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 constituted assault and negligence.

On March 30, 2016, the trial court dismissed Appellant’s Complaint

and Petition for Leave to Proceed in Forma Pauperis (IFP). Appellant thereafter

appealed the dismissal to the Superior Court, which transferred the matter to this
2

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, did 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 violate 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 prescribed by the legislature as enacted?”

DISCUSSION

 

1

§ 762. 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 Commonwealth government, 

including any officer thereof acting in his 

official capacity.

....

42 Pa.C.S. § 762.

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

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

whether the trial court abused its discretion 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

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

this Court as it was erroneously filed with the trial court. 

Section 761 of the Judicial Code gives this Court jurisdiction over

actions against “the Commonwealth 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 state-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 asserted

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 recalculation

of his sentence after he escaped from a correctional institution. The prisoner

named the warden and the records officer of the correctional institution as

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

employees who perform policymaking functions; however, those functions were

confined geographically and were not state-wide in character. 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 Superintendent

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

circumstances to support a finding that Appellees perform any state-wide
4

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 Appellees 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 providing Appellant an opportunity to amend and without

providing notice 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), the

trial court found Appellant’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 of 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, proceeding 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 not similar, however. The complaint in Boyle was 
5

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 240 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 notice 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 51033of the 

Judicial Code 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 exclusive, 

 

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 Commonwealth.” (Appellant’s Brief at 8b.)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 Appellant 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 Appellant’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 above, the order of the trial court dated

March 30, 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 13th day of April, 2017, the order of the Court of

Common Pleas of Centre County dated March 30, 2016 is affirmed.

___________________________

JOSEPH M. COSGROVE, Judge