrence Cou [ n ] ty C orrections.

(5). Each defendant mentioned in this [Amended C] omplaint acted under the color of state law.

Original Record (O.R.) at 157. 2

The Amended Complaint include s eight c ounts: Count I

- “ Covert and

[] Hilton did deny [Burley] access to the law library and trained assistance [;]” Count

II

- “ [t]he defendants did knowingly, willingly, with malici ous intent destroy and

withhold [Burley’s] legal mail and illegally recorded and diss em inate d
private/privileged telephone com munications [Burley] had while housed on HD
Housing Unit .” (“The result [wa s] the deliberate impai rment to [Burley’s] right to

access the courts

. ” ) ; Count III

- “[t] he defendants us e d artificial light and s oun d as

weapon s resulting in temporary blindness and per manent impaired vision [and]
hearing loss, as well as causing insomni a and symptoms associated with sleep
deprivation. The action s of the d e fendants were deliberate assaults [;]” Count IV

- “[t] he defendants e ngaged in extreme negligence in that they: [] [c] reated the custom

under which the violation occurred [,] [ ] [f]ailed to remedy the violations after being

informed [,] [] [a] nd were grossly negligent in supervising subordinates who

2 Because the Original Record pages are not numbered , the page numbers referenced in this Opinion reflect electronic pagination.3

committed violations and were deliberately indifferent to [Burley’s] rights by failing

to act on info r mation that constitutional right s were being violated [;]” Count V

- “[p] unitive [d]amages[

, ]” and “ compensatory damages in the amount of [t]wenty[

- ] [f]ive [d]ollars for the unlawful usurption [sic] of twenty[

- ]five dollars from
[Burley] for [a] fabricated bo o king fee . . . [;]” Count VI

- “ [t] he defendants did
engage in religious discrimination by deliberately d e nying [Burley] a feast at the end

of the month of Ramadan [,]” and “ retaliated by having [Burley] transferred to a
distant institution without a hearing [;]” Count VII

- “[Burley] seeks

. . . a mandatory
injunction for the defendants to return all of [Burley’s] personal property which

remains inside of the Lawrence Count y Corr e ctions [,] [n]a mely, coat, pants, keys,

and all electronic mail messages sent to [Burley,]” “[a] n d all other personal and
private privileged mail which still remains inside of the Lawrence C ounty
Corrections[;]” and Count VIII

- “[Burley] seek s a prohibitory injunction against

[Covert and Hilton] from a cc e ss ing any of [his] p e rso n al prope r ty. ” O.R. a t 157

-
159. The C

ounts were not supported by any further factual allegations.
The Amended Complaint ended with a “[c]onclusion

, ” wherein Burley

stated:

[Burley] avers that [,] by way of the written record, video

surveillance, and eye witness testimony

, a prima facie cas e will be clearly established against the defendants.

Also, the “ Apology Letters ” the defendants sent to [his] [Counsel] in case [n] o. 73 0

- 19 is an admission of guilt. [Burley] further avers that even had there been only a scintilla of evidence r egarding the issu e s herein, then those is s ues must be decided by a jury, rather than bein g resolved by any summary judgement which would favor the defendants.

O.R. at 159. The referenced A pology L etters were not attached to the Amended
Complaint.4 On November 23, 2020, Hilton and Covert filed P reliminary Objections
to the Amended Complaint and a brief in support thereof. Therein, Hilton and

Covert alleg ed d emurrer s pursuant to Pennsylvania Rule of C ivil Procedure (Civil
Rule) 1028(a)(4) : (1) to the e ntire Amended Complaint for failure to plead material

facts ; (2) t o Count I (access to courts claim) because Burley was represented by
Counsel during his criminal case; (3) to Count III because Hilton and Covert cannot

be he l d vicariously l iable for the alleged actions of some unidentified correctional

officers ; (4) to C ount IV ( negligence claim) because it is barred by the Act
commonly known as the Pennsylvania Po l itica l Subdivision T ort Claims Ac t; 3 (5) to

Count V ( punitive damages ) because the ability to allege punitive damages is

curtailed as a matter of law against governmental employees ; and (6) to Count VI

( post

- Ramadan feast ) because t he Amended Comp l aint fails to include factual
allegations as to how the d efend a nts deliberately denied Burley a feast

. On
December 2, 2020, Zarilla filed Preliminary Objections to the Amended Complaint
and a brief in support thereof. Therein, Zarilla sought dismissal from Burley’s action

because Burley faile d to include a single specific fact in support of a claim against

him, and faile d to effect service of original process.

