IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas, :

Appellant :

:

v. :

: No. 626 C.D. 2019

John Wetzel, Penna. DOC : Submitted: September 20, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: November 20, 2019

Gregory Thomas (Thomas) appeals from the Erie County Common Pleas 

Court’s (trial court) November 9, 2018 order dismissing his pro se complaint against 

Pennsylvania Department of Corrections’ (DOC) Secretary John Wetzel (Wetzel) in 

his official and individual capacity (Complaint), pursuant to Pennsylvania Rule of 

Civil Procedure (Rule) No. 240(j)(1). Essentially, the issue before this Court is 

whether Thomas’ Complaint is wholly frivolous and fails to state a claim upon which 

relief can be granted. After review, we affirm.

Thomas is currently incarcerated at the State Correctional Institution 

(SCI) at Albion. On November 1, 2018, Thomas filed the Complaint in the trial court 

seeking: (1) declaratory relief that DOC’s policy and contract prohibiting internet 

access on Global Tel-Link Corporation (GTL) tablets “violates the First, the 

[F]ourteenth and the [Eighth] Amendments [to] the [Pennsylvania] and [United States 

(U.S.)] Constitution[s]” as well as his due process and equal protection rights, 

Complaint at 8 (ad damnum clause); (2) injunctive relief enjoining Wetzel “from not 

providing adequate polic[ies] that comport with prisoners[’] [c]onstitutional rights[,]”
2

Complaint at 9 (ad damnum clause); and (3) compensatory and punitive damages.

1

 

See Complaint at 10-11. In addition, Thomas filed with the trial court a Petition for 

Leave to Proceed In Forma Pauperis (IFP Petition) in conjunction with his 

Complaint. On November 9, 2018, the trial court denied the IFP Petition and 

dismissed the Complaint with prejudice pursuant to Rule 240(j)(1). On November 

21, 2018, Thomas appealed to the Pennsylvania Superior Court (Superior Court). 

On November 28, 2018, the trial court ordered Thomas to file a Concise 

Statement of Errors Complained of on Appeal pursuant to Pennsylvania Rule of 

Appellate Procedure (Appellate Rule) 1925(b) (Appellate Rule 1925(b) Statement). 

On December 14, 2018, Thomas filed his Appellate Rule 1925(b) Statement. On 

January 18, 2019, the trial court filed its opinion in accordance with Appellate Rule 

1925(a). By March 27, 2019 order, the Superior Court transferred the appeal to this 

Court.2 

Initially, Rule 240(j)(1) provides, in relevant part:

If, 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, the court 

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.

Note: A frivolous action or proceeding has been 

defined as one that ‘lacks an arguable basis either in 

law or in fact.’ Neitzke v. Williams, 490 U.S. 319, 

[326] . . . (1989).

Pa.R.C.P. No. 240(j)(1). 

 

1 Thomas did not name DOC as a party in the Complaint.

2

“Our scope of review is limited to determining whether constitutional rights have been 

violated, whether the trial court abused its discretion, or whether the trial court committed an error 

of law.” Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015).
3

In the Complaint, Thomas alleges, inter alia, violations of the 

Pennsylvania and U.S. Constitutions, the Americans with Disabilities Act of 1990

(ADA),3and the Religious Land Use and Institutionalized Persons Act of 2000 

(RLUIPA).4 See Complaint ¶ 1. Thomas avers that his claims are authorized by 

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

Complaint ¶ 4. Specifically, Thomas asserts that DOC’s prohibition of internet 

access on his tablet violates his first amendment right to freedom of speech, his 

religious freedoms and bars his ADA recovery assistance. Thomas further claims 

that DOC refuses to provide winter clothing and sport safety equipment, which also

violates his rights. 

In his Appellate Rule 1925(b) Statement, Thomas includes 8 paragraphs,

each essentially containing random statements of law unrelated to the trial court’s 

order. See Appellate Rule 1925(b) Statement at 1-2. In his brief, Thomas identifies 

12 issues in his Statement of the Questions Involved (Questions Statement) relating to 

the allegations in the Complaint. See Thomas Br. at 3-4. Notably, neither Thomas’

Appellate Rule 1925(b) Statement, nor his Questions Statement mention Rule 

240(j)(1), the trial court’s order or the trial court’s reasons for dismissing the 

Complaint. 

The law is well established that “[a] party’s failure to include an issue in 

its [Appellate] Rule 1925(b) [S]tatement waives that issue on appeal.[5] Pa.R.A.P. 

1925(b)(4)(vii).” Dresher v. Se. Pa. Transp. Auth., 212 A.3d 1179, 1185 (Pa. 

Cmwlth. 2019). Further, “‘[e]ach error identified in the [Appellate Rule 1925(b) 

S]tatement will be deemed to include every subsidiary issue which was raised in the 

trial court.’ Pa.R.A.P. 1925(b)(4)(v).” Dresher, 212 A.3d at 1185. Here, the issues 

 

3

42 U.S.C. §§ 12131-12165.

4

42 U.S.C. § 2000cc-1.

5

“[Appellate] Rule 1925 violations may be raised by the appellate court sua sponte[.]” 

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
4

Thomas raised in his Questions Statement are not included in his Appellate Rule 

1925(b) Statement. Further, the issues Thomas raised in his Questions Statement

pertaining to whether prohibiting internet access, winter clothing and sports safety 

equipment is a violation of Thomas’ constitutional rights, are not subsidiary to the 

issues of public agency liability which Thomas raised in his Appellate Rule 1925(b) 

Statement. Accordingly, Thomas has waived all of the issues presented to this Court 

on appeal.6

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

___________________________

ANNE E. COVEY, Judge

 

6 Because Thomas’ issues are waived, there is nothing for this Court to address.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gregory Thomas, :

Appellant :

:

v. :

: No. 626 C.D. 2019

John Wetzel, Penna. DOC :

O R D E R

AND NOW, this 20th day of November, 2019, the Erie County Common 

Pleas Court’s November 9, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge