          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Armolt,                          :
                    Appellant            :
                                         :
             v.                          :   No. 1520 C.D. 2015
                                         :   Submitted: December 11, 2015
The Honorable Judge Edward E.            :
Guido                                    :


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


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                               FILED: April 12, 2016

             Jeffrey Armolt appeals an order of the Court of Common Pleas of
Adams County (trial court) dismissing his complaint seeking civil and criminal
sanctions against the Honorable Edward E. Guido for denying Armolt’s petition
for writ of habeas corpus. In doing so, the trial court held that Armolt did not
obtain the approval of a Commonwealth attorney to pursue criminal charges
against Judge Guido and, further, that Judge Guido had judicial immunity. For the
reasons discussed below, we affirm.
             By way of background, on January 30, 2013, Armolt filed a petition
for writ of habeas corpus (Habeas Petition) in the trial court.2 All judges on the

1
  This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
  The named defendants were John Kerestes, Superintendent of SCI Mahanoy; Shawn Wagner,
Commonwealth Attorney of Adams County; the Honorable John D. Kuhn, Adams County Court
of Common Pleas; and Attorney General Kathleen Kane.
Adams County Court of Common Pleas recused themselves from the matter, and
on February 15, 2013, the petition was assigned to Judge Guido of the Court of
Common Pleas of Cumberland County.
                 In March 2013, Armolt filed a Petition for Writ of Habeas Corpus Ad
Subjiciendum3 and Application for Leave to File Extraordinary Relief with the
Supreme Court of Pennsylvania. On June 27, 2013, the Supreme Court granted
Armolt’s Application for Leave and denied the Petition for Writ of Habeas Corpus
Ad Subjiciendum.
                 On November 22, 2013, Judge Guido dismissed Armolt’s Habeas
Petition, finding that the claims raised therein lacked merit. Alternatively, the trial
court held that his claims should have been raised in a petition under the Post
Conviction Relief Act (PCRA), 42 Pa. C.S. §§9541-9546.
                 Approximately one and one-half years later, on May 26, 2015, Armolt
filed an Application for Leave to Continue In Forma Pauperis Status and
Complaint for Civil/Criminal Contempt (Complaint) against Judge Guido. The
Complaint alleged that Judge Guido failed to give him an evidentiary hearing in
accordance with the Supreme Court’s June 27, 2013, order granting Armolt leave
to file original process.          Armolt also contended that Judge Guido wrongly
converted his Habeas Petition to a PCRA petition. Armolt’s Complaint against
Judge Guido asserted counts of Obstructing Administration of Law or Other


3
    “A writ of habeas corpus ad subjiciendum is defined as ‘[a] writ directed to someone detaining
another person and commanding that the detainee be brought to court.’” Joseph v. Glunt, 96
A.2d 365, 368 n.2 (Pa. Super. 2014) (citing BLACK’S LAW DICTIONARY 778 (9th ed. 2009)). A
writ of habeas corpus is used to challenge a person’s unlawful detention; a writ of habeas corpus
ad subjiciendum does not question the right of custody. Commonwealth ex. rel. James Fraley v.
Rotan, 82 Pa. Super. 172, 176-77 (1923).


                                                 2
Governmental Function (three counts), 18 Pa. C.S. §51014; Perjury, 18 Pa. C.S.
§49025; and Official Oppression, 18 Pa. C.S. §5301(a)(2).6 On June 15, 2015,
Judge Guido filed preliminary objections to Armolt’s Complaint, contending that
the Complaint failed to state a claim as a matter of law because: (1) Armolt failed
to submit his private criminal complaint to an attorney for the Commonwealth for
approval before proceeding in court; (2) judicial immunity barred all claims against
Judge Guido; and (3) sovereign immunity barred all claims against Judge Guido.


4
 It provides:
       A person commits a misdemeanor of the second degree if he intentionally
       obstructs, impairs or perverts the administration of law or other governmental
       function by force, violence, physical interference or obstacle, breach of official
       duty, or any other unlawful act, except that this section does not apply to flight by
       a person charged with crime, refusal to submit to arrest, failure to perform a legal
       duty other than an official duty, or any other means of avoiding compliance with
       law without affirmative interference with governmental functions.
18 Pa. C.S. §5101.
5
 It provides:
       (a) Offense defined.-A person is guilty of perjury, a felony of the third degree, if
       in any official proceeding he makes a false statement under oath or equivalent
       affirmation, or swears or affirms the truth of a statement previously made, when
       the statement is material and he does not believe it to be true.
       (b) Materiality.--Falsification is material, regardless of the admissibility of the
       statement under rules of evidence, if it could have affected the course or outcome
       of the proceeding. It is no defense that the declarant mistakenly believed the
       falsification to be immaterial. Whether a falsification is material in a given factual
       situation is a question of law.
18 Pa. C.S. §4902.
6
 It provides:
       A person acting or purporting to act in an official capacity or taking advantage of
       such actual or purported capacity commits a misdemeanor of the second degree if,
       knowing that his conduct is illegal, he ... (2) denies or impedes another in the
       exercise or enjoyment of any right, privilege, power or immunity.
18 Pa. C.S. §5301(a)(2).


                                                 3
                On July 2, 2015, the trial court sustained Judge Guido’s preliminary
objections and dismissed Armolt’s Complaint and Application for Leave to
Continue In Forma Pauperis Status. The trial court held that Armolt’s attempt to
pursue a criminal complaint without prior approval of an attorney of the
Commonwealth violated Pa. R.Crim.P. 506.7 Further, the trial court held that even
if it excused this procedural defect, Armolt’s claims were barred by Judge Guido’s
judicial immunity for his official acts. This appeal ensued.8
                On appeal, Armolt argues that the trial court erred in dismissing his
Complaint. Armolt contends: (1) Judge Guido’s failure to conduct a hearing after
the Pennsylvania Supreme Court granted Armolt leave to file original process


7
    It provides:
          (A) When the affiant is not a law enforcement officer, the complaint shall be
          submitted to an attorney for the Commonwealth, who shall approve or disapprove
          it without unreasonable delay.
Pa. R.Crim.P. 506.
8
  When an appellate court considers whether preliminary objections in the nature of a demurrer
were properly sustained, our standard of review is plenary. Delaware Township Board of
Auditors v. Delaware Township, ___ A.3d ___, ___ (Pa. Cmwlth., No. 1601 C.D. 2014, filed
January 5, 2016) (citing Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008)). An
appellate court may affirm a grant of preliminary objections only when, based on the facts pled,
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 purposes of evaluating the legal sufficiency of the challenged
pleading, we must accept as true all well-pled, material and relevant facts alleged in the
complaint and every inference that is fairly deducible from those facts.” Id.
       We note that the trial court stated in its Pa. R.A.P. 1925(a) opinion that this Court may lack
jurisdiction over Armolt’s appeal of the dismissal of his civil cause of action. Because no party
has objected to jurisdiction, this Court can hear this matter, as jurisdiction has been “perfected”
pursuant to 42 Pa. C.S. §704. Nevertheless, this Court has jurisdiction over appeals of final
orders in suits against the Commonwealth. 42 Pa. C.S. §762(a)(1). “A judge of any court of
common pleas, when sued in his official capacity, is either the ‘Commonwealth government’ or
an officer thereof.” Brown v. [The Honorable Newton C.] Taylor, 494 A.2d 29, 31 (Pa. Cmwlth.
1985).


                                                  4
constituted contempt of the Court’s order; (2) Judge Guido exceeded his authority
in adjudicating Armolt’s Habeas Petition; and (3) the trial court abused its
discretion in dismissing the Complaint on the basis of procedural defect or judicial
immunity. In response, Judge Guido argues that the trial court properly dismissed
Armolt’s Complaint.
               We begin with Armolt’s arguments that (1) by not holding a hearing,
Judge Guido was in contempt of the Pennsylvania Supreme Court’s order granting
Armolt leave to file original process, and (2) Judge Guido exceeded his authority
in adjudicating the case. These claims challenge Judge Guido’s November 22,
2013, order denying Armolt’s Habeas Petition, which Armolt appealed to the
Superior Court.9 On July 23, 2014, the Superior Court affirmed Judge Guido’s
order denying Armolt’s Habeas Petition.              Jeffrey L. Armolt v. John Kerestes,
Superintendent, (Pa. Super., No. 53 MDA 2014, filed July 23, 2014). Any issue
about the validity of Judge Guido’s November 22, 2013, order not raised in
Armolt’s prior Superior Court appeal of the denial of his Habeas Petition is waived
because appeals must be taken within thirty days of a final order. See PA. R.A.P.
903(a).10 In short, this Court lacks jurisdiction to review the merits of Armolt’s
claims challenging Judge Guido’s November 22, 2013, order.

9
  In the Civil Docketing Statement, Armolt identified the following issues to be raised on appeal:
“(1) Habeas Corpus separate right created by State Law, (2) very specific challenges to
jurisdiction, (3) lack of proper practices and procedures for habeas corpus hearing, (4)
Appellee(s) form of confessed judgment, and (5) specific conduct of the specially presiding
judge that deprived Appellant of rights and relief.”
10
   It states:
         Except as otherwise prescribed by this rule, the notice of appeal required by Rule
         902 (manner of taking appeal) shall be filed within 30 days after the entry of the
         order from which the appeal is taken.
PA. R.A.P. 903(a).


                                                5
             Armolt argues, next, that the trial court abused its discretion in
dismissing his Complaint for procedural defects or judicial immunity.             This
argument also lacks merit.
             Under Pennsylvania Rule of Criminal Procedure 506(A), a private
criminal complaint must “be submitted to an attorney for the Commonwealth, who
shall approve or disapprove it without unreasonable delay” before the complainant
proceeds in court. Pa. R.Crim.P. 506(A). Armolt seeks to bring criminal charges
against Judge Guido; however, Armolt did not first submit his private criminal
complaint to the Commonwealth’s attorney.            Thus, the trial court properly
dismissed Armolt’s Complaint.
             Finally, we address Armolt’s judicial immunity argument.11 “[J]udges
are absolutely immune from liability for damages when performing judicial acts,
even if their actions are in error or performed with malice, provided there is not a
clear absence of all jurisdiction over subject matter and person.” Langella v.
Cercone, 34 A.3d 835, 838 (Pa. Super. 2011). “Judicial immunity is not only
immunity from damages, but also immunity from suit.” Guarrasi v. Scott, 25 A.3d
394, 405 n.11 (Pa. Cmwlth. 2011) (citing Mireles v. Waco, 502 U.S. 9 (1991)).
Determining whether judicial immunity applies requires a two-part analysis: “[(1)]
whether the judge has performed a judicial act; and [(2)] whether the judge has
some jurisdiction over the subject matter before him.” Langella, 34 A.3d at 838.
             Here, Judge Guido performed a judicial act when he presided over
Armolt’s 2013 court proceedings, a matter over which he unquestionably had
jurisdiction. See generally id. at 839 (citing Forrester v. White, 484 U.S. 219, 227

11
  Immunity may be raised on preliminary objections where it is clear on the face of the
complaint that it applies. Logan v. Lillie, 728 A.2d 995, 998 (Pa. Cmwlth. 1999).


                                          6
(1988) (“Judicial resolution of dispute between parties in court allows for
uncontroversial application of judicial immunity.”)). Accordingly, the trial court
did not err in holding that Armolt’s claims against Judge Guido were barred by
judicial immunity.
            For all of the foregoing reasons, we affirm the decision of the trial
court.

                                            ______________________________
                                            MARY HANNAH LEAVITT, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey Armolt,                    :
                  Appellant        :
                                   :
            v.                     :   No. 1520 C.D. 2015
                                   :
The Honorable Judge Edward E.      :
Guido                              :


                                ORDER

            AND NOW, this 12th day of April, 2016, the order of the Court of
Common Pleas of Adams County dated July 2, 2015, in the above-captioned
matter is hereby AFFIRMED.
                                        ______________________________
                                        MARY HANNAH LEAVITT, Judge
