IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Armolt, :

Appellant :

:

v. : No. 1520 C.D. 2015 : Submitted: December 11, 2015 The Honorable Judge Edward E. : Guido :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge 1

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE LEAVITT FILED: April 12 , 2016

Jeffrey Armolt appeals an order of the Court of Common Pleas of

Adams County (trial court) dismissing his c omplaint seeking civil and criminal

sanctions against the Honorable Edward E. Guido for denying Armolt’s petition

for writ of habeas corpus

. In doing so, the trial court held that Armolt did not

obtain the approval of a Commonwealth attorney to pursue c riminal charges

against Judge Guido and, further, that Judge Guido had judicial immunity. For the

reasons discussed below, we affirm.

By way of background , on January 30, 2013, Armolt filed a p etition

for writ of h abeas c orpus ( Habeas Petition) in the trial court

. 2 All j udges on the

1 This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt became President Judge.

2 The named defendants were John Kerestes, Superintendent of SCI Mahanoy; Shawn Wagner,

Commonweal th Attorney of Adams County; the Honorable John D. Kuhn, Adams County Court of Common Pleas; and Attorney General Kathleen Kane

.2

Adams County Court of Common Pleas recused themselves from the matter, and

on February 15, 2013, the petition was assigned to Judge Guido of the Court of

Common Pleas of Cumberland County

.

I n March 2013, Armolt filed a Pe tition for Writ of Habeas Corpus Ad

Subjiciendum 3 and Application for Leave to File Extraordinary Relief with the

Supreme Court of Pennsylvania. O n June 27, 2013, the Supreme Court granted

Armolt’s Application for Leave and denied the Petition for Writ of Habeas Corpus

Ad Subjiciendum

.

O n November 22, 2013, Judge Guido dismissed Armolt’s Habeas

Petition

, finding that the claims raised therein lacked merit . Alternatively, the trial

court held that his claims should have been raised in a petition under th e Post

Conviction Relief Act (PCRA), 42 Pa. C.S. §§9541

- 9546.

Approximately one and one

- half years later, on May 26, 2015, Armolt

filed an Application for Leave to Continue In Forma Pauperis Sta t us and

Complaint for Civil/Criminal Contempt (Complaint) against Judge Guido . The

Complaint alleg ed that Judge Guido failed to give him an evidentiary hearing in

accordance with the Supreme Court’s June 27, 2013, o rder granting Armolt leave

to file original process. Armolt also contended that Judge Guido wron gly

converted his Habeas Petition to a PCRA p etition

. Armolt’s Complaint against

Judge Guido asserted counts of Obstructing Administration of Law or Other

3 “ A writ of habeas corpus ad subjiciendum is defined as ‘[a] writ directed to someone detaining another person and commandin g that the detainee be brought to court.’” Joseph v. Glunt , 96
A.2d 365 , 368 n. 2 (Pa. Super. 2014) ( citing B LACK ’ S L AW D ICTIONARY 778 (9th ed. 2009) )

. A
writ of habeas corpus is used to challenge a person’s unlawful detention ; a writ of habeas corpus

ad subjiciendum does not question the right of custody. Commonwealth ex. r el. James Fraley v.

Rotan , 82 Pa. Super. 172, 176

- 77 (1923).3

Governmental Function (three counts)

, 18 Pa. C.S. §5101 4 ; Perjury

, 18 Pa. C.S.

§4902 5 ; and Official Oppression

, 18 Pa. C.S. §5301(a)(2)

. 6 O n June 15, 2015,

Judge Guido filed p reliminary o bjections to Armolt’s Complaint, contending that

the Complaint failed to state a claim as a matter of law because: (1) Armolt failed

to submit his private criminal comp laint to an attorney for the Commonwealth for

approval before proceeding in court ; (2) judicial immunity bar red all claims against

Judge Guido; and (3) sovereign immunity bar red all claims against Judge Guido.

4 It provides:
A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to sub mit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

18 Pa. C.S. §5101.

5 It provides:
(a) Offense defined.

- A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when

the statement is material and he does not believe it to be true.
(b) Materiality.

-- Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the

falsification to be immate rial. Whether a falsification is material in a given factual situation is a question of law.

18 Pa. C.S. §4902.

6 It provides:
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he ... (2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

18 Pa. C.S. §5301(a)(2).4 On July 2, 2015, the trial court sustained Judge Guido’s preliminary

objections and dismissed Armolt ’s Complaint and Appli cation for Leave to

Continue In Forma Pauperis Status

. T he trial court held that Armolt ’s attempt to

pursue a criminal complaint without prior approval of an attorney of the

Commonwealth violated Pa. R.Crim.P. 506. 7 Further, the trial court held that even

if it excused this procedural defect, Armolt’s claims were barred by Judge Guido’s

judicial immunity for his official acts

. This appeal ensued. 8

On appeal, Armolt argues th at the trial court erred in dismissing his

Complaint. Armolt contends: (1) Judge Guido’s failure to conduct a hearing after

the Pennsylvania Supreme Court grant ed Armolt leave to file o riginal p rocess

7 It provides:
(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

Pa. R.Crim.P. 506.

8 When an appellate court considers whether preliminary objections in the nature of a demurrer were properly sustained, our standard of review is plenary. Delaware Township Board of Auditors v. Delaware Township

, ___ A.3d ___, ___ (Pa. Cmwlth. , No. 1601 C.D. 2014, filed January 5, 2016) ( citing Mazur v. Trinity Area Sch ool Dist rict, 961 A.2d 96, 101 (Pa. 2008) ) . An appellate court may affirm a grant of preliminary objections only when, based on the facts pled, it is clear and free from doubt that the plaintiff will be unable to prove facts legally sufficient to establish a right to relief. “ For purposes of evaluating the legal sufficiency of the challenged pleading, we must accept as true all well

- pled, material and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts.” Id

. We note that the trial court stated in its Pa. R.A.P. 1925(a) opinion that this Court may lack jurisdict ion over Armolt’s appeal of the dismissal of his civil cause of action. Because no party has objected to jurisdiction, this Court can hear this matter, as jurisdiction has been “perfected” pursuant to 42 Pa. C.S. §704. Nevertheless

, this Court has jurisd iction over appeals of final orders in suits against the Commonwealth. 42 Pa. C.S. §762(a)(1). “A judge of any court of common pleas, when sued in his official capacity, is either the ‘Commonwealth government’ or
an officer thereof.” Brown v. [ The Honor able Newton C. ] Taylor , 494 A.2d 29, 31 (Pa. Cmwlth. 1985)

.5

constitute d contempt of the Court ’s order ; (2) Judge G uido exceeded his authority

in adjudicating Armolt’s Habeas Petition ; and (3) the trial court abused its

discretion in dismissing the Complaint on the basis of procedural defect or judicial

immunity. In response, Judge Guido argue s that the trial court pr operly dismissed

Armolt’s Complaint.

We begin with Armolt’s arguments that (1) by not holding a hearing,

Judge Guido was in contempt of the Pennsylvania Supreme Court’s order grant ing

Armolt leave to file o riginal p rocess , and (2) Judge Guido exceeded his authority

in adjudicating the case

. These claims challenge Judge Guido’s November 22,

2013, order denying Armolt’s Habeas Petition , which Armolt appeal ed to t he

Superior Court. 9 On July 23, 2014, the Superior Court affirmed Judge Guido’s

order denying Ar molt’s Habeas Petition. Jeffrey L. Armolt v. John Kerestes,

Superintendent, (Pa. Super., No. 53 MDA 2014, filed July 23, 2014 ). A ny issue

about the validity of Judge Guido’s November 22, 2013, order not raised in

Armolt’s prior Superior Court appeal of the denial of his Habeas Petition is waived

because appeals must be taken within thirty days of a final order

. See P A

. R.A.P.

903(a). 10 In short, t his Court lacks jurisdiction to review the merits of Armolt’s

claims challenging Judge Guido’s November 2 2, 2013, order.

9 In the Civil Docketing Statement, Armolt identified the following issues to be raised on appeal: “(1) Habeas Corpus separate right created by State Law, (2) very specific challenges to jurisdiction, (3) lack of proper practices and procedures for habeas corpus hearing, (4) Appellee(s) form of confessed judgment, and (5) specific conduct of the specially presiding judge that deprived Appellant of rights and relief.”

10 It states:
Except as otherwise prescribed by this rule, the notice of appeal required by Rule

902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.

P A

. R.A.P. 903 (a).6 Armolt argues, next, that t he trial court abuse d its discretion in

dismissing his Complaint for procedural defect s or judicial immunity . This

argument also lacks merit

.

U nder P ennsylvania Rule of Criminal Procedure 506 (A) , a private

criminal complaint must “ be submitted to a n attorney for the Commonwealth, who

shall approve or disapprove it without unreasonable delay” before the complainant

proceed s in court. Pa. R.Crim.P. 506 (A)

. Armolt seeks to bring criminal charges

a gainst Judge Guido; however, Armolt did not first submit his private criminal

complaint to the Commonwealth’s attorney

. Thus, the trial court properly

dismissed Armolt’s Compl ai nt

.

Finally, we address Armolt’s judicial immunity argument

. 11 “[J]udges

are absolutely immune from liability for damages when performing judicial acts,

even if their actions are in error or performed with malice, provided there is not a

clear absence of all jurisdiction over subject matter and person.” Langella v.

Cercone , 34 A. 3d 835, 838 (Pa. Super. 2011). “J udicial immunity is not only

immunity from damages, but also immunity from suit. ” Guarrasi v. Scott

, 25 A.3d

394

, 405 n.11 (Pa. Cmwlth. 2011) ( citing Mireles v. Waco , 502 U.S. 9 (1991) )

. Determining whether j udicial immunity applies requires a two

- part analysis: “ [ (1) ]

whether the judge has performed a judicial act; and [ (2) ] whether the judge has

some jurisdiction over the subject matter before him.” Langella , 34 A.3d at 838

.

Here, Judge Guido performed a judicial act when he presided over

Armolt’s 2013 court proceedings , a matter over which he unquestionably had

jurisdiction. See generally i d. at 839 ( citing Forrester v. White , 484 U.S. 219, 227

11 I mmunity may be raised on prelimin ary objections where it is clear on the face of the complaint that it applies. Logan v. Lillie

, 728 A.2d 995, 998 (Pa. Cmwlth. 1999).7

(1988) ( “ J udicial resolution of dispute between parties in court allows for

uncontroversial application of judicial immunity

. ” ) )

. Accordingly, the trial court

did not err in holding that Armolt’s claims against Judge Guido were barred by

judicial immunity

.

For all of the foregoing reasons , we affirm the decision of the trial

court.

______________________________ MARY HANNAH LEAVITT, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Armolt, :

Appellant :

:

v. : No. 1520 C.D. 2015

: The Honorable Judge Edward E. : Guido :

O R D E R

AND NOW, this 12 th day of April , 2016, the order of the Court of

Common Pleas of Adams County dated July 2, 2015, in the above

- captioned

matter is hereby AFFIRMED.

______________________________ MARY HANNAH LEAVITT, Judge