IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyree A. Lawson, : Petitioner :

:

v. : No. 277 M.D. 2022

: SUBMITTED: April 21, 2023 Court of Common Pleas of : Montgomery County : Prothonotary Office, : Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Ju d ge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: December 21, 2023

Introduction

In this somewhat confusing matter, b efore the Court is the Montgomery
County Prothonotary ’s Office ’s 1 preliminary objection in the nature of a demurrer 2

1 While the complaint refers to the “Court of Common Pleas of Montgomery County Prothonotary Office,” we note that the Prothonotary, while a clerk of the trial court

, see Pennsylvania Constitution, Schedule to a rticle V , § 15, is not synonymous with the court of common pleas , which is not a party and has not been served

. Although not personally named, for purposes of considering this matter in our original jurisdiction, we treat the Prothonotary as synonymous with his office.

2 In addition to the preliminary objection in the nature of a demurrer, the Prothonotary also raised a preliminary objection for lack of person al jurisdiction due to an alleged failure to make (Footnote continued on next page...)2

to the filing by Tyree A. Lawson

, who is an inmate incarcerated at the State

Correctional Institution (SCI)

- Phoenix

, pro se , purporting to be a “Petition for

Review . . . And/Or I n The Alternative Nunc Pro Tunc Appeal .” ( Reproduced R.

“R.R.” at 4a

. )

An understanding of th is dual filing is essential to our disposition.

Lawson’s pleading is styled both as an original jurisdiction petition for review from
a refusal to act by the Prothonotary and an appeal from a n order of the Court of
Common Pleas of Montgomery County in underlying litigation issued in November

2020

. In the action brought i n our original jurisdiction, Lawson seeks mandamus
and declaratory relief to compel the Prothonotar y to accept his filings and payment
of filing fees in the underlying prisoner litigation ( R.R. at 10a)

. With respect to the
petition for review , we overrule the preliminary objection.

With respect to his appeal

, Lawson asks for review nunc pro tunc of the

trial court’s order

, albeit without meeting any of the substantive or procedural
requisites of a notice of appeal

. Specifically, Lawson asks “[w]here the [trial] court

failed to do such [

, ] and must [sic] reissue an accurate [o]rder to allow such” and “any
other relief the [C]ourt deems just and proper.” As to th e appellate aspect of

Lawson’s filing

, we quash the appeal because we lack jurisdiction to consider it

. The Underlying Litigation

proper service of original process. The Prothonotary’s Office has withdrawn the objection to personal jurisdiction. (Respondent’s Br. at 8 n.4.)

Lawson filed a pleading styled as “preliminary objections to . . . [ t he Prothonotary’s] preliminary objections[’] misrepresentations.” The Court directed the matter to be submitted on briefs without oral argument.3 The essential facts alleged by Lawson regarding the underlying
litigation are as follows. 3 In July 2018, Lawson , an inmate in the custody of the
Pennsylvania Department of Corrections, was relocated from S CI

- Graterford to SCI

Phoenix. During that move, Lawson avers that his personal property ( records of
other litigation ) w as lost, stolen, or otherwise confiscated by Department of

Corrections staff . As a result of the alleged July 2018 confiscation of his property,

Lawson filed an action in federal court against the former Secretary of Corrections
and other officials of the agency . After the action was dismissed in federal court,

Lawson refiled in th e trial court in June 2020, seeking to proceed in forma pauperis
(IFP). The request to proceed IFP was initially granted.

The defendants in the underlying litigation fil ed a motion to revoke

Lawson ’s IFP status under the Prison Litigation Reform Act, 42 Pa.C.S. § 6602(f)

, and Lawson filed a response. On November 16, 2020

, the trial court issued an order
revoking Lawson ’s IFP status and dismiss ing the matter without prejudice. 4 [Order,

Lawson v. Wetzel ( C.C.P. Montgomery C nty
., Civil Division, Docket No. 2020

- 10757, filed Nov

. 16, 2020).] Lawson did not appeal within 30 days or seek

reconsideration of the trial court’s order . Rather, over a protracted period, on dates
not identified, Lawson attempted to revive the underlying litigation by tendering the
filing fee to the Prothonotar y . The Prothonotary has refused to accept the filing fee,

3 We note that the recitation of the facts of the underlying litigation are drawn from Lawson ’s filing ; other than the order of the trial court dismissing the action and a printout of docket entries attached to the petition for review, there is a lack of any documentation of the underlying litigation in the record of the instant case.

4 Without records of the underlying litigation, we are left to surmise that the trial court revoked
IFP status and dismissed the matter in reliance upon Section 6602 of the Prison Litigation Reform Act, 42 Pa.C.S. § 6602, as suggested by Lawson . As discussed infra , whether that decision was correct is not properly before us.4

stating cursorily in various responses that the underlying case was closed. Lawson
wishes to rekindle the underlying litigation under its original docket number because

the statute of limitations on the underlying action has since run.

Issues Before the Court

The Prothonotary raises the following issue s :

[1] After a [trial] court order revokes a pro se plaintiff’s [IFP] status and dismisses his complaint without giving the plaintiff an opportunity to pay his filing fee, must the Prothonotary

. . . nevertheless accept

. . . [Lawson ’s ] subsequent tender of the filing fee and “reinstate” his dismissed complaint under the case’s original docket number? [and]

[2] May a plaintiff in a mandamus action against the Prothonotary [] . . . properly request and obtain leave to file

a nunc pro tunc appeal of an order of dismissal entered in a different case which the plaintiff filed in a different court against different defendants.

( Prothonotary ’s Br. at 2.)
The Original Jurisdiction Action

With regard to the first issue, t he Prothonotary ’s arguments generally

track two of the three elements necessary for mandamus relief, i.e.

, that it has no
duty to provide the relief sought and that Lawson failed to take advantage of other
adequate or appropriate remed ies

. 5 The Prothonotar y ar gues that without reversal or

modification of the trial court’s order dismissing the underlying action , it lacked the
legal duty to accept Lawson ’s subsequent tender of the filing fee and to “reinstate”

5 To prevail, the petitioner seeking mandamus relief must establish the following: (1) a clear right to relief; (2) a corresponding duty in the respondent; and (3) the lack of any other adequate and appropriate remedy. Baron v. Dep't of Hum

. Servs. , 169 A.3d 1268, 1272 (Pa. Cmwlth. 2017) ( en banc )

.5

the dismissed complaint under its original docket number. The Prothonotary further
argues that Lawson could have sought reconsideration of the trial court ’s order or filed a timely notice of appeal. The Prothonotary also argues that mandamus is
improper because to accept a filing fee and “ reinstate ” a complaint that has been
closed for (at the time of the brief) two years would be “futile and ineffectual” given

the trial court’s order

. Com

. ex rel. McLaughlin v. Erie Cnty

. , 100 A.2d 601, 604
(Pa. 1953) (“mandamus will not issue . . . where it is apparent that the writ will be
futile or ineffectual by reason of the inability of the respondent to comply

therewith ” )

. The Prothonotary argues that Lawson ’s issue is with the trial court , and

not with him

.

In on e of our early cases, cited many times by the c ourts of this
Commonwealth, we observed as follows:

A [p] rothonotary may have the power, and even the duty, to inspect documents tendered for filing and to reject them if they are not on their face in the proper form

. . . but this power is limited. He is not in the position of an administrative officer who has discretion to interpret or implement rules and statutes

. . . . Any question of construction must be resolved by the courts, not by the [p] rothonotary nor the parties. The [p] rothonotary must accept papers and file them. He must also collect fees fixed by the l egislature

. He has no discretion in this matter nor does he act in a judicial capacity.

Warner v. Cortese

, 288 A.2d 550, 552 (Pa. Cmwlth. 1972) (emphasis supplied)

. T he
Prothonotary cannot say that he has no legal duty to accept the fee tendered

— for the
legislature has set the fee for filings

. 6 Whether Lawson could have or should have
availed himself of the ability to seek reconsideration by the trial court of its order or

6 Section 1 of Act of Feb ruary 14, 1986, P.L. 7, 42 P.S. § 21161.6

pursue d an appeal is irrelevan t to the issue of whether a fee must be accepted.
Further, whether the payment would be futile is not properly before us

. As the
Prothonotary takes pains to remind us

, whether Lawson ’s suit may proceed as filed

is a matter properly to be decided by the trial court

.

At this stage , we must accept as true and accurate the averments in

La w son’s complaint (including the two attachments) , which is the only information
we have regarding the underly ing civil complaint or the subsequent events. We can

see from the order that IFP status was revoked, and that the complaint was dismissed
without prejudice , but we cannot tell the basis for that order

. While we assume, from

La w son’s plead ing , that it was based upon the Prison Litigation Reform Act ( see infra note 4 ) , was it on the basis of f inancial ineligibility

, 7 or on the ground of
multiple past instances of abusive litigation

, or bad faith ? If the latter, t he dismissal
without prejudice would seem to be an unlikely result but

, at all events

, we do not

know the reason for the order

. Moreover, we cannot tell whether La w son’s alleged

attempts to pay the filing fee occurred within the statute of limitations. Without
development of f

acts such as these, we cannot say with certainty that the
Prothonotary did not , by refusing to perform a mandatory duty to accept a filing fee,

thwart La w son’s legitimate attempts to reinstate his complaint before it was barred
by the statute of limitations. If that were to be found, it might entitle Lawson to some form of equitable relief , but that is certainly not before us at this point. All we can
say is that at the stage of preliminary objections we cannot say with certainty that

La w son is not entitle d to any form of relief.
The Appeal Nunc Pro Tunc

7 Since La w son has stated that he attempted to pay the filing fee , IFP status could have been revoked because he had

, in fact, sufficient funds in his account

.7 Turning to the appeal nunc pro tunc , we quash th is portion of Lawson’s
filing because we lack jurisdiction

. 8

Lawson argues that the trial court improperly dismissed his case and
denied him the opportunity to pay the filing fee when it revoked hi s IFP status

. ( Petition for Review/Notice of Appeal ¶ 34, R.R. at 9a.) However, the trial court’s

order was filed on November 1 6, 2020, and Lawson did not file his appeal nunc pro

tunc in this Court until May 15, 2022 , some 16 months later. An appeal from a trial

court ’ s order must be filed within 30 days of the entry of the order from which the
appeal is taken. Section 5571(a) of the Judicial Code

, 42 Pa.C.S. § 5571 (a) (“ [t]he
time for filing an appeal

. . . in

. . . the Commonwealth Court shall be governed by
general rules ”) ; Pennsylvania Rule of Appellate Procedure 903(a), Pa. R.A.P. 903(a)
( “the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken”)

. An appellate court “may not enlarge the time for
filing a notice of appeal.” Rule 105(b) of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 105(b). A ppeals filed after the expiration of the 30

- day appeal
period are untimely and deprive the appellate court of subject matter
jurisdiction. Com

. v. Williams , 106 A.3d 583, 587 (Pa. 2014) ; Szura v. Zoning
Hearing Bd. of Wyoming Borough , 397 A.2d 33 , 34 (Pa. Cmwlth. 1979)

.

While the appellate courts may

, under certain circumstances

, enlarge time to file an appeal, the reason for filing a late appeal “must be extraordinary and
involve fraud or some breakdown of the court’s operation through a default of its
officers, whereby the party has been injured.” Nixon v. Nixon , 198 A. 154, 15 7 (Pa.
1938). An application to appeal nunc pro tunc must set forth “some legitimate
basis” for the delay, that is, “sufficient facts upon which to conclude that the delay

8 Because of our disposition, we do not reach the argument raised by the Prothonotary.8

was justified and should be overlooked.” Robinson v. Pa. Bd. of Prob. & Parole

, 582 A.2d 857, 860 (Pa. 1990). No such facts have been alleged here. Moreover, the
appeal nunc pro tunc must be filed within a reasonable time. Nixon , 198 A. at 157

. Sixteen months from an order of a trial court is , quite simply, not reasonable

.

As we have no jurisdiction, we must quash the appeal

. S ee S zura , 397

A.2d at 34.

Conclusion
In light of the foregoing, the Prothonotary ’s Office ’s preliminary
objection in the nature of a demurrer is overruled. Furthermore, Lawson’s filing, to
the extent it seeks to invoke our appellate jurisdiction, is quash ed.

_____________________________________ BONNIE BRIGANCE LEADBETTER, President J udge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyree A. Lawson, : Petitioner :

:

v. : No. 277 M.D. 2022

: Court of Common Pleas of : Montgomery County : Prothonotary Office, : Respondent :

O R D E R

AND NOW, this 21 st day of December

, 20 2 3

, the P reliminary

O bjection of Respondent, Court of Common Pleas of Montgomery County
Prothonotary Office

, to the Petition for Review of Petitioner

, Tyree A. Lawson

, is

OVERRULED

. Respondent is directed to file an answer within 30 days of the date
of this order with regard to the original jurisdiction aspect of the above

- captioned

matter.

Petitioner’s Appeal Nunc Pro Tunc is QUASH ED. To the extent that Petitioner sought to invoke this Court’s appellate jurisdiction, we relinquish
appellate jurisdiction of the above

- captioned matter.

_____________________________________ BONNIE BRIGANCE LEADBETTER, President J udge Emerita