On December 10, 2020, Burley filed an “Answer to Defendants
Preliminary Objections to [the] Amended Complaint.” O.R. at 235. On December
10, 2020, Burley filed “ Supplemental Material Facts which Support the Claims
[(Supplemental Material Facts)] .” O.R. at 240. On December 14, 2020, Burley filed
a Request fo r Appointment of Counsel. 4 Also on December 14, 2020, Burley filed
a “Brief in Support of each Meritorious Claim.” O.R. at 249. On December 18,
2020, Burley filed a Motion to Compel Discovery and Facilitate Depositions

3 42 Pa.C.S. §§ 8541

- 8542.

4 The trial court previously denied Burley ’s Request for Appointment of Counsel (filed after his original C omplaint in Mandamus ) , stating that Burley wa s not entitled to appoint ed counsel in a civil case.5

(Motion to Compel)

. On December 29, 2020, Burley filed a “M emorandum of

P oints and A uthorities.” O.R. at 275. On January 4, 2021, Burley filed an
Application for O ral Argument. On January 7, 2021, Burley filed a Request for

Production of Documents.

By February 8, 2021 order, the trial court directed Burley t o file a Brief

in response to both Preliminary Objections to the Amended Complaint on or before

March 15, 2021. On February 22, 2021, Burley filed his brief in response to Hilton
and Covert’s Preliminary Objections. Also on February 22, 2021, Burley file d a
Request for a Time Extension to file his brief in response to Zarilla’s Preliminary
Objections , and a Request for L eave of C ourt to file a Supplemental Complaint. On
February 25, 2021, Burley filed a “Request for Pre

- Inju[n]ction.” O.R. at 393.

On March 23, 2021, the trial court issued an opinion and order
sustaining Hilton and Covert’s

, and Zarilla’s Preliminary Objections, and dismissing
the Amended Complaint. On March 29, 2021, Burley filed his brief in response to
Zarilla’s Preliminary Objecti ons

. On April 28, 2021, Burley filed a Notice of Appeal
with the Pennsylvania Superior Court. 5 On May 17, 2021, the tri a l court directed
Burley to file a Concise Statement of Errors Complained of on Appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement).
Burley filed his Rule 1925(b) Statement on June 28, 2021

. 6 On July 15, 2021

, t he
Pennsylvania Superior Court transferred Burley’s appea l to this Court. 7 On August

10, 2021, the trial court filed its Rule 1925(a) Opinion.

5 Burley’s return receipt from the trial court’s order and opinion was returned as un

delivered. The trial court remailed its order and opinion to Burley on April 19, 2021.

6 The trial court’s order was returned as undeliverable and was resent to Burley on June 28, 2021.

7 [“] Where a [trial court] dismisses a complaint based on preliminary

objections, this Court ’ s review is limited to determining whether the trial court committed an er ror of law or an abuse of discretion. [”] When considering preliminary objections, we must accept as true all6 On October 19 , 2021, Burley filed a Motion Seeking Leave of Court to
File a Supplemental Memorandum in Support of his Appeal with this Court . By

November 16, 2021 Ord er, to the extent that Burley was seeking leave to file a
supplemental brief, this Court granted the request and directed that the supplemental

brief wa s due on or before December 15, 2021. On December 2 , 2021, Burley filed
his Supplemental Brief. 8 On J anuary 3, 2022, Covert and Hilton filed a Motion for
Leave to File Brief in Response to Burley’s Supplemental Brief (Reply Brief), which
this Court granted on January 5, 2022. On January 6, 2022, Covert and Hilton filed

their R eply Brief.

