J-S05035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RASHEED NIFAS                                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellant

                       v.

SUSAN DARR AND ANDREA WEIMER

                             Appellees                      No. 1133 WDA 2014


                  Appeal from the Order Entered June 20, 2014
               In the Court of Common Pleas of Somerset County
                       Civil Division at No: 382 Civil 2014


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                                  FILED MARCH 19, 2015

       Appellant, Rasheed Nifas, appeals from the trial court’s June 20, 2014

order dismissing his petition to file an in forma pauperis (“IFP”) civil action

against Appellees, Susan Darr and Andrea Weimer. The trial court deemed

Appellant’s underlying complaint frivolous and dismissed Appellant’s petition

pursuant to Pa.R.C.P. 200(j). We vacate and remand.

       According to Appellant’s complaint, he is an inmate at SCI Somerset,

and   Appellees     are     Pennsylvania       Department   of   Corrections    (“DOC”)

employees who work there.1            Complaint, 6/11/14, at ¶¶ 4-6.           Appellant

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1
    The complaint purportedly sues Appellees in their individual capacities.
Complaint, 6/11/14, at ¶ 7. Nonetheless, Appellant’s allegations relate to
Appellees’ activities as DOC employees. Arguably, Appellant should have
filed this appeal with the Commonwealth Court pursuant to 42 Pa.C.S.A.
(Footnote Continued Next Page)
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alleges Appellees have been opening and reading his legal mail, in violation

of various statutory and constitutional rights.      Id. at ¶¶ 13-16.   Appellant

requests declaratory relief and damages. Id. at Part VIII.

      “A party who is without financial resources to pay the costs of litigation

is entitled to proceed in forma pauperis.”        Pa.R.C.P. 240(b).   Pursuant to

Rule 240, Appellant filed his IFP petition simultaneously with his complaint
                       _______________________
(Footnote Continued)

§ 762(a). Since he did not, and since Appellees do not object to our
jurisdiction, we may entertain this appeal. Benner v. Silvis, 950 A.2d 990,
993 (Pa. Super. 2008). Indeed, § 704 of the Judicial Code provides:

             The failure of an appellee to file an objection to the
      jurisdiction of an appellate court within such time as may be
      specified by general rule, shall, unless the appellate court
      otherwise orders, operate to perfect the appellate jurisdiction of
      such appellate court, notwithstanding any provision of this title,
      or of any general rule adopted pursuant to section 503 (relating
      to reassignment of matters), vesting jurisdiction of such appeal
      in another appellate court.

42 Pa.C.S.A. § 704(a). Rule 741 of the Pennsylvania Rules of Appellate
Procedure contains similar language. See Pa.R.A.P. 741(a).

We observe that Appellant’s Brief evinces some confusion on this point,
citing § 762 in his statement of jurisdiction but heading his cover page with
“In the Superior Court of Pennsylvania.” Appellant’s Brief, Cover and p. 1.

We note that precedent supports the trial court’s exercise of original
jurisdiction, subject to sovereign immunity, over an IFP petition filed by an
inmate naming DOC employees as defendants in the proposed complaint.
See Williams v. Strickman, 917 A.2d 915 (Pa. Commw. 2007), appeal
denied, 932 A.2d 1290 (Pa. 2007). Likewise, this Court has exercised
jurisdiction over an order denying an IFP petition based on the frivolity of an
inmate’s action against prison officials. Ocasio v. Prison Health Srvs.,
979 A.2d 352 (Pa. Super. 2009); Commonwealth ex. rel. Fortune v.
Dragovich, 792 A.2d 1257 (Pa. Super. 2002), appeal denied, 803 A.2d 732
(Pa. 2002).



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against Appellees. The trial court dismissed Appellant’s complaint pursuant

to Rule 240(j):

           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.

Pa.R.C.P. 240(j)(1). “A frivolous action or proceeding has been defined as

one that ‘lacks an arguable basis either in law or in fact.’”       Pa.R.C.P.

240(j)(1), Note (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989));

see also, Robinson v. Commonwealth, Bd. of Prob. and Parole, 582

A.2d 857, 860 (Pa. 1990). “When reviewing a trial court’s denial of an in

forma pauperis petition, this court is limited to a determination of whether

constitutional rights were violated, or whether the trial court abused its

discretion or committed an error of law.”     Williams v. Syed, 782 A.2d

1090, 1093 (Pa. Commw. 2001).

     The trial court dismissed Appellant’s complaint pursuant to Brown v.

Pa Dep’t of Corr., 932 A.2d 316 (Pa. Commw. 2007).            In Brown, the

Commonwealth Court explained DOC policy on the opening of legal mail

addressed to inmates:

           [A]n attorney or court may correspond confidentially with
     an inmate by obtaining a ‘control number’ from DOC and placing
     the number on the envelope. DOC avers that the purpose of the
     control number is to ensure that contraband does not enter the
     prison under the guise of privileged correspondence or
     confidential court mailings. DOC further avers that when mail
     not bearing a control number is opened outside the inmate’s

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       presence, it is inspected but may not be read without the
       written order of its Regional Deputy Secretary.

Id. at 318 (emphasis added). The Brown Court held the DOC policy to be

constitutional. Id. at 322. The Third Circuit has reached the same result.

Fontroy v. Beard, 559 F.3d 173, 184 (3d Cir. 2009).

       The fatal defect in Appellant’s complaint, according to the trial court,

was Appellant’s failure to allege he obtained a control number for the mail in

question.    At paragraph 13 of Appellant’s complaint, however, Appellant

alleges Appellees “constantly opened, read, and reproduced incoming

privilege [sic] legal mail ….” Complaint, 6/11/14, at ¶ 13. He repeats that

allegation several times. Id. at ¶¶ 14-16. Based on that allegation, Brown

is not dispositive.     The DOC policy, as described in Brown, forbade DOC

personnel to open and read an inmate’s legal mail, even if that mail lacked

a control number.2        Since Appellant has alleged that Appellees open and

read his legal mail, his failure to allege the presence of a control number is

immaterial under the Brown Court’s analysis.

       The trial court was therefore incorrect in dismissing Appellant’s

complaint as frivolous based solely on Brown.         The trial court did not

____________________________________________


2
   Appellant does not allege the absence of an order from the Regional
Deputy Secretary authorizing Appellees to read Appellants’ mail.        See
Brown, 932 A.2d at 318. We cannot rely on this omission as an alternate
basis for affirming the trial court, as we have no reason to assume Appellant
has sufficient information to allege the absence of such an order.




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address Appellant’s allegation that Appellees read his legal mail. Trial Court

Opinion, 8/5/14.3 Appellees likewise ignore this allegation. We conclude the

trial court committed an error of law in deeming Appellant’s complaint

frivolous pursuant to Brown, because Brown does not support a conclusion

that Appellant’s complaint lacks an arguable basis in law or fact.4

       Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2015




____________________________________________


3
   The trial court’s opinion is not paginated. It spans only two pages, with
the second page containing only the signature line.
4
   We express no opinion on whether Appellant’s lawsuit is frivolous for
reasons other than the one given by the trial court.



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