             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andre Jacobs,                           :
                    Appellant           :
                                        :
             v.                         : No. 38 C.D. 2017
                                        : Submitted: July 21, 2017
Superintendent Michael Clark            :
(SCI Albion); Secretary of              :
Corrections John E. Wetzel              :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                  FILED: October 23, 2017

             Andre Jacobs, pro se, appeals an order of the Court of Common Pleas
of Erie County (trial court) dismissing his petition for leave to proceed in forma
pauperis for the stated reason that the Commonwealth Court has subject matter
jurisdiction over the underlying claim, which is a petition for writ of habeas corpus.
Jacobs contends that the trial court erred but, even if it were correct, it should have
transferred the matter to Commonwealth Court. We vacate and remand to the trial
court.
             On November 14, 2016, Jacobs filed a petition for writ of habeas
corpus against Superintendent Michael Clark (SCI-Albion), and Secretary of
Corrections John E. Wetzel (collectively, Prison Officials). Therein, he made two
separate claims. First, he asserted that his state sentence had expired, but Prison
Officials have refused to transfer him to federal prison to begin his federal sentence.
Second, he asserted that Prison Officials have kept him in punitive solitary
confinement for over 16 years, primarily in retaliation for prior successful prison
conditions litigation against the Department of Corrections. The petition asserts that
Jacobs has been diagnosed with several psychiatric conditions that have been
exacerbated by his prolonged solitary confinement.
                  Jacobs’ petition sought a new sentencing hearing; production of state
mental health treatment documents pertaining to prisoner treatment and
rehabilitation; a rule to show cause why he should not be released to serve his federal
sentence; and a rule to show cause why he is being denied the benefits of prison
mental health programs.
                  On November 21, 2016, Jacobs filed a petition for leave to proceed in
forma pauperis, which the trial court dismissed on November 30, 2016. The trial
court reasoned that Commonwealth Court has exclusive jurisdiction over actions
against the Commonwealth government and its officers pursuant to Section
761(a)(1) of the Judicial Code, 42 Pa. C.S. §761(a)(1).1
                  Jacobs filed a reconsideration application, in which he cited
Pennsylvania Rule of Criminal Procedure 108. It states as follows:

                  (A) A petition for writ of habeas corpus challenging the legality
                  of the petitioner’s detention or confinement in a criminal matter
                  shall be filed with the clerk of courts of the judicial district in
                  which the order directing the petitioner’s detention or
                  confinement was entered.
                  (B) A petition for writ of habeas corpus challenging the
                  conditions of the petitioner’s confinement in a criminal matter
                  shall be filed with the clerk of courts of the judicial district in
                  which the petitioner is confined.



1
    The text of Section 761(a)(1) appears in this opinion, infra, at 9-10.
.


                                                    2
                         Comment: This rule implements Section 6502(b) of
                         the Judicial Code as it applies to the venue for
                         petitions for writs of habeas corpus in criminal
                         matters. 42 Pa.C.S. § 6502(b). The rule is not
                         intended to affect existing law concerning the
                         availability and scope of habeas corpus relief. The
                         rule also is not intended to apply to proceedings
                         authorized by law for post-conviction remedies. See
                         Section 6503 of the Judicial Code, 42 Pa.C.S. §
                         6503.
                         Separate petitions are required under this rule when
                         the petitioner is confined in one judicial district due
                         to an order entered in another judicial district and
                         seeks to challenge both the legality and the
                         conditions of confinement. A petition misfiled in
                         the wrong judicial district under this rule may be
                         transferred to the proper judicial district pursuant to
                         Section 5103 of the Judicial Code, 42 Pa.C.S. §
                         5103(a).

PA. R.CRIM.P. 108 (emphasis added). Because Jacobs challenges the conditions of
his confinement in SCI-Albion, which is located in the trial court’s judicial district,
i.e. Erie County, he asserts that he filed his action in the proper forum. Alternatively,
Jacobs asserts that the trial court should have transferred his action to this Court,
pursuant to Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a).2


2
    It provides:
          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, where the appeal or other matter shall be treated as if originally
          filed in the transferee tribunal on the date when the appeal or other matter was first
          filed in a court or magisterial district of this Commonwealth. A matter which is
          within the exclusive jurisdiction of a court or magisterial district judge of this
          Commonwealth but which is commenced in any other tribunal of this
          Commonwealth shall be transferred by the other tribunal to the proper court or



                                                    3
               The trial court dismissed Jacobs’ reconsideration application as moot,
noting that its order of November 30th addressed only the in forma pauperis petition
and not the merits of Jacobs’ petition.                 The trial court further noted that
Commonwealth Court has original jurisdiction over actions against Commonwealth
officers.
               Jacobs appealed to this Court, purporting to appeal both the initial
dismissal of the in forma pauperis petition and the dismissal of the motion for
reconsideration. Thereafter, the trial court issued a Pennsylvania Rule of Appellate
Procedure 1925(a) opinion.3 Again, the trial court explained that it dismissed
Jacobs’ in forma pauperis petition for lack of jurisdiction. It further explained as
follows:

               This Trial Court did not dismiss [Jacobs’] Petition for Writ of
               Habeas Corpus, as [Jacobs] contends; rather, this Trial Court
               only dismissed [Jacobs’ in forma pauperis] Petition and
               [Jacobs’] Motion for Reconsideration …. [Jacobs] never sent a
               copy of his Petition for Writ of Habeas Corpus to this Trial
               Court’s Office, and this Trial Court never had the opportunity to
               address [Jacobs’] Petition for Writ of Habeas Corpus prior to
               [Jacobs] filing his Notice of Appeal [to Commonwealth Court].
               In fact, this Trial Court’s involvement with the instant civil

        magisterial district of this Commonwealth where it shall be treated as if originally
        filed in the transferee court or magisterial district of this Commonwealth on the
        date when first filed in the other tribunal.
42 Pa. C.S. §5103(a).
3
  It provides:
       Except as otherwise prescribed by this rule, upon receipt of the notice of appeal,
       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 forthwith 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.
PA. R.A.P. 1925(a).



                                                 4
               action has been extremely brief prior to the instant appeal, and
               the instant civil action was not even assigned to this Trial Court
               until more recently.

Trial Court Rule 1925(a) Op., 3/6/2017, at 2; Certified Record (C.R.) Item no. 3 at
2.
               Before this Court,4 Jacobs challenges the trial court’s assertion that it
did not dismiss the petition for writ of habeas corpus “because the only ground cited
was jurisdiction – not an incomplete or otherwise defective application.” Jacobs’
Brief at 5. Further, Pennsylvania Rule of Criminal Procedure 108 and Bronson v.
Domovich, 628 A.2d 1177 (Pa. Super. 1993), establish that jurisdiction over prison
conditions litigation lies with the appropriate court of common pleas, not the
Commonwealth Court.
               In Bronson, an inmate petitioned for a writ of habeas corpus against the
superintendent of SCI-Pittsburgh and the prison’s program review committee,
challenging the legality of his placement in solitary confinement. The Court of
Common Pleas of Allegheny County dismissed the petition for lack of jurisdiction,
and the inmate appealed to the Superior Court. The Superior Court held that a
petition for writ of habeas corpus challenging the conditions of confinement is




4
  This Court’s review of a denial of an in forma pauperis petition determines whether constitutional
rights were violated, or whether the trial court abused its discretion or committed an error of law.
Thomas v. Holtz, 707 A.2d 569, 570 n.2 (Pa. Cmwlth. 1998). An order denying in forma pauperis
status in a civil case is a final and appealable order because “[a] litigant who is denied the ability
to bring a cause of action due to his true inability to pay the costs is effectively put out of court.”
Grant v. Blaine, 868 A.2d 400, 402–03 (Pa. 2005).



                                                  5
properly filed in the “judicial district wherein the petitioner is confined.” Id. at 1178
(quoting former PA. R.CRIM.P. 1701(b)).5
                Jacobs explains that his petition for writ of habeas corpus challenged
both prison conditions and the calculation of his sentence. However, the instant
petition no longer challenges the calculation of his sentence. Instead, pursuant to
Rule 108(A),6 he has filed a separate petition for writ of habeas corpus in the Court
of Common Pleas of Fayette County, where he was sentenced.
                Prison Officials respond that the trial court properly dismissed both the
in forma pauperis petition and the petition for writ of habeas corpus because
jurisdiction lies with the Commonwealth Court. Prison Officials cite Stackhouse v.
Pennsylvania State Police, 832 A.2d 1004 (Pa. 2003), for the general proposition
that claims against Commonwealth officials seeking equitable or declaratory relief,
as opposed to money damages, fall within the Commonwealth Court’s original
jurisdiction.
                Stackhouse did not involve a petition for writ of habeas corpus. Rather,
the plaintiff in Stackhouse sued her employer, the Pennsylvania State Police, for its
actions during an internal investigation in response to her application for a job
promotion. She sought monetary damages for invasion of reputation and privacy
interests, as well as declaratory and injunctive relief to restrain the State Police from

5
  Rule of Criminal Procedure 1701(b) was adopted December 11, 1980, effective April 1, 1981,
renumbered as Rule 108, and amended March 1, 2000, effective April 1, 2001. Rule 108(B) retains
the identical language of former Rule 1701(b).
6
  It provides:
        A petition for writ of habeas corpus challenging the legality of the petitioner’s
        detention or confinement in a criminal matter shall be filed with the clerk of courts
        of the judicial district in which the order directing the petitioner’s detention or
        confinement was entered.
PA. R.CRIM.P. 108(A).


                                              6
using her private information for any purpose. The trial court transferred the matter
to this Court. This Court held that the claim for declaratory and injunctive relief did
not change the essential nature of the case, which was a tort action for money
damages. Accordingly, we held that the plaintiff’s actions belonged in the trial court.
The Pennsylvania Supreme Court agreed and remanded the case to the trial court,
explaining that the “core” of the complaint was an action in trespass, which is exempt
from Commonwealth Court’s original jurisdiction pursuant to Section 761(a)(1)(v)
of the Judicial Code, 42 Pa. C.S. §761(a)(1)(v).7 Stackhouse, 832 A.2d at 1009.
               Before this Court is the trial court’s denial of an in forma pauperis
petition. A litigant “without financial resources to pay the costs of litigation is
entitled to proceed in forma pauperis.” PA. R.C.P. No. 240(b) (emphasis added).
When presented with an in forma pauperis petition, the court proceeds as follows:

               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.
                       Note: A frivolous action or proceeding has been
                       defined as one that “lacks an arguable basis either
                       in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
                       109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).



7
  It provides, in pertinent part, that the Commonwealth Court shall have original jurisdiction of all
civil actions or proceedings against the Commonwealth government and its officers acting in their
official capacities, except
        actions or proceedings in the nature of trespass as to which the Commonwealth
        government formerly enjoyed sovereign or other immunity and actions or
        proceedings in the nature of assumpsit relating to such actions or proceedings in
        the nature of trespass.
42 Pa. C.S. §761(a)(1)(v).


                                                 7
PA. R.C.P. No. 240(j)(1).
             Section 6602(e) of the Prison Litigation Reform Act allows a court to
dismiss prison conditions litigation where:

             (1) The allegation of indigency is untrue.
             (2) The prison conditions litigation is frivolous or malicious or
             fails to state a claim upon which relief may be granted or 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). In addition, Section 6602(f) authorizes a court to dismiss an
in forma pauperis petition where the petitioner is an abusive litigator. In doing so,
the court applies the following standards:

             If the prisoner has previously filed prison conditions litigation
             and:
             (1) three or more of these prior civil actions have been dismissed
             pursuant to subsection (e)(2); or
             (2) the prisoner has previously filed prison conditions litigation
             against a person named as a defendant in the instant action or a
             person serving in the same official capacity as a named defendant
             and a court made a finding that the prior action was filed in bad
             faith or that the prisoner knowingly presented false evidence or
             testimony at a hearing or trial;
             the court may dismiss the action. The court shall not, however,
             dismiss a request for preliminary injunctive relief or a temporary
             restraining order which makes a credible allegation that the
             prisoner is in imminent danger of serious bodily injury.

42 Pa. C.S. §6602(f).
             Here, the trial court dismissed Jacobs’ in forma pauperis petition based
on lack of subject matter jurisdiction, but it did not dismiss the underlying action.
More perplexing, the trial court explained in its Rule 1925(a) opinion that it reached

                                          8
this conclusion without reviewing the underlying action. Specifically, the trial court
stated that because it did not have a copy of the petition for habeas corpus it “never
had the opportunity to address [Jacobs’] Petition for Writ of Habeas Corpus prior to
[Jacobs] filing his Notice of Appeal [to Commonwealth Court].” Trial Court Rule
1925(a) Op., 3/6/2017, at 2; C.R. Item No. 3 at 2. It appears the trial court made its
determination based solely on the fact that Commonwealth officers were the named
defendants. However, the identity of the named defendants is not determinative of
subject matter jurisdiction.
             Section 761(a)(1) of the Judicial Code establishes when this Court has
jurisdiction over claims against Commonwealth officers and when it does not.
Section 761(a)(1) states:

             (a) General rule.--The Commonwealth Court shall have original
             jurisdiction of all civil actions or proceedings:
                    (1) Against the Commonwealth government,
                    including any officer thereof, acting in his official
                    capacity, except:
                            (i) actions or proceedings in the nature
                            of applications for a writ of habeas
                            corpus or post-conviction relief not
                            ancillary to proceedings within the
                            appellate jurisdiction of the court;
                            (ii) eminent domain proceedings;
                            (iii) actions or proceedings conducted
                            pursuant to Chapter 85 (relating to
                            matters affecting government units);
                            (iv) actions or proceedings conducted
                            pursuant to the act of May 20, 1937
                            (P.L. 728, No. 193), referred to as the
                            Board of Claims Act; and



                                            9
                              (v) actions or proceedings in the nature
                              of trespass as to which the
                              Commonwealth government formerly
                              enjoyed sovereign or other immunity
                              and actions or proceedings in the
                              nature of assumpsit relating to such
                              actions or proceedings in the nature of
                              trespass.

42 Pa. C.S. §761(a)(1) (emphasis added).
               Section 761(a)(1)(i) expressly deprives this Court of subject matter
jurisdiction over “applications for a writ of habeas corpus or post-conviction relief
not ancillary to proceedings within the appellate jurisdiction of the court.” 42 Pa.
C.S. §761(a)(1)(i). Pennsylvania Rule of Criminal Procedure 108(B) states that a
“petition for writ of habeas corpus challenging the conditions of the petitioner’s
confinement in a criminal matter shall be filed with the clerk of courts of the judicial
district in which the petitioner is confined.” PA. R.CRIM.P. 108(B). In short, the
Commonwealth Court lacks subject matter jurisdiction over Jacobs’ underlying
petition for relief.
               The trial court erred in dismissing Jacobs’ in forma pauperis petition
on grounds that it lacked subject matter jurisdiction over the underlying action.
Accordingly, we vacate the trial court’s order and remand to the trial court for review
of the petition for writ of habeas corpus and reconsideration of the in forma pauperis
petition.8

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge

8
  Further, Jacobs raised two issues in his petition for writ of habeas corpus, the first relating to
sentencing and the second relating to his continued placement in solitary confinement by Prison
Officials. In his brief to this Court, he now claims to be pursuing only the solitary confinement
issue before the trial court. However, that assertion does not appear to be of record. On remand,
this claim needs to be examined.


                                                10
11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andre Jacobs,                           :
                 Appellant              :
                                        :
           v.                           : No. 38 C.D. 2017
                                        :
Superintendent Michael Clark            :
(SCI Albion); Secretary of              :
Corrections John E. Wetzel              :


                                  ORDER


           AND NOW, this 23rd day of October, 2017, the order of the Court of
Common Pleas of Erie County, dated December 14, 2016, is VACATED and
REMANDED in accordance with the attached opinion.
           Jurisdiction relinquished.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
