J-E01002-18 & J-E01003-18

                                2018 PA Super 283

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
  KEITH FIELDS                            :
                                          :
                    Appellant             :   No. 1069 WDA 2016

           Appeal from the Judgment of Sentence April 5, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0004803-2012,
                          CP-02-CR-0004806-2012


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
 GERALD HOWARD DAVIS, JR.                 :
                                          :
                    Appellant             :   No. 445 WDA 2016

         Appeal from the Judgment of Sentence February 19, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0004831-2012,
                          CP-02-CR-0004834-2012


BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
        J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

OPINION IN SUPPORT OF REVERSAL BY OLSON, J.:
                                         FILED OCTOBER 17, 2018

      I agree with the learned Majority that section 9543 of the Post

Conviction Relief Act (“PCRA”) does not implicate the PCRA courts’ jurisdiction

and, therefore, we must overrule Commonwealth v. Ahlborn, 683 A.2d 632

(Pa. Super. 1996) (en banc), aff’d, 699 A.2d 718 (Pa. 1997).          I would
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conclude, however, that Appellants preserved their appellate arguments and,

under a proper reading of section 9543, are entitled to relief.       Hence, I

respectfully concur in part and dissent in part.

        As the learned Majority notes, Appellants argue that the PCRA courts

lacked jurisdiction to grant relief as to the counts on which their original

sentences had already been served, or on which they had received no further

penalty.      Majority Opinion, ante at 5.         In support of this argument,

Appellants cite to 42 Pa. C.S.A. § 9543(a)(1)(i). 1 I agree with the Majority’s

conclusion that section 9543 does not deal with a PCRA court’s jurisdiction.

Thus, as this Court held in Ahlborn that section 9543(a)(1)(i) must be met

in order to confer jurisdiction upon the PCRA court, that decision must be

overruled. I write separately, however, as I believe it is important to clarify




____________________________________________


1   Section 9543(a)(1)(i) of the PCRA, provides:

        (a)   General Rule.—To be eligible for relief under this
              subchapter, the petitioner must plead and prove by a
              preponderance of the evidence all of the following:

              (1)    That the petitioner has been convicted of a
                     crime under the laws of this Commonwealth and
                     is at the time relief is granted:

                     (i)       currently serving a sentence of
                               imprisonment,      probation or
                               parole for the crime[.]

42 Pa. C.S.A. § 9543(a)(1)(i) (emphasis added).

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what the eligibility requirements in section 9543 do implicate and why I

believe that Appellants are entitled to relief.

      In my view, the eligibility requirements do not implicate the PCRA

courts’ jurisdiction, nor do they implicate the petitioners’ standing to bring a

PCRA petition.   I conclude that the eligibility requirements in section 9543

correspond more closely with the concept of judicial power. Judicial power is

inextricably linked to eligibility requirements such that the PCRA court lacks

the judicial power to alter sentences that have already been served.

      In order to understand why I believe that section 9543 implicates a

court’s power, and not its jurisdiction nor a litigant’s standing, it is necessary

to understand the distinction between the three doctrines. “The distinction

between standing, . . . subject matter jurisdiction, and judicial power is

sometimes subtle; however, it is important.” Grimm v. Grimm, 149 A.3d

77, 83 (Pa. Super. 2016), appeal denied, 169 A.3d 25 (Pa. 2017) (citation

omitted).

       “The doctrine of standing . . . is a prudential, judicially created principle

designed to winnow out litigants who have no direct interest in a judicial

matter. For standing to exist, the underlying controversy must be real and

concrete, such that the party initiating the legal action has, in fact, been

aggrieved.”   Commonwealth, Office of Governor v. Donahue, 98 A.3d

1223, 1229 (Pa. 2014) (cleaned up). In Pennsylvania, “whether a party has

standing to maintain an action is not a jurisdictional question.” In re


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Adoption of Z.S.H.G., 34 A.3d 1283, 1289 (Pa. Super. 2011) (per curiam)

(cleaned up).2 Thus, an issue relating to standing is subject to waiver. See

In re Estate of Brown, 30 A.3d 1200, 1204 (Pa. Super. 2011) (citation

omitted).

       Subject matter jurisdiction “relates to the competency of the individual

court, administrative body, or other tribunal to determine controversies of the

general class to which a particular case belongs.” Green Acres Rehab. &

Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1268 (Pa. Super. 2015) (citation

omitted).      “Subject matter jurisdiction is not susceptible to waiver.”

Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007) (cleaned up).

       “[Judicial authority or p]ower, on the other hand, means the ability of a

decision-making body to order or effect a certain result.” Michael G. Lutz

Lodge No. 5, of Fraternal Order of Police v. City of Philadelphia, 129

A.3d 1221, 1225 n.4 (Pa. 2015) (citation omitted). A litigant can waive a

challenge to a trial court or administrative body’s power to issue an order or

decree. See Riedel v. Human Relations Comm'n of City of Reading, 739

A.2d 121, 124–125 (Pa. 1999).




____________________________________________


2In other jurisdictions, standing is a jurisdictional question. E.g., Nebraska
ex rel. Reed v. Nebraska, Game & Parks Comm'n, 773 N.W.2d 349, 352
(Neb. 2009) (citations omitted); Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 110 (1998).

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       Having set forth the differences between standing, subject matter

jurisdiction, and judicial power, I turn to why this Court’s holding in Ahlborn

was incorrect. In Ahlborn, this Court stated,

       the issue upon which we granted en banc review . . . required us
       to determine the point in time (filing or hearing date) at which a
       petitioner satisfies the “currently serving” requirement of the
       PCRA. This requirement must be met in order to confer upon a
       court jurisdiction to hear a PCRA petition.

Ahlborn, 683 A.2d at 637 (emphasis in original).            The en banc panel in

Ahlborn held, using emphasis, that section 9543 is jurisdictional.3 I believe

that that holding is wrong.

       It is undisputed that the courts of common pleas may decide this general

class of cases, i.e., PCRA petitions.          42 Pa.C.S.A. § 9545(a); see Green

Acres, 113 A.3d at 1268; Office of Disciplinary Counsel v. Jepsen, 787

A.2d 420, 422 n.2 (Pa. 2002). Hence, section 9543 is not a jurisdictional

requirement.

       This conclusion is consistent with general principles of Pennsylvania

statutory interpretation.      It is well-settled that “[t]he headings prefixed to

titles, parts, articles, chapters, sections[,] and other divisions of a statute shall

not be considered to control but may be used to aid in the construction

____________________________________________


3 Although our Supreme Court affirmed this Court’s decision in Ahlborn, it did
not decide whether section 9543 was jurisdictional in nature. The words
“jurisdiction” and “standing” do not appear in our Supreme Court’s decision.
Thus, our Supreme Court’s Ahlborn decision is not binding with respect to
this issue.


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thereof.” 1 Pa.C.S.A. § 1924. The heading for section 9545 is “Jurisdiction

and proceedings.” 42 Pa.C.S.A. § 9545. As the learned Majority noted, if our

General Assembly intended for the serving a sentence requirement to be

jurisdictional in nature, it would have logically included that provision in

section 9545. See Majority Opinion, ante at 7. Instead, it included that

requirement in section 9543, the heading for which is “Eligibility for relief.” 42

Pa.C.S.A. § 9543.       This differentiation in terms indicates that our General

Assembly intended to strip courts of jurisdiction when a petitioner fails to

satisfy section 9545’s requirements; however, it did not intend to strip a court

of jurisdiction when a petitioner fails to satisfy the requirements of section

9543.4 Therefore, this Court must explicitly overrule Ahlborn.

       Moreover, section 9543 does not implicate standing.        When properly

construed, the eligibility requirements found in section 9543 more closely

correlate to the concept of judicial power than standing.       Pursuant to the

traditional concept of standing, Appellants clearly have standing to pursue

their claims. Appellants have a direct interest in this judicial matter because

they have been “adversely affected . . . by the matter [they] seek[] to

challenge.”     Donahue, 98 A.3d at 1229.        Specifically, the judgments of

sentence they challenged in their PCRA petitions adversely affected

____________________________________________


4  Moreover, Ahlborn’s reliance on federal jurisdictional principles was
misguided. Federal constitutional, statutory, and common law treat many
limitations as jurisdictional in nature. See, e.g., note 2 supra. Jurisdictional
bars in Pennsylvania are rarer than they are in the federal system.

