IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. :

:

City of Reading and : No. 1770 C.D. 2016

Thomas K. Flemming : Submitted: March 10, 2017

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: August 2, 2017

Ramon Vasquez (Vasquez) appeals pro se from the Berks County 

Common Pleas Court’s (trial court) July 7, 2016 order granting the City of Reading’s

(City) and City Police Officer Thomas Flemming’s (Flemming) Motion to Dismiss 

pursuant to Pennsylvania Rule of Civil Procedure No. (Rule) 233.1 (Motion) and 

dismissing Vasquez’ Complaint against the City and Flemming (Complaint). There 

are two issues before this Court: (1) whether the trial court failed to give Vasquez an 

opportunity to respond to the Motion, and (2) whether Vasquez’ Complaint was a 

frivolous serial lawsuit.1 After review, we affirm. 

Vasquez is an inmate at the State Correctional Institution at Somerset. 

On August 13, 2015, Vasquez filed a complaint in the United States District Court for 

the Eastern District of Pennsylvania (U.S. District Court) seeking monetary damages 

from the City, Flemming, Vasquez’ ex-girlfriend, a magisterial district judge, a 

security guard, a City resident and an off-duty police officer (first lawsuit). Vasquez 

 

1 Vasquez presents three additional issues in his brief’s Statement of Questions Involved: (1) 

whether Flemming, as a trained police officer, failed to view the totality of the circumstances; (2) 

whether the federal tribunal was impartial in its dismissal of Vasquez’ first lawsuit; and (3) whether 

the claims in Vasquez’ first lawsuit were time-barred. See Vasquez Br. at 4. Because those issues 

do not relate to the Rule 233.1 dismissal, they are not properly before the Court.
2

sought to proceed in forma pauperis. In his first lawsuit, Vasquez asserted claims 

against the City and Flemming arising from a criminal complaint they had filed 

against him for the unauthorized use of an automobile and the alleged events 

resulting therefrom, including false arrest, false imprisonment, and malicious 

prosecution under Section 1983 of the Civil Rights Act (Section 1983), 42 U.S.C. § 

1983, as well as claims based on his June 19, 2013 arrest. On August 11, 2015, the 

U.S. District Court granted Vasquez leave to proceed in forma pauperis, and 

dismissed his claims against the City and Flemming with prejudice pursuant to 

Section 1915(e)(2)(B)(ii) of the Prison Litigation Reform Act, 28 U.S.C. § 

1915(e)(2)(B)(ii), due to his failure to state a claim upon which relief may be granted. 

On December 7, 2015, Vasquez filed the Complaint in the trial court 

seeking monetary damages under Section 1983. In the Complaint, Vasquez alleged 

that the City and Flemming were liable for conducting an unreasonable search and 

seizure, false arrest and false imprisonment in violation of the Fourth Amendment, 

malicious use of process, assault, intentional infliction of emotional distress, 

negligence, and respondeat superior negligence. On June 30, 2016, the City and 

Flemming filed the Motion. On July 7, 2016, the trial court granted the City and 

Flemming’s Motion and dismissed Vasquez’ Complaint with prejudice. Vasquez 

appealed to the Superior Court. The Superior Court issued a Rule to Show Cause as 

to whether Vasquez’ appeal was timely filed, and whether the appeal should have 

been filed in this Court. By November 1, 2016 order, this Court accepted Vasquez’ 

appeal as timely filed.2

 

2 A trial court’s grant of a motion to dismiss pursuant to Rule 233.1 is subject to an abuse of 

discretion review standard. Coulter v. Ramsden, 94 A.3d 1080 (Pa. Super. 2014). To the extent an 

appeal involves interpretation of the rules of civil procedure, this Court’s standard of review is de 

novo. Id.
3

Initially, Rule 233.1(a) provides:

Frivolous Litigation. Pro Se Plaintiff. Motion to 

Dismiss

(a) Upon the commencement of any action filed by a pro se

plaintiff in the court of common pleas, a defendant may 

file a motion to dismiss the action on the basis that

(1) the pro se plaintiff is alleging the same or related 

claims which the pro se plaintiff raised in a prior action 

against the same or related defendants, and

(2) these claims have already been resolved pursuant to 

a written settlement agreement or a court proceeding.

Pa.R.C.P. No. 233.1(a) (text bold emphasis added). 

Vasquez first argues that the trial court violated his due process rights by 

not giving him an opportunity to respond to the Motion. Although Vasquez stated the 

issue in his “STATEMENT OF QUESTIONS INVOLVED” as: “Whether the [trial] court 

failed to give [Vasquez] an equal opportunity to be heard in response to [the Motion]” 

(Vasquez Br. at 4), the assertions in his “ARGUMENT FOR THE APPELLANT”

(Vasquez Br. at 15), refer to his lack of opportunity to present the merits of his case. 