On January 2 6 , 2022, Burley filed a Motion for Clarification seeking

this Court ’ s review of newly discovered facts and attachments that pertain ed to a

civil action Burley f

iled in the United States District Court for the Western District
of Pennsylvania . By March 2, 2022 Order, this Court denied the Motion for

Clarification.

well

- pleaded material facts alleged in the complaint and all reasonable inferences deducible therefrom. A preliminary objection should be sustain ed only in cases when, based on the facts pleaded, it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Because a preliminary objection in the nature of a demurrer presents a question of law, this
Court ’ s standard of review of a court of common pleas ’ decision to sustain a demurrer is de novo and the scope of review is plenary. Similarly, whether immunity applies is a question of law subject to

our de novo review.

Brown v. Wetzel , 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018) (quoting Minor v. Kraynak

, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (citations omitted) ).

8 Burley included issues not raised in his Rule 1925(b) Statement in his Supplemental Brief. The law is well established tha t “[a] ny issues not raised in a [Rule] 1925(b) [S] tatement will be deemed waived. ” Commonwealth v. Costillo , 888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord , 719 A.2d 306 , 309 ( Pa. 1998) ). To the extent Burley raised issues in his Supplemental Brief that were not included in his Rule 1925(b) Statement

, those issues are waived and this Court did not consider them

.7 Discussion
Preliminarily

, Appellees argue that Burley’s appeal is untimely.
Specifically, Appelle es assert that

, because the relevant trial court order was

docketed on March 23, 2021 , p ursuant to Rule 903(a), Burley ’s appeal was due by
April 22, 2021. Appellees contend that

, since Burley’s Notice of Appeal is dated
April 24, 2021, it wa s untimely and this Court is divested of jurisdiction. Burley
rejoins that , because he did not receive the trial court’s M arch 23, 2021 order until
on or around April 19, 2021, his appeal wa s timely.

A review of th e trial court’s docket reveals that the trial court mailed its

Ma r ch 23, 2021 order to Burley on March 23, 2021. See March 23, 2021 trial court
docket entry (“ 3/23/ [20] 21 ; EXIT [] T O P LT F . . . .”) , O.R. at 3 . However, the trial

court’s April 6, 2021 dock et entry reflects: “ RETURN OF SERVICE FILED; ORDER

03/23/ [20] 21 RETURNED FROM . . . BURLEY []

- UNABLE TO FORWARD

- RE

- MAILED ON

4/6/ [20] 21 [.]” Id

. Further, the trial court’s April 16, 2021 docket entry declares:

“ RETURN OF SERVICE FILED; RE

- MAILED TO CORRECT CONTROL #C2340579 ON

4/19/ [20] 21 (REQUESTED ORDER OF COURT) [.]” Id

.

“ Generally

, . . . an appeal nunc pro tunc is granted only where there

was ‘ fraud or a breakdown in the court ’ s operations through a default of its

officers. ’ ” Union Elec

. Corp

. v. Bd

. of Prop

. Assessment, Appeals & Review of
Allegheny Cnty

. , 746 A.2d 581 ( Pa. 2000) (quoting Bass v. Commonwealth

, 401
A.2d 1133, 1135 ( Pa. 1979) )

. “[T] he law [] holds that a failure to properly send a notice may amount to a breakdown in operations which is the equivalent of
negligence on the part of administrative officials. ” Moore v. Pa. Bd. of Prob. &

Parole , 503 A.2d 1099, 1101 (Pa. Cmwlth. 1986) ; see also Brown v. Hill (Pa.

Cmwlth. No. 388 C.D. 2018 , filed Aug

. 1, 2019 ) (“ Failure to send notice of an order
constitutes a breakdown in operations warranting nunc pro tunc relief. ”), slip op. at8

7. 9 Here, because the trial court’s docket confirm s that the trial court did not

“ properly send ” Burley its March 23, 2021 order until at least April 6, 2021 , this

Court considers Burley’s appeal a timely nunc pro tunc appeal. 10 Brown

, slip op. at

7

.

Access to Courts (Counts I and II)

Burley allege d in Amended Complaint Count I that Covert and Hilton

denied Burley access to the law library and trained assistance , thereby denying him
access to the courts. Covert and Hilton objected to Count I on the basis that Burley
was represented by Counsel in his criminal case. The trial court, taking judicial

notice of the docket ent r ies indica ting that Burley was

, in fact

, represented by

Counsel in his criminal case , sustained tha t P reliminary Objection and dismissed

Count I.
Burley first argues that the trial court erred by taking judicial notice of
the fact that he was represented by Counse l in his criminal case and dismissing
Burley’s viable access to court claim on that basis , without taking judicial notice and

consider ing that the case at bar is a civil matter in which Burley wa s pro se and

, as

such

, was not represented by legal counsel at every time material to his claim

.

