Opinion
1170 C.D. 2019
03-11-2024
Alton Brown, Appellant v. Eileen W. Behr, Mark Barbee, and Mark Levy
OPINION NOT REPORTED
Submitted: February 6, 2024
MEMORANDUM OPINION
PER CURIAM
Alton Brown (Inmate or Appellant), an inmate at the State Correctional Institution at Fayette (SCI-Fayette), appeals pro se from the Order of the Montgomery County (County) Court of Common Pleas (trial court) granting the Motion for Summary Judgment (Summary Judgment Motion) filed by Eileen W. Behr, the County's former sheriff, Mark Barbee, the County's prothonotary, and Mark Levy, a former supervisor in the prothonotary's office (collectively, Defendants or Appellees), in response to Inmate's Petition for Writ of Mandamus (Mandamus Petition). We affirm.
On October 16, 2015, Inmate filed the Mandamus Petition seeking to compel Defendants to perform their respective legal duties regarding service of original process, and to perform mandatory ministerial duties regarding docketing and entering filings, with respect to six civil actions that Inmate commenced in the trial court. Original Record Docket Entry (OR Dkt.) #0. On December 16, 2015, Defendants filed a Motion to Dismiss Petition for Mandamus pursuant to Section 6602 of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. §6602 (Motion to Dismiss I). OR Dkt. #5. On December 28, 2017, Defendants filed a Motion to Dismiss Petition for Writ of Mandamus (3 Strikes) (Motion to Dismiss II). OR Dkt. #71. In addition, on January 12, 2018, Defendants filed their Summary Judgment Motion. OR Dkt. #74.
The provisions of Section 6602 of the PLRA apply to the instant Mandamus Petition. Brown v. Levy, 73 A.3d 514, 517-20 (Pa. 2013).
On June 12, 2019, the trial court issued an order that stated, in relevant part:
[U]pon consideration of Defendants' Motion to Dismiss [I], filed on 12/16/15 ([OR Dkt.] #5); Defendants' Motion to Dismiss [II], filed on 12/28/17 ([OR Dkt.] #71); Defendants' [Summary Judgment Motion], filed 1/12/18 ([OR Dkt.] #74); and [Inmate's] Answer/Response filed on 2/11/19 (OR Dkt. #112), and Argument held on May 17, 2019, by Video Conference via link with [SCI-Fayette], it is hereby ORDERED and DECREED that Defendants' [Summary Judgment Motion] is GRANTED. Defendants' Motion to Dismiss [II] is DISMISSED as MOOT in view of the [c]ourt's ruling on Defendants' [Summary Judgment Motion].
It is further ORDERED that [Inmate's] Motion to Strike Defendants' Preliminary Objections and Motion for Summary Judgment, filed on 5/28/19 and 6/3/19 ([OR Dkt] #123, #124, #125) are DENIED.
Trial Ct. 6/12/19 Order (emphasis in original). On August 14, 2019, Inmate filed this appeal from the trial court's order.
On December 5, 2019, this Court issued an Order in which we noted that the instant appeal appeared to be untimely and directed the parties to address this issue in their principal briefs on the merits. See, e.g., Section 5571(b) of the Judicial Code, 42 Pa. C.S. §5571(b) ("[A]n appeal . . . from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order."); Pa.R. A.P. 903(a) ("[T]he notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken."). Subsequently, on August 15, 2023, we issued a Memorandum Opinion and Order retaining jurisdiction and remanding this matter to the trial court to determine whether the instant appeal was timely; directing the trial court to conduct an evidentiary hearing, if necessary, and issue a Supplemental Opinion on the issue of timeliness; and directing the trial court to file a Supplemental Record including a number of filings that had been omitted from the Original Record that was lodged in this Court. See Brown v. Behr (Pa. Cmwlth., No. 1170 CD. 2019, filed August 15, 2023). The trial court conducted an evidentiary hearing and lodged a Supplemental Opinion in which it determined that the instant appeal was timely. The trial court also lodged a Supplemental Record in this Court containing the missing docket entries. As a result, the above-captioned appeal is ripe for our disposition.
On appeal, Inmate claims: (1) the trial court erred in granting Defendants' Summary Judgment Motion because there were relevant outstanding motions; (2) Defendants' sabotage of his attempts to file an Amended Complaint constitute a violation of due process; (3) his appeal to this Court was timely; and (4) he cannot obtain a fair trial or adjudication in the County.
As this Court has observed:
Our standard of review on appeal from the grant or denial of summary judgment is de novo, and our scope of review is plenary. Our review is limited to determining whether the trial court committed an error of law or abuse of discretion. Summary judgment is only appropriate where, upon examination of the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists[,] and the moving party is clearly entitled to a judgment as a matter of law.Clean Air Council v. Sunoco Pipeline L.P., 185 A.3d 478, 485-86 (Pa. Cmwlth. 2018) (citations omitted).
See supra note 2.
To the extent that any of Inmate's claims were not properly raised or preserved in the trial court, they have been waived for purposes of appeal. See Pa.R.A.P. 302(a) ("Issues not raised in (Footnote continued on next page...) the trial court are waived and cannot be raised for the first time on appeal."); Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement [of Errors Complained of on Appeal] . . . are waived."); Pa.R.A.P. 2117(c) ("Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the statement of the case shall also specify[.]"); Pa.R.A.P. 2119(e) ("Where under the applicable law an issue is not reviewable on appeal unless raised or preserved below, the argument must set forth, in immediate connection therewith or in a footnote thereto, either a specific cross-reference to the page or pages of the statement of the case which set forth the information relating thereto as required by Pa.R.A.P. 2117(c), or substantially the same information.").
However, after reviewing the Original Record, Inmate's appellate brief, and the relevant case law, we conclude that the foregoing appellate issues have been ably resolved in the thorough and well-reasoned opinion of the Honorable Steven C. Tolliver, Sr. Accordingly, we affirm the trial court's Order on the basis of his Opinion in the matter of Brown v. Behr (C.P. Mont., No. 2015-27538, filed November 19, 2019).
ORDER
AND NOW, this 11th day of March, 2024, the order of the Montgomery County Court of Common Pleas dated June 12, 2019, is AFFIRMED.