IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Herbert Dale Conaway, :

Appellant :

:

v. :

:

Fayette County District Attorney, :

Jack Heneks, Anthony Iannamorelli, Jr., :

Lt. Thomas Kolencik and : No. 1 C.D. 2020

Capt. David Rutter : Submitted: June 26, 2020

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: October 21, 2020

Herbert Dale Conaway (Appellant) appeals the October 9, 2019 order 

of the Court of Common Pleas of Fayette County (trial court) that dismissed his civil 

action against Jack Heneks, the Fayette County District Attorney (DA), Anthony 

Iannamorelli, Jr., of the DA’s Office, and Lieutenant Thomas Kolencik and Captain 

David Rutter, both of the Uniontown Police Department (collectively, Appellees). 

Upon review, we reverse and remand.

The Uniontown Police Department arrested Appellant on August 12, 

2011, on charges related to a sexual assault perpetrated by Appellant on August 11, 

2011. See Trial Court Docket No. CP-26-CR-0001863-2011 (Criminal Docket) at 

3. The Uniontown Police Department confiscated several items of Appellant’s 

personal property at the time of his arrest and retained the items upon Appellant’s 
2

transport to prison. The confiscated property included: (1) an Acer Aspire 5516 

laptop with charger; (2) a Motorola Blackberry cellular phone with charger; and (3) 

a nylon laptop carrying case.1 See Appellant’s Brief at 8. Ultimately, following his 

conviction by a jury in May 2012, the trial court sentenced Appellant to 96 to 200 

months’ incarceration in a state correctional institution.2 See Criminal Docket at 4. 

Appellant’s personal property was not returned to him in prison.

On December 17, 2012, Appellant filed his first Motion for Return of 

Property under the Criminal Docket. See Motion for Return of Property, Appellant’s 

Brief Exhibit A; Criminal Docket at 14. On January 2, 2013, Iannamorelli wrote to 

Appellant requesting that Appellant make arrangements for the return of the property

to an authorized agent, as the state correctional institution did not permit inmates to 

have such articles. See January 2, 2013 Letter of Iannamorelli, Appellant’s Brief 

Exhibit B. On December 19, 2013, Iannamorelli again wrote to Appellant and 

advised Appellant to contact the “necessary agencies or individuals to determine the 

status of your property.” See December 19, 2013 Letter of Iannamorelli, Appellant’s 

Brief Exhibit D. Iannamorelli also advised Appellant on December 19, 2013, to file 

1

In his brief, Appellant alleges the collective value of these items to be approximately 

$3,500.00. See Appellant’s Brief at 8. However, in the civil complaint underlying this matter, 

Appellant alleged the approximate collective value of the property to be $3,000.00. See Civil 

Complaint filed September 2, 2016 at 3-4. Appellees challenge neither the accuracy of the alleged 

inventory nor the estimated value of the items seized.

2 On May 10, 2012, a jury convicted Appellant of: (1) Rape By Forcible Compulsion, 18 

Pa.C.S. § 3121(a)(1); (2) Aggravated Indecent Assault Without Consent, 18 Pa.C.S. § 3125(a)(1); 

(3) Aggravated Indecent Assault By Forcible Compulsion, 18 Pa.C.S. § 3125(a)(2); (4) Sexual 

Assault, 18 Pa.C.S. § 3124.1; (5) Indecent Assault By Forcible Compulsion, 18 Pa.C.S. § 

3126(a)(2); and (6) Indecent Assault Without Consent, 18 Pa.C.S. § 3126(a)(1). See Trial Court 

Docket No. CP-26-CR-0001863-2011 (Criminal Docket) at 4. On May 16, 2012, the trial court 

sentenced Appellant to 96 to 200 months’ incarceration on the Rape conviction, and imposed no 

further penalty on the remaining five convictions. Id.
3

an appropriate motion in the trial court should Appellant wish to have a hearing on 

the return of his personal property.3 Id.

 On September 17, 2014, Appellant filed a second Motion for Return 

of Property under the Criminal Docket. See [Second] Motion for Return of Property, 

Appellant’s Brief Exhibit E; Criminal Docket at 17. On December 29, 2014, 

Appellant filed a third Motion for Return of Property, again under the Criminal 

Docket. See [Third] Motion for Return of Property, Appellant’s Brief Exhibit F; 

Criminal Docket at 18.

On December 30, 2014, the Commonwealth filed, through Iannamorelli 

and also on the Criminal Docket, a Petition for Destruction and Motion to Schedule 

Hearing (Petition for Destruction) claiming that Appellant’s personal property was 

subject to destruction as derivative contraband because it contained evidence of 

Appellant’s crimes. See Petition for Destruction, Appellant’s Brief Exhibit G; 

Criminal Docket at 18. On January 27, 2015, the trial court scheduled a hearing as 

requested by the Commonwealth and issued a Rule to Show Cause why Appellant’s 

personal property was not returnable. See Order dated January 26, 2015, Appellant’s 

Brief Exhibit H; Criminal Docket at 18. On March 30, 2015, after the 

Commonwealth failed to attend the requested hearing, the trial court denied the 

Petition for Destruction and granted Appellant’s Motion for Return of Property. See

Order for Return of Property, Appellant’s Brief Exhibit I; Criminal Docket at 20. 

The trial court’s order granting the return of Appellant’s personal property noted that 

“the only evidence of record [wa]s [Appellant]’s testimony that the items of personal 

3 We note that on October 31, 2013, Iannamorelli also responded to a letter from Appellant 

dated October 22, 2013, and explained that Iannamorelli would attempt to provide Appellant with 

information once Appellant put forth specific requests for information. See October 31, 2013 

Letter of Iannamorelli, Appellant’s Brief Exhibit C.
4

property were not involved in any crimes,” and instructed that the Uniontown Police 

Department was to release the items to Appellant’s mother, as he could not possess 

the items in prison. See id. 

Seventeen months after issuing the Order for Return of Property, on 

August 24, 2016, the trial court entered a “2nd Order for Return of Property.” See

2nd Order for Return of Property, Appellant’s Brief Exhibit J; Criminal Docket at 

22. This order directed the return of Appellant’s personal property to his mother 

forthwith, and warned that failure to return the property could amount to the 

deprivation of property without due process of law subject to an action by Appellant. 

See id.

On September 2, 2016, Appellant filed the instant action in the civil 

division of the trial court seeking the return of his personal property. See Civil 

Complaint filed September 2, 2016 (Civil Complaint), Appellant’s Brief Exhibit K. 

The prothonotary of the trial court assigned the Civil Complaint docket number 

2016-01734. (Civil Docket). Id. 

On October 19, 2016, Appellant filed a Motion for Summary Judgment 

in the instant matter, which the trial court denied by order dated January 26, 2017, 

explaining that the motion was premature as the pleadings had not yet closed. See

Order dated January 26, 2017, Appellant’s Brief Exhibit M; Civil Docket at 2. 

Appellant filed a second Motion for Summary Judgment, which the trial court again 

denied as premature on April 24, 2017, this time explaining 

[Appellant] has failed to serve any [Appellee] in 

accordance with Pa. Rule of Civil Procedure [No.] 400. 

The [c]ourt will not act as counsel for [Appellant]. Any 

further motions that are not filed in accordance with the 

Rules of Civil Procedure may be denied with prejudice.
5

See Order dated April 24, 2017 at 1 n.1, Appellant’s Brief Exhibit N; Civil Docket 

at 2. On April 21, 2017, Appellant filed a third Motion for Summary Judgment, 

which the trial court denied by order dated May 1, 2017. See Order dated May 1, 

2017, Appellant’s Brief Exhibit O; Civil Docket at 2.

On June 19, 2017, Appellant served the Civil Complaint on Appellees, 

nine and a half months after filing. See Civil Docket at 2.

Three days prior, on June 16, 2017, Appellant filed a motion for 

contempt under the Criminal Docket based on Appellees’ failure to comply with the 

trial court’s orders to return his personal property. See Criminal Docket at 25. On 

July 17, 2017, the trial court issued a rule upon the Uniontown Police Department to 

show cause why it had not returned Appellant’s personal property as previously 

ordered. See Order dated July 17, 2017, Appellant’s Brief Exhibit Q; Criminal 

Docket at 26. Later, the trial court issued an order dated January 31, 2018, that 

granted Appellant in forma pauperis status and included a handwritten notation 

stating:

* The Court notes that it has been advised that the items 

sought have been lost or misplaced, so further attempts to 

recover the items may be futile.

Order dated January 31, 2018, Appellant’s Brief Exhibit R.

On October 2, 2019, Appellant filed an Application for Default 

Judgment and Sanction (Default Judgment Application) in the instant action for 

Appellees’ failure to answer the Civil Complaint. See Default Judgment 

Application, Appellant’s Brief Exhibit U; Civil Docket at 3. On October 9, 2019, 

the trial court dismissed the instant action by order that stated as follows:
6

AND NOW, this 9th day of October, 2019, upon 

consideration of the Default Judgment filed by the pro se

plaintiff, the multiple improper filings, the complaint 

which was never properly served upon the defendants and 

upon consideration of the claim of the plaintiff that on 

August 24[], 2016, the Honorable Judge Steve P. Leskinen 

entered an order at a criminal case granting the same relief 

the plaintiff is requesting in this action, the Court, sua 

sponte, hereby ORDERS and DIRECTS that the default 

judgment filed on October 4[], 2019 is STRICKEN, the 

complaint is DISMISSED, with prejudice, pursuant to 

[Pa.R.C.P. No.] 233.1 and the Prothonotary is 

DIRECTED to disregard and not accept for filing any and 

all future pleadings that may be filed by the plaintiff at this 

number.

Furthermore, the Prothonotary is DIRECTED to inform 

this member of the Bench of any other attempts of the 

plaintiff to initiate a new civil action as any such attempt 

will be dismissed pursuant to Rule 233.1(d).

Order dated October 9, 2019 (Dismissal Order) at 1-2. Appellant timely appealed 

to this Court.4

On appeal,5Appellant claims the trial court erred in dismissing the Civil 

Complaint because he has been denied his personal property without due process in 

a situation where Appellees did not initiate forfeiture proceedings and ignored 

multiple trial court orders to return his property. See Appellant’s Brief at 5 & 14-

4 Appellant originally appealed to the Superior Court of Pennsylvania on October 29, 2019, 

which transferred the matter to this Court on November 21, 2019. Accordingly, we treat this matter 

as though Appellant properly filed his appeal in this Court on October 29, 2019. See 42 Pa.C.S. § 

5103(a) (directing tribunals in which matters are incorrectly filed to transfer the matter to the 

proper tribunal, which then will treat the filing as if originally filed in the transferee tribunal).

5

“Our review is limited to determining whether the trial court abused its discretion or 

committed an error of law necessary to the outcome of the case.” City of Bethlehem v. Kanofsky, 

175 A.3d 467, 475 n.8 (Pa. Cmwlth. 2017) (internal quotations omitted).
7

16. Appellant also claims he is entitled to relief from this Court because he has no 

other adequate remedy at law. Id. at 5 & 16-20.

Before reaching the merits of Appellant’s claims, we first examine 

Pennsylvania Rule of Civil Procedure 233.1 (Rule 233.1), which the trial court used 

as justification for its sua sponte dismissal of this matter. See Dismissal Order. Rule 

233.1 provides, in pertinent part:

Rule 233.1. 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.

. . . .

(c) Upon granting the motion and dismissing the action, 

the court may bar the pro se plaintiff from pursuing 

additional pro se litigation against the same or related 

defendants raising the same or related claims without 

leave of court.

