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 FILE D: 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 Fle m ming ’s (Flem m ing) Motion to Dismiss
pursuant to Pennsylvania Rule of Civil Procedure No. (Rule) 233.1 (Motion) and dismissing Vasquez’ Complaint against the City and Fle m ming (Complaint)

. Th ere
are two issues before this C ourt: (1) whether the trial court failed to give Vasquez an opportunity to respon d 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 Instit ut ion at Somerset.
On August 13
, 2015 , Vasquez filed a c omplaint in the United States Di strict Court for the Eastern District of Pennsylvania (U.S. District Court) seeking monetary damages
from the City, Flem m ing, Vasquez’ ex

- gir lfriend, a magisterial district judge, a security guard, a C ity resident and an off

- duty police officer (first laws uit)

. Vasquez

1 Va s quez presents three additional issues in his brief’s Statement of Questio ns Involved: (1) whether Flem m ing
, as a trained police officer
, failed to view the totality of the circumstances; (2) whether the federal tribunal was i mpartial in its dismissal of Vas quez’ first lawsuit; and (3) whether the claims in Vasquez’ first lawsui t were time

- barred. See Vasquez Br. at 4. B ecause those issues do not relate to the R ule 233.1 dismissal, they are not properly before the C ourt.2

sought to proceed in forma pauperis. In his first lawsuit, Vasquez asserted claims against the City and Fle m ming arising from a criminal complaint they had filed against him for the unauthorized use of an automobile and the alleged events

r esulting therefrom
, including false arrest, false imprisonment
, and malicious prosecution under Section 1983 of the C ivil R ights A ct (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. Distri ct C ourt granted Vasquez leave to proceed in forma pauperis
, and
dismissed his claims against the City and Fle m ming 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 Flem m ing were liable for conducting a n 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
Fle m ming filed the Motion. On July 7, 2016, the trial court granted the City and
Fle m ming’s Motion and dismissed Vasquez’ Complaint with prejudice. Vasquez appealed to the Superior Court. The Superior Court issued a Rule to Show Cause as

t o whether Vasquez’ appeal was timely filed
, and whether the appeal should have
been filed in this C ourt. 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 r eview 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 P laintiff. 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 cl aims 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 ad ded).

Vasquez f

irst 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: “ J udgment should be reversed and re manded 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 tha t 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 R ule 233.1 in state4 This Court notes that the better practice would have been for the trial court to have given Vas quez 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. Howev er, 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” do es 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 entiret y:

This is a civil rights action filed by [Vasquez] , seeking monetar y damages under [Section] 1983, alleging illegal search [and] seizure, false arrest and imprisonment in violation of the fourth a mendment to the United States [C] onstitution, deprivation o f equal protection & due process in violation of the f ourteenth a mendment of the United States [C] onstitution, deprivation of right t o counsel in violation of the s ixth a mendment 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 f

ourth Amendment to the United States C onstitution, depriva tion of equal protection of law, life, liberty, and property without due process in violation of the f ourteenth a mendment to the United States C onstitution [.] The plaintiff also alleges the torts of malicious abuse of process , assault, intentional inflict ion of mental distress, negligence, and negligence respondeat superior.

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

.

T he allegations against Flem m ing in the first lawsuit, see S.R.R. at 45b

46b, ¶¶ 6, 8

- 10, are virtually identical to the allegations against Fl e m ming 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 C omplaint. 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’ cla ims against the City and Flem m ing 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 tria l court

prop erly dismissed the Complaint under R ule 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 : N o. 1770 C.D. 2016 Thomas K. Flemming :

PER CURIAM

O R D E R

AND NOW, this 2 nd day of August , 201 7
, the Berks County Common Pleas Court’s July 7, 2016 order is affirmed.