IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Tedesco :

Appellant :

:

v. :

: Cynthia Link

, Wendy Shaylor, Laurel : Harry, Barry Smith, Renee Zobitne, : Robert Sebastianelli, John Doe State : Police Detective #2, William Houser, : United States Attorney General’s Office, : Scranton PA, Attorney General’s Office : for the S tate of Pennsylvania, : Harrisburg PA, Pennsylvania : Department of Corrections, : Pennsylvania State Police, Tonya Heist, : Deb Alvord, Jef

frey Whitherite, : Michael Bell, Dorina Varner, Monroe : County District Attorney Office, : No. 709 C.D. 2020 Stroudsburg PA, Sergeant Pierce : Submitted: December 2, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER

, President Judge

HONORABLE CHRISTI NE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED : May 16, 2023

Before this Court is the appeal of John Tedesco (Tedesco), pro se , from

the November 22, 2019 order of the Montgomery County Court of Common Pleas

(trial court) dismissing his complaint filed November 15, 2019 (Complaint) and

denying his petition to procee d in forma pauperis (IFP Petition) also filed on2

November 15, 2019 . This matter has returned to the Court following remand to the

trial court to render an opinion that more fully comports with Pennsylvania Rule of

Appellate Procedure 1925( a) (Rule 1925(a) ). See Tedesco v. Link (Pa. Cmwlth., No.

709 C.D. 2020, filed October 3, 2022) ( Tedesco I ). Upon consideration of the trial

court’s subsequent ly filed Rule 1925(a) opinion , we affirm the dismissal of the

C omplaint and the denial of the IFP Petition.

I. Background

We briefly summarize the underlying facts and procedural posture of

this matter as follows. 1 The Complaint alleges 2 that

, in 2015, interspersed within

thousands of documents provided in response to discovery requests made r egarding

his criminal trial, Tedesco received some 150

- 200 documents unrelated to him or his

criminal charges (Unrelated Documents)

. 3 See Tedesco I , slip op. at 2

- 3

. Prison

officials questioned Tedesco regarding the Unrelated Documents and he explained

that he knew nothing of the documents or the circumstances of the investigation to

which they related, and that he simply wanted to return them to their rightful owner.

See id. The Complaint alleges Tedesco handed over the Unrelated Documents, as

request ed. See id. , slip op. at 3.

1 This Court previously outlined the facts and procedural posture underlying this matter in

Tedesco I , and the background summation contained in the instant opinion derives in part from the detailed account of the facts and procedure of the underlying matter , which account is incorporated herein by reference. S ee Tedesco I , slip op. at 2

- 5

.

2 The Complaint contained 21 claims levied across 79 counts against 19 defendants. See

Tedesco I , slip op. at 2.

3 The Complaint claimed that the Unrelated Documents p ertained to a missing persons/insurance fraud investigation being conducted by the United States Attorney General’s Office in Scranton, Pennsylvania, and the Pocono Mountain Regional Police Department. See

Tedesco I , slip op. at 2

- 3.3 The Complaint further alleges that, after a subsequent prison transfer,

Tedesco was deprived of his legal documents/papers, which deprivation Tedesco

claims hindered his opportunities to file a direct appeal, a petition pursuant to the

Post Conviction Relief Act (PCRA) 4 , or an appropriate petition for writ of habeas

corpus. See Tedesco I , slip op. at 3. The Complaint claims that prison officials

retained his personal property, including his legal effects, in r etaliation for Tedesco

having previously had the Unrelated Documents in his possession , and that

Tedesco’s attempts to reclaim his documents through the prison grievance process

and by filing a claim pursuant to Section 1983 of Title 42 of the United State s Code,

42 U.S.C. § 1983, in the United States District Court for the Middle District of

Pennsylvania

, proved unsuccessful

. See id.

By order dated November 22, 2019 (November 2019 Order), the trial

court dismissed the Complaint pursuant to Pennsylvania Rule of Civil Procedure

240(j)(1) and denied the IFP Petition. See Tedesco I , slip op. at 4. Tedesco filed a

motion for reconsideration on December 5, 2019, which the trial court denied on

December 12, 2019. See id. at 5. Tedesco then appealed and the trial court issued

a n opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) (First

1925(a) Opinion) in which it summarily concluded without elaboration that the

Complaint was frivolous because Tedesco failed to plead a valid cause of action or

to aver facts demonstrating that the government officials named in the Complaint

violated his rights or acted outside the scope of immunity. See id. , slip op at 4

- 5.

4 42 Pa.C.S. §§ 9541

- 9546.4 On review, finding that the trial court’s sparse First 1925(a) Opinion

did not facil itate meaningful appellate review

, t his Court 5 remanded the matter to

the trial court to render an opinion that more fully developed the reasons for its

conclusion that the claims of the Complaint were barred by immunity or failed to

establish a violation of a constitutional right. See Tedesco I , slip op. at 10

- 11.

In response to the remand

, on November 10, 2022, the trial court

forwarded to this Court an expanded Rule 1925(a) opinion explaining the basis for

its November 2019 O rder

. See Trial Court Opinion filed Nov ember 10, 2022

(Second 1925(a) Opinion) at 1. The matter now comes before th is Court for

determination.

II

. Discussion 6

As stated in Tedesco I , the deciding question in the instant matter is

whether the trial court erred by dismissing the Complaint and denying the IFP

Petition pursuant to Pennsylvania Rule of Civil Procedure 240 based on the frivolity

of the claims contained in the Complaint. See Tedesco I , slip op. at 8. For the

following reasons, we a ffirm the trial court’s order.

Pennsylvania Rule of Civil Procedure 240(j)(1) provides:

I f, 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 , th e court

5 Tedesco originally appealed to the Superior Court of Pennsylvania, which transferred the matter to this Court by order dated February 1 4 , 2021. See Tedesco I , slip op. at 5.

6 Appellate review of a decision dismissing an action pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1) is limited to determining whether constitutional rights have been violated

and whether the trial court abused its discretion or committed an err or of law. Jones v. Doe , 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).5 prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is

frivolous.

Pa.R.C iv .P. No. 240 (j)(1). “ A frivolous action or proceeding has been defined as

one that ‘ lacks an arguable basis either in law or in fact.’” Pa.R.C iv.P. 240(j)(1),

Note (quoting Neitzke v. Williams , 490 U.S. 319, 325 (1989)); see also McGriff v.

Vidovich , 699 A.2d 797, 799 (Pa. Cm wlth. 1997) ( noting that, u nder Pennsylvania

Rule of Civil Procedure 240(j), an action is frivolous “if, on its face, it does not set

forth a valid cause of action”). “ An individual seeking to proceed in forma pauperis,

thus requesting to have court costs paid for from funds provided to this

Commonwealth by its taxpayers, has a responsibility to present a valid cause of

action.” Conover v. Mikosky , 609 A.2d 558, 560 (Pa. Super. 1992) . “C ourts should

not allow a litigant seeking in forma pauperis status to use the court ’ s time and the

taxpayer ’ s money to support a frivolous claim

. ” Id.

Here, t he trial court determined that the Complaint failed to plead any

viable claims as follows:

The [Complaint] raise[s] claims alleging [a]buse of [p]rocess, but fails to make any legal claim against any defendant, instead speaking in broad generalizations. The [Complaint] claims [] [n]egligent [i]nfliction of [e]motional [d]istress, [but] fails to state the legal elements of the claim[]. The [Complaint] has not expressed how each [d]efendant has specifically caused [Tedesco] [e]motional [d]istress.

In count 33[, the Complaint] attempts to raise a claim for failure to act. The [Complaint] fails to state the legal requirements and the claim lacks specificit y. The next claim was for a failure to train. The [Complaint] fails to meet the second prong of the claim. To recover under6 Section 1983[, 42 U.S.C. § 1983,] based upon a failure to train the municipal actors [ 7 ] who caused [a] plaintiff’s harm, a plain tiff must plead both that 1) the failure to train amounted to a deliberate indifference to the rights of persons with whom the police come in contact; and 2) the municipality’s policy actually caused a constitutional injury. The [Complaint] fails to plead the policy actually caused a constitutional injury.

The [Complaint’s] claims of [c]onspiracy fail to meet the necessary elements. The same applies to the [Complaint’s] counts of [w]rongful use of [c]ivil [p]rocess.

[T]he [Complaint] [] raises claims of retaliation. The [Complaint] did not plead anything specifically relating the claim to the [d]efendants, instead speaking in broad, vague statements. Furthermore, t he [Complaint] raises claims of [w]illful [m]iscondu ct. The [Complaint] did not plead anything specifically relating to any [d]efendant[.]

[The Complaint] raises claims of [c]onspiracy to [i]nterfere with [Tedesco’s] [c]ivil [r]ights [c]laim [42 U.S.C. § 1985] and [p]revent a [c]onspiracy [c]laim [42

U.S .C. § 1986 . These claims fail because they were insufficiently plead[ed].

The [Complaint] alleges claims of [d]amages for [f]ear of [f]uture [i]njury. In the [C]omplaint[, Tedesco] does not plead the legal requirements for the claim or how any [d]efe ndant is at fault. The next claim is alleged future loss of earnings and capacity. The [Complaint] pleads [that] it would be impossible to predict the future which would make it difficult to determine whether any

7 We note that the Complaint actually levied Tedesco’s failure to train claim against state

actors

– the Department and Cynthia Link, S uperintendent of the State Correctional Institution

– Graterford

.7 defendants affect[ed Tedesco’s] earnings or not. In addition, [the Complaint] fails to plead how his injuries are linked to any loss of earning capacity. The next claim the [Complaint] alleges is [f]raudulent [c]oncealment and [m]isrepresentation. The [Complaint] fails to plead, by

clear and c onvincing evidence, [that] the [d]efendants fraudulently concealed any information from him.

Second 1925(a) Opinion at 3

- 4 (internal citation omitted). T he trial court also stated

that Tedesco failed to plead facts demonstrating that “the many government officials

he sued violated [] any of his constitutional rights or acted outside the scope of the

immunity to which they are entitled.” Id. at 5 (citing Bronson v. Lechward , 624

A. 2d 799 (Pa. Cmwlth. 1993)). As such, the trial court concluded that “[n]o valid

cause of action was pled. Therefore, in conformance with [Pa.R.Civ.P.] 240(j)(i),

[the IFP Petition] was denied, and the [Complaint] was dismissed.” Second 1925(a)

Opinion a t 5.

We have reviewed the Complaint and agree with the trial court’s

assessment of the claims purportedly raised therein. The Complaint speaks in terms

of vague generalizations without discussing the elements of the various causes of

action in relation t o specific defendants or acts. As a result, the Complaint fails to

plead facts which, if proven, would demonstrate the causes of action Tedesco

alleges, violations of his constitutional rights, or any actions by authorities beyond

the protection of applic able immunities. Further, to the extent the Complaint alleges

that the confiscation, destruction, or concealment of his legal documents/papers

hindered Tedesco’s chance of timely filing a direct appeal, PCRA petition, or habeas

corpus petition, apart from averring that Tedesco noticed the Unrelated Documents

during his criminal trial preparation in August of 2015, the Complaint fails to specify

when the criminal trial actually took place and/or when his criminal convictions8

became final. As such, the Comp laint’s claims regarding the deprivation of

Tedesco’s legal papers also lack the specificity necessary to state a legally valid

claim.

Because the Complaint is based upon purported claims which, on their

face, fail to set forth valid causes of action, t he Complaint lacks arguable basis in

either law or fact. See McGriff ; Pa.R.Civ.P. 240j)(1). Accordingly, the trial court

did not err in dismissing the Complaint and denying the IFP Petition as frivolous

under Pennsylvania Rule of Civil Procedure 240. Se e McGriff ; Conover ;

Pa.R.Civ.P. 240 (

j)(1). 8

8 With respect to Tedesco’s due process claims, we note that this Court has explained previously:

“The amount of process due depends on the context presented.” Silo

v. Ridge , 728 A.2d 394, 399 (Pa. Cmwlth. 1999). It is now a bedrock principle that post

- deprivation remedies satisfy the due process

clause where the situation dictates that the State take immediate action or it is impracticable to provide any meaningful pre

depr ivation process. Parratt v. Taylor , 451 U.S. 527, 539 . . . (1981); Tillman v. Lebanon County Correctional Facility , 221 F.3d 410, 421 (3d Cir. 2000). When a prison official confiscates a prisoner’s property in an allegedly unauthorized way, whether it b e negligently or intentionally, due process requires only the existence of an adequate post

- deprivation remedy because it is not feasible for a prison to provide a hearing prior to taking property that is perceived to be contraband or against prison regula tions. See

Hudson v. Palmer , 468 U.S. 517, 533

- 34 . . . (1984); Parratt , 451

U.S. at 541 . . . .

In addressing the issue, the courts have repeatedly held that inmate grievance systems are an adequate post

- deprivation remedy, see,

e.g. , Tillman , 221 F.3 d at 422, and this includes the [Corrections] Department’s [(Department)] tiered grievance procedure outlined in

DC

– ADM 804. Mattis v. Dohman , 260 Fed. Appx. 458, 461 (3d Cir. 2008); McEachin v. Beard , 319 F. Supp. 2d 510, 514

– 15 (E.D. Pa. 2004). In a st ring of unreported decisions, this Court has concluded that the Department’s grievance procedure in DC

– ADM 804 is a constitutionally sufficient remedy with respect to inmates’9 I II

. Conclusion

For the foregoing reasons, we affirm the November 2019 O rder

.

_________________________________ CHRISTINE FIZZANO CANNON, Judge

claims that the Department unlawfully withheld and/or confiscated personal prope rty. See, e.g.

, Bullock v. [ Dep’t ] of Corr [

. ] (Pa. Cmwlth., No. 241 M.D. 2016, filed May 12, 2017) (unreported), slip op. at 9, 2017 WL 1967617 (citing, inter alia, Brown v. Wetzel (Pa. Cmwlth. No. 318 M.D. 2015, 2016 WL 4709887, filed Sept [

. ] 9, 2016) (unreported); Fennell v. N.D. Goss (Pa. Cmwlth., No. 1198 C.D. 2015, 2016 WL 453511, filed Feb [

. ] 5, 2016) (unreported)).

Shore v. Pa. Dep’t of Corr. , 168 A.3d 374, 383

- 84 (Pa. Cmwlth. 2017)

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Tedesco :

Appellant :

:

v. :

: Cynthia Link, Wendy Shaylor, Laurel : Harry, Barry Smith, Renee Zobitne, : Robert Sebastianelli, John Doe State : Police Detective #2, William Houser, : United States Attorney General’s Office, : Scranton PA, Attorney General’s Office : for the State of Pennsylvania, : Harrisburg PA, Pennsylvania : Department of Corrections, : Pennsylvania State Police, Tonya Heist, : Deb Alvord, Jeffrey Whitherite, : Michael Bell, Dorina Varner, Monroe : County District Attorney Office, : No. 709 C.D. 2020 Stroudsburg PA, Sergeant Pierce :

O R D E R

AND NOW, this 16th day of May , 20 2 3

, the November 22, 2019 order

of the Montgomery County Court of Common Pleas is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge