J-S01031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARRINGTON KEYS                               IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

COMMONWEALTH OF PENNSYLVANIA

                        Appellee                   No. 939 WDA 2014


                   Appeal from the Order May 22, 2014
              In the Court of Common Pleas of Forest County
                  Civil Division at No(s): C.D. 59 OF 2014


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED APRIL 10, 2015

     Appellant, Carrington Keys, appeals from the order entered in the

Forest County Court of Common Pleas, Civil Division, which denied his

petition to proceed in forma pauperis (“IFP”) and dismissed as frivolous the

complaint he called a petition for writ of habeas corpus. For the following

reasons, we transfer the matter to the Commonwealth Court.

     The relevant facts and procedural history of this case are as follows.

According to the record, the Pennsylvania Board of Probation and Parole

issued a Notice of Board Decision as recorded February 27, 2013, which

denied Appellant parole/probation. The notice listed various reasons for the

Board’s decision, including: (a) Appellant’s need to participate in and

complete additional institutional programs; (b) Appellant’s risk and needs

assessment indicating Appellant’s level of risk to the community; (c) the
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negative recommendation from the Department of Corrections (“DOC”); (d)

reports, evaluations and assessments/level of risk indicating Appellant’s risk

to the community; (e) other pertinent factors, such as Appellant’s need for a

longer period of positive institution adjustment and completion of treatment.

The notice also said Appellant was to be reviewed in or after October 2013.

At the next interview, the Board would review Appellant’s file and consider

whether:    (a)   Appellant   had   successfully     participated     in/successfully

completed a treatment program for violence prevention; (b) Appellant had

received/maintained a favorable recommendation for parole from the DOC;

and (c) Appellant had maintained a clear conduct record. Finally, the notice

stated Appellant may file an application for parole/reparole no sooner than 1

year   after   the   recording   date   of    the   last   decision   denying    him

parole/reparole, i.e., no sooner than February 27, 2014. In response to the

notice, Appellant purports to have sent the Board a document Appellant

called an “Acceptance of Contract” which, he claimed, formed a “binding

contractual agreement” between Appellant and the Board.

       On May 16, 2014, Appellant filed a petition for leave to proceed IFP

and a companion complaint he called a petition for writ of habeas corpus. In

his filing, Appellant essentially complained of actions and omissions of the

Board, based on the Board’s failure to fulfill the “contract” between the

Board and Appellant.     Appellant complained he had satisfied the Board’s

conditions, but the Board denied him a meaningful review, told Appellant to


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satisfy those conditions again, and denied Appellant parole.          Appellant

concluded he was entitled to enforce the purported “contract” and have the

court compel the Board to perform “its existing obligations.” As presented,

Appellant did not directly challenge the legality of his sentence or detention.

      By order dated May 22, 2014, and filed May 23, 2014, the trial court

denied Appellant’s IFP application and dismissed the complaint as frivolous,

pursuant to Pa.R.C.P. 240(j). A copy of the order was sent to Appellant on

May 23, 2014. On June 6, 2014, Appellant filed a notice of appeal. By order

filed and served on June 17, 2014, the trial court ordered Appellant to file

and serve a concise statement of errors complained of on appeal within 21

days, per Pa.R.A.P. 1925(b); any issue not raised in a properly filed and

properly served statement would be deemed waived. As of July 23, 2014,

Appellant had not filed and served his Rule 1925(b) statement or requested

any enlargement of time to comply. So, the trial court deemed Appellant’s

issues on appeal waived.

      Appellant raises two issues for review:

         WHETHER THE [TRIAL] COURT ERRED IN CONSTRUING
         APPELLANT’S HABEAS CORPUS AS A CIVIL COMPLAINT
         AND DENYING APPELLANT RELIEF BASED UPON CIVIL
         STANDARDS INSTEAD OF USING 42 PA.C.S.A. 6501-6505,
         et seq.

         WHETHER THE [TRIAL] COURT ERRED IN FILING
         APPELLANT’S HABEAS CORPUS INTO THE WRONG VENUE
         IN CONTRAST TO PA RULES OF CRIMINAL PROCEDURE
         RULE 108(B).

(Appellant’s Brief at 4).

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      Preliminarily, we address this Court’s appellate jurisdiction: “Even

when neither party has raised the issue of jurisdiction, this Court may, sua

sponte, determine whether retention of jurisdiction is appropriate, or

whether the matter should be transferred to the Commonwealth Court.”

Commonwealth v. Reed, 696 A.2d 199, 200 (Pa.Super. 1997) (quoting

Commonwealth v. CSX Transportation, Inc., 639 A.2d 1213, 1214

(Pa.Super. 1994)).

      Jurisdiction over parole matters generally lies in the Commonwealth

Court.   Commonwealth v. Snyder, 829 A.2d 783 (Pa.Cmwlth. 2003).

“[H]abeas corpus is not available to challenge the denial of parole because

the inmate is serving a legal sentence and parole is a matter of discretion. A

habeas corpus petition may be used only to challenge the legality of a

sentence, that is, the state’s right to confine the inmate or the length of

confinement, and not the denial of parole.” Id. at 785. See also Weaver

v. Pennsylvania Bd. of Probation and Parole, 688 A.2d 766, 775 n.17

(Pa.Cmwlth. 1997) (stating habeas corpus is not available to challenge

denial of parole, “irrespective of the factual underpinnings of the prisoner’s

contentions”).

      Nevertheless, “[t]he form by which a suit seeking review of an agency

action is brought is not dispositive”; and the petition should be examined “to

determine whether it can be construed as challenging final agency action in

any form.”    Kester v. Pennsylvania Bd. of Probation and Parole, 609


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A.2d 622, 624 (Pa.Cmwlth. 1992). Instead of dismissing a petition outright,

if a petition could be construed as a challenge to the Board’s actions in

denying parole, the trial court should transfer “the petition to the

Commonwealth Court for consideration of [its] original jurisdiction, per 42

Pa.C.S.A. § 5103(a), which mandates the transfer of a matter erroneously

filed in the wrong court.” Snyder, supra at 785.

       Instantly, Appellant filed a petition for IFP status and a petition for writ

of habeas corpus in the trial court.           Specifically, Appellant alleged he had

satisfied the Board’s requirements for parole eligibility, but the Board

refused to review Appellant’s case or grant him parole. Although styled as a

petition for writ of habeas corpus, Appellant’s petition complains about the

Board’s actions and omissions regarding his parole eligibility.            Thus, we

conclude the matter lies within the original jurisdiction of the Commonwealth

Court, which has exclusive jurisdiction over Appellant’s complaint. Instead

of dismissing the complaint outright, the trial court should have transferred

it to the Commonwealth Court.           See id.     The best resolution of matter at

this point is to transfer it to the Commonwealth Court for disposition.1

Accordingly, we transfer this matter to the Commonwealth Court for

appropriate disposition.

       Case transferred to Commonwealth Court. Jurisdiction is relinquished.
____________________________________________


1
  Due to our disposition, we decline to deem any issues waived on the basis
of Rule 1925(b).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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