               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller,                          :
                            Appellant        :
                                             :
                     v.                      :
                                             :
Honorable Thomas G. Gavin,                   :
Court of Common Pleas of Chester             :   No. 606 C.D. 2015
County                                       :   Submitted: November 6, 2015



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                      FILED: May 4, 2016

              James D. Schneller (Schneller), pro se, appeals from the Chester County
Common Pleas Court’s (trial court) October 17, 2014 order sustaining the Honorable
Thomas G. Gavin’s (Judge Gavin) preliminary objections, overruling Schneller’s
preliminary objections to Judge Gavin’s preliminary objections and dismissing
Schneller’s Complaint for Writ of Mandamus (Mandamus Complaint) with prejudice.
There are three issues before this Court: (1) whether this Court has jurisdiction over
Schneller’s appeal; (2) whether the trial court properly sustained Judge Gavin’s
preliminary objections because the trial court did not have jurisdiction to decide
Schneller’s Mandamus Complaint; and, (3) whether the trial court erred when it
dismissed Schneller’s Mandamus Complaint with prejudice.                  After review, we
conclude that this Court has jurisdiction over Schneller’s appeal and we affirm the

       1
        This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
trial court’s conclusion that it lacked jurisdiction, but vacate the trial court’s order
dismissing Schneller’s Mandamus Complaint, and remand the matter to the trial court
with the direction to transfer it to the Pennsylvania Supreme Court.2
              Schneller instituted the instant action in the trial court with the filing of a
Mandamus Complaint, wherein he requested that Judge Gavin be compelled to file a
final order in a separate ejectment action in which Schneller was a party over which
Judge Gavin presided.         Judge Gavin filed preliminary objections to Schneller’s
Mandamus Complaint asserting that the trial court was without jurisdiction to direct a
judge of the same court to take a particular action, that the Pennsylvania Supreme
Court had exclusive jurisdiction to hear the matter, and that sovereign and judicial
immunities barred the action. Schneller filed preliminary objections to Judge Gavin’s
preliminary objections.
              By October 17, 2014 order, the trial court sustained Judge Gavin’s
preliminary objections, overruled Schneller’s preliminary objections and dismissed
Schneller’s Mandamus Complaint with prejudice.                  In the trial court’s Opinion
Pursuant to Pennsylvania Rule of Appellate Procedure 1925, the trial court explained:

              [Schneller’s] Preliminary Objections were overruled for
              several reasons. One reason in particular is that he filed suit
              in the Court of Common Pleas. This court has no
              jurisdiction over a judge of the same court. Further,
              [Schneller’s] [P]reliminary Objections were legally
              deficient in failing to state a claim upon which relief may be
              granted.




       2
          During the pendency of this appeal, Schneller filed two motions with this Court:
Appellant’s Motion to Supplement the Record and For Coordination Between Courts, and
Appellant’s Motion for Relief of an Order to the Chester County Court Prothonotary. Given our
disposition of this appeal, Schneller’s Motion to Supplement the Record and For Coordination
Between Courts is moot. For the reasons set forth herein, the remaining motion is not a matter this
Court may decide.
                                                2
Trial Court Op. at 2 (citations omitted). Schneller appealed to the Pennsylvania
Superior Court. By February 19, 2015 order, the Superior Court transferred the
matter to this Court.3
              Schneller first argues that the Superior Court improperly transferred his
appeal to this Court. We disagree.

              This Court has exclusive jurisdiction over appeals from
              final orders of the courts of common pleas by or against the
              Commonwealth government, including Commonwealth
              officers acting in an official capacity. 42 Pa.C.S. § 762. A
              judge of a court of common pleas, when sued in his or her
              official capacity is either the Commonwealth government or
              an officer of said government.

In re Admin. Order No. 1-MD-2003, 882 A.2d 1049, 1053 (Pa. Cmwlth. 2005), aff’d,
936 A.2d 1 (Pa. 2007). The trial court’s October 17, 2014 order was a final order in a
matter against a judge of a court of common pleas, sued in his official capacity;
therefore, jurisdiction over Schneller’s appeal lies exclusively with this Court. Id.
Accordingly, the Superior Court properly transferred the matter to this Court, and
thus, the issue we now decide is whether the trial court erred.
              Schneller contends that the trial court erred when it sustained Judge
Gavin’s preliminary objections and overruled Schneller’s preliminary objections to


       3
               In determining whether preliminary objections in the nature of a
               demurrer were properly sustained, the standard of review is de novo
               and the scope of review is plenary. A court may sustain preliminary
               objections only when, based on the facts pleaded, it is clear and free
               from doubt that the plaintiff will be unable to prove facts legally
               sufficient to establish a right to relief. For the purpose of evaluating
               the legal sufficiency of a challenged pleading, the court must accept
               as true all well-pleaded material and relevant facts alleged in the
               complaint and every inference that is fairly deducible from those
               facts.
Feldman v. Hoffman, 107 A.3d 821, 826 n.7 (Pa. Cmwlth. 2014) (citations omitted). Further, “the
standard of review in determining whether a court has subject matter jurisdiction is de novo and the
scope of review is plenary.” In re Admin. Order No. 1-MD-2003, 936 A.2d 1, 5 (Pa. 2007).
                                                 3
Judge Gavin’s preliminary objections. Judge Gavin argues that permitting the trial
court to grant Schneller relief would violate the coordinate jurisdiction rule which
“provides that judges sitting on the same court in the same case should not overrule
each other’s decisions.” Commonwealth v. Daniels, 104 A.3d 267, 278 (Pa. 2014).
Further, Judge Gavin asserts that only the Pennsylvania Supreme Court has
jurisdiction to grant Schneller’s requested relief.
             Although there is no Pennsylvania appellate case law specifically
addressing whether a trial court has jurisdiction to order mandamus directed to a
judge of the same court, a Philadelphia County Common Pleas Court opinion
provides helpful insight into the issue. In Winpenny v. Administrative Judge of the
Philadelphia Domestic Relations Court, Frank Montemuro, Jr., 4 Phila. 203 (1980),
aff’d, 461 A.2d 612 (Pa. 1983), the plaintiff filed a complaint in mandamus with the
Philadelphia County Common Pleas Court (Philadelphia Trial Court) seeking to
require the Philadelphia Trial Court to reinstate a support order that was terminated
by the Philadelphia Trial Court’s Family Court Division. Administrative Judge Frank
J. Montemuro, Jr. filed preliminary objections challenging, inter alia, the
Philadelphia Trial Court’s jurisdiction over an action to compel a judge of the same
court to perform an official act. In a well-reasoned opinion, the Philadelphia Trial
Court concluded that it did not have jurisdiction, explaining:

             The courts of Pennsylvania, and indeed the nation, are
             structured as a hierarchy. The Courts of Common Pleas of
             this Commonwealth are courts of general jurisdiction with
             the same status and power. Above them are the appellate
             courts. Implicit in the nature of this hierarchy is the power
             of the higher tribunal to review the actions of an inferior
             tribunal. Also implicit in the nature of such judicial
             hierarchy is the fact that a judge is without jurisdiction, or
             power, to compel the official acts of a judge of the same
             rank or power. To hold otherwise would invite chaos.



                                            4
            The closest Pennsylvania precedents to the effect that a
            judge of one Court of Common Pleas has no power to issue
            a writ of mandamus to a judge of another Court of Common
            Pleas have all come from the Court of Common Pleas of
            Dauphin County when that Court served some functions
            akin to those by the present Commonwealth Court. See
            Commonwealth ex rel. Carter v. Court of Common Pleas of
            Allegheny C[nty.], et al., 68 Dauphin 85 (1955);
            Commonwealth ex rel. Mattocks v. Keenan, Superintendent
            of the Allegheny C[nty.] Workhouse, 66 Dauphin 1 (1954);
            Commonwealth ex rel. Honan v. Kreisher, 67 Dauphin 197
            (1954).
            However, in other states, courts that have considered the
            issue have decided that judges have no jurisdiction to issue
            a writ of mandamus against judges of coordinate
            jurisdiction. Hamby v. Pope, 229 Ga. 339, 191 S.E. 2d 53
            (1972); Boydstum v. Perry, 249 So. 661 (Miss. 1971);
            People ex rel. Filkin v. Flessner, 48 Ill. 2d 54, 268 N.E. 2d
            376 (1971); Haldane v. Superior Court of Los Angeles
            C[nty.], 221 C.A. 2d 483, 34 Cal. Rptr. 572 (1963); Shreve
            v. Pendleton, 129 Ga. 374, 58 S.E. 880 (1907).
            The language in Shreve, supra at p. 376 is pertinent.
                   The very etymology of the word ‘mandamus’ -
                   - we command, implies superior power; the
                   power of a superior authority to compel an
                   official or inferior judicature to act. The same
                   reason which prohibits an inferior court from
                   controlling the conduct of a superior tribunal
                   applies just as cogently to the effort of one
                   judge to compel the action of another judge or
                   (sic) co-ordinate jurisdiction and power.
            To the same effect, see the definition of mandamus in
            Black’s Law Dictionary . . . .

Id. at 206-207 (italics added).    Black’s Law Dictionary (9th ed. 2009) defines
“mandamus” as: “A writ issued by a court to compel performance of a particular act
by a lower court or a governmental officer or body, usu[ally] to correct a prior action




                                          5
or failure to act.” Id. at 1046-47 (emphasis added).4 Our Supreme Court affirmed the
Philadelphia Trial Court in a per curiam order without opinion.5
               We agree, and conclude that the trial court properly sustained Judge
Gavin’s preliminary objections.             However, rather than dismissing Schneller’s
Mandamus Complaint with prejudice, the trial court should have transferred the


       4
          Although Winpenny was decided in 1980, and the relevant Judicial Code sections have
since been amended, they remain substantially similar to those in effect at the time. Further,
although Shreve is no longer binding authority in Georgia due to the adoption of Georgia’s
Constitution in 1983, see Clark v. Hunstein, 291 Ga. 646, 733 S.E.2d 259 (2012), we believe its
rationale is sound.
        5
          We are cognizant that the Pennsylvania Supreme Court’s per curiam affirmance does not
constitute an endorsement of the trial court’s rationale in Winpenny. In Commonwealth v.
Tilghman, 673 A.2d 898 (Pa. 1996), our Supreme Court explained:

               In any appeal before us, this Court’s entry of a per curiam order
               affirming or reversing the final order of a lower tribunal, after review
               and consideration of the issues on appeal to this Court, signifies this
               Court’s agreement or disagreement with the lower tribunal’s final
               disposition of the matter on appeal to us. An order of per curiam
               affirmance or reversal becomes the law of the case.

               In the instance where this Court intends to not only affirm the result
               of the lower court decision but also the rationale used by the lower
               court in reaching that decision, we would enter the appropriate order
               affirming on the basis of the opinion of the lower court, elucidating
               the lower court’s rationale where necessary or desirable. Our entry of
               an order of per curiam affirmance on the basis of the lower court’s
               opinion, thus, means that we agree with the lower court’s rationale
               employed in reaching its final disposition.

               Unless we indicate that the opinion of the lower tribunal is affirmed
               per curiam, our order is not to be interpreted as adopting the rationale
               employed by the lower tribunal in reaching its final disposition.
               Furthermore, even where this Court should affirm on the opinion of
               the lower Court, the per curiam order is never to be interpreted as
               reflecting this Court’s endorsement of the lower court’s reasoning in
               discussing additional matters, in dicta, in reaching its final
               disposition.

Id. at 904 (emphasis omitted).

                                                  6
action to the Pennsylvania Supreme Court, since, for the reasons that follow, this
Court (except where mandamus is ancillary to a pending appeal) does not have
jurisdiction to order mandamus to a court of inferior jurisdiction.
                Our Supreme Court has explained that “the onus of general
superintendence over the courts of this Commonwealth has been allocated to [the
Pennsylvania Supreme] Court.” Mun. Publ’ns, Inc. v. Court of Common Pleas of
Phila. Cnty., 489 A.2d 1286, 1288 (Pa. 1985). Section 721 of the Judicial Code
provides: “The Supreme Court shall have original but not exclusive jurisdiction of all
cases of . . . [m]andamus or prohibition to courts of inferior jurisdiction.” 42 Pa.C.S.
§ 721. Although the Pennsylvania Supreme Court’s jurisdiction over a mandamus
action directed to a common pleas court is not exclusive, the roles of the other courts
in such matters are limited.
                Section 761 of the Judicial Code describes this Court’s original
jurisdiction:

                (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[.]
                      ....
                   (2) By the Commonwealth government, including any
                officer thereof, acting in his official capacity, except
                eminent domain proceedings.
                   ....
                  (4) Original jurisdiction of which is vested in the
                Commonwealth Court by any statute hereafter enacted.
                (b) Concurrent and exclusive jurisdiction.-- The
                jurisdiction of the Commonwealth Court under subsection
                (a) shall be exclusive except as provided in [S]ection 721
                [of the Judicial Code] (relating to original jurisdiction) and
                except with respect to actions or proceedings by the
                                              7
              Commonwealth government, including any officer thereof,
              acting in his official capacity, where the jurisdiction of the
              court shall be concurrent with the several courts of common
              pleas.
              (c) Ancillary matters.-- The Commonwealth Court shall
              have original jurisdiction in cases of mandamus and
              prohibition to courts of inferior jurisdiction and other
              government units where such relief is ancillary to matters
              within its appellate jurisdiction, and it, or any judge
              thereof, shall have full power and authority when and as
              often as there may be occasion, to issue writs of habeas
              corpus under like conditions returnable to the said court.
              To the extent prescribed by general rule the Commonwealth
              Court shall have ancillary jurisdiction over any claim or
              other matter which is related to a claim or other matter
              otherwise within its exclusive original jurisdiction.

42 Pa.C.S. § 761 (emphasis added).
              Writs of mandamus seeking to compel Commonwealth officials to
perform mandatory acts must ordinarily be filed in this Court’s original jurisdiction.
However, this Court’s jurisdiction over mandamus actions to courts of inferior
jurisdictions is limited. In Kneller v. Stewart, 112 A.3d 1269 (Pa. Cmwlth. 2015)
(Kneller I), this Court addressed those limitations when it held that it did not have
jurisdiction to consider a mandamus action filed by a constable against a magisterial
district court judge.6 The Kneller I Court explained:

              This Court has original jurisdiction under [Section
              761(a)(1) of the Judicial Code,] 42 Pa. C.S. § 761(a)(1)[,]
              over actions against the [Magisterial District Court] Judge,
              as she is a Commonwealth officer. This Court, however,
              does not have jurisdiction to issue mandamus to courts
              of inferior jurisdiction . . . except where the mandamus
              is ancillary to a pending appeal. Exclusive jurisdiction
              over non-ancillary mandamus to courts of inferior
              jurisdiction lies in the Pennsylvania Supreme Court.

       6
         In Kneller I, this Court ordered that the matter be transferred to the Pennsylvania Supreme
Court. The Pennsylvania Supreme Court subsequently denied Kneller’s Petition for Review in the
Nature of Mandamus. See Kneller v. Stewart, 118 A.3d 1106 (Pa. 2015).
                                                 8
Id. at 1271 (citations omitted; emphasis added).
                 In Guarrasi v. Scott, 25 A.3d 394 (Pa. Cmwlth. 2011), this Court
similarly concluded that it did not have jurisdiction over the plaintiff’s attempt to
recuse the entire Bucks County Common Pleas Court’s bench in all matters involving
the plaintiff:

                 [Defendants argue that t]he Supreme Court is the highest
                 court of the Commonwealth and is vested with the supreme
                 judicial power of the Commonwealth. ‘The Supreme Court
                 shall exercise general supervisory and administrative
                 authority over all the courts. . . .’ P[a]. C[onst]. art. V, §
                 10(a). ‘The Supreme Court shall have original but not
                 exclusive jurisdiction of all cases of . . . [m]andamus or
                 prohibition to courts of inferior jurisdiction.’ 42 Pa. C.S. §
                 721.
                 Conversely,     Commonwealth        Court’s      original
                 jurisdiction under [Section 761(a) of the Judicial Code]
                 does not extend to such matters. Indeed, in order for
                 Commonwealth Court to have any jurisdiction over
                 [the] Bucks [County] Common Pleas [Court] there must
                 be an appeal from that court pending before this Court.
                 We agree with Defendants . . . . The Supreme Court, as
                 the highest court of the Commonwealth, has general
                 supervisory and administrative authority over all lower
                 courts, including [the] Bucks [County] Common Pleas
                 [Court]. This Court’s jurisdiction does not extend to
                 such matters.

Id. at 407 (citations omitted; emphasis added).             Here, Schneller’s Mandamus
Complaint is not ancillary to a matter before this Court in its appellate jurisdiction.
Instead, the appeal pertains to the trial court’s dismissal of the Mandamus Complaint,
itself. Thus, consistent with Section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c),
which limits this Court’s jurisdiction “in cases of mandamus and prohibition to courts
of inferior jurisdiction [to circumstances] where such relief is ancillary to matters



                                               9
within its appellate jurisdiction,” this Court does not have jurisdiction to consider
Schneller’s Mandamus Complaint.
               Given the Pennsylvania Supreme Court’s general supervisory authority
over the lower courts, this Court’s decisions in Kneller I and Guarrasi, and our
agreement with the Philadelphia Trial Court’s rationale in Winpenny, we conclude
that only the Pennsylvania Supreme Court has jurisdiction to consider Schneller’s
Mandamus Complaint.
               Section 5103(a) of the Judicial Code 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 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) (emphasis added). See also Kneller I; Pa.R.A.P. 751(a).7
Accordingly, the trial court should have transferred this matter to the Pennsylvania
Supreme Court.

      7
          Pennsylvania Rule of Appellate Procedure 751(a) provides:

               If an appeal or other matter is taken to or brought in a court or
               magisterial district 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
                                                 10
               For all of the above reasons, to the extent the trial court concluded it
lacked jurisdiction, the trial court’s order sustaining Judge Gavin’s preliminary
objections and overruling Schneller’s preliminary objections is affirmed.8 However,
the trial court’s October 17, 2014 Order dismissing the action is vacated. This matter
is remanded to the trial court,9 and we direct the trial court to transfer the matter to
the Pennsylvania Supreme Court.


                                              ___________________________
                                              ANNE E. COVEY, Judge




               to the proper court of this Commonwealth, where the appeal or other
               matter shall be treated as if originally filed in transferee court on the
               date first filed in a court or magisterial district.

Pa.R.A.P. 751(a).
       8
          Schneller also argues in his brief that he has a clear right to mandamus, and that sovereign
and judicial immunities should not bar his action. Because we have concluded that neither the trial
court or this Court have jurisdiction over Schneller’s Mandamus Complaint, we cannot address
those arguments.
        9
          Because this matter is before this Court in its appellate jurisdiction, we do not directly
transfer the case to the Supreme Court, and instead remand the matter to the trial court with
direction that it do so.
                                                  11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James D. Schneller,                          :
                           Appellant         :
                                             :
                    v.                       :
                                             :
Honorable Thomas G. Gavin,                   :
Court of Common Pleas of Chester             :   No. 606 C.D. 2015
County                                       :



                                       ORDER

             AND NOW, this 4th day of May, 2016, the Chester County Common
Pleas Court’s (trial court) October 17, 2014 order sustaining the Honorable Thomas
G. Gavin’s preliminary objections and overruling James D. Schneller’s preliminary
objections is affirmed to the extent the trial court concluded that it lacked jurisdiction,
but the order dismissing the action is vacated and this matter is remanded to the trial
court, with the direction to transfer the matter to the Pennsylvania Supreme Court.
Appellant’s Motion to Supplement the Record and For Coordination Between Courts
is moot. We do not have jurisdiction to decide Appellant’s Motion for Relief of an
Order to the Chester County Court Prothonotary.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
