IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin J. Robertson, :

Appellant :

:

v. : No. 1111 C.D. 2019

: Submitted: January 15, 2021

Deputy Zaken and CO 1 Johnson :

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY PRESIDENT JUDGE BROBSON FILED: December 22, 2021

Appellant Justin J. Robertson (Robertson) appeals from an order of the Court 

of Common Pleas of Greene County (trial court), which denied him in forma 

pauperis status (IFP) and dismissed his complaint pursuant to what is commonly 

referred to as the Pennsylvania Prison Litigation Reform Act (PLRA).1 The 

complaint sought damages for the destruction of his typewriter and a declaratory 

judgment that his due process rights were violated. Appellees are two Department 

of Corrections (Department) employees at the State Correctional Institution at 

Greene (SCI-Greene): Deputy Superintendent Zaken and Correctional Officer (CO) 

1

42 Pa. C.S. §§ 6601-6608.
2

Johnson (collectively, Defendants).2 For the reasons that follow, we affirm the trial 

court’s order.

I. BACKGROUND

Robertson averred the following facts in his complaint.

3

 In June 2017, CO 

Johnson confiscated a typewriter from Robertson’s cell and informed him it would 

be returned after it was opened and examined for contraband. (Original Record 

(O.R.), Item No. 21, Complaint (Compl.) ¶¶ 4, 5, Exhibit (Ex.) 1.) CO Johnson 

provided Robertson with a confiscated items receipt for the typewriter. (Id. ¶ 4, 

Ex. 1.) In December 2017, Robertson sent correspondence to the SCI-Greene 

Security Office inquiring about his typewriter and when it would be returned to him. 

(Id. ¶ 6, Ex. 2.) The Security Office did not respond to Robertson’s correspondence.

(Id.)

In March 2018, Robertson sent correspondence to Deputy Superintendent

Zaken inquiring about the return of his typewriter. (Id. ¶ 7, Ex. 3.) Deputy 

Superintendent Zaken responded to Robertson informing him that he was “not 

getting [his] typewriter back. It was confiscated due to it being altered and 

containing a tattoo gun. It has been destroyed.” (Id.) Robertson filed an inmate 

grievance seeking reimbursement for the cost of the typewriter. (Id. ¶ 8.) The 

Department denied Robertson’s grievance at all administrative review levels. (Id.) 

Robertson avers that his typewriter was never altered, that he did not receive a prison 

2 The full names of Defendants Zaken and Johnson do not appear in the complaint or 

elsewhere in the record.

3 Robertson also attached three exhibits to his complaint. Exhibit 1 was a DC-154A, 

Department Confiscated Items Receipt (Inmate), that included, among other things, the 

confiscation of a Word Smith Typewriter. Exhibit 2 was a DC-135A, Inmate’s Request to Staff 

Member, dated December 18, 2017, directed to the SCI-Greene Security Office. Exhibit 3 was a 

DC-135A, Inmate’s Request to Staff Member, dated March 25, 2018, directed to the SCI-Greene

Deputy Superintendent Zaken.
3

misconduct for altering his typewriter, and that the Defendants did not provide him 

with notice or a hearing prior to the destruction of his typewriter. (Id. ¶¶ 11, 12.)

Robertson filed a petition for IFP status in the trial court in May 2019. That 

same month, the trial court directed Robertson to file either a writ of summons or a 

civil complaint so that it could consider his petition for IFP. Robertson filed a pro 

se complaint against the Defendants in July 2019. In addition to seeking damages 

for his typewriter and a declaratory judgment, Robertson also included a claim that 

the Defendants violated the Department’s Code of Ethics concerning the personal 

property of inmates and the filing of false reports. (Id. ¶¶ 9, 10, 14-16.)

The trial court denied Robertson’s application for IFP status and dismissed 

the complaint by order dated July 2, 2019. The trial court determined that the 

complaint involved prison conditions litigation and it was empowered to dismiss the 

litigation at any time, inter alia, if the complaint fails to state a claim upon which 

relief may be granted. (O.R., Item No. 22, Trial Court Order, filed July 3, 2018, at 

4.) Robertson appealed.

The trial court filed its Pa. R.A.P. 1925(a) opinion. Thereafter, we directed 

the parties to address in their principal briefs on the merits whether Robertson’s 

appeal was timely. After the parties filed their briefs on the merits, we determined 

that the trial court’s Pa. R.A.P. 1925(a) opinion was insufficient for purposes of 

appellate review. We directed the trial court to supplement its Pa. R.A.P. 1925(a) 

opinion by explaining its reasoning for its conclusion that the complaint failed to 

state claims upon which relief may be granted. The trial court provided its 
4

supplemental Pa. R.A.P. 1925(a) opinion, and the parties thereafter filed 

supplemental briefs.4

II. ISSUES

Robertson raises three issues on appeal.5 First, Robertson contends that the 

trial court erred when it dismissed his federal constitutional claims pursuant to the 

PLRA. Second, Robertson argues that the trial court erred when it relied on an

unpublished opinion from this Court to support its decision. Third, Robertson 

submits that the trial court erred when it added a published case to support its 

dismissal of the complaint in its Pa. R.A.P. 1925(a) opinion and that it lacked 

jurisdiction to do so.

III. DISCUSSION

A. Timeliness of Appeal

We first address the procedural issue of the timeliness of Robertson’s notice 

of appeal. A notice of appeal must be filed within thirty days after entry of the order 

from which the appeal is taken. Pa. R.A.P. 903(a). The trial court’s order denying 

Robertson’s IFP status and dismissing his complaint was filed on July 3, 2019, so he 

had until August 2, 2019, to file his notice of appeal. The trial court’s docket 

4 Robertson included as an attachment to his supplemental brief a copy of his inmate 

grievance that he submitted to the Department, along with the responses, to support his arguments. 

“This Court may not consider auxiliary information appended to a brief that is not part of the . . .

record on appeal.” Croft v. Unemployment Comp. Bd. of Rev., 662 A.2d 24, 28 

(Pa. Cmwlth. 1995). Accordingly, we limit our review to the documents contained within the 

original record.

5

“Our scope of review of the trial court’s order is plenary where the trial court dismisses 

a complaint sua sponte for failure to state a cause of action upon which relief may be granted.” 

Whitaker v. Wetzel, 170 A.3d 568, 572 n.3 (Pa. Cmwlth. 2017). “As our inquiry involves solely 

questions of law, our standard of review is de novo.” Jae v. Good, 946 A.2d 802, 806 n.4

(Pa. Cmwlth.), appeal denied, 959 A.2d 930 (Pa. 2008), cert. denied, 555 U.S. 1156 (2009); see 

also Payne v. Dep’t of Corr., 871 A.2d 795, 800 (Pa. 2005).
5

indicates that Robertson’s notice of appeal was filed on August 8, 2019, so, on its 

face, it appears to have been filed six days after the deadline.

Pennsylvania Courts, “[r]ecognizing the limitations of incarceration apply

equally to all pro se inmates, . . . apply the prisoner mailbox rule in a number of legal 

contexts.” Kittrell v. Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2014). “Under the 

prisoner mailbox rule, a prisoner’s pro se appeal is deemed filed at the time it is 

given to prison officials or put in the prison mailbox.” Id. at 1096 (citing Cmwlth.

v. Jones, 700 A.2d 423, 425-26 (Pa. 1997)).

Robertson’s certificate of service attached to his notice of appeal indicates that 

on August 2, 2019, he “mailed” the documents pursuant to the prisoner mailbox rule, 

presumably by providing the documents to the prison officials at SCI-Greene. 

Normally, his statement on the certificate of service alone would not be sufficient 

proof that the prisoner mailbox rule applies to his case. See Sweesy v. Pa. Bd. of 

Prob. & Parole, 955 A.2d 501, 503 (Pa. Cmwlth. 2008) (holding that court needs 

“reasonably verifiable evidence” of date inmate deposits appeal, including, but not 

limited to, “certificates of mailing, cash slips, affidavits, and prison operating 

procedures”). The Defendants’ attorney, however, candidly concedes that it appears 

that the appeal was timely filed pursuant to the prisoner mailbox rule. (Defendants’

Brief at 5, n.1.) Given the Defendants’ attorney’s concession and the timeline of 

events, we deem this to be reasonably verifiable evidence that the prisoner mailbox 

rule applies and that Robertson’s filing of the notice of appeal was timely.

B. Dismissal of Claims

“In order to proceed [IFP], a prisoner must meet the requirements of 

[Pennsylvania Rule of Civil Procedure 240(j)(1)] . . . [and] must satisfy the 

requirements of the [PLRA].” Richardson v. Thomas, 964 A.2d 61, 64 
6

(Pa. Cmwlth.), appeal denied, 972 A.2d 523 (Pa.), cert. denied, 558 U.S. 951 (2009). 

Specifically, Pennsylvania Rule of Civil Procedure 240(j)(1), provides, in pertinent 

part:

If, simultaneous with the commencement of an action or proceeding . . . 

a party has filed a petition for leave to proceed [IFP], the court prior to 

acting upon the petition may dismiss the action . . . if it is satisfied that 

the action . . . is frivolous.

Similarly, the PLRA allows a court to dismiss prison litigation at any time it 

determines that the litigation is frivolous; it also allows such dismissal based on the 

failure to state a claim upon which relief may be granted or if the “defendant is 

entitled to assert a valid affirmative defense, including immunity, which, if asserted, 

would preclude the relief.” 42 Pa. C.S. § 6602(e)(2).

In reviewing the sufficiency of the complaint, we are cognizant that 

Pennsylvania Rule of Civil Procedure 1019(a) provides that “[t]he material facts on 

which a cause of action or defense is based shall be stated in a concise and summary 

form.” Pa. R.Civ. P. 1019(a). We also recognize that “[t]he allegations of a pro se

complainant are held to a less stringent standard than that applied to pleadings filed 

by attorneys.” Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004), 

aff’d, 881 A.2d 1263 (Pa. 2005); see also Williams v. Syed, 782 A.2d 1090, 1095 n.6 

(Pa. Cmwlth. 2001) (“Where the elements to a cause of action are adequately set 

forth, a pro se complaint will not be dismissed just because it is not artfully 

drafted.”). “Courts look to the substance of the pleadings and are ‘presumed to know 

the law’; this is especially true in the context of a pro se litigant.” Young v. Wetzel
7

(Pa. Cmwlth., No. 792 C.D. 2020, filed March 16, 2021), slip op. at 6-7 (quoting 

Heinly v. Cmwlth., 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth. 1993)).6

In dismissing Robertson’s claims, the trial court did not specifically rule on

each of Robertson’s causes of action. A “dismissal of a prisoner’s [prison 

conditions] complaint as frivolous has serious consequences for [the] prisoner[,] . . . 

[and,] [a]s a matter of fairness, . . . a trial court should not be allowed to dismiss a 

complaint as frivolous without being able to explain that decision.” Derrickson v. 

Sluzevich (Pa. Cmwlth., No. 913 C.D. 2007, filed July 31, 2008), slip op. at 9-10 

(noting that Section 6602(f) of PLRA, 42 Pa. C.S. § 6602(f), allows complaint to be 

dismissed where prisoner had three prior prison conditions complaints dismissed as 

frivolous). We believe the trial court reached the correct conclusion in dismissing 

the complaint, but it did not adequately explain how it reached its legal conclusions. 

Nevertheless, rather than remand this case, in the interest of judicial economy and 

fairness to the parties, we will address each of Robertson’s claims to determine if 

they are frivolous or fail to state claims upon which relief may be granted or if the 

Defendants are entitled to assert a valid affirmative defense based on the record 

before us.

7

1. Conversion of Property and Sovereign Immunity

Looking at the substance of the complaint, we believe that Robertson has set 

forth a claim for the tort of conversion. “Our Supreme Court has defined conversion 

as ‘an act of willful interference with a chattel, done without lawful justification, by 

6 An unreported opinion of this Court issued after January 15, 2008, may be cited for its 

persuasive value but not as binding precedent. Section 414(a) of the Commonwealth Court’s 

Internal Operating Procedures, 210 Pa. Code § 69.414(a).

7

“[A]n appellate court may uphold an order of a lower court for any valid reason appearing 

from the record.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).
8

which any person entitled thereto is deprived of use and possession.’” Price v. Corr.

Officer Simcox (Pa. Cmwlth., No. 307 C.D. 2017, filed September 28, 2017), slip 

op. at 5 (quoting Norriton E. Realty Corp. v. Cent.-Penn Nat’l Bank, 254 A.2d 637, 

638 (Pa. 1969)). Significantly, “[a] claim for conversion arises from an intentional[] 

and not a negligent act.” Id., slip op. at 5 (citing Williams v. Stickman, 917 A.2d

915, 917 (Pa. Cmwlth. 2007)). In this case, Robertson alleges that CO Johnson 

entered his cell and confiscated his typewriter, and, even though the typewriter was 

not altered into contraband, it was intentionally destroyed. (O.R., Item 

No. 21, Compl. ¶¶ 4, 5, Exs. 1-3.) Taking Robertson’s averments as true, he has 

alleged a cognizable conversion claim that CO Johnson willfully interfered with his 

property, without lawful justification, and thereby deprived him of use and 

possession of the typewriter.

The Defendants contend, however, that CO Johnson enjoys the protection of 

sovereign immunity against intentional torts such as conversion. (Defendants’ 

Supplemental Brief at 9-10.) Commonwealth employees acting in the course and 

scope of their employment are immune from suit unless sovereign immunity is 

specifically waived. 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(a).8 An action for 

intentional misconduct is barred by sovereign immunity if the Commonwealth actor 

was within the scope of his employment. La Frankie v. Miklich, 618 A.2d 1145, 

8 The Commonwealth has waived its sovereign immunity for negligence actions, in 

relevant part, for damages caused by the “care, custody, or control of personal property.” 42 Pa. 

C.S. § 8522(b)(3). We have held that this exemption to sovereign immunity only applies to the 

negligent handling of an inmate’s personal property while in the possession or control of prison 

staff. Williams, 917 A.2d at 918. We do not believe that Robertson asserts a claim of negligence 

against CO Johnson as to his care for the typewriter; rather, Robertson appears to assert that CO 

Johnson intentionally and deliberately took, inspected, and destroyed the typewriter. Intentional 

and deliberate acts are not covered by the personal property exemption to sovereign immunity set 

forth in 42 Pa. C.S. § 8522(b). Roman v. Swartz (Pa. Cmwlth., No. 1243 C.D. 2012, filed 

May 15, 2013), slip op. at 5.
9

1149 (Pa. Cmwlth. 1992). To be within the scope of employment, the conduct must 

be of the same general nature as that authorized or incidental to the conduct 

authorized, occurring substantially within the authorized time, and done to serve the 

employer. Kull v. Guisse, 81 A.3d 148, 153 (Pa. Cmwlth. 2013).

“Regulating and confiscating inmate property falls squarely within the scope 

of a corrections officer’s duties.” Price, slip op. at 8. Based on Robertson’s 

averments, CO Johnson was performing a contraband inspection within SCI-Greene 

when he confiscated Robertson’s typewriter, inspected it for contraband, and, after 

deeming it to be contraband, destroyed it. We conclude that CO Johnson was acting 

within the scope of his employment and is entitled to sovereign immunity concerning

this conversion claim. Thus, the trial court did not err in dismissing this claim based 

on CO Johnson’s sovereign immunity.

2. Lack of Personal Involvement

With respect to Deputy Superintendent Zaken, his involvement is that he 

responded to Robertson’s correspondence by informing him that his typewriter was 

confiscated as contraband and destroyed. (O.R., Item No. 21, Compl. ¶ 7, Ex. 3.) 

“Merely being in the ‘chain of command’ does not subject [a public servant 

manager] to suit on any theory of vicarious responsibility.” Price, slip op. at 9

(quoting DuBree v. Cmwlth., 393 A.2d 293, 295 (Pa. 1978)); see also Bush v. Veach, 

1 A.3d 981, 986 (Pa. Cmwlth. 2010) (holding that superintendent did not have actual 

knowledge of employee’s alleged unlawful conduct based on his response to 

grievance denials, and that his liability cannot be predicated on operation of 

respondeat superior). Given that Deputy Superintendent Zaken was not personally 

involved in the confiscation and actual destruction of Robertson’s typewriter, the 
10

trial court did not err in dismissing the conversion claim for failure to state a claim 

upon which relief may be granted.

3. Procedural Due Process Claims

Robertson claims that the Defendants violated his procedural due process 

rights provided by Article I, Section 1 of the Pennsylvania Constitution9and the 

Fourteenth Amendment to the United States Constitution10 when they destroyed his 

typewriter without notifying him or providing him with a hearing. (O.R., Item 

No. 21, Compl. ¶¶ 13, 15.) “‘Due process under the Pennsylvania Constitution 

emanates from a number of provisions, including Article I, Section[] 1’ . . . [which]

protects life, liberty and property interests.” O’Toole v. Pa. Dep’t of Corr., 196 A.3d

260, 265 (Pa. Cmwlth. 2018) (quoting Muscarella v. Cmwlth., 87 A.3d 966, 973 (Pa. 

Cmwlth. 2014)). “The Pennsylvania Supreme Court has held that ‘the requirements 

of Article I, Section 1 of the Pennsylvania Constitution are not distinguishable from 

those of the [Due Process Clause of the] [Fourteenth] Amendment . . . [thus] we may 

apply the same analysis to both claims.’” Robbins v. Cumberland Cnty. Child. & 

Youth Servs., 802 A.2d 1239, 1252 (Pa. Cmwlth. 2002) (en banc) (some alterations 

in original) (quoting Pa. Game Comm’n v. Marich, 666 A.2d 253, 255 n.6 

(Pa. 1995)).

“In analyzing a due process claim, the first step is to determine ‘whether the 

nature of the interest is one within the contemplation of the “liberty or property”

9 Article I, Section 1 of the Pennsylvania Constitution provides: “All men are born equally 

free and independent, and have certain inherent and indefeasible rights, among which are those of 

enjoying and defending life and liberty, of acquiring, possessing and protecting property and 

reputation, and of pursuing their own happiness.” PA. CONST. art. I, § 1.

10 The Fourteenth Amendment to the United States Constitution provides, in relevant part, 

that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of 

law.” U.S. CONST. amend. XIV, § 1.
11

language of the Fourteenth Amendment.’” Lopez v. Pa. Dep’t of Corr., 

119 A.3d 1081, 1085 (Pa. Cmwlth. 2015), aff’d, 144 A.3d 92 (Pa. 2016) (quoting 

Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000)).11 Once it is determined that the 

interest is protected by the Due Process Clause, the question is then “what process 

is due to protect it.” Shoats, 213 F.3d at 143.

Inmates do not have an absolute right to acquire and keep any property they 

wish, and the Department is permitted to deprive inmates of property so long as those 

decisions are reasonably related to legitimate penological interests. Bell v. Wolfish,

441 U.S. 520, 545-46 (1979); Iseley v. Beard, 841 A.2d 168, 174 (Pa. Cmwlth.), 

appeal denied, 863 A.2d 1150 (Pa. 2004). We have explained:

When a prison official confiscates a prisoner’s property in an allegedly 

unauthorized way, whether it be negligently or intentionally, due 

process requires only the existence of an adequate post-deprivation 

remedy because it is not feasible for a prison to provide a hearing prior 

to taking property that is perceived to be contraband or against prison 

regulations.

Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth. 2017) (citing Hudson 

v. Palmer, 468 U.S. 517, 533-34 (1984)). “[I]nmate grievance systems are an 

adequate post-deprivation remedy.” Shore, 168 A.3d at 383.

Robertson avers that he filed an inmate grievance seeking reimbursement for 

the cost of the typewriter, but the Department denied the grievance at all 

administrative levels. (O.R., Item No. 21, Compl. ¶ 8.) We conclude that Robertson 

received the amount of due process to which he was entitled under the Department’s 

11 While decisions of federal district courts and courts of appeals, including those of the 

Third Circuit, are not binding on Pennsylvania courts, even where a federal question is involved, 

they have persuasive value. Kutnyak v. Dep’t of Corr., 923 A.2d 1248, 1250 (Pa. Cmwlth. 2007) 

(citing Garber v. Pa. Dep’t of Corr. Sec’y, 851 A.2d 222, 226 n.9 (Pa. Cmwlth. 2004)). It is 

appropriate to follow them where the United States Supreme Court has not spoken. Weaver v. Pa. 

Bd. of Prob. & Parole, 688 A.2d 766, 772 n.11 (Pa. Cmwlth. 1997).
12

inmate grievance system. Thus, the trial court did not err when it dismissed this 

claim for failure to state a claim upon which relief may be granted.

4. Violations of Department Policy

Robertson contends that the Defendants violated two provisions of the 

Department’s Code of Ethics related to the confiscation of his typewriter. 

(O.R., Item No. 21, Compl. ¶¶ 9, 11.) The Department’s policies and procedures do 

not, in themselves, confer upon inmates any actionable rights. Dantzler v. 

Wetzel, 218 A.3d 519, 524 (Pa. Cmwlth. 2019) (en banc), abrogated on other 

grounds by Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269 (Pa. Cmwlth. 2021) 

(en banc). “[A] failure to comply with prison policy is not a basis for a cause of 

action.” Dantzler, 218 A.3d at 524. To the extent Robertson relies on the 

Department’s Code of Ethics to support his argument that the Defendants violated 

his rights, he fails to state a claim upon which relief may be granted.

C. Trial Court’s Reliance on Unpublished Opinion

Robertson contends that the trial court erred when it dismissed his federal 

constitutional claims pursuant to the PLRA, citing Owens v. Shannon, 808 A.2d 607 

(Pa. Cmwlth. 2002), to support this argument. (Robertson’s Brief at 9.) The inmate 

in Owens filed a complaint in a court of common pleas pursuant to 42 U.S.C. § 1983 

(Section 1983),12 alleging that prison officials retaliated and denied his free speech 

rights provided by the First Amendment to the United States Constitution when he 

was transferred from one prison to another. Owens, 808 A.2d at 608. The common 

pleas court dismissed his complaint pursuant to Section 6602(e)(2) of the PLRA for 

12 We note that while Section 1983 does not create substantive rights, it is a vehicle for 

vindicating rights conferred in the United States Constitution or federal statutes. Urbanic v. 

Rosenfeld, 616 A.2d 46, 52 (Pa. Cmwlth. 1992), aff’d, 631 A.2d 596 (Pa. 1993). Additionally, the 

law is clear that a Section 1983 action may be brought in state court. Heinly, 621 A.2d at 1215-16.
13

failure to state a claim upon which relief may be granted, reasoning that the prison 

officials enjoyed sovereign immunity. Id. at 609. The inmate appealed, and we 

reversed the common pleas court’s decision because a state-law sovereign immunity 

defense was not available in a Section 1983 action, brought in a state court that had 

jurisdiction, when the defense would not be available if the action had been brought 

in federal court. Id. at 610. Simply stated, “a state may not lessen the availability 

of Section 1983 by taking any action purportedly frustrating its application.” 

Heinly, 621 A.2d at 1215. Owens, however, does not apply to Robertson’s situation.

In Jae, we explained that “federal law governs the substantive merits of a 

Section 1983 action brought in state court, but state law governs the procedures by 

which that action will be litigated.” Jae, 946 A.2d at 809. Robertson’s case is on 

point with our decision in Jae, where the trial court used the Commonwealth’s

procedural law to dismiss his Section 1983 claim. Accordingly, because Robertson 

brought his declaratory judgment action for alleged violations of his federal due 

process rights in state court, the PLRA applies and the trial court did not err in using

it to dismiss his complaint.

Robertson next contends that the trial court erred when it relied on this Court’s 

unpublished opinion in Greely v. Wetzel (Pa. Cmwlth., No. 1369 C.D. 2017, filed 

April 4, 2018), to support the decision to dismiss his complaint. (Robertson’s Brief 

at 9.) To place this argument into context, Section 414(a) of this Court’s Internal 

Operating Procedures, 210 Pa. Code § 69.414(a), provides:

An unreported opinion of this Court may be cited and relied upon when 

it is relevant under the doctrine of law of the case, res judicata, or 

collateral estoppel. Parties may also cite to an unreported panel 

decision of this Court issued after January 15, 2008, for its persuasive 

value, but not as binding precedent.
14

While the trial court relied on Greely, its central point was really to reference

Section 6602(e)(2) of the PLRA, 42 Pa. C.S. § 6602(e)(2), assupport for its decision. 

Moreover, while Greely is not a published opinion that may be cited as binding 

precedent, the above-quoted internal operating procedure allows unreported panel 

decisions, issued after January 15, 2008, to be cited for their persuasive value. Thus, 

we conclude that the trial court did not err in citing to Greely for its persuasive value 

to support its decision to dismiss the complaint.

D. Trial’s Court Citation in Pa. R.A.P. 1925(a) Opinion

of Case Not Previously Cited

Robertson’s third argument is that the trial court erred when it referenced in 

its Pa. R.A.P. 1925(a) opinion a published case that it did not previously reference 

to support the dismissal of the complaint (along with Greely), taking the position 

that the trial court no longer had jurisdiction in the case due to the appeal. 

(Robertson’s Brief at 9.) We note that Pa. R.A.P. 1925(a) requires, in relevant part, 

that “the judge who entered the order giving rise to the notice of appeal, if the reasons 

for the order do not already appear of record, shall . . . file of record at least a brief 

opinion of the reasons for the order, or for the rulings or other errors complained of, 

or shall specify in writing the place in the record where such reasons may be found.” 

Section 5505 of the Judicial Code provides that “[e]xcept as otherwise provided or 

prescribed by law, a court upon notice to the parties may modify or rescind any order 

within 30 days of its entry, notwithstanding the prior termination of any term of 

court, if no appeal from such order has been taken or allowed.” 42 Pa. C.S. § 5505.

In the present matter, the trial court, after explaining why it cited to Greely, 

provided that, “[i]n the event that it was improper to cite Greely for precedential 

value, we now look to Miles v. Wiser, 847 A.2d 237, 240 (Pa. Cmwlth. 2004).” 

(O.R., Item No. 9, Trial Court Opinion dated October 22, 2019, at 3.) The trial court 
15

explained that Miles similarly held that under Section 6602(e) of the PLRA “a court 

is required to dismiss prison conditions litigation that it deems are [sic] frivolous or 

that fail to state a cause of action in a situation where, as here, [IFP] status is sought.” 

(Id.) The trial court was simply adding to the authority it relied upon to support its

decision to dismiss the complaint and did not change the order that dismissed 

Robertson’s complaint. Consequently, we conclude that the trial court neither erred 

in substituting the Miles case for its precedential value in its Pa. R.A.P. 1925(a) 

opinion, nor violated 42 Pa. C.S. § 5505 by changing its decision after thirty days 

and while the matter was on appeal.

IV. CONCLUSION

For the reasons set forth above, we affirm the trial court’s order, denying

Robertson IFP status and dismissing his complaint.

P. KEVIN BROBSON, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin J. Robertson, :

Appellant :

:

v. : No. 1111 C.D. 2019

:

Deputy Zaken and CO 1 Johnson :

O R D E R

AND NOW, this 22

nd day of December, 2021, the order of the Court of 

Common Pleas of Greene County, dated July 2, 2019, is AFFIRMED.

P. KEVIN BROBSON, President Judge