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Appellants. That is the only traditional requirement necessary for standing

under Pennsylvania law.

      My conclusion that section 9543 does not implicate standing is further

supported when the entirety of section 9543 is considered. The “currently

serving a sentence” requirement appears at section 9543(a)(1). Section 9543

includes a second eligibility requirement, section 9543(a)(2). That section

requires a petitioner to plead and prove that he or she is entitled to relief for

one of several reasons including, inter alia, that he or she received an illegal

sentence or that he or she entered an involuntary guilty plea.          See 42

Pa.C.S.A. § 9543(a)(2). If a petitioner advanced a meritless illegal sentencing

claim or challenge to a guilty plea, we would not say that the petitioner lacked

standing. Instead, we would say that the petitioner is not entitled to relief

because he or she failed to satisfy the PCRA’s eligibility requirements.

      The doctrines of standing, subject matter jurisdiction, and judicial power

are intertwined. Standing and subject matter jurisdiction are prerequisites to

a trial court having the judicial power to issue a decision. See Donahue, 98

A.3d at 1247 (“a party seeking to invoke judicial power must ordinarily

demonstrate that it has standing”); In re Sheriff’s Excess Proceeds Litig.,

98 A.3d 706, 721 (Pa. Cmwlth. 2014) (“without subject matter jurisdiction, a

court is precluded from exercising its judicial power”). This, however, does

not imply that a court considering a dispute over which it has subject matter

jurisdiction, and which the plaintiff has standing to pursue, can exercise


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unlimited judicial power.     In other words, standing and subject matter

jurisdiction are necessary, but insufficient, prerequisites for a court to exercise

its judicial power.

      In this case, the necessary prerequisites for judicial power, i.e.,

jurisdiction and standing, are present.      Nonetheless, section 9543 makes

petitioners ineligible for relief if they were not currently serving a sentence or

waiting to serve a sentence. See Commonwealth v. Stultz, 114 A.3d 865,

872 (Pa. Super. 2015), appeal denied, 125 A.3d 1201 (Pa. 2015).             I find

persuasive the explanation of the en banc Commonwealth Court as to why

such a limitation implicates a court’s power. In Commonwealth, Office of

Open Records v. Ctr. Twp., 95 A.3d 354 (Pa. Cmwlth. 2014) (en banc), the

Commonwealth Court held that the Office of Open Records had both

jurisdiction and the power to effectuate a certain result.          It explained,

however, that it is possible for an administrative agency to have subject

matter jurisdiction over a dispute but lack the power to grant relief if the

participant is ineligible for relief. Id. at 362-363 (collecting cases).

      One of those collected cases was Delaware River Port Auth. v. Pa.

Pub. Util. Comm’n, 182 A.2d 682 (Pa. 1962). In that case, our Supreme

Court held that the Public Utility Commission had subject matter jurisdiction

over the allocation of costs resulting from construction of crossings; however,

it lacked the power to award relocation costs to non-transportation utilities

because our General Assembly had not granted it such power. Id. at 686;


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see also Yezerski v. Fong, 428 A.2d 736, 737 (Pa. Cmwlth. 1981) (trial

court had jurisdiction to consider cases under the Mental Health Procedures

Act; however, it lacked the power to order certain relief sought by a litigant).

      The same rationale applies in the present circumstances.       Appellants

had standing to file their petitions and the PCRA courts had jurisdiction to

consider the petitions; however, the PCRA courts lacked the judicial power to

grant Appellants relief in certain respects.    Appellants were not serving a

judgment of sentence, or waiting to serve a judgment of sentence, for offenses

that the PCRA courts “granted relief on,” i.e., vacated. Our General Assembly

has not conferred on courts the power to grant relief in such instances. Hence,

the PCRA courts lacked the judicial power to vacate those judgments of

sentence.

      Having explained why section 9543(a) implicates a trial court’s power,

I turn to the learned Majority’s waiver analysis. A litigant can waive an issue

related to a court’s power. Riedel, 739 A.2d at 124–125. Nonetheless, I

disagree with my learned colleagues’ conclusion that Appellants waived their

challenges to the PCRA courts’ orders vacating their judgments of sentence.

Contrary to the representations made by the Majority, the PCRA courts’ orders

vacating Appellants’ judgments of sentence became final after resentencing.

See Fields PCRA Order, 4/5/16 2:37 p.m., at 1 (resolving all claims included

in Fields’ PCRA petition); Davis PCRA Order, 2/19/16 2:42 p.m., at 1

(resolving all claims included in Davis’ PCRA petition); N.T., 4/5/17, at 2


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(noting that Fields’ resentencing hearing occurred in the morning); Davis

Sentencing Order, 2/19/16, at 1 (indicating that Davis’ resentencing hearing

occurred prior to 10:03 a.m. that day); see also Pa.R.A.P. 341(b)(1) (final

order must dispose of all claims). Our Supreme Court has held that “the law

does not demand the accomplishment of the impossible.” Hogg v. Muir, 119

A.2d 53, 54 (Pa. 1956). In this case, it was impossible for Appellants to appeal

the PCRA orders prior to resentencing.5

       Moreover, even though Appellants did not expressly argue that section

9543 of the PCRA implicates a PCRA court’s judicial authority, Pennsylvania

Rules of Appellate Procedure 2116(a) and/or 2119(a) do not require a finding

of waiver.6    In Erie Ins. Exch. v. Bristol, 160 A.3d 123 (Pa. 2017) (per

curiam), our Supreme Court extended the scope of an allocatur grant to

include what date the statute of limitations period commenced. Dissenting,

Justice Wecht noted that throughout the litigation before this Court, the

____________________________________________


5 It was also impossible for Appellants to object to the PCRA courts’ power to
vacate their judgments of sentence for those offenses for which they were not
serving a judgment of sentence, or waiting to serve a judgment of sentence,
because the final PCRA orders were not entered until after they were
resentenced.    Moreover, post-sentence motions are only necessary to
preserve weight of the evidence and discretionary aspects claims.

6 Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure provides that
the statement of questions involved set forth in an appellant’s brief must
“state concisely the issues to be resolved. . . .” Pa.R.A.P. 2116(a). Rule
2119(a) of the Pennsylvania Rules of Appellate Procedure provides that the
argument section of an appellate brief shall include “the particular point
treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a).

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appellant “did not dispute that the four-year limitations period commenced on

the date of the accident.” Id. at 126 (Wecht, J. dissenting). Chief Justice

Saylor, however, explained that the Supreme Court could decide the issue for

two reasons. First, the general thrust of the appellant’s argument, i.e., that

there was no legal need to file a complaint before a certain date, was sufficient

to preserve the issue. See id. at 124 (Saylor, C.J. concurring). Second, the

other party did not argue for waiver. See id. at 124-125.

         The same is true in this case. First, throughout this litigation Appellants

have argued that the PCRA court lacked the ability to resentence them on

crimes for which they were not serving a sentence. This was sufficient to

preserve the argument that the PCRA court lacked the judicial power to grant

relief    with   respect   to   those   judgments   of   sentence.    Second,   the

Commonwealth agrees that we need to address this issue and does not

advance a waiver argument.              Thus, under our Supreme Court’s Erie

Insurance Exchange decision, Appellants did not waive their claim under

Rules 2116(a) and/or 2119(a). Hence, I believe Appellants preserved their

claims for appellate review and that they are entitled to relief thereon as the

PCRA court lacked judicial power to alter sentences that were already served

or not originally imposed.

         Thus, I respectfully concur in part and dissent in part.

         Judge Shogan and Judge Murray join this Opinion in Support of Reversal.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




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