Burley clearly confuses his right to access the courts claim with respect
to actions that took place prior to the filing of his Amended C omplaint ( i.e., in

connection with his cr iminal case, as claimed in his Amended Complaint ) , with the

actions taken after the filing of the Amended Complaint when he was acting pro se. The fact that Burley is proceeding pro se in the instant action does not change the

9 Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited for their persuasive value. See Sec tion 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Brown is cited for its persuasive value.

10 It appears the trial court also considered Burley’s appeal a timely nunc pro tunc appeal

as the trial court did not raise the issue of an untimely appeal in its Rule 1925(a) Opinion.9

fact that Counsel represente d him in his criminal case and

, therefore

, does not a ffect
the trial court’s ruling sustaining Covert and Hilton’s Preliminary Objection on that

basis. Accordingly, Burley’s argument that the trial court improperly dismissed

Count I of the Amended Complai nt is without merit.

Burley allege d in Amended Complaint Count II , in relevant part, that

“ defendants

. . . with [he] ld [Burley’s] legal mail [

, ]” thereby interfering with his
communications with Counsel and impairing his right to access the courts. O.R. at

157 (emphasis added)

. The trial court did not address this portion of Count II.
Covert and Hilton alleged a demurrer in their first Prelimina ry Objection pursuant
to Civil Rule 1028(a)(4) to the entire Amended Complaint for failure to plead

material facts

.

It is well settled that a civil rights complaint must allege facts
identifying “the conduct, time, place, and persons responsible.” Evan cho v. Fisher

, 423 F.3d 347, 353 (3d Cir. 2005). Further, a “[p]laintiff must allege the personal

involvement of each [d]efendant to state a claim against them under Section 1983[,
42 U.S.C. § 1983].” Reed v. Chambersburg Area Sch. Dist. , 951 F. Supp. 2d 706,
719 (M.D. Pa. 2013) (emphasis added). Here, because B urley did not allege who
specifically withheld his mail, nor where or when the mail was withheld, Burley’s

argument that the trial court improperly dismissed Count I I of the Amended
Complaint is w ithout merit.

Dismissing With Prejudice
Burley next argues that the trial court erred by dismissing Burley’s
claims with prejudice, without consideration of Burley’s pro se status and his lack
of training in legal practice formalities and

, by doing so , deprived Burley of his right
to be heard and an opportunity to offer proof of his pro se allegations . Specifically,
Burley contends that the trial court should have taken judicial notice of his10

Supplemental Material Facts , and should have ruled on all o f his outstanding
motions, applications

, and requests before sustaining the Preliminary Objections and
dismissing his Amended Complaint. Further, Burley maintains that he should have
been provided an opportunity to file a second amended complaint.

The P ennsylvania Supreme Court has explained:

Under Pennsylvania law, pro se [litigants] are subject to the same rules of procedure as are represented [litigants]

. See Commonwealth v. Williams

, . . . 896 A.2d 523, 534 ( [Pa.] 2006) ( pro se [litigants] are held to same standards as licensed attorneys). Although the courts may liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon a litigant, and a court cannot be expected to become a litigant ’ s counsel or find more in a written pro se submission than is fairly conveyed in the pleading.

Commonwealth v. Blakeney , 108 A.3d 739, 766 (Pa. 2014) (italics omitted) ; see also

Young v. Est

. of Young , 138 A.3d 78 (Pa. Cmwlth. 2016).

Further,

[w] here, as here, a defendant files preliminary objections to a plaintiff ’ s complaint in the nature of a demurrer, see Pa.R.Civ.P. 1028(a)(4), the court ’ s review is confined to the content of the complaint and any attachments thereto. Thomas v. Corbett , 90 A .3d 789 (Pa. Cmwlth. 2014). Thus, the court may determine only whether, on the basis of the plaintiff ’ s allegations, he or she possesses a cause of action recognized at law. Id

. The court may not consider the factual merits of the claims. Schmidt v. De utsch Larrimore Farnish & Anderson, LLP , 876 A.2d 1044, 1046 (Pa. Super. 2005). Rather, the court “must accept as true all well

- pleaded material allegations in the [complaint], as well as all inferences reasonably deduced therefrom.” GTECH Corp [

. ] v. Commonwealth , 965 A.2d 1276, 1285 (Pa. Cmwlth. 2009) ( citing Stanton

- Negley Drug Co. v. Dep [ ’ ] t of Pub [

. ] Welfare , 927 A.2d 671, 673 (Pa. Cmwlth. 2007)). The court need not accept as true conclusions of law, unwarranted inferences from facts, argument ative allegations, or expressions of opinion. Id

.11

Fraternal Ord. of Police Lodge No. 5, by McNesby v. City of Phila.

, 267 A.3d 531,

541

- 42 (Pa. Cmwlth. 2021)

.

Moreover,

[Civil] Rule 1033

. . . allows a party to amend his or her pleadings with either the consent of the adverse party or leave of the court. Leave to amend lies within the sound discretion of the trial court and “the right to amend should be libera lly granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.

Werner v. Zazyczny , 681 A.2d 1331, 1338 (Pa. 1996) (emphasis added) (quoting
Connor v. Allegheny Gen

. Hosp

. , 461 A.2d 600, 602 ( Pa. 19 83) )

.

Here, Appellees filed their respective briefs contemporaneously with
their respective Preliminary Objections (i.e., Covert and Hilton filed their brief on
November 23, 2020, and Zarilla filed his brief on December 2, 2020). Thereafter,
while Appellees’ Prelimin ary Objections were pending

, Burley filed a total of seven

a pplications , r equest s , and m otions, plus three s upplemental f ilings. On February 8,

2021 , t he trial court expressly set forth a briefing schedule for the Preliminary
Objections so that Burley was aware that he was required to file a brief in response

to both sets of Preliminary Objections to the Amended Complaint

, and directed that
they be filed on or before March 15, 2021. The trial court also informed Burley that

it would rul e on the Preliminar y Objections thereafter.

The trial court opined:

The docket entries in this case reflect that [Burley] had the opportunity to [and did] file his original C omplaint in Mandamus [(Complaint)] on June 22, 2020, that Preliminary Objections were filed to tha t [C] omplaint on behalf of [Appellees] , and that subsequently, [Burley] had an opportunity and did file an Amended Complaint [.] . . . The [t] rial [c] ourt is under no obligation to provide, even a pro se litigant, unlimited opportunities to present [his]

c laims in accordance with the [Civil Rules] and12 appropriate, substantive law. [Burley] had an opportunity to file an Amended Complaint, [Appellees] had the opportunity to respond to that [Amended C] omplaint with Preliminary Objections and the [trial c] ourt ruled on the Preliminary Objections as stated in the [o] pinion and [o] rder of March [23] , 2021.

Rule 1925(a) Op. at 4.

T he trial court properly reviewed the Amended Complaint and
determined, “ on the basis of [Burley’s] allegations ,” that the Amended Complaint
did not make out any cognitive claims. McNesby

, 267 A.3d at 541.

Moreover, a court is not required to allow amendment of a pleading if a party will be unable to state a claim on which relief could be granted. See Spain v. Vicente

, . . . 461 A.2d 833, 837 ( [Pa. Super.] 1983) (trial court did not err in refusing to permit amendment of defamation complaint to allow more specific details since no formal motion to amend was ever made and plaintiff ’ s deposition militated against likelihood of estab lishing claim). Thus, [Burley’s] claim must fail.

Werner , 681 A.2d at 1338. Accordingly, Burley ’s argument that the trial court erred
by dismissing his claims with prejudice is meritless.

Conclusion

For all of the above reasons, the trial court’s order is affirmed.

___________________________ ______ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Lamont Burley, Jr., :

Appellant :

:

v. :

: Jason Hilton, Brian Covert, : No. 934 C.D. 2021 and Nicholas Z a

rilla :

O R D E R

AND NOW, this 30 th day of June , 20 2 2

, the Lawrence County Common
Pleas Court’s March 23, 2021 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge