J-A09020-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THERMUTHIS LEE 

Appellant

v.

LEONARD PETIOLICHIO, KELVIN 

JEREMIAH, JANAE JORDAN, 

BARBARA ADAMS, ANDREW KENIS 

AND PHILADELPHIA HOUSING 

AUTHORITY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2120 EDA 2018

Appeal from the Order Entered July 3, 2018

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 180202712

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 30, 2019

Thermuthis Lee (Appellant) appeals pro se from the trial court’s order 

sustaining the preliminary objections of the Philadelphia Housing Authority 

(PHA), and its employees Leonard Petrolichio, Kelvin Jeremiah, Janae Jordan, 

Barbara Adams, and Andrew Kenis (collectively Appellees), and dismissing 

Appellant’s lawsuit. Upon review, we have determined that we lack appellate 

jurisdiction, and therefore transfer this matter to the Commonwealth Court of 

Pennsylvania.

The trial court summarized the background of this case as follows:

Pro se [Appellant] initiated the instant lawsuit by filing a 

Complaint on February 27, 2018 against [Appellees]. 

[Appellant] averred PHA and its staff failed to properly 

address her various complaints. For instance, [Appellant] claims 
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PHA negligently failed to investigate and evict a tenant who 

allegedly assaulted [Appellant], despite numerous administrative 

requests. [Appellant] also claimed PHA failed to properly maintain 

its property. Notably, the Complaint does not aver [Appellant] is 

a tenant of PHA or that they have a contractual relationship.

[Appellees] filed Preliminary Objections in the nature of a 

motion to dismiss pursuant to Pa.R.C.P. 233.1, demurrer, lack of 

standing, and sovereign immunity. This Court issued an order on 

July 3, 2018 sustaining the Preliminary Objections, dismissing the 

case and barring [Appellant] from filing any further pro se cases 

against PHA or its employees raising the same or related claims 

without leave of court. That order is the subject of this appeal.

Between 2015 and 2018, [Appellant] has filed nine pro se

lawsuits in Philadelphia County, many of which were against PHA 

and/or involved the issues identical or related to the present 

appeal. Each have reached final disposition. For instance, one 

such case, Lee v. Petrolichio (Philadelphia Court of Common 

Pleas docket number 160800581) involved allegations 

substantially similar to the instant matter asserted against 

Petrolichio and Kenis. [Appellant’s] Amended Complaint was 

removed to the Eastern District of Pennsylvania due to a claim 

under 42 U.S.C. § 1983. On December 29, 2016, the Hon. 

Legrome Davis entered an order and memorandum granting PHA’s 

Motion to Dismiss, finding [Appellant] did not state a cognizable 

claim under federal law. The Third Circuit affirmed. Judge Davis’ 

memorandum did not address the pendent state claims.

Trial Court Opinion, 9/4/18, at 1-2.

In response to the trial court’s July 3, 2018 order, Appellant filed this 

timely appeal in Superior Court. Although no party has challenged our 

jurisdiction, we may decide whether we have jurisdiction sua sponte. See, 

e.g., M. London, Inc. v. Fedders Corp., 452 A.2d 236, 237 (Pa. Super. 

1982). “Jurisdiction is purely a question of law; the appellate standard of 

review is de novo and the scope of review plenary.” Commonwealth v. 

Seiders, 11 A.3d 495, 496–97 (Pa. Super. 2010).
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Here, Appellant has claimed that Superior Court has jurisdiction 

pursuant to 42 Pa.C.S.A. § 742. Appellant’s Brief at 2. However, Section 742 

states that the “Superior Court shall have exclusive appellate jurisdiction of 

all appeals from final orders of the courts of common pleas except” those 

“within the exclusive jurisdiction of the . . . Commonwealth Court.” 42 

Pa.C.S.A. § 742 (emphasis added). The Commonwealth Court has exclusive 

jurisdiction over appeals from final orders of the courts of common pleas, in 

relevant part:

(1) Commonwealth civil cases.--All civil actions or proceedings:

(i) Original jurisdiction of which is vested in another tribunal 

by virtue of any of the exceptions to section 761(a)(1) 

(relating to original jurisdiction), except actions or 

proceedings in the nature of applications for a writ of habeas 

corpus or post-conviction relief not ancillary to proceedings 

within the appellate jurisdiction of the court.

42 Pa.C.S.A. § 762(a)(1)(i). The exceptions enumerated in 42 Pa.C.S.A. § 

761(a) include actions or proceedings against the Commonwealth 

government, including any officer thereof, acting in his official capacity, in 

actions conducted pursuant to Chapter 85 (relating to matters affecting 

government units). See 42 Pa.C.S.A. § 761(a)(1)(iii). The PHA is a 

Commonwealth agency entitled to the defense of sovereign immunity, unless 

the claim falls within one of the eight exceptions enumerated in 42 Pa.C.S.A. 

§ 8522. See Battle v. Philadelphia Housing Authority, 594 A.2d 769 (Pa.

Super. 1991) (holding that Philadelphia Housing Authority is a Commonwealth 

agency for purposes of sovereign immunity).
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In this case, filed as a personal injury matter, Appellees asserted the 

affirmative defense of sovereign immunity in the trial court and, accordingly, 

jurisdiction over this matter is properly in Commonwealth court. See, e.g., 

Flaxman v. Burnett, 574 A.2d 1061, 1064 n.4 (Pa. Super. 1990) 

(Commonwealth Court has exclusive appellate jurisdiction of tort claims 

against Commonwealth agencies). If we were to assert jurisdiction over this 

appeal via waiver (see 42 Pa.C.S.A. § 704), we would “disrupt the legislatively 

ordained division of labor between the intermediate appellate courts” and risk 

the “possibility of establishing two conflicting lines of authority[.]” See

Trumbell Corp. v. Boss Construction, Inc., 747 A.2d 395, 399 (Pa. Super. 

2000).

Here, Appellees filed preliminary objections based upon their affirmative 

defense of sovereign immunity. The trial court granted the objections and 

dismissed Appellant’s complaint. Accordingly, we conclude that the subject 

matter of this appeal directly implicates the sovereign immunity of Appellees. 

Thus, the Commonwealth Court has exclusive jurisdiction. See Flaxman, 574 

A.2d at 1064; Trumbell, 747 A.2d at 399.

Finally, we note that although Appellant erroneously filed this appeal 

in Superior Court, filing in the wrong appellate court is not fatal to an 

appeal. Pennsylvania Rule of Appellate Procedure 751 provides for the 

preservation of a party’s appellate rights when a case is transferred to the 

proper court. In the transferee court, “the appeal . . . shall be treated as 
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originally filed in transferee court on the date first filed in [this] court.” 

Pa.R.A.P. 751(a).

Accordingly, this appeal is transferred to the Commonwealth Court of 

Pennsylvania. Superior Court jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/19