K.L. Burley, Jr. v. J. Hilton

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Lamont Burley, Jr., :

Appellant :

:

v. :

:

Jason Hilton, Brian Covert, : No. 934 C.D. 2021

and Nicholas Zarilla : Submitted: March 25, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: June 30, 2022

Keith Lamont Burley, Jr. (Burley) appeals pro se from the Lawrence

County Common Pleas Court’s (trial court) March 23, 2021 order dismissing

Burley’s Amended Complaint (Amended Complaint) against Jason Hilton (Hilton),

Brian Covert (Covert) and Nicholas Zarilla (Zarilla)1 (collectively, Appellees) with

prejudice. There are two issues before this Court: (1) whether the trial court erred

by dismissing Burley’s access to court claim on the basis that he was represented by

Thomas Farrell, Esquire (Counsel) at all time material to his criminal case; and (2)

whether the trial court erred by dismissing Burley’s claims with prejudice. After

review, this Court affirms.

1

Other than in the caption, Zarilla’s name does not appear in the Amended Complaint.

Facts

On October 13, 2020, Burley filed the Amended Complaint against

Appellees, therein asserting only three factual allegations:

(3). [Burley] was an incarcerated citizen; [p]re-trial

detainee in the Lawrence County Corrections from July -

to - September[] 2019, [a]nd [from] January - to - July

2020[,] [u]nder the care custody, and control of

corrections officials [W]arden [] Covert [a]nd Deputy

Warden [] Hilton.

(4). [Covert] [a]nd [Hilton] are legally responsible for the

operation of the Lawrence Cou[n]ty Corrections.

(5). Each defendant mentioned in this [Amended

C]omplaint acted under the color of state law.

Original Record (O.R.) at 157.2

The Amended Complaint includes eight counts: Count I - “Covert and

[] Hilton did deny [Burley] access to the law library and trained assistance[;]” Count

II - “[t]he defendants did knowingly, willingly, with malicious intent destroy and

withhold [Burley’s] legal mail and illegally recorded and disseminated

private/privileged telephone communications [Burley] had while housed on HD

Housing Unit.” (“The result [was] the deliberate impairment to [Burley’s] right to

access the courts.”); Count III - “[t]he defendants used artificial light and sound as

weapons resulting in temporary blindness and permanent impaired vision [and]

hearing loss, as well as causing insomnia and symptoms associated with sleep

deprivation. The actions of the defendants were deliberate assaults[;]” Count IV -

“[t]he defendants engaged in extreme negligence in that they: [] [c]reated the custom

under which the violation occurred[,] [] [f]ailed to remedy the violations after being

informed[,] [] [a]nd were grossly negligent in supervising subordinates who

2

Because the Original Record pages are not numbered, the page numbers referenced in

this Opinion reflect electronic pagination.

2

committed violations and were deliberately indifferent to [Burley’s] rights by failing

to act on information that constitutional rights were being violated[;]” Count V -

“[p]unitive [d]amages[,]” and “compensatory damages in the amount of [t]wenty[-

][f]ive [d]ollars for the unlawful usurption [sic] of twenty[-]five dollars from

[Burley] for [a] fabricated booking fee . . . [;]” Count VI - “[t]he defendants did

engage in religious discrimination by deliberately denying [Burley] a feast at the end

of the month of Ramadan[,]” and “retaliated by having [Burley] transferred to a

distant institution without a hearing[;]” Count VII - “[Burley] seeks . . . a mandatory

injunction for the defendants to return all of [Burley’s] personal property which

remains inside of the Lawrence County Corrections[,] [n]amely, coat, pants, keys,

and all electronic mail messages sent to [Burley,]” “[a]nd all other personal and

private privileged mail which still remains inside of the Lawrence County

Corrections[;]” and Count VIII - “[Burley] seeks a prohibitory injunction against

[Covert and Hilton] from accessing any of [his] personal property.” O.R. at 157-

159. The Counts were not supported by any further factual allegations.

The Amended Complaint ended with a “[c]onclusion,” wherein Burley

stated:

[Burley] avers that[,] by way of the written record, video

surveillance, and eye witness testimony, a prima facie case

will be clearly established against the defendants.

Also, the “Apology Letters” the defendants sent to [his]

[Counsel] in case [n]o. 730-19 is an admission of guilt.

[Burley] further avers that even had there been only a

scintilla of evidence regarding the issues herein, then those

issues must be decided by a jury, rather than being

resolved by any summary judgement which would favor

the defendants.

O.R. at 159. The referenced Apology Letters were not attached to the Amended

Complaint.

3

On November 23, 2020, Hilton and Covert filed Preliminary Objections

to the Amended Complaint and a brief in support thereof. Therein, Hilton and

Covert alleged demurrers pursuant to Pennsylvania Rule of Civil Procedure (Civil

Rule) 1028(a)(4): (1) to the entire Amended Complaint for failure to plead material

facts; (2) to Count I (access to courts claim) because Burley was represented by

Counsel during his criminal case; (3) to Count III because Hilton and Covert cannot

be held vicariously liable for the alleged actions of some unidentified correctional

officers; (4) to Count IV (negligence claim) because it is barred by the Act

commonly known as the Pennsylvania Political Subdivision Tort Claims Act;3 (5) to

Count V (punitive damages) because the ability to allege punitive damages is

curtailed as a matter of law against governmental employees; and (6) to Count VI

(post-Ramadan feast) because the Amended Complaint fails to include factual

allegations as to how the defendants deliberately denied Burley a feast. On

December 2, 2020, Zarilla filed Preliminary Objections to the Amended Complaint

and a brief in support thereof. Therein, Zarilla sought dismissal from Burley’s action

because Burley failed to include a single specific fact in support of a claim against

him, and failed to effect service of original process.

On December 10, 2020, Burley filed an “Answer to Defendants

Preliminary Objections to [the] Amended Complaint.” O.R. at 235. On December

10, 2020, Burley filed “Supplemental Material Facts which Support the Claims

[(Supplemental Material Facts)].” O.R. at 240. On December 14, 2020, Burley filed

a Request for Appointment of Counsel.4 Also on December 14, 2020, Burley filed

a “Brief in Support of each Meritorious Claim.” O.R. at 249. On December 18,

2020, Burley filed a Motion to Compel Discovery and Facilitate Depositions

3

42 Pa.C.S. §§ 8541-8542.

4

The trial court previously denied Burley’s Request for Appointment of Counsel (filed

after his original Complaint in Mandamus), stating that Burley was not entitled to appointed

counsel in a civil case.

4

(Motion to Compel). On December 29, 2020, Burley filed a “Memorandum of

Points and Authorities.” O.R. at 275. On January 4, 2021, Burley filed an

Application for Oral Argument. On January 7, 2021, Burley filed a Request for

Production of Documents.

By February 8, 2021 order, the trial court directed Burley to file a Brief

in response to both Preliminary Objections to the Amended Complaint on or before

March 15, 2021. On February 22, 2021, Burley filed his brief in response to Hilton

and Covert’s Preliminary Objections. Also on February 22, 2021, Burley filed a

Request for a Time Extension to file his brief in response to Zarilla’s Preliminary

Objections, and a Request for Leave of Court to file a Supplemental Complaint. On

February 25, 2021, Burley filed a “Request for Pre-Inju[n]ction.” O.R. at 393.

On March 23, 2021, the trial court issued an opinion and order

sustaining Hilton and Covert’s, and Zarilla’s Preliminary Objections, and dismissing

the Amended Complaint. On March 29, 2021, Burley filed his brief in response to

Zarilla’s Preliminary Objections. On April 28, 2021, Burley filed a Notice of Appeal

with the Pennsylvania Superior Court.5 On May 17, 2021, the trial court directed

Burley to file a Concise Statement of Errors Complained of on Appeal pursuant to

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

Burley filed his Rule 1925(b) Statement on June 28, 2021.6 On July 15, 2021, the

Pennsylvania Superior Court transferred Burley’s appeal to this Court.7 On August

10, 2021, the trial court filed its Rule 1925(a) Opinion.

5

Burley’s return receipt from the trial court’s order and opinion was returned as un-

delivered. The trial court remailed its order and opinion to Burley on April 19, 2021.

6

The trial court’s order was returned as undeliverable and was resent to Burley on June 28,

2021.

7

[“]Where a [trial court] dismisses a complaint based on preliminary

objections, this Court’s review is limited to determining whether the

trial court committed an error of law or an abuse of discretion.[”]

When considering preliminary objections, we must accept as true all

5

On October 19, 2021, Burley filed a Motion Seeking Leave of Court to

File a Supplemental Memorandum in Support of his Appeal with this Court. By

November 16, 2021 Order, to the extent that Burley was seeking leave to file a

supplemental brief, this Court granted the request and directed that the supplemental

brief was due on or before December 15, 2021. On December 2, 2021, Burley filed

his Supplemental Brief.8 On January 3, 2022, Covert and Hilton filed a Motion for

Leave to File Brief in Response to Burley’s Supplemental Brief (Reply Brief), which

this Court granted on January 5, 2022. On January 6, 2022, Covert and Hilton filed

their Reply Brief.

On January 26, 2022, Burley filed a Motion for Clarification seeking

this Court’s review of newly discovered facts and attachments that pertained to a

civil action Burley filed in the United States District Court for the Western District

of Pennsylvania. By March 2, 2022 Order, this Court denied the Motion for

Clarification.

well-pleaded material facts alleged in the complaint and all

reasonable inferences deducible therefrom. A preliminary objection

should be sustained only in cases when, based on the facts pleaded,

it is clear and free from doubt that the facts pleaded are legally

insufficient to establish a right to relief. Because a preliminary

objection in the nature of a demurrer presents a question of law, this

Court’s standard of review of a court of common pleas’ decision to

sustain a demurrer is de novo and the scope of review is plenary.

Similarly, whether immunity applies is a question of law subject to

our de novo review.

Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018) (quoting Minor v. Kraynak, 155

A.3d 114, 121 (Pa. Cmwlth. 2017) (citations omitted)).

8

Burley included issues not raised in his Rule 1925(b) Statement in his Supplemental Brief.

The law is well established that “[a]ny issues not raised in a [Rule] 1925(b) [S]tatement will be

deemed waived.” Commonwealth v. Costillo, 888 A.2d 775, 780 (Pa. 2005) (quoting

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). To the extent Burley raised issues in his

Supplemental Brief that were not included in his Rule 1925(b) Statement, those issues are waived

and this Court did not consider them.

6

Discussion

Preliminarily, Appellees argue that Burley’s appeal is untimely.

Specifically, Appellees assert that, because the relevant trial court order was

docketed on March 23, 2021, pursuant to Rule 903(a), Burley’s appeal was due by

April 22, 2021. Appellees contend that, since Burley’s Notice of Appeal is dated

April 24, 2021, it was untimely and this Court is divested of jurisdiction. Burley

rejoins that, because he did not receive the trial court’s March 23, 2021 order until

on or around April 19, 2021, his appeal was timely.

A review of the trial court’s docket reveals that the trial court mailed its

March 23, 2021 order to Burley on March 23, 2021. See March 23, 2021 trial court

docket entry (“3/23/[20]21; EXIT[] TO PLTF . . . .”), O.R. at 3. However, the trial

court’s April 6, 2021 docket entry reflects: “RETURN OF SERVICE FILED; ORDER

03/23/[20]21 RETURNED FROM . . . BURLEY []-UNABLE TO FORWARD- RE-MAILED ON

4/6/[20]21[.]” Id. Further, the trial court’s April 16, 2021 docket entry declares:

“RETURN OF SERVICE FILED; RE-MAILED TO CORRECT CONTROL #C2340579 ON

4/19/[20]21 (REQUESTED ORDER OF COURT)[.]” Id.

“Generally, . . . an appeal nunc pro tunc is granted only where there

was ‘fraud or a breakdown in the court’s operations through a default of its

officers.’” Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Review of

Allegheny Cnty., 746 A.2d 581 (Pa. 2000) (quoting Bass v. Commonwealth, 401

A.2d 1133, 1135 (Pa. 1979)). “[T]he law [] holds that a failure to properly send a

notice may amount to a breakdown in operations which is the equivalent of

negligence on the part of administrative officials.” Moore v. Pa. Bd. of Prob. &

Parole, 503 A.2d 1099, 1101 (Pa. Cmwlth. 1986); see also Brown v. Hill (Pa.

Cmwlth. No. 388 C.D. 2018, filed Aug. 1, 2019) (“Failure to send notice of an order

constitutes a breakdown in operations warranting nunc pro tunc relief.”), slip op. at

7

7.9 Here, because the trial court’s docket confirms that the trial court did not

“properly send” Burley its March 23, 2021 order until at least April 6, 2021, this

Court considers Burley’s appeal a timely nunc pro tunc appeal.10 Brown, slip op. at

7.

Access to Courts (Counts I and II)

Burley alleged in Amended Complaint Count I that Covert and Hilton

denied Burley access to the law library and trained assistance, thereby denying him

access to the courts. Covert and Hilton objected to Count I on the basis that Burley

was represented by Counsel in his criminal case. The trial court, taking judicial

notice of the docket entries indicating that Burley was, in fact, represented by

Counsel in his criminal case, sustained that Preliminary Objection and dismissed

Count I.

Burley first argues that the trial court erred by taking judicial notice of

the fact that he was represented by Counsel in his criminal case and dismissing

Burley’s viable access to court claim on that basis, without taking judicial notice and

considering that the case at bar is a civil matter in which Burley was pro se and, as

such, was not represented by legal counsel at every time material to his claim.

Burley clearly confuses his right to access the courts claim with respect

to actions that took place prior to the filing of his Amended Complaint (i.e., in

connection with his criminal case, as claimed in his Amended Complaint), with the

actions taken after the filing of the Amended Complaint when he was acting pro se.

The fact that Burley is proceeding pro se in the instant action does not change the

9

Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited

for their persuasive value. See Section 414(a) of the Commonwealth Court’s Internal Operating

Procedures, 210 Pa. Code § 69.414(a). Brown is cited for its persuasive value.

10

It appears the trial court also considered Burley’s appeal a timely nunc pro tunc appeal

as the trial court did not raise the issue of an untimely appeal in its Rule 1925(a) Opinion.

8

fact that Counsel represented him in his criminal case and, therefore, does not affect

the trial court’s ruling sustaining Covert and Hilton’s Preliminary Objection on that

basis. Accordingly, Burley’s argument that the trial court improperly dismissed

Count I of the Amended Complaint is without merit.

Burley alleged in Amended Complaint Count II, in relevant part, that

“defendants . . . with[he]ld [Burley’s] legal mail[,]” thereby interfering with his

communications with Counsel and impairing his right to access the courts. O.R. at

157 (emphasis added). The trial court did not address this portion of Count II.

Covert and Hilton alleged a demurrer in their first Preliminary Objection pursuant

to Civil Rule 1028(a)(4) to the entire Amended Complaint for failure to plead

material facts.

It is well settled that a civil rights complaint must allege facts

identifying “the conduct, time, place, and persons responsible.” Evancho v. Fisher,

423 F.3d 347, 353 (3d Cir. 2005). Further, a “[p]laintiff must allege the personal

involvement of each [d]efendant to state a claim against them under Section 1983[,

42 U.S.C. § 1983].” Reed v. Chambersburg Area Sch. Dist., 951 F. Supp. 2d 706,

719 (M.D. Pa. 2013) (emphasis added). Here, because Burley did not allege who

specifically withheld his mail, nor where or when the mail was withheld, Burley’s

argument that the trial court improperly dismissed Count II of the Amended

Complaint is without merit.

Dismissing With Prejudice

Burley next argues that the trial court erred by dismissing Burley’s

claims with prejudice, without consideration of Burley’s pro se status and his lack

of training in legal practice formalities and, by doing so, deprived Burley of his right

to be heard and an opportunity to offer proof of his pro se allegations. Specifically,

Burley contends that the trial court should have taken judicial notice of his

9

Supplemental Material Facts, and should have ruled on all of his outstanding

motions, applications, and requests before sustaining the Preliminary Objections and

dismissing his Amended Complaint. Further, Burley maintains that he should have

been provided an opportunity to file a second amended complaint.

The Pennsylvania Supreme Court has explained:

Under Pennsylvania law, pro se [litigants] are subject to

the same rules of procedure as are represented [litigants].

See Commonwealth v. Williams, . . . 896 A.2d 523, 534

([Pa.] 2006) (pro se [litigants] are held to same standards

as licensed attorneys). Although the courts may liberally

construe materials filed by a pro se litigant, pro se status

confers no special benefit upon a litigant, and a court

cannot be expected to become a litigant’s counsel or find

more in a written pro se submission than is fairly conveyed

in the pleading.

Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014) (italics omitted); see also

Young v. Est. of Young, 138 A.3d 78 (Pa. Cmwlth. 2016).

Further,

[w]here, as here, a defendant files preliminary objections

to a plaintiff’s complaint in the nature of a demurrer, see

Pa.R.Civ.P. 1028(a)(4), the court’s review is confined to

the content of the complaint and any attachments thereto.

Thomas v. Corbett, 90 A.3d 789 (Pa. Cmwlth. 2014).

Thus, the court may determine only whether, on the basis

of the plaintiff’s allegations, he or she possesses a cause of

action recognized at law. Id. The court may not consider

the factual merits of the claims. Schmidt v. Deutsch

Larrimore Farnish & Anderson, LLP, 876 A.2d 1044,

1046 (Pa. Super. 2005). Rather, the court “must accept as

true all well-pleaded material allegations in the

[complaint], as well as all inferences reasonably deduced

therefrom.” GTECH Corp[.] v. Commonwealth, 965 A.2d

1276, 1285 (Pa. Cmwlth. 2009) (citing Stanton-Negley

Drug Co. v. Dep[’]t of Pub[.] Welfare, 927 A.2d 671, 673

(Pa. Cmwlth. 2007)). The court need not accept as true

conclusions of law, unwarranted inferences from facts,

argumentative allegations, or expressions of opinion. Id.

10

Fraternal Ord. of Police Lodge No. 5, by McNesby v. City of Phila., 267 A.3d 531,

541-42 (Pa. Cmwlth. 2021).

Moreover,

[Civil] Rule 1033 . . . allows a party to amend his or her

pleadings with either the consent of the adverse party or

leave of the court. Leave to amend lies within the sound

discretion of the trial court and “the right to amend

should be liberally granted at any stage of the proceedings

unless there is an error of law or resulting prejudice to an

adverse party.

Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996) (emphasis added) (quoting

Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983)).

Here, Appellees filed their respective briefs contemporaneously with

their respective Preliminary Objections (i.e., Covert and Hilton filed their brief on

November 23, 2020, and Zarilla filed his brief on December 2, 2020). Thereafter,

while Appellees’ Preliminary Objections were pending, Burley filed a total of seven

applications, requests, and motions, plus three supplemental filings. On February 8,

2021, the trial court expressly set forth a briefing schedule for the Preliminary

Objections so that Burley was aware that he was required to file a brief in response

to both sets of Preliminary Objections to the Amended Complaint, and directed that

they be filed on or before March 15, 2021. The trial court also informed Burley that

it would rule on the Preliminary Objections thereafter.

The trial court opined:

The docket entries in this case reflect that [Burley] had the

opportunity to [and did] file his original Complaint in

Mandamus [(Complaint)] on June 22, 2020, that

Preliminary Objections were filed to that [C]omplaint on

behalf of [Appellees], and that subsequently, [Burley] had

an opportunity and did file an Amended Complaint[.] . . .

The [t]rial [c]ourt is under no obligation to provide, even

a pro se litigant, unlimited opportunities to present [his]

claims in accordance with the [Civil Rules] and

11

appropriate, substantive law. [Burley] had an opportunity

to file an Amended Complaint, [Appellees] had the

opportunity to respond to that [Amended C]omplaint with

Preliminary Objections and the [trial c]ourt ruled on the

Preliminary Objections as stated in the [o]pinion and

[o]rder of March [23], 2021.

Rule 1925(a) Op. at 4.

The trial court properly reviewed the Amended Complaint and

determined, “on the basis of [Burley’s] allegations,” that the Amended Complaint

did not make out any cognitive claims. McNesby, 267 A.3d at 541.

Moreover, a court is not required to allow amendment of

a pleading if a party will be unable to state a claim on

which relief could be granted. See Spain v. Vicente, . . .

461 A.2d 833, 837 ([Pa. Super.] 1983) (trial court did not

err in refusing to permit amendment of defamation

complaint to allow more specific details since no formal

motion to amend was ever made and plaintiff’s deposition

militated against likelihood of establishing claim). Thus,

[Burley’s] claim must fail.

Werner, 681 A.2d at 1338. Accordingly, Burley’s argument that the trial court erred

by dismissing his claims with prejudice is meritless.

Conclusion

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

_________________________________

ANNE E. COVEY, Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Lamont Burley, Jr., :

Appellant :

:

v. :

:

Jason Hilton, Brian Covert, : No. 934 C.D. 2021

and Nicholas Zarilla :

ORDER

AND NOW, this 30th day of June, 2022, the Lawrence County Common

Pleas Court’s March 23, 2021 order is affirmed.

_________________________________

ANNE E. COVEY, Judge