          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Paladino,                         :
                    Appellant             :
                                          :
             v.                           :
                                          :   No. 947 C.D. 2016
M. Engelbrocht and Tammy Ferguson         :   Submitted: December 2, 2016


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                             FILED: April 13, 2017


             Charles Paladino (Appellant) appeals, pro se, from an Order of the
Court of Common Pleas of Centre County (trial court), dismissing his Civil
Complaint as frivolous pursuant to Pa.R.C.P. No. 240(j)(1).
             Appellant is presently incarcerated at the State Correctional Institution
at Benner (SCI-Benner). He filed a civil action with the trial court alleging two
employees of the Department of Corrections (Department), M. Engelbrocht and
Tammy Ferguson (Appellees), while acting in their official capacity, took actions
against Appellant that constituted assault and negligence.
             On March 30, 2016, the trial court dismissed Appellant’s Complaint
and Petition for Leave to Proceed in Forma Pauperis (IFP). Appellant thereafter
appealed the dismissal to the Superior Court, which transferred the matter to this
Court, given our jurisdiction over civil actions and proceedings against
Commonwealth defendants, pursuant to Section 762 of the Judicial Code.1
                As set forth in Appellant’s brief, three issues are raised with this Court
on appeal:2

       (1) “In the case now at bar of Commonwealth Court, did and does
           the Commonwealth Court have exclusive and original
           jurisdiction?

       (2) Did the [trial court] deny/dismiss improperly without allowing
           plaintiff opportunity to amend?
       (3) Did the [trial court] err as a matter and fact of law and violate the
           separation of powers doctrine, judicial code, ruling on the law
           without jurisdiction, as it wishes the law would say rather than in
           the form prescribed by the legislature as enacted?”

                                        DISCUSSION
       1
           § 762. Appeals from courts of common pleas

                (a) General rule.—Except as provided in subsection (b), the
                    Commonwealth Court shall have exclusive jurisdiction of
                    appeals from final orders of the courts of common pleas in the
                    following cases:

                    (1) Commonwealth     civil   cases.--All   civil   actions   or
                        proceedings…

                       (ii)   By the Commonwealth government,
                              including any officer thereof acting in his
                              official capacity.
                       ….

42 Pa.C.S. § 762.
       2
         Appellate review of a decision dismissing an action pursuant to Pa.R.C.P. No. 240(j) is
limited to a determination of whether an appellant's constitutional rights have been violated and
whether the trial court abused its discretion or committed an error of law. Bell v. Mayview State
Hospital, 853 A.2d 1058, 1060 (Pa. Super. 2004).


                                                 2
             Appellant first argues the Commonwealth Court has exclusive
jurisdiction over this matter and the trial court should have transferred the action to
this Court as it was erroneously filed with the trial court.
             Section 761 of the Judicial Code gives this Court jurisdiction over
actions against “the Commonwealth government, including any officer thereof,
acting in his official capacity.” The term “officer” was defined, for jurisdictional
purposes, in Opie v. Glascow, Inc., 375 A.2d 396, 398 (Pa. Cmwlth. 1977), to
include “only those persons who perform state-wide policymaking functions and
who are charged with the responsibility for independent initiation of administrative
policy regarding some sovereign function of state government.”
             In its opinion filed pursuant to Pa.R.A.P. 1925, the trial court asserted
jurisdiction was proper based on Mickens v. Jeffes, 453 A.2d 1092 (Pa. Cmwlth.
1983), because Appellees are employees of the Commonwealth who do not
perform state-wide policymaking functions.
             In Mickens, a prisoner petitioned this Court to review the recalculation
of his sentence after he escaped from a correctional institution. The prisoner
named the warden and the records officer of the correctional institution as
defendants in his suit.    This Court determined that the defendants were state
employees who perform policymaking functions; however, those functions were
confined geographically and were not state-wide in character. Mickens, 453 A.2d
at 1093. Therefore, this Court lacked jurisdiction and proper jurisdiction was with
the court of common pleas. Id.
             Named as defendants in Appellant’s Complaint are the Superintendent
of SCI-Benner and a correctional officer.          Appellant has cited no facts or
circumstances to support a finding that Appellees perform any state-wide


                                           3
policymaking functions as part of their employment duties. Rather, he argues
Appellees are only “qualifiedly immune” and the case is “still ripe for litigation in
the Commonwealth Court.” (Appellant’s Brief at 8.) We therefore conclude the
trial court did not err in finding the Appellees do not perform any state-wide
policymaking functions and jurisdiction properly lay with the trial court.
             Next, Appellant argues the trial court improperly denied or dismissed
the complaint without providing Appellant an opportunity to amend and without
providing notice or a hearing. He argues the court has no authority to dismiss a
complaint as frivolous without affording the Appellant the opportunity to be heard.
             Relying on the procedures set forth in Pa.R.C.P. No. 240(j)(1), the
trial court found Appellant’s Complaint frivolous and without merit, as it put forth
claims of intentional torts and negligence, both of which fail for immunity reasons.
Rule 240(j)(1) provides:

      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. No. 240(j)(1).

             Rule 240(j)(1) does not require the party requesting IFP be provided
notice and an opportunity to be heard prior to dismissal of the action upon a
finding by the court that the action, proceeding, or appeal is frivolous. Appellant
cites Boyle v. O’Bannon, 458 A.2d 183 (Pa. 1963) as supportive of his argument
that the complaint could not be dismissed without providing him the opportunity to
be heard. The facts in Boyle are not similar, however. The complaint in Boyle was

                                          4
dismissed one day after filing and had not been served on the defendant. Boyle did
not turn on dismissal of the complaint under application of Rule 240. Indeed,
Boyle was decided eight years before Rule 240 was amended to allow for dismissal
of an IFP petition where the underlying action is determined to be frivolous.
                 Given the lack of any requirement that the trial court provide
Appellant notice and an opportunity to be heard prior to dismissal of his complaint
as frivolous under Rule 240(j)(1), the trial court cannot be said to have erred in
failing to provide such notice and opportunity.
                 Finally, Appellant argues that the trial court “erred as a matter of law
and fact” and violated the separation of powers doctrine and Section 51033 of the
Judicial Code because it ruled on the law without having jurisdiction. While the
question as drafted invokes a violation of separation of powers, Appellant does not
further develop this argument. Arguments not properly developed in a brief will
be deemed waived.            Rapid Pallet v. Unemployment Compensation Board of
Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998).
                 As to the remainder of Appellant’s third argument, he contends the
courts of common pleas and judges do not have the power to make, amend, revise
or rule on cases where the legislature has enacted legislation conveying exclusive,


       3
           § 5103. Transfer of erroneously filed matters

                 (a) General rule.--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….

42 Pa.C.S. § 5103(a).

                                                  5
original jurisdiction to the Commonwealth Court.                  The trial court, Appellant
argues, should have transferred his case to Commonwealth Court rather than
dismiss it. While the Court of Common Pleas of Dauphin County previously heard
claims against the Commonwealth, “changes in the Judicial Court [sic]… now
impose exclusive original jurisdiction in the Commonwealth Court for claims
against the Commonwealth.” (Appellant’s Brief at 8b.)4 Pursuant to Section 5103
of the Judicial Code, the trial court was required to transfer the case to this Court
rather than dismiss it.
               While Appellant is correct that a court must transfer, rather than
dismiss, a case filed erroneously, this duty is predicated upon the matter having
been filed with a court that does not have jurisdiction over the matter. As already
discussed herein, the trial court had proper jurisdiction over Appellant’s
Complaint.      We can find no error with the trial court having exercised that
jurisdiction. It would have, in fact, been error for the trial court to transfer the
matter to this Court.
               For the reasons set forth above, the order of the trial court dated
March 30, 2016 is affirmed.




                                             ___________________________
                                             JOSEPH M. COSGROVE, Judge




       4
         Citations to Appellant’s brief are consistent with the pagination in the brief, which does
not conform to the requirements of Pa.R.A.P. 2173.

                                                6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Charles Paladino,                     :
                    Appellant         :
                                      :
            v.                        :
                                      :
M. Engelbrocht and Tammy Ferguson     :   No. 947 C.D. 2016
                                      :



                                 ORDER


            AND NOW, this 13th day of April, 2017, the order of the Court of
Common Pleas of Centre County dated March 30, 2016 is affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
