IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Paladino

, :

Appellant :

:

v. :

: No. 947 C.D. 2016

M. Engelbrocht and Tammy Ferguson : Submitted: December 2, 2016

BEFORE: HONORABLE ROBERT SIMPSON

, Judge

HONORABLE JULIA K. HEARTHWAY

, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: April 13, 2017

Charles Paladino (Appellant) appeals

, pro se, from an Order of the

Court of Common Pleas of Centre County (trial court )

, dismissing his Civil

Complaint as frivolous pursuant to Pa.R.C

. P

. No. 240(j)(1).

Appellant is presently incarcerated at the State Correctional Institution

at Benner (SCI

- Benner )

. He filed a civil action with the trial court alleging two

employees of the Department of Corrections (Department)

, M. Engelbrocht and

Tammy Ferguson (Appellees), while acting in their official capacity

, took actions

against Appellant that constitu t ed assault and negligence.

On March 30, 2016

, the trial court dismissed Appellant ’s Complaint

and Petition for Leave to P roceed in Forma P auperis (IFP)

. Appellant the reafter

appealed the dismissal to the Superior Court

, which transferred the matter to this2

Court

, given our jurisdiction over civil actions and proceedings against

Commonwealth defendants

, pursuant to Section 762 of the Judicial Code

. 1

As set forth in Appellant ’s brief, three issues are raised with this Court

on appeal : 2

(1) “ In the case now at bar of Commonwealth Court, d id and does

the Commonwealth Court have exclusive and original

jurisdiction ?

(2) Did the [ trial court ] deny /dismiss improperly without allowing

plaintiff opportunity to amend?

(3) Did the [ trial court ] err as a matter and fact of law and violat e the

separation of powers doctrine, judicial code, ruling on the law

without jurisdiction

, as it wishes the law would say rather than in

the form prescribe d by the legislature as enacted? ”

DISCUSSION

1 § 76 2

. Appeals from courts of common pleas

(a) General rule.

— Except as provided in subsection (b), the

Commonwealth Court shall have exclusive jurisdiction of

appeals from final orders of the courts of common pleas in the

following cases :

(1) Commonwealth civil cases.

-- All civil actions or

proceedings

...

(ii) By the C ommonwealth government,

including any officer thereof acting in his

official capacity.

....

42 Pa.C.S. § 762.

2 Appellate rev iew of a decision dismissing an action pursuant to Pa.R.C.P. No. 240(j) is

limited to a determination of w hether an appellant's constitutional rights have been violated and

whether the trial court abused its discretio n or committed an error of law. Bell v . Mayview State

Hospital

, 853 A.2d 1058, 1060 (Pa. Super. 2004).3 Appellant first argues the Commonwealth Court has exclusive

jurisdic tion over this matter and the trial court should have transferred the action to

this Cour t as it was erroneously filed with the trial court.

Section 761 of the Judicial Code gives this Court jurisdiction over

actions against “the Commo nwealth government, including any officer thereof,

acting in his official capacity.” The term “officer” was defined, for jurisdictional

purposes, in Opie v. Glascow, Inc.

, 375 A.2d 396, 398 (Pa. Cmwlth. 1977), to

include “only those persons who perform st ate

- wide policymaking functions and

who are charged with the responsibility for independent initiation of administrative

policy regarding some sovereign function of state government.”

In its opinion filed pursuant to Pa.R.A.P. 1925

, the trial court asserte d

jurisdiction was proper based on Mickens v. Jeffes

, 453 A.2d 1092 (Pa. Cmwlth.

1983), because Appellees are employees of the Commonwealth who do not

perform state

- wide policymaking functions.

In Mickens

, a prisoner petitioned this Court to review the rec alculat ion

of his sentence after he escaped from a correctional institution

. The prisoner

named the warden and the records offic er of the correctional institution as

defendants in his suit. This Court determined that the defendants were state

employees w ho perform policyma king functions; however, those functions wer e

confined geographically and wer e not state

- wide in c haracter. Mickens, 453 A.2d

at 1093. Therefore, this Court lacked jurisdiction and proper jurisdiction was with

the court of common pleas

. Id.

Named as defendants in Appellant ’s Complaint are the Superin tendent

of SCI

- Benner and a correctional officer. Appellant has cited no facts or

circumstances to support a finding that Appellees perform any state

- wide4

policymaking functions as part of their employment duties

. Rather, he argues

Appellees are only “qualifiedly immune” and the case is “still ripe for litigation in

the Commonwealth Court.” (Appellant’s Brief at 8.) We therefore conclude the

trial court did not err in finding the Appelle es do not perform any state

- wide

policymaking functions and jurisdiction properly lay with the trial court.

Next, Appellant argues the trial court improperly denied or dismissed

the complaint without provid ing Appellant an opportunity to amend and without

providing noti ce or a hearing. He argues the court has no authority to dismiss a

complaint as frivolous without affording the Appellant the opportunity to be heard.

Relying on the procedures set forth in Pa.R.C.P. No. 240(j)(1), t he

trial court found App ellant ’s Complaint frivolous and without merit, as it put forth

claims of intentional torts and negligence, both of which fail for immunity reasons.

Rule 240(j)(1) provides :

If, simultaneous with the commencement of an action or proceeding

or the taking o f 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, proceed ing or

appeal is frivolous.

Pa.R.C.P. No. 240(j)(1)

.

Rule 240(j)(1) does not require the party requesting IFP be provided

notice and an opportunity to be heard prior to dismissal of the action upon a

finding by the court that the action, proceeding, or appeal is frivolous. Appellant

cites Boyle v. O’Bannon, 458 A.2d 183 (Pa. 1963) as supportive of his argument

that the complaint could not be dismissed without providing him the opportunity to

be heard. The facts in Boyle are n ot similar, however. The complaint in Boyle was5

dismissed one day after filing and had not been served on the defendant

. Boyle did

not turn on dismissal of the complaint under application of Rule 240. Indeed,

Boyle was decided eight years before Rule 24 0 was amended to allow for dismissal

of an IFP petition where the underlying action is determined to be frivolous.

Given the lack of any requirement that the trial court provide

Appellant notice and an opportunity to be heard prior to dismissal of his complaint

as frivolous under Rule 240(j)(1), the trial court cannot be said to have erred in

failing to provide such no tice and opportunity.

Finally, Appellant argues that the trial court “ erred as a matter of law

and fact ” and violated the separation of powers doctrine and Section 5103 3 of the

J udicial C ode because it ruled on the law without having jurisdiction. While the

question as drafted invokes a violation of separation of powers, Appellant does not

further develop this argument. Arguments not properly developed in a brief will

be deemed waived. Rapid Pallet v. Unemployment Compensation Board of

Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998).

As to the remainder of Appellant’s third argument, he contends the

courts of common pleas and judges do not have the power to make, amend, revise

or rule on cases where the legislature has enacted legislation conveying e xclusive,

3 § 5103. Transfer of erroneously filed matters

(a) General rule.

-- If an appeal or other matter is taken to or

brought in a court or magisterial district of this Commonwealth

which does not have jurisdiction of the appeal or other matter,

the court or magisterial district judge shall not quash such

appeal or dismiss the matter, but shall transfer the record

thereof to the proper tribunal of this Commonwealth....

42 Pa.C.S. § 5103(a).6

original jurisdiction to the Commonwealth Court. The trial court, Appellant

argues, should have transferred his case to Commonwealth Court rather than

dismiss it. While the Court of Common Pleas of Dauphin County previously heard

claims against the Commonwealth, “changes in the Judicial Court [sic] ... now

impose exclusive original jurisdiction in the Commonwealth Court for claims

against the Common wealth.” (Appellant ’s Brief at 8 b .) 4 Pursuant to Section 5103

of the Judicial Code, the trial court was required to transfer the case to this Court

rather than dismiss it.

While Appell ant is correct that a court must transfer, rather than

dismiss, a case filed erroneously, this duty is predicated upon the matter having

been filed with a court that does not have jurisdiction over the matter. As already

discussed herein , the trial court had proper jurisdiction over Appell ant ’s

Complaint. We can find no error with the trial court having exercised that

jurisdiction. It would have, in fact, been error for the trial court to transfer the

matter to this Court.

For the reasons set forth abo ve

, the o rder of the trial court dated

March 3 0

, 2016 is affirmed

.

___________________________ JOSEPH M. COSGROVE, Judge

4 Citations to Appellant’s brief are consistent with the pagination in the brief, which does

not conform to the requirements of Pa.R.A.P. 2173.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Paladino, :

Appellant :

:

v. :

:

M. Engelbrocht and Tammy Ferguson : No. 947 C.D. 2016

:

O R D E R

AND NOW, this 13 th day of April

, 2017

, the o rder of the Court of

Common Pleas of Centre County dated March 3 0

, 2016 is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge