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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIM E. HOLZ                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

G. REESE, LT. SCALPONE,
DAVID J. EBBERT, J.L. NORWOOD,
D. COOMBE, T. DEDRICK

                            Appellees                 No. 2000 MDA 2015


              Appeal from the Order Entered September 17, 2015
                In the Court of Common Pleas of Union County
                        Civil Division at No(s): 15-538


TIM E. HOLZ                                       IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

J.L. NORWOOD, D.J. EBBERT,
SUSAN HEATH, D. WILSON, T. BUTLER,
SUE STOVER, MR. HENDRICKSON,
R. BINGAMAN AND D. LANGTON

                            Appellees                 No. 2225 MDA 2015


               Appeal from the Order Entered November 4, 2015
                In the Court of Common Pleas of Union County
                         Civil Division at No(s): 15-607


BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                                 FILED MAY 18, 2016
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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        Appellant, Tim E. Holz, appeals1 pro se from the September 17 and

November 4, 2015 orders, sua sponte dismissing his complaints with

prejudice filed against Appellees, various federal prison officials, for want of

subject matter jurisdiction.2 After careful review, we affirm.

        We summarize the brief procedural history of these cases as follows.

On September 12, 2015, Appellant, a prisoner at the federal prison in

Lewisburg, Pennsylvania, filed a complaint at docket number 15-538,

alleging that the defendants violated his constitutional rights as well as “the

Pa[.] Tort Statute’s [sic] for intentional [t]ort.”         Appellant’s Complaint,

9/12/15, at 4-5.        On September 17, 2015, the trial court sua sponte

dismissed     Appellant’s    entire    complaint   for   want   of   subject   matter

jurisdiction. On October 8, 2015, Appellant filed a timely notice of appeal.

        On October 6, 2015, Appellant filed another complaint at docket

number 15-607, accusing federal officials of using undercover agents to

abuse, assault, stab, and conspire to murder him.           Appellant’s Complaint,

10/6/15, at 3, 13-14.        On November 4, 2015, the trial court sua sponte

dismissed     Appellant’s    entire    complaint   for   want   of   subject   matter
____________________________________________
1
   This Court hereby consolidates these two appeals sua sponte. See
Pa.R.A.P. 513 (stating, “[w]here there is more than one appeal from the
same order, or where the same question is involved in two or more appeals
in different cases, the appellate court may, in its discretion, order them to be
argued together in all particulars as if but a single appeal[]”).
2
    None of the Appellees have filed a brief in this matter.




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jurisdiction.     On November 24, 2015, Appellant filed a timely notice of

appeal.3

       In his briefs, Appellant raises the following issues for our review.

                (1)   Does the [trial court] have sovereign/supreme
                      jurisdiction over a federal prison pursuant to …
                      Appellant … asserting jurisdiction in a
                      complaint/lawsuit against [f]ederal [p]rison
                      staff/officials pursuant [to] the United States
                      Constitution, and the Pennsylvania Tort
                      Statutes?

Appellant’s Brief, 2000 MDA 2015, at 5.

                (1)   [D]oes the [trial] court have subject matter
                      jurisdiction of this complaint against [f]ederal
                      prison staff asserting the [Pennsylvania] Tort
                      Statute’s [sic] and U.S. Constitution as primary
                      authorities/jurisdiction?

                (2)   Is the complaint a summary pursuant to
                      [Pennsylvania Rule  of Civil Procedure]
                      1019([a])?

                (3)   Should this action have been dismissed with
                      prejudice?

Appellant’s Brief, 2225 MDA 2015, at 5 (internal quotation marks omitted).

       Essentially, Appellant challenges the trial court’s conclusions that it




____________________________________________
3
   Appellant filed concise statements of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) as part of his
notices of appeal, although the trial court did not direct him to do so. The
trial court has filed Rule 1925(a) opinions for both appeals.




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lacked subject matter jurisdiction over both complaints.4            The trial court

concluded that only the federal courts had subject matter jurisdiction. Trial

Court Opinion, 2000 MDA 2015, 11/5/15, at 2; Trial Court Opinion, 2225

MDA 2015, 11/5/15, at 2.

       “Subject matter jurisdiction relates to the competency of a court to

hear and decide the type of controversy presented.” Silver v. Pinskey, 981

A.2d 284, 292 (Pa. Super. 2009).               Such issues present pure questions of

law, for which our standard of review is de novo and our scope of review is

plenary. Id. (citation omitted). Furthermore, “the parties or the court sua

sponte can raise a challenge to subject matter jurisdiction at any time.” Id.

(citation omitted).

       In Appellant’s complaint at docket number 15-538, Appellant alleged

that he has been forced to live with a cellmate who, in Appellant’s words, is

“a stone cold homosexual[.]”           Appellant’s Complaint, 9/12/15, at 2.      In

addition, Appellant alleges that prison officials prevented him from eating
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4
  We note that Appellant’s briefs are woefully lacking in development.
Pennsylvania Rule of Appellate Procedure 2119(a) requires that “[t]he
argument shall be divided into as many parts as there are questions to be
argued … followed by such discussion and citation of authorities as are
deemed pertinent.” Pa.R.A.P. 2119(a). Appellant’s arguments on appeal
are vague and do not contain citations to any relevant legal sources in
support thereof. Therefore, we could find his arguments waived on this
basis. See generally In re Estate of Whitley, 50 A.3d 203, 209 (Pa.
Super. 2012) (internal quotation marks and citations omitted), appeal
denied, 69 A.3d 603 (Pa. 2013). However, as we are not ultimately
hampered in our ability to resolve Appellant’s appeals, we decline to find
waiver in this instance.



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due to Appellant and another inmate allegedly fighting. Id. at 4. Appellant

summarizes his complaint at docket number 15-607 as accusing federal

officials of using undercover agents to abuse, assault, stab, and conspire to

murder him while in the custody of the United States.               Appellant’s Brief,

2225 MDA 2015, at 6; Appellant’s Complaint, 10/6/15, at 3. This complaint

refers to the alleged course of conduct as “intentional tort violations” and

“manifesting extreme indifference for the value of human life.” Appellant’s

Complaint, 10/6/15, at 3, 13.           In addition, the trial court noted that the

complaint     at   15-607     alleged    “tortious   conduct   by    various   federal

employees[.]”      Trial Court Opinion, 2225 MDA 2015, 11/5/15, at 2.            Both

complaints also alleged that the defendants violated “Pennsylvania Tort

Statutes.”     Appellant’s Complaint, 9/12/15, at 5; Appellant’s Complaint,

10/6/15, at 13. Appellant repeats these references in his briefs on appeal.

Appellant’s Brief, 2000 MDA 2015, at 5; Appellant’s Brief, 2225 MDA 2015,

at 5.

        Given these allegations, we conclude that Appellant is bringing tort

claims against various federal officers, acting in their capacity as agents of

the federal government.5             Therefore, we conclude that, in spite of


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5
  The trial court suggests that Appellant’s complaint at docket number 15-
538 “speak[s] to” a claim under Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), in which the Court permitted a cause of
action against federal actors for certain violations of federal constitutional
rights. Trial Court Opinion, 11/5/15, 2000 MDA 2015, at 2; Bivens, supra
(Footnote Continued Next Page)


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Appellant’s labeling, his complaints actually sound in the Federal Tort Claims

Act (FTCA).     The FTCA permits a cause of action for “claim for money

damages against the United States for injury or loss of property or personal

injury or death caused by the negligent or wrongful act or omission of any

employee of the agency while acting within the scope of his office or

employment, under circumstances where the United States, if a private

person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred[.]” 28 U.S.C. § 2672.

      Because Appellant’s complaints state claims under the FTCA, we

further conclude that the trial court lacked subject matter jurisdiction over

the same. Congress has explicitly restricted FTCA claims to the jurisdiction

of the federal courts.

             § 1346. United States as defendant

                                                 …

             (b)(1) Subject to the provisions of [the FTCA], the
             district courts, together with the United States
             District Court for the District of the Canal Zone and
             the District Court of the Virgin Islands, shall have
             exclusive jurisdiction of civil actions on claims
             against the United States, for money damages,
             accruing on and after January 1, 1945, for injury or
             loss of property, or personal injury or death caused
             by the negligent or wrongful act or omission of any
             employee of the Government while acting within the
                       _______________________
(Footnote Continued)

at 392. To the extent Appellant’s complaints can be read as attempting to
raise a Bivens claim, he must do so in federal court. See generally 28
U.S.C. § 1331; Trial Court Opinion, 11/5/15, 2000 MDA 2015, at 2.



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              scope of his office              or employment, under
              circumstances where the          United States, if a private
              person, would be liable to       the claimant in accordance
              with the law of the place        where the act or omission
              occurred.

                                               …

28 U.S.C. § 1346(b)(1) (emphases added).6               Therefore, because Congress

has divested it of subject matter jurisdiction, the trial court correctly

dismissed Appellant’s complaints for want of the same.                 Such complaints

must be brought in federal court.

       Based on the foregoing, we conclude that the trial court properly

dismissed     Appellant’s    complaints,       as   subject   matter   jurisdiction   lies

exclusively with the federal courts.           See Silver, supra.      Accordingly, the

trial court’s September 17, 2015 and November 4, 2015 orders are affirmed.

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016
____________________________________________
6
  Although 28 U.S.C. § 2680(h) exempts certain claims for assault, battery
and other torts from the reach of the FTCA, Section 2680(h) explicitly states
that Section 1346(b) applies to such claims against “investigative or law
enforcement officers of the United States Government[.]”         28 U.S.C.
§ 2680(h).



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