J-S37015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 BRUCE MURRAY                              :
                                           :
                       Appellant           :    No. 3859 EDA 2017

                Appeal from the PCRA Order October 27, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1111091-1982


BEFORE:    OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED JULY 13, 2018

      Appellant, Bruce Murray, appeals pro se from the October 27, 2017

order dismissing his seventh petition filed pursuant to the Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      As our disposition of this appeal is based on the procedural posture of

this case, we decline to set forth the factual background. On April 23, 1984,

the trial court sentenced Appellant to an aggregate term of life imprisonment

without the possibility of parole after he was convicted of several offenses

including, inter alia, second-degree murder. This Court affirmed the judgment

of   sentence    and    our   Supreme   Court   denied   allowance   of   appeal.

Commonwealth v. Murray, 505 A.2d 1035 (Pa. Super. 1985) (unpublished

memorandum), appeal denied, 1872 EAL 1985 (Pa. Nov. 26, 1986).




____________________________________
* Former Justice specially assigned to the Superior Court.
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       On November 13, 1996, this Court affirmed the denial of Appellant’s

petition filed pursuant to the Post-Conviction Hearing Act1 except as to a

concurrent term of imprisonment which this Court vacated. Commonwealth

v. Murray, 688 A.2d 1229 (Pa. Super. 1996) (unpublished memorandum),

appeal denied, 704 A.2d 636 (Pa. 1997). This Court subsequently affirmed

the dismissal of Appellant’s second and third pro se PCRA petitions.

Commonwealth v. Murray, 972 A.2d 558 (Pa. Super. 2009) (unpublished

memorandum), appeal denied, 980 A.2d 607 (Pa. 2009); Commonwealth v.

Murray, 105 A.3d 38, 2014 WL 10917648 (Pa. Super. 2014) (unpublished

memorandum), appeal denied, 105 A.3d 736 (Pa. 2014).

       On February 3, 2016, the PCRA court dismissed Appellant’s fourth PCRA

petition.   On January 17, 2018, this Court affirmed the dismissal of that

petition. Commonwealth v. Murray, 183 A.3d 1063, 2018 WL 460965 (Pa.

Super. 2018) (unpublished memorandum). While Appellant’s appeal of the

dismissal of his fourth PCRA petition was pending, he filed his fifth PCRA

petition. On March 8, 2017, the PCRA court dismissed that petition.

       While Appellant’s appeal of the dismissal of his fourth PCRA petition was

pending, he also filed his sixth pro se PCRA petition. The PCRA court dismissed




____________________________________________


1 The Post-Conviction Hearing Act was the predecessor to the PCRA. For
simplicity, we treat Appellant’s Post-Conviction Hearing Act petition as his first
PCRA petition.

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the petition and this Court affirmed. Commonwealth v. Murray, 2018 WL

1465191 (Pa. Super. Mar. 26, 2018) (unpublished memorandum).

       While Appellant’s appeal of the dismissal of his fourth PCRA petition was

pending, he also filed a document titled a petition for a writ of quo warranto.

The PCRA court treated the filing as his seventh, pro se PCRA petition. On

October 27, 2017, the PCRA court dismissed the petition. This timely appeal

followed.2

       Appellant presents four issues for our review:

    1. [Whether the PCRA court properly construed Appellant’s filing as
       a PCRA petition?

    2. Whether the PCRA court properly held that it lacked jurisdiction
       over Appellant’s filing because of the rule announced in
       Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000)?

    3. Whether a quo warranto action is a civil action?

    4. Whether a quo warranto action challenges the right of an
       individual to hold office?]

Appellant’s Brief at ii.3

       In his first issue, Appellant argues that the PCRA court erred by

construing his petition for a writ of quo warranto as a PCRA petition. Whether

a pleading is properly construed as a PCRA petition is a question of law;



____________________________________________


2The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).

3 We have restated and renumbered the issues for clarity and ease of
disposition.

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therefore, our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016)

(citation omitted).

      “The [PCRA is] the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose[.]”   42 Pa.C.S.A. § 9542.     On the other hand, “[a] writ of quo

warranto is a means by which to test title or right to public office.”

Commonwealth v. Kane, 2018 WL 2376305, *3 n.10 (Pa. Super. May 25,

2018).

      Appellant’s filing challenged the validity of his conviction.        See

Appellant’s Seventh PCRA Petition, 8/15/17, at 3 and 8. It is immaterial that

Appellant challenged the validity of his conviction by alleging that a judge did

not take the appropriate oath of office. We must examine the relief sought

when determining if a filing is properly construed as a PCRA petition.

Descardes, 136 A.3d at 405. In this case, Appellant challenged the validity

of his conviction and sought vacatur of decisions upholding that conviction.

Hence, the PCRA court properly construed the filing as Appellant’s seventh

PCRA petition.

      In his second issue, Appellant argues that the PCRA court erred in

dismissing his petition pursuant to Lark. In Lark, “our Supreme Court held

that a subsequent PCRA petition cannot be filed until the resolution of review

of the pending PCRA petition by the highest state court in which review is


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sought, or upon the expiration of the time for seeking such review.”

Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en

banc) (cleaned up). In this case, Appellant’s appeal of the dismissal of his

fourth PCRA petition was pending when he filed this, his seventh, PCRA

petition. Thus, the PCRA court properly concluded that it lacked jurisdiction

over the petition under Lark.    As the PCRA court properly dismissed the

petition for lack of jurisdiction, we decline to address Appellant’s remaining

appellate claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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