See Vasquez Br. at 17-19. It appears Vasquez is requesting a remand to the trial court 

to present the merits of his Complaint, rather than the merits of the Motion.3 Because 

the merits of his underlying case were not before the trial court, a remand is not 

warranted. Moreover, as the trial court opined: “[Vasquez] had no grounds for relief 

available even if he had filed a response to [the Motion].”4 Trial Court Op. at 4. 

 

3 Vazquez maintains: “Judgment should be reversed and remanded due to the trial court’s 

abuse of discretion of [Vasquez’] right to due process[;]” and “because denying a fair opportunity to 

litigate his claims goes against the rudimentary of justice.” Vasquez Br. at 17, 19.

4 Vasquez does refer to the fact that this litigation is his first state court action. See Vasquez 

Br. at 18. To the extent he may be implying that because the first lawsuit was filed in federal court 

it cannot be the same, that argument has no merit. See Coulter v. Ramsden, 94 A.3d 1080 (Pa. 

Super. 2014) (wherein the trial court dismissed the petitioner’s action under Rule 233.1 in state 
4

This Court notes that the better practice would have been for the trial 

court to have given Vasquez the right to respond to the Motion; however, Vasquez’

due process rights were protected by his ability to file a motion for reconsideration. 

Because any order is subject to appeal and reconsideration, Pa.R.A.P. 1701, and a 

trial court has 30 days to modify or rescind its order, 42 Pa.C.S. § 5505, Vasquez’ 

due process rights were not violated when the Motion was granted.

Vasquez next contends that his Complaint should not have been 

dismissed under Rule 233.1 because it was not a serial lawsuit. However, Rule 233.1 

refers to “same or related claims . . . raised in a prior action against the same or 

related defendants” which “have already been resolved pursuant to . . . a court 

proceeding.” Pa.R.C.P. No. 233.1(a) (emphasis added). The word “serial” does not 

appear in Rule 233.1 as it is not limited to numerous filings, but rather, duplicative 

filings. Because Vasquez’ Complaint was “filed by a pro se plaintiff” in “common 

pleas” court alleging “the same or related claims” which were “raised in a prior action 

against the same or related defendants,” and those “claims have already been 

resolved,” the Complaint was properly subjected to Rule 233.1. Id.

In the instant case, Vasquez’ “INTRODUCTION” in his first lawsuit’s 

complaint states in its entirety:

This is a civil rights action filed by [Vasquez], seeking 

monetary damages under [Section] 1983, alleging illegal

search [and] seizure, false arrest and imprisonment in 

violation of the fourth amendment to the United States 

[C]onstitution, deprivation of equal protection & due 

process in violation of the fourteenth amendment of the 

United States [C]onstitution, deprivation of right to counsel 

in violation of the sixth amendment to the United States 

[C]onstitution; The plaintiff also alleges the torts of 

defamation, assault [and] battery, malicious abuse of

 

court because a federal court had dismissed a similar action on the basis that petitioner was a 

vexatious litigant).
5

process, intentional infliction of mental distress, negligence,

and negligence respondeat superior[.]

Supplemental Reproduced Record (S.R.R.) at 34b. The “INTRODUCTION” in 

Vazquez’ Complaint states in its entirety:5

This is a civil rights action filed by [Vasquez], seeking 

monetary damages under [Section] 1983, alleging illegal 

search & seizure, false arrest and imprisonment in 

violation of the fourth Amendment to the United States 

Constitution, deprivation of equal protection of law, life, 

liberty, and property without due process in violation of 

the fourteenth amendment to the United States 

Constitution[.] The plaintiff also alleges the torts of

malicious abuse of process, assault, intentional infliction 

of mental distress, negligence, and negligence 

respondeat superior.

S.R.R. at 5b (emphasis added). 

The allegations against Flemming in the first lawsuit, see S.R.R. at 45b46b, ¶¶ 6, 8-10, are virtually identical to the allegations against Flemming in the 

Complaint. See S.R.R. at 15b-17b, ¶¶ 1, 4, 7-8. Further, the allegations against the 

City in the first lawsuit, see S.R.R. at 49b-51b, ¶¶ 25, B.4-5, C.2, are virtually 

identical to the allegations against the City in the Complaint. See S.R.R. at 15b-16b, 

¶¶ 2-3, 5-6. Consequently, the claims raised in the Complaint are the “same or 

related claims . . . raised in a prior action against the same or related defendants[.]” 

Pa.R.C.P. No. 233.1(a). Since the U.S. District Court dismissed Vasquez’ claims 

against the City and Flemming with prejudice pursuant to Section 1915(e)(2)(B)(ii) 

of the Prison Litigation Reform Act, the aforementioned claims “have already been 

resolved pursuant to . . . a court proceeding.” Id. Accordingly, the trial court 

properly dismissed the Complaint under Rule 233.1.

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

 

 

5

The Complaint is hand-written in all capital letters.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. :

:

City of Reading and : No. 1770 C.D. 2016

Thomas K. Flemming :

PER CURIAM

O R D E R

AND NOW, this 2

nd day of August, 2017, the Berks County Common 

Pleas Court’s July 7, 2016 order is affirmed.