(d) The court may sua sponte dismiss an action that is filed 

in violation of a court order entered under subdivision (c).

. . . .
8

Pa.R.C.P. No. 233.1(a), (c) & (d). 

By its plain text, therefore, Rule 233.1 contemplates an orderly set of 

steps for defendants and courts to dispose of frivolous litigation commenced by pro 

se plaintiffs. First, a defendant in the action files a motion to dismiss based on the 

pro se plaintiff raising the same claims already resolved in a previous or different 

court proceeding. Pa.R.C.P. No. 233.1(a). Second, the court may grant the motion 

to dismiss and may also “bar the pro se plaintiff from pursuing additional pro se

litigation against the same or related defendants raising the same or related claims 

without leave of court.” Pa.R.C.P. No. 233.1(c). After these two steps have occurred

and the trial court has issued an order pursuant to Rule 233.1(c) granting the motion 

to dismiss and barring the pro se plaintiff from pursuing additional litigation on the 

same claims against the same defendants without leave of court, Rule 233.1(d) then 

grants the court the prerogative to sua sponte dismiss future actions filed in violation 

of the Rule 233.1(c) order. See Pa.R.C.P. No. 233.1(d).

In the instant matter, Appellant, proceeding pro se, basically seeks 

enforcement of the Order for Return of Property and the 2nd Order for Return of 

Property issued by the trial court on the Criminal Docket. Because Appellant may 

be alleging the same or related claims raised in his motions for return of property 

on the Criminal Docket against the same defendants, and because the trial court 

already granted his motion(s) for return of property by the Order for Return of 

Property and the 2nd Order for Return of Property, Appellees could have filed a 

motion to dismiss the instant action pursuant to Rule 233.1(a). Had Appellees filed

such a motion to dismiss, pursuant to Rule 233.1(c) the trial court could have then 

considered the motion, granted the motion, dismissed the action and, in the dismissal 

order, barred Appellant from submitting, without leave of court, further filings 
9

against the same defendants related to the same claims. Once it had issued such an 

order, the trial court would then have had the ability to sua sponte dismiss any 

subsequent action filed in violation of the court’s dismissal order. See Pa.R.C.P. No. 

233.1(d). This is not what happened in this matter. Instead, without Appellees filing 

a motion to dismiss pursuant to Rule 233.1(a), the trial court skipped directly to 

dismissing the action sua sponte per Rule 233.1(d) without first granting, or having 

before it, a motion to dismiss filed pursuant to Rule 233.1(a). Therefore, no Rule 

233.1(c) order existed upon which the trial court could have exercised discretion to 

sua sponte dismiss subsequent filings – i.e., the instant matter – pursuant to Rule 

233.1(d). Accordingly, the trial court erred by sua sponte dismissing the instant 

matter based on Rule 233.1.

Because the trial court improperly dismissed the instant matter, we 

reverse the trial court’s October 9, 2019 order and remand for further proceedings.6

__________________________________

CHRISTINE FIZZANO CANNON, Judge

6 We acknowledge Appellees’ claim that the trial court lacks personal jurisdiction over 

Appellees by virtue of their not having received proper service of original process. See Appellees’ 

Brief at x-xi. While the question of personal jurisdiction based on service of process may be the 

subject of a preliminary objection in subsequent proceedings on this matter, given our disposition 

herein, we need not reach this argument at this time.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Herbert Dale Conaway, :

Appellant :

:

v. :

:

Fayette County District Attorney, :

Jack Heneks, Anthony Iannamorelli, Jr., :

Lt. Thomas Kolencik and : No. 1 C.D. 2020

Capt. David Rutter :

O R D E R

AND NOW, this 21st day of October, 2020, the October 9, 2019 order 

of the Court of Common Pleas of Fayette County (trial court) is REVERSED, and 

this matter is REMANDED to the trial court for further proceedings. 

Jurisdiction relinquished. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge