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 C ommon 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, 201 8, 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 F irs t, the

[F] ourteenth and the [Eighth] A mendments [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 priso ners[’] [c]onstitutional rights [,] ”2

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

. 1

See Complaint a t 10

- 11. In addition, Thomas filed with the trial court a Petition for

Leave to Proceed I n 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 th e Pennsylvania Superior Court (Superior C ourt)

.

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

Statement of Errors C omplained of on Appeal pursuant to Pennsylvania Rule of

Appellate P rocedure (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 th e 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 discreti on, 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 Compl aint, Thomas alleges

, inter alia

, violations of the

Pennsylvania and U.S. C onstitutions, the American s with Disabilities Act of 1990

(ADA), 3 and the Rel igious 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 assert s that DOC’s prohibition o f 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 saf ety equipment, which also

violates his rights.

I n 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) relat ing to

the allegations in the Complaint

. See Thomas Br. at 3

- 4

. Notably, neither Thomas’

Appellate Rule 1925(b) Statement

, nor his Question s 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 iss ue 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 wa s raised in the

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

. Here, t he 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 Question s Statement are not included in his Appellate R ule

1925(b) Statement. Further

, the issues Thomas raised in his Questions St atement

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 19 25(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 O F PENNSYLVANIA

Gregory Thomas, :

Appellant :

:

v. :

: No. 626 C.D. 2019
John Wetzel, Penna. DOC :

O R D E R

AND NOW, this 20 th day of November , 201 9

, the Erie County Common

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

___________________________ ANNE E. COVEY, Judge