The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald S. Martin, :
Appellant :
v. : No. 185 C.D. 2020
: Submitted: June 26, 2020
Jonathan M. Blake, Josh Shapiro, :
Keli M. Neary :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: October 23, 2020
Ronald S. Martin (Appellant) appeals from an Order of the Court of
Common Pleas of Dauphin County (trial court), dated August 7, 2019, dismissing
an action he filed against Jonathan M. Blake, Josh Shapiro, and Keli M. Neary
(Defendants) as frivolous pursuant to Pennsylvania Rule of Civil Procedure 240(j),
Pa.R.C.P. No. 240(j)(1).1 Discerning no error, we affirm.
1
Rule 240(j)(1) provides:
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.
Pa.R.C.P. No. 240(j)(1).
On August 1, 2019, Appellant filed a Complaint in the trial court against
Defendants, all part of the Office of the Attorney General,2 alleging violation of the
Criminal History Record Information Act (CHRIA), 18 Pa.C.S. §§ 9101-9183.
Therein, Appellant alleged Defendants filed an answer to a civil rights complaint
he filed pursuant to Section 1983 of Title 42 of the United States Code (Section
1983), 42 U.S.C. § 1983,3 against two Pennsylvania State Police troopers, among
others, in the United States District Court for the Middle District of Pennsylvania
(Federal Court Action). According to the Complaint, Defendants attached an
exhibit to the answer,4 which Appellant described as “a copy of [Appellant]’s
criminal record, which included charges in [sic] nolle prosequi, personal
information, fines and fees owed, fines and fees paid, and a general chronology of
the criminal case against [Appellant].” (Compl. ¶ 12.) Appellant alleged his
criminal history had no relevancy to his civil rights complaint and was included
2
The Complaint identifies Shapiro as Pennsylvania Attorney General, Neary as Chief
Deputy Attorney General, and Blake as Deputy Attorney General. Defendants filed a notice of
nonparticipation, indicating they will not be participating in this appeal given the trial court’s
dismissal of the action prior to service.
3
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person with the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983.
4
In his brief to this Court, Appellant identifies the document as a “response brief,” to
which Defendants appended his criminal record as “Exhibit A.” (Appellant’s Brief (Br.) at 6.)
As discussed more fully below, the document was actually a motion to dismiss, to which the
exhibit in question was attached. A brief in support of the motion to dismiss was separately
docketed that same day.
2
“solely in an effort to defame, smear, and impugn” his character. (Id. ¶ 27.) By
including the criminal history as an exhibit, Appellant contended Defendants
violated Section 9121(b) of CHRIA, 18 Pa.C.S. § 9121(b), which provides that a
state or local police department shall disseminate criminal history record
information to an individual or noncriminal justice agency only upon request.
Because “[t]he Office of the Attorney General is not a ‘State or local police
department,’” Appellant averred, it “had no authority to release the information.”
(Compl. ¶ 16.) By including the information in the answer, Appellant alleged
Defendants disseminated his criminal record “to an incalculable number of people
who did not request it,” (id. ¶ 22), in part because Defendants served a copy of the
answer to the Federal Court Action on Appellant via Smart Communications,
which is the “third[-]party mail handling vendor” of the Department of Corrections
(Department), instead of via the Department’s procedure for legal mail, (id. ¶ 23).
As a result of the procedure Smart Communications utilizes for handling inmate
mail, which includes scanning and electronic delivery and storage, Appellant
alleged not only that a number of people involved in that process had access to his
criminal record, but also that his criminal record is now subject to unauthorized
access on the internet should Smart Communications’ database be compromised.
Appellant further averred “[a]lthough a ‘public record,’ the intent of the State is
that only the State Police Criminal Repository shall retain custody of the criminal
record,” and “[a]nyone wishing to view the record must make a request through
that agency.” (Id. ¶ 30 (emphasis omitted).) Appellant sought judgment in his
favor in the amount of $250,000. Along with the Complaint, Appellant filed an
Application to Proceed In Forma Pauperis (IFP Application).
3
Upon receipt of Appellant’s Complaint and IFP Application, the trial court
issued an Order dated August 7, 2019, wherein it stated that neither document
would “be entertained, as the court has determined that this action is frivolous.”
(Trial Court Order.) Accordingly, pursuant to Rule 240(j), the trial court dismissed
the action with prejudice. In an opinion in support of that order, the trial court
explained it found the Complaint frivolous for a number of reasons. First, it found
the claim would be barred by what is commonly known as the Sovereign Immunity
Act, 42 Pa.C.S. § 8522, as the claim does not fall within any of the enumerated
exceptions to immunity. Second, the trial court found that the Office of Attorney
General is a criminal justice agency under CHRIA and is, therefore, “authorized to
disseminate criminal history information.” (Trial Court Opinion (Op.) at 2.)
Third, it found Appellant failed to plead a cause of action because he did not plead
the record disclosed protected information; instead, Appellant appeared to
reference a docket that would be publicly available.
Appellant filed a Notice of Appeal, seeking to appeal the Order to the
Superior Court. The Notice of Appeal is dated September 5, 2019, and includes a
certificate of service indicating Appellant deposited it in the U.S. Mail at the State
Correctional Institution at Huntingdon that same date. The Notice of Appeal was
docketed September 12, 2019. The appeal was subsequently transferred to this
Court. Upon transfer, this Court directed the parties to address the timeliness of
the appeal in their briefs. On March 19, 2020, Appellant filed a “Motion to Allow
for Timeliness” (Motion), wherein he alleged “[t]he appeal was timely filed on 9-
5-2019. It was, however, mistakenly filed in the wrong venue.” (Motion ¶ 2.)
Appellant asked the Court to allow the appeal to proceed. By order dated April 9,
2020, the Court deferred disposition of the Motion with the merits.
4
On appeal,5 Appellant argues, in addition to the merits of his underlying
claim against Defendants, that the trial court erred in dismissing his Complaint as it
is not frivolous. He argues that no request was made for his criminal records; thus,
release of the documents violates CHRIA. He acknowledges that certain criminal
record information is public but argues that what Defendants disseminated went
beyond what was permitted because it includes charges that were nolle prossed,
which should have been redacted. By serving the answer to the Federal Court
Action through the third-party vendor, Appellant argues his protected information
was placed in a database, which can be compromised. In addition, he argues that
when he prevails on having his convictions overturned, it will be impossible to
remove this information from the public view. He alleges that because his
Complaint was dismissed so quickly, it was not possible for the trial court to fully
review and research the issue. Further, Appellant alleges the information was not
relevant to the Federal Court Action and was included simply to defame him; thus,
he now seeks punitive damages. Finally, Appellant argues the trial court erred in
finding Defendants would be immune from suit because CHRIA provides for
damages against anyone who violates its terms.
Because it raises a jurisdictional issue, we begin with the timeliness of
Appellant’s Notice of Appeal. Under Rule 903(a) of the Pennsylvania Rules of
Appellate Procedure, a notice of appeal “shall be filed within 30 days after the
entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). The trial
court’s Order was issued on August 7, 2019. Thus, to be timely, the Notice of
5
Our “review of a decision dismissing an action pursuant to” Rule 240(j) is limited to a
determination of whether the “appellant’s constitutional rights have been violated and whether
the trial court abused its discretion or committed an error of law.” Jones v. Doe, 126 A.3d 406,
408 n.3 (Pa. Cmwlth. 2015).
5
Appeal would have had to be filed by no later than September 6, 2019. It was
docketed September 12, 2019. However, because pro se incarcerated individuals,
which Appellant was at the time he filed the Notice of Appeal, “cannot personally
travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the
date on which the court received the notice,” Smith v. Pennsylvania Board of
Probation and Parole, 683 A.2d 278, 281 (Pa. 1996) (citation omitted), the courts
have adopted what has become known as the “prisoner mailbox rule,” Sweesy v.
Pennsylvania Board of Probation and Parole, 955 A.2d 501, 502 (Pa. Cmwlth.
2008). Under the “prisoner mailbox rule,” an inmate’s pro se appeal is considered
filed on the date it is provided to prison officials or deposited in the prison
mailbox. Id.
Generally, when there is a factual dispute as to timeliness, an appellate court
should remand for an evidentiary hearing. Commonwealth v. Jones, 700 A.2d 423,
426 n.3 (Pa. 1997). However, if it is “factually plausible” that an appellant
delivered the notice of appeal to a prison official or deposited it in a prison
mailbox, and the opposing party does not challenge timeliness, the Court may
consider the appeal to be timely filed without remand. Polite v. Phila. Dist.
Attorney’s Office (Pa. Cmwlth., No. 548 C.D. 2019, filed Sept. 23, 2019), slip op.
at 2 n.2.6 In Polite, we considered the appellant’s notice of appeal timely because
the appellee did not challenge timeliness and the notice of appeal was accompanied
by an “affidavit of certificate of service,” which stated the appellant “served” the
appellee on a date that would have been timely. Id. Here, Defendants are not
6
Unreported panel decisions of this Court may be cited for their persuasive value
pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
6
participating in the appeal and, therefore, have not objected. Further, the Notice of
Appeal was accompanied by a Certificate of Service in which Appellant indicated
that he deposited the Notice of Appeal in the U.S. Mail at the State Correctional
Institution at Huntingdon on September 5, 2019, which was one day before the
filing deadline. Therefore, in accordance with Polite, and in the interest of judicial
economy given our disposition on the merits, we will not consider the appeal
untimely.
We now turn to the merits of the appeal. Appellant argues the trial court
erred in dismissing his Complaint as frivolous under Rule 240(j)(1) because
Defendants clearly violated the dissemination provisions of CHRIA. Specifically,
he alleges Defendants violated CHRIA by attaching a copy of his criminal record
as an exhibit to a pleading in the Federal Court Action when no one requested it
and without redacting certain information therefrom and then sending it through
the third-party mail vendor instead of directly to him at the State Correctional
Institution as legal mail. Rule 240(j)(1) provides:
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.
Pa.R.C.P. No. 240(j)(1). A note to Rule 240(j)(1) provides that “[a] frivolous
action or proceeding has been defined as one that lacks an arguable basis either in
law or in fact.” Pa.R.C.P. No. 240(j)(1), Note (quotation omitted). We have held
that “[a]n action is frivolous under Pa.R.C.P. No. 240(j)(1), if, on its face, it does
not set forth a valid cause of action.” Jones v. Doe, 126 A.3d 406, 408 (Pa.
Cmwlth. 2015).
7
CHRIA governs, as relevant here, “the collection, maintenance,
dissemination or receipt of criminal history record information.” Garner v. Bureau
of Professional & Occupational Affairs, State Bd. of Optometry, 97 A.3d 437, 442
(Pa. Cmwlth. 2014). Appellant argues Defendants violated Section 9121(b) of
CHRIA, which provides “[c]riminal history record information shall be
disseminated by a State or local police department to any individual or noncriminal
justice agency only upon request. . . .” 18 Pa.C.S. § 9121(b). “Criminal history
record information” is defined as:
Information collected by criminal justice agencies concerning
individuals, and arising from the initiation of a criminal proceeding,
consisting of identifiable descriptions, dates and notations of arrests,
indictments, informations or other formal criminal charges and any
dispositions arising therefrom. The term does not include intelligence
information, investigative information or treatment information,
including medical and psychological information, or information and
records specified in section 9104 (relating to scope).
Section 9102 of CHRIA, 18 Pa.C.S. § 9102. “Criminal justice agency” is defined,
in relevant part, to include district or prosecuting attorneys. Id. Section 9104(b) of
CHRIA, however, provides that certain documents are considered public records,
namely, “[c]ourt dockets, police blotters[,] and press releases and information
contained therein . . . .” 18 Pa.C.S. § 9104(b).
The trial court found that Appellant did not plead that the record attached to
the pleading in the Federal Court Action disclosed information that would be
protected by CHRIA. The trial court continued that Appellant’s Complaint
“appears to reference a docket[,] which would be publicly available.” (Trial Court
Op. at 3.) Under Section 9104(b), a court docket is considered a public record, and
so would not be protected, and Appellant, therefore, failed to state a cause of
8
action, rendering his Complaint frivolous. Appellant did not attach a copy of the
exhibit that he alleges Defendants filed with the answer in the Federal Court
Action to his Complaint. However, “[i]t is well settled that this Court may take
judicial notice of pleadings and judgments in other proceedings where
appropriate.” Lycoming County v. Pa. Labor Relations Bd., 943 A.2d 333, 335 n.8
(Pa. Cmwlth. 2007); see also Miller v. Unemployment Comp. Bd. of Review, 131
A.3d 110, 115 (Pa. Cmwlth. 2015). We believe it is appropriate to take judicial
notice of the pleadings filed and on the public docket in the Federal Court Action.
Appellant is a party to the action and Appellant admits Defendants served as
counsel to the defendants in that action and filed the exhibit which is the subject of
Appellant’s Complaint before us.
Appellant argues the exhibit to the answer filed in the Federal Court Action
violated CHRIA because it disclosed protected information. Our review of that
pleading reveals the exhibit attached to the answer is a printed copy of the criminal
docket of Appellant’s criminal case, Commonwealth v. Martin, CP-22-CR-
0003532-2016, filed in Dauphin County. See Document 36-1, Martin v.
Commonwealth of Pennsylvania (M.D. Pa., No. 1:2018-cv-01904, filed March 29,
2019). Because Section 9104(b) of CHRIA expressly provides that court dockets
are considered public records, 18 Pa.C.S. § 9104(b), Defendants did not violate
CHRIA by attaching such information to the pleading in the litigation.
9
Accordingly, the trial court did not err in concluding Appellant’s Complaint
was frivolous because it “lacks an arguable basis either in law or in fact.”
Pa.R.C.P. No. 240(j)(1), Note (quotation omitted).7 Thus, we affirm.8
_____________________________________
RENÉE COHN JUBELIRER, Judge
7
Appellant also argues that the summary dismissal by the trial court was “improper,
biased, and/or violative of the [A]ppellant’s due process rights.” (Appellant’s Br. at 5.)
Appellant contends that the Order “was issued by a judge who is personally embroiled in other
current litigation – the §1983 action – with the [A]ppellant, giving every appearance of
impropriety prejudice and bias, subjecting the judge to recusal.” (Id. at 17.) We note that the
trial court judge was a named defendant in the Federal Court Action. We caution that his
involvement in this action does raise concern.
8
Given our disposition, it is unnecessary to address the other bases cited by the trial court
for finding Appellant’s Complaint frivolous.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald S. Martin, :
Appellant :
v. : No. 185 C.D. 2020
:
Jonathan M. Blake, Josh Shapiro, :
Keli M. Neary :
ORDER
NOW, October 23, 2020, the “Motion to Allow for Timeliness” filed by
Appellant Ronald S. Martin is GRANTED. The Order of the Court of Common
Pleas of Dauphin County, dated August 7, 2019, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge