J.J. Robertson v. Deputy Zaken & CO 1 Johnson ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin J. Robertson, :
Appellant :
:
v. : No. 1111 C.D. 2019
: Submitted: January 15, 2021
Deputy Zaken and CO 1 Johnson :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 22, 2021
Appellant Justin J. Robertson (Robertson) appeals from an order of the Court
of Common Pleas of Greene County (trial court), which denied him in forma
pauperis status (IFP) and dismissed his complaint pursuant to what is commonly
referred to as the Pennsylvania Prison Litigation Reform Act (PLRA).1 The
complaint sought damages for the destruction of his typewriter and a declaratory
judgment that his due process rights were violated. Appellees are two Department
of Corrections (Department) employees at the State Correctional Institution at
Greene (SCI-Greene): Deputy Superintendent Zaken and Correctional Officer (CO)
1
42 Pa. C.S. §§ 6601-6608.
Johnson (collectively, Defendants).2 For the reasons that follow, we affirm the trial
court’s order.
I. BACKGROUND
Robertson averred the following facts in his complaint.3 In June 2017, CO
Johnson confiscated a typewriter from Robertson’s cell and informed him it would
be returned after it was opened and examined for contraband. (Original Record
(O.R.), Item No. 21, Complaint (Compl.) ¶¶ 4, 5, Exhibit (Ex.) 1.) CO Johnson
provided Robertson with a confiscated items receipt for the typewriter. (Id. ¶ 4,
Ex. 1.) In December 2017, Robertson sent correspondence to the SCI-Greene
Security Office inquiring about his typewriter and when it would be returned to him.
(Id. ¶ 6, Ex. 2.) The Security Office did not respond to Robertson’s correspondence.
(Id.)
In March 2018, Robertson sent correspondence to Deputy Superintendent
Zaken inquiring about the return of his typewriter. (Id. ¶ 7, Ex. 3.) Deputy
Superintendent Zaken responded to Robertson informing him that he was “not
getting [his] typewriter back. It was confiscated due to it being altered and
containing a tattoo gun. It has been destroyed.” (Id.) Robertson filed an inmate
grievance seeking reimbursement for the cost of the typewriter. (Id. ¶ 8.) The
Department denied Robertson’s grievance at all administrative review levels. (Id.)
Robertson avers that his typewriter was never altered, that he did not receive a prison
2
The full names of Defendants Zaken and Johnson do not appear in the complaint or
elsewhere in the record.
3
Robertson also attached three exhibits to his complaint. Exhibit 1 was a DC-154A,
Department Confiscated Items Receipt (Inmate), that included, among other things, the
confiscation of a Word Smith Typewriter. Exhibit 2 was a DC-135A, Inmate’s Request to Staff
Member, dated December 18, 2017, directed to the SCI-Greene Security Office. Exhibit 3 was a
DC-135A, Inmate’s Request to Staff Member, dated March 25, 2018, directed to the SCI-Greene
Deputy Superintendent Zaken.
2
misconduct for altering his typewriter, and that the Defendants did not provide him
with notice or a hearing prior to the destruction of his typewriter. (Id. ¶¶ 11, 12.)
Robertson filed a petition for IFP status in the trial court in May 2019. That
same month, the trial court directed Robertson to file either a writ of summons or a
civil complaint so that it could consider his petition for IFP. Robertson filed a pro
se complaint against the Defendants in July 2019. In addition to seeking damages
for his typewriter and a declaratory judgment, Robertson also included a claim that
the Defendants violated the Department’s Code of Ethics concerning the personal
property of inmates and the filing of false reports. (Id. ¶¶ 9, 10, 14-16.)
The trial court denied Robertson’s application for IFP status and dismissed
the complaint by order dated July 2, 2019. The trial court determined that the
complaint involved prison conditions litigation and it was empowered to dismiss the
litigation at any time, inter alia, if the complaint fails to state a claim upon which
relief may be granted. (O.R., Item No. 22, Trial Court Order, filed July 3, 2018, at
4.) Robertson appealed.
The trial court filed its Pa. R.A.P. 1925(a) opinion. Thereafter, we directed
the parties to address in their principal briefs on the merits whether Robertson’s
appeal was timely. After the parties filed their briefs on the merits, we determined
that the trial court’s Pa. R.A.P. 1925(a) opinion was insufficient for purposes of
appellate review. We directed the trial court to supplement its Pa. R.A.P. 1925(a)
opinion by explaining its reasoning for its conclusion that the complaint failed to
state claims upon which relief may be granted. The trial court provided its
3
supplemental Pa. R.A.P. 1925(a) opinion, and the parties thereafter filed
supplemental briefs.4
II. ISSUES
Robertson raises three issues on appeal.5 First, Robertson contends that the
trial court erred when it dismissed his federal constitutional claims pursuant to the
PLRA. Second, Robertson argues that the trial court erred when it relied on an
unpublished opinion from this Court to support its decision. Third, Robertson
submits that the trial court erred when it added a published case to support its
dismissal of the complaint in its Pa. R.A.P. 1925(a) opinion and that it lacked
jurisdiction to do so.
III. DISCUSSION
A. Timeliness of Appeal
We first address the procedural issue of the timeliness of Robertson’s notice
of appeal. A notice of appeal must be filed within thirty days after entry of the order
from which the appeal is taken. Pa. R.A.P. 903(a). The trial court’s order denying
Robertson’s IFP status and dismissing his complaint was filed on July 3, 2019, so he
had until August 2, 2019, to file his notice of appeal. The trial court’s docket
4
Robertson included as an attachment to his supplemental brief a copy of his inmate
grievance that he submitted to the Department, along with the responses, to support his arguments.
“This Court may not consider auxiliary information appended to a brief that is not part of the . . .
record on appeal.” Croft v. Unemployment Comp. Bd. of Rev., 662 A.2d 24, 28
(Pa. Cmwlth. 1995). Accordingly, we limit our review to the documents contained within the
original record.
5
“Our scope of review of the trial court’s order is plenary where the trial court dismisses
a complaint sua sponte for failure to state a cause of action upon which relief may be granted.”
Whitaker v. Wetzel, 170 A.3d 568, 572 n.3 (Pa. Cmwlth. 2017). “As our inquiry involves solely
questions of law, our standard of review is de novo.” Jae v. Good, 946 A.2d 802, 806 n.4
(Pa. Cmwlth.), appeal denied, 959 A.2d 930 (Pa. 2008), cert. denied, 555 U.S. 1156 (2009); see
also Payne v. Dep’t of Corr., 871 A.2d 795, 800 (Pa. 2005).
4
indicates that Robertson’s notice of appeal was filed on August 8, 2019, so, on its
face, it appears to have been filed six days after the deadline.
Pennsylvania Courts, “[r]ecognizing the limitations of incarceration apply
equally to all pro se inmates, . . . apply the prisoner mailbox rule in a number of legal
contexts.” Kittrell v. Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2014). “Under the
prisoner mailbox rule, a prisoner’s pro se appeal is deemed filed at the time it is
given to prison officials or put in the prison mailbox.” Id. at 1096 (citing Cmwlth.
v. Jones, 700 A.2d 423, 425-26 (Pa. 1997)).
Robertson’s certificate of service attached to his notice of appeal indicates that
on August 2, 2019, he “mailed” the documents pursuant to the prisoner mailbox rule,
presumably by providing the documents to the prison officials at SCI-Greene.
Normally, his statement on the certificate of service alone would not be sufficient
proof that the prisoner mailbox rule applies to his case. See Sweesy v. Pa. Bd. of
Prob. & Parole, 955 A.2d 501, 503 (Pa. Cmwlth. 2008) (holding that court needs
“reasonably verifiable evidence” of date inmate deposits appeal, including, but not
limited to, “certificates of mailing, cash slips, affidavits, and prison operating
procedures”). The Defendants’ attorney, however, candidly concedes that it appears
that the appeal was timely filed pursuant to the prisoner mailbox rule. (Defendants’
Brief at 5, n.1.) Given the Defendants’ attorney’s concession and the timeline of
events, we deem this to be reasonably verifiable evidence that the prisoner mailbox
rule applies and that Robertson’s filing of the notice of appeal was timely.
B. Dismissal of Claims
“In order to proceed [IFP], a prisoner must meet the requirements of
[Pennsylvania Rule of Civil Procedure 240(j)(1)] . . . [and] must satisfy the
requirements of the [PLRA].” Richardson v. Thomas, 964 A.2d 61, 64
5
(Pa. Cmwlth.), appeal denied, 972 A.2d 523 (Pa.), cert. denied, 558 U.S. 951 (2009).
Specifically, Pennsylvania Rule of Civil Procedure 240(j)(1), provides, in pertinent
part:
If, simultaneous with the commencement of an action or proceeding . . .
a party has filed a petition for leave to proceed [IFP], the court prior to
acting upon the petition may dismiss the action . . . if it is satisfied that
the action . . . is frivolous.
Similarly, the PLRA allows a court to dismiss prison litigation at any time it
determines that the litigation is frivolous; it also allows such dismissal based on the
failure to state a claim upon which relief may be granted or if the “defendant is
entitled to assert a valid affirmative defense, including immunity, which, if asserted,
would preclude the relief.” 42 Pa. C.S. § 6602(e)(2).
In reviewing the sufficiency of the complaint, we are cognizant that
Pennsylvania Rule of Civil Procedure 1019(a) provides that “[t]he material facts on
which a cause of action or defense is based shall be stated in a concise and summary
form.” Pa. R.Civ. P. 1019(a). We also recognize that “[t]he allegations of a pro se
complainant are held to a less stringent standard than that applied to pleadings filed
by attorneys.” Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004),
aff’d, 881 A.2d 1263 (Pa. 2005); see also Williams v. Syed, 782 A.2d 1090, 1095 n.6
(Pa. Cmwlth. 2001) (“Where the elements to a cause of action are adequately set
forth, a pro se complaint will not be dismissed just because it is not artfully
drafted.”). “Courts look to the substance of the pleadings and are ‘presumed to know
the law’; this is especially true in the context of a pro se litigant.” Young v. Wetzel
6
(Pa. Cmwlth., No. 792 C.D. 2020, filed March 16, 2021), slip op. at 6-7 (quoting
Heinly v. Cmwlth., 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth. 1993)).6
In dismissing Robertson’s claims, the trial court did not specifically rule on
each of Robertson’s causes of action. A “dismissal of a prisoner’s [prison
conditions] complaint as frivolous has serious consequences for [the] prisoner[,] . . .
[and,] [a]s a matter of fairness, . . . a trial court should not be allowed to dismiss a
complaint as frivolous without being able to explain that decision.” Derrickson v.
Sluzevich (Pa. Cmwlth., No. 913 C.D. 2007, filed July 31, 2008), slip op. at 9-10
(noting that Section 6602(f) of PLRA, 42 Pa. C.S. § 6602(f), allows complaint to be
dismissed where prisoner had three prior prison conditions complaints dismissed as
frivolous). We believe the trial court reached the correct conclusion in dismissing
the complaint, but it did not adequately explain how it reached its legal conclusions.
Nevertheless, rather than remand this case, in the interest of judicial economy and
fairness to the parties, we will address each of Robertson’s claims to determine if
they are frivolous or fail to state claims upon which relief may be granted or if the
Defendants are entitled to assert a valid affirmative defense based on the record
before us.7
1. Conversion of Property and Sovereign Immunity
Looking at the substance of the complaint, we believe that Robertson has set
forth a claim for the tort of conversion. “Our Supreme Court has defined conversion
as ‘an act of willful interference with a chattel, done without lawful justification, by
6
An unreported opinion of this Court issued after January 15, 2008, may be cited for its
persuasive value but not as binding precedent. Section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
“[A]n appellate court may uphold an order of a lower court for any valid reason appearing
from the record.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009).
7
which any person entitled thereto is deprived of use and possession.’” Price v. Corr.
Officer Simcox (Pa. Cmwlth., No. 307 C.D. 2017, filed September 28, 2017), slip
op. at 5 (quoting Norriton E. Realty Corp. v. Cent.-Penn Nat’l Bank, 254 A.2d 637,
638 (Pa. 1969)). Significantly, “[a] claim for conversion arises from an intentional[]
and not a negligent act.” Id., slip op. at 5 (citing Williams v. Stickman, 917 A.2d
915, 917 (Pa. Cmwlth. 2007)). In this case, Robertson alleges that CO Johnson
entered his cell and confiscated his typewriter, and, even though the typewriter was
not altered into contraband, it was intentionally destroyed. (O.R., Item
No. 21, Compl. ¶¶ 4, 5, Exs. 1-3.) Taking Robertson’s averments as true, he has
alleged a cognizable conversion claim that CO Johnson willfully interfered with his
property, without lawful justification, and thereby deprived him of use and
possession of the typewriter.
The Defendants contend, however, that CO Johnson enjoys the protection of
sovereign immunity against intentional torts such as conversion. (Defendants’
Supplemental Brief at 9-10.) Commonwealth employees acting in the course and
scope of their employment are immune from suit unless sovereign immunity is
specifically waived. 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(a).8 An action for
intentional misconduct is barred by sovereign immunity if the Commonwealth actor
was within the scope of his employment. La Frankie v. Miklich, 618 A.2d 1145,
8
The Commonwealth has waived its sovereign immunity for negligence actions, in
relevant part, for damages caused by the “care, custody, or control of personal property.” 42 Pa.
C.S. § 8522(b)(3). We have held that this exemption to sovereign immunity only applies to the
negligent handling of an inmate’s personal property while in the possession or control of prison
staff. Williams, 917 A.2d at 918. We do not believe that Robertson asserts a claim of negligence
against CO Johnson as to his care for the typewriter; rather, Robertson appears to assert that CO
Johnson intentionally and deliberately took, inspected, and destroyed the typewriter. Intentional
and deliberate acts are not covered by the personal property exemption to sovereign immunity set
forth in 42 Pa. C.S. § 8522(b). Roman v. Swartz (Pa. Cmwlth., No. 1243 C.D. 2012, filed
May 15, 2013), slip op. at 5.
8
1149 (Pa. Cmwlth. 1992). To be within the scope of employment, the conduct must
be of the same general nature as that authorized or incidental to the conduct
authorized, occurring substantially within the authorized time, and done to serve the
employer. Kull v. Guisse, 81 A.3d 148, 153 (Pa. Cmwlth. 2013).
“Regulating and confiscating inmate property falls squarely within the scope
of a corrections officer’s duties.” Price, slip op. at 8. Based on Robertson’s
averments, CO Johnson was performing a contraband inspection within SCI-Greene
when he confiscated Robertson’s typewriter, inspected it for contraband, and, after
deeming it to be contraband, destroyed it. We conclude that CO Johnson was acting
within the scope of his employment and is entitled to sovereign immunity concerning
this conversion claim. Thus, the trial court did not err in dismissing this claim based
on CO Johnson’s sovereign immunity.
2. Lack of Personal Involvement
With respect to Deputy Superintendent Zaken, his involvement is that he
responded to Robertson’s correspondence by informing him that his typewriter was
confiscated as contraband and destroyed. (O.R., Item No. 21, Compl. ¶ 7, Ex. 3.)
“Merely being in the ‘chain of command’ does not subject [a public servant
manager] to suit on any theory of vicarious responsibility.” Price, slip op. at 9
(quoting DuBree v. Cmwlth., 393 A.2d 293, 295 (Pa. 1978)); see also Bush v. Veach,
1 A.3d 981, 986 (Pa. Cmwlth. 2010) (holding that superintendent did not have actual
knowledge of employee’s alleged unlawful conduct based on his response to
grievance denials, and that his liability cannot be predicated on operation of
respondeat superior). Given that Deputy Superintendent Zaken was not personally
involved in the confiscation and actual destruction of Robertson’s typewriter, the
9
trial court did not err in dismissing the conversion claim for failure to state a claim
upon which relief may be granted.
3. Procedural Due Process Claims
Robertson claims that the Defendants violated his procedural due process
rights provided by Article I, Section 1 of the Pennsylvania Constitution9 and the
Fourteenth Amendment to the United States Constitution10 when they destroyed his
typewriter without notifying him or providing him with a hearing. (O.R., Item
No. 21, Compl. ¶¶ 13, 15.) “‘Due process under the Pennsylvania Constitution
emanates from a number of provisions, including Article I, Section[] 1’ . . . [which]
protects life, liberty and property interests.” O’Toole v. Pa. Dep’t of Corr., 196 A.3d
260, 265 (Pa. Cmwlth. 2018) (quoting Muscarella v. Cmwlth., 87 A.3d 966, 973 (Pa.
Cmwlth. 2014)). “The Pennsylvania Supreme Court has held that ‘the requirements
of Article I, Section 1 of the Pennsylvania Constitution are not distinguishable from
those of the [Due Process Clause of the] [Fourteenth] Amendment . . . [thus] we may
apply the same analysis to both claims.’” Robbins v. Cumberland Cnty. Child. &
Youth Servs., 802 A.2d 1239, 1252 (Pa. Cmwlth. 2002) (en banc) (some alterations
in original) (quoting Pa. Game Comm’n v. Marich, 666 A.2d 253, 255 n.6
(Pa. 1995)).
“In analyzing a due process claim, the first step is to determine ‘whether the
nature of the interest is one within the contemplation of the “liberty or property”
9
Article I, Section 1 of the Pennsylvania Constitution provides: “All men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” PA. CONST. art. I, § 1.
10
The Fourteenth Amendment to the United States Constitution provides, in relevant part,
that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law.” U.S. CONST. amend. XIV, § 1.
10
language of the Fourteenth Amendment.’” Lopez v. Pa. Dep’t of Corr.,
119 A.3d 1081, 1085 (Pa. Cmwlth. 2015), aff’d, 144 A.3d 92 (Pa. 2016) (quoting
Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000)).11 Once it is determined that the
interest is protected by the Due Process Clause, the question is then “what process
is due to protect it.” Shoats, 213 F.3d at 143.
Inmates do not have an absolute right to acquire and keep any property they
wish, and the Department is permitted to deprive inmates of property so long as those
decisions are reasonably related to legitimate penological interests. Bell v. Wolfish,
441 U.S. 520, 545-46 (1979); Iseley v. Beard, 841 A.2d 168, 174 (Pa. Cmwlth.),
appeal denied, 863 A.2d 1150 (Pa. 2004). We have explained:
When a prison official confiscates a prisoner’s property in an allegedly
unauthorized way, whether it be negligently or intentionally, due
process requires only the existence of an adequate post-deprivation
remedy because it is not feasible for a prison to provide a hearing prior
to taking property that is perceived to be contraband or against prison
regulations.
Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth. 2017) (citing Hudson
v. Palmer, 468 U.S. 517, 533-34 (1984)). “[I]nmate grievance systems are an
adequate post-deprivation remedy.” Shore, 168 A.3d at 383.
Robertson avers that he filed an inmate grievance seeking reimbursement for
the cost of the typewriter, but the Department denied the grievance at all
administrative levels. (O.R., Item No. 21, Compl. ¶ 8.) We conclude that Robertson
received the amount of due process to which he was entitled under the Department’s
11
While decisions of federal district courts and courts of appeals, including those of the
Third Circuit, are not binding on Pennsylvania courts, even where a federal question is involved,
they have persuasive value. Kutnyak v. Dep’t of Corr., 923 A.2d 1248, 1250 (Pa. Cmwlth. 2007)
(citing Garber v. Pa. Dep’t of Corr. Sec’y, 851 A.2d 222, 226 n.9 (Pa. Cmwlth. 2004)). It is
appropriate to follow them where the United States Supreme Court has not spoken. Weaver v. Pa.
Bd. of Prob. & Parole, 688 A.2d 766, 772 n.11 (Pa. Cmwlth. 1997).
11
inmate grievance system. Thus, the trial court did not err when it dismissed this
claim for failure to state a claim upon which relief may be granted.
4. Violations of Department Policy
Robertson contends that the Defendants violated two provisions of the
Department’s Code of Ethics related to the confiscation of his typewriter.
(O.R., Item No. 21, Compl. ¶¶ 9, 11.) The Department’s policies and procedures do
not, in themselves, confer upon inmates any actionable rights. Dantzler v.
Wetzel, 218 A.3d 519, 524 (Pa. Cmwlth. 2019) (en banc), abrogated on other
grounds by Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269 (Pa. Cmwlth. 2021)
(en banc). “[A] failure to comply with prison policy is not a basis for a cause of
action.” Dantzler, 218 A.3d at 524. To the extent Robertson relies on the
Department’s Code of Ethics to support his argument that the Defendants violated
his rights, he fails to state a claim upon which relief may be granted.
C. Trial Court’s Reliance on Unpublished Opinion
Robertson contends that the trial court erred when it dismissed his federal
constitutional claims pursuant to the PLRA, citing Owens v. Shannon, 808 A.2d 607(Pa. Cmwlth. 2002), to support this argument. (Robertson’s Brief at 9.) The inmate
in Owens filed a complaint in a court of common pleas pursuant to 42 U.S.C. § 1983(Section 1983),12 alleging that prison officials retaliated and denied his free speech
rights provided by the First Amendment to the United States Constitution when he
was transferred from one prison to another. Owens, 808 A.2d at 608. The common
pleas court dismissed his complaint pursuant to Section 6602(e)(2) of the PLRA for
12
We note that while Section 1983 does not create substantive rights, it is a vehicle for
vindicating rights conferred in the United States Constitution or federal statutes. Urbanic v.
Rosenfeld, 616 A.2d 46, 52 (Pa. Cmwlth. 1992), aff’d, 631 A.2d 596 (Pa. 1993). Additionally, the
law is clear that a Section 1983 action may be brought in state court. Heinly, 621 A.2d at 1215-16.
12
failure to state a claim upon which relief may be granted, reasoning that the prison
officials enjoyed sovereign immunity. Id. at 609. The inmate appealed, and we
reversed the common pleas court’s decision because a state-law sovereign immunity
defense was not available in a Section 1983 action, brought in a state court that had
jurisdiction, when the defense would not be available if the action had been brought
in federal court. Id. at 610. Simply stated, “a state may not lessen the availability
of Section 1983 by taking any action purportedly frustrating its application.”
Heinly, 621 A.2d at 1215. Owens, however, does not apply to Robertson’s situation.
In Jae, we explained that “federal law governs the substantive merits of a
Section 1983 action brought in state court, but state law governs the procedures by
which that action will be litigated.” Jae, 946 A.2d at 809. Robertson’s case is on
point with our decision in Jae, where the trial court used the Commonwealth’s
procedural law to dismiss his Section 1983 claim. Accordingly, because Robertson
brought his declaratory judgment action for alleged violations of his federal due
process rights in state court, the PLRA applies and the trial court did not err in using
it to dismiss his complaint.
Robertson next contends that the trial court erred when it relied on this Court’s
unpublished opinion in Greely v. Wetzel (Pa. Cmwlth., No. 1369 C.D. 2017, filed
April 4, 2018), to support the decision to dismiss his complaint. (Robertson’s Brief
at 9.) To place this argument into context, Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a), provides:
An unreported opinion of this Court may be cited and relied upon when
it is relevant under the doctrine of law of the case, res judicata, or
collateral estoppel. Parties may also cite to an unreported panel
decision of this Court issued after January 15, 2008, for its persuasive
value, but not as binding precedent.
13
While the trial court relied on Greely, its central point was really to reference
Section 6602(e)(2) of the PLRA, 42 Pa. C.S. § 6602(e)(2), as support for its decision.
Moreover, while Greely is not a published opinion that may be cited as binding
precedent, the above-quoted internal operating procedure allows unreported panel
decisions, issued after January 15, 2008, to be cited for their persuasive value. Thus,
we conclude that the trial court did not err in citing to Greely for its persuasive value
to support its decision to dismiss the complaint.
D. Trial’s Court Citation in Pa. R.A.P. 1925(a) Opinion
of Case Not Previously Cited
Robertson’s third argument is that the trial court erred when it referenced in
its Pa. R.A.P. 1925(a) opinion a published case that it did not previously reference
to support the dismissal of the complaint (along with Greely), taking the position
that the trial court no longer had jurisdiction in the case due to the appeal.
(Robertson’s Brief at 9.) We note that Pa. R.A.P. 1925(a) requires, in relevant part,
that “the judge who entered the order giving rise to the notice of appeal, if the reasons
for the order do not already appear of record, shall . . . file of record at least a brief
opinion of the reasons for the order, or for the rulings or other errors complained of,
or shall specify in writing the place in the record where such reasons may be found.”
Section 5505 of the Judicial Code provides that “[e]xcept as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind any