Opinion
No. 514 M.D. 2011
02-21-2013
Commonwealth of Pennsylvania ex rel., Vivian Nichelson, Petitioner v. Brian Coleman, Superintendent State Correctional Institution at Fayette, Pennsylvania, and Samantha R. Batta, Records Officer Supervisor; Sarah A. Travis-Jamison, Former Records Supervisor; Holly Kudyba, Records Officer, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Presently before this Court for disposition are the Preliminary Objections (POs) filed by: Brian Coleman, Superintendent State Correctional Institution at Fayette, Pennsylvania (SCI-Fayette); Samantha R. Batta, Records Officer Supervisor; Sarah A. Travis-Jamison, Former Records Supervisor; and Holly Kudyba, Records Officer (collectively, "Respondents") to the Amended Petition for Review (Amended Petition) filed by Vivian Nichelson in our original jurisdiction. Nichelson's Amended Petition is in the nature of mandamus in which Nichelson is seeking an order from this Court compelling Respondents to correct the recomputation of his minimum and maximum sentences in accordance with a 1984 Superior Court decision vacating his conviction for simple assault. Respondents raise two objections to Nichelson's Amended Petition. First, Respondents allege that this Court lacks original jurisdiction over this matter because neither the Commonwealth of Pennsylvania nor a state-wide officer is a named respondent. Second, Respondents allege that the Amended Petition fails to state a claim. Because we conclude that this Court lacks original jurisdiction in this matter, we sustain Respondents' first PO and must, therefore, dismiss the Amended Petition as required by Hill v. Pennsylvania Department of Environmental Protection, 545 Pa. 38, 679 A.2d 773 (1996).
Nichelson has been precluded from filing a brief in opposition to Respondents' POs.
See Commonwealth v. Nichelson (Pa. Super., No. 1279 Philadelphia 1982, filed December 21, 1984).
On or about January 11, 2011, Nichelson, who is incarcerated, initially filed with the Court of Common Pleas of Philadelphia County (trial court) a "Petition for Writ of Habeas Corpus Ad Subjiciendum" (Petition for Writ of Habeas Corpus) against Respondent Brian Coleman, as the Superintendent of SCI-Fayette. Therein, Nichelson alleged that: (1) he was convicted of several crimes, including simple assault, on February 28, 1981; (2) he was sentenced to an aggregated term of 26 to 52 years of incarceration; (3) on December 21, 1984, the Superior Court vacated his sentence for simple assault but, in all other respects, affirmed the judgment of sentence; (4) Respondent Coleman or his agents in the SCI-Fayette records department refuse to officially recognize that his conviction for simple assault was later vacated by the Superior Court; and (5) because of such refusal, Respondent Coleman erroneously modified Nichelson's commitment. Nichelson alleged further that Respondent Coleman is currently detaining him unlawfully and his incarceration is unconstitutional. (Petition for Writ of Habeas Corpus at ¶¶ 1-10.) Nichelson requested that "a Writ of Habeas Corpus be issued and directed to [Respondent Coleman], to deliver [Nichelson] before the [trial court], so that the sentencing record and the Court's Commitment Order can be made clear to all parties concerned and [Nichelson] be discharged from his illegal confinement." (Petition for Writ of Habeas Corpus at 2.)
On October 19, 2011, the trial court transferred Nichelson's Petition for Writ of Habeas Corpus to this Court based upon the trial court's belief that the matter fell under our jurisdiction because Nichelson did not raise any cognizable claims under the Post-Conviction Relief Act. Respondent Coleman filed POs and, in response, Nichelson filed an "Application to Amend Petition for Writ of Habeas Corpus," which this Court granted. Nichelson then filed his Amended Petition, which is in the nature of mandamus, against Respondents. Therein, Nichelson seeks an order from this Court compelling Respondent Coleman or his agents to correct the illegal extension of his minimum and maximum sentences based upon the records department's misinterpretation of the Superior Court's decision vacating his criminal conviction and sentence for simple assault. (Amended Petition at 1-5.) The averments of the Amended Petition and the exhibits attached thereto reveal that Nichelson's total aggregated sentence was recomputed from 25 to 50 years to 26 to 52 years on October 5, 2009, resulting in the Department of Corrections (Department) changing Nichelson's controlling minimum and maximum dates from June 22, 2010 and June 22, 2035 to June 22, 2011 and June 22, 2037, respectively. (Amended Petition at ¶¶ 6-8; Exs. D-F.) The basis of the recomputation was the Department's conclusion that, while the simple assault conviction and sentence were vacated, Nichelson's other two criminal convictions for terrorist threats and reckless endangerment, which were initially merged with the simple assault charge, were not vacated by the Superior Court in 1984. (POs at ¶ 16; Ex. B.) Therefore, the Department added the sentence of one to two years for those convictions to Nichelson's aggregate sentence and changed his minimum and maximum dates accordingly. (POs, Ex. A.)
In support of the POs, Respondents first contend that this Court lacks original jurisdiction over this matter because Nichelson's Amended Petition does not name either the Commonwealth of Pennsylvania or a state-wide officer as a Respondent. Citing Mickens v. Jeffes, 453 A.2d 1092 (Pa. Cmwlth. 1983), Respondents argue that a superintendent of the Department is not a state-wide officer for purposes of this Court's original jurisdiction.
Section 761 of the Judicial Code provides, in relevant part, that this Court "shall have original jurisdiction of all civil actions or proceedings: Against the Commonwealth government, including any officer thereof, acting in his official capacity." 42 Pa. C.S. § 761(a)(1). There is no dispute that the Amended Petition does not name the Commonwealth or a Commonwealth agency (such as the Department), as a respondent. The term "officer" as used in Section 761(a) of the Judicial Code has not been defined by the Legislature. Balshy v. Rank, 507 Pa. 384, 389, 490 A.2d 415, 417 (1985). However, this Court has held, and the Supreme Court has agreed, that there is a distinction between Commonwealth "officers" and ordinary Commonwealth "employees" for the purpose of this Court's original jurisdiction. Id.; Forney v. Harrisburg State Hospital, 336 A.2d 709, 711 (Pa. Cmwlth. 1975). Commonwealth "officers," over whom this Court would have original jurisdiction, are "'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.'" Balshy, 507 Pa. at 390, 490 A.2d at 417 (quoting Opie v. Glascow, Inc., 375 A.2d 396, 398 (Pa. Cmwlth. 1977)). In contrast, Commonwealth "employees" are persons "who merely exercise subordinate ministerial functions." Balshy, 507 Pa. at 389, 490 A.2d at 417.
Relying upon the definition of "officer" as set forth in Opie, this Court in Mickens held that while the warden and records officer at the State Correctional Institution at Dallas were state employees who perform policymaking functions, those functions were not state-wide in character, but rather were confined geographically. Mickens, 453 A.2d at 1093. Therefore, we concluded that this Court lacked original jurisdiction over the warden and the records officer. Id. The same is true here. The policymaking functions exercised by Respondent Coleman, as superintendent of SCI-Fayette, and those of the other Respondents, who are or were employed as records officers, are not state-wide. Accordingly, as in Mickens, this Court lacks original jurisdiction over Respondents in this matter. Instead, jurisdiction lies in the trial court.
However, we are not to transfer this matter back to the trial court (from which it had been transferred to us) because our Supreme Court disapproves "retransferring" a matter to the courts of common pleas when this Court determines that it does not have original jurisdiction. Hill, 545 Pa. at 41 n.1, 679 A.2d at 774 n.1; Balshy, 507 Pa. at 388, 490 A.2d at 416. Rather, we must follow the procedure described by the Supreme Court in Hill, in which the Supreme Court stated:
The Commonwealth Court was procedurally correct in not ordering this matter retransferred to the [court of common pleas] once it determined that it lacked original jurisdiction over Hill's complaint. In Balshy, this Court noted that it disapproved of one court being transferred a case and then attempting to retransfer the matter back to the court where the matter was originally filed because of lack of jurisdiction. Instead, the proper practice in such cases would be to dismiss the action and for the parties to take an appeal. Balshy at 388, 490 A.2d at 416.Hill, 545 Pa. at 41 n.1, 679 A.2d at 774 n.1.
We note that, because this matter is being considered in our original jurisdiction, the matter is appealable as of right to the Supreme Court. See Pa. Const. art. V, § 9 ("[T]here shall also be a right of appeal from a court of record . . . to an appellate court, the selection of such court to be as provided by law"); Section 723(a) of the Judicial Code, 42 Pa. C.S. § 723(a) ("The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter which was originally commenced in the Commonwealth Court except an order entered in a matter which constitutes an appeal to the Commonwealth Court . . ."); Mercury Trucking, Inc. v. Pennsylvania Public Utility Commission, ___ Pa. ___, ___, 55 A.3d 1056, 1068 (2012) (noting that matters commenced originally in the Commonwealth Court have an appeal as of right to the Supreme Court). Moreover, we note that, in Hill, in adjudicating the appeal from this Court's dismissal, the Supreme Court remanded the matter to the court of common pleas for further proceedings after concluding that the court of common pleas, not the Commonwealth Court, had original jurisdiction. Hill, 545 Pa. at 41 n.1, 679 A.2d at 774 n.1.
For the foregoing reasons, Respondents' PO to this Court's original jurisdiction in this matter is sustained and, following the Supreme Court's directive in Hill, we dismiss Nichelson's Amended Petition for lack of jurisdiction.
Due to this Court's disposition of Respondents' first PO, we need not address Respondents' second PO alleging that the Amended Petition fails to state a claim upon which relief can be granted. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 21, 2013, Respondents' Preliminary Objection to this Court's original jurisdiction in the above-captioned matter is SUSTAINED and the Amended Petition for Review filed by Petitioner Vivian Nichelson in the above-captioned matter is hereby DISMISSED due to the lack of original jurisdiction.
/s/ _________
RENÉE COHN JUBELIRER, Judge