Defense Digest, Vol. 29, No. 4, December 2023

One Bite at the Apple: Dismissing Repetitive Complaints from Pro Se Plaintiffs

Key Points: 

  • Pennsylvania Rule of Civil Procedure 233.1 offers a two-prong test for defendants to utilize to dismiss repetitive complaints from pro se plaintiffs.
  • The first prong requires the actions to be “related.” A complaint is “related” to another if it deals with the same subject matter. 
  • The second prong requires the claims to have already been “resolved.” An action is “resolved” if the pro se litigant was given the chance to address his or her claim subject to the procedural safeguards that attend a court proceeding.

Under Pennsylvania Rule of Civil Procedure 233.1(a), defendants can move swiftly to dismiss frivolous and repetitive complaints from pro se plaintiffs. This Rule specifically states:     

(a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding.

Pa.R.C.P. 233.1(a). 

To see this Rule in action, one needs to look no farther than the Superior Court’s recent non-precedential decision in Kovalev v. Stepansky, DMD, et al., 2023 WL 5624181 (Pa. Super. Aug. 31, 2023), where the plaintiff filed a pro se complaint in 2017 in the Philadelphia County Court of Common Pleas against, among others, Irina Stepansky, DMD. In this 2017 state action, the plaintiff claimed he was “mutilated” during dental procedures performed by Dr. Stepansky on two different dates in November of 2015. He asserted 28 different causes of action related to this dental treatment. After giving the pro se plaintiff multiple opportunities to file a certificate of merit with his complaint, the action was dismissed when the trial court denied, with prejudice, the plaintiff’s second request to file an amended complaint after it became evident that he was refusing to file the requisite certificate of merit. The Superior Court affirmed, and the Supreme Court denied the plaintiff’s petition for allowance of appeal. 

In November 2019, the same plaintiff initiated another pro se action against Dr. Stepansky and others in the U.S. District Court for the Eastern District of Pennsylvania. In this 2019 federal action, the plaintiff alleged harm from the same dental work performed by Dr. Stepansky in November of 2015. The plaintiff again asserted numerous state law claims, as well as violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging that Dr. Stepansky stole his personal property, i.e., his body parts. The U.S. District Court dismissed the plaintiff’s amended complaint with prejudice. The Third Circuit affirmed the dismissal but modified the order to dismiss the state law claims without prejudice. 

Undeterred, the plaintiff filed a third pro se action in November 2019 against Dr. Stepansky and others in the Court of Common Pleas of Philadelphia County regarding the same dental treatment. While the plaintiff asserted largely the same claims, he did add three new causes of action. Ultimately, Dr. Stepansky filed a motion to dismiss pursuant to Pa.R.C.P. 233.1, arguing that the plaintiff’s claims were duplicative of the previous two lawsuits. Dr. Stepansky’s motion was granted, with prejudice, and the plaintiff appealed. 

On appeal, the Superior Court turned to Pa.R.C.P. 233.1. Addressing the first prong under Rule 233.1, the court found that all three cases were “related,” since they all stemmed from allegations of dental mistreatment on the same dates, provided by the same provider. The court did not buy the plaintiff’s attempts to circumvent Rule 233.1 by setting forth three new causes of action and naming slightly different defendants in each action. That is, Rule 233.1 requires only that the claims and parties be related to those in the prior action, not that they be identical

Looking to the second prong, the court found that the plaintiff’s claims were “resolved” in the 2017 state action. More specifically, the Superior Court had previously affirmed the trial court’s order in the 2017 state action denying the plaintiff’s request to file an amended complaint, “with prejudice.” The Superior Court had already determined that the plaintiff’s claims failed without a certificate of merit. Therefore, the court affirmed the trial court’s order granting Dr. Stepansky’s motion to dismiss, specifically noting that the plaintiff’s serial and repetitive litigation was precisely the kind that Rule 233.1 sought to address. 

Should a defendant find itself on the receiving end of lawsuit after lawsuit from the same pro se plaintiff, it should consider Pennsylvania Rule of Civil Procedure 233.1. Under this Rule, a defendant can move to dismiss a pro se complaint if the complaint is “related” to a previous pro se complaint and the claim was previously “resolved.” This Rule provides an opportunity for a defendant to move swiftly to dismiss pro se complaints that otherwise could take years to resolve. 

*Mike is an associate in our Philadelphia, Pennsylvania, office. 


Defense Digest, Vol. 29, No. 4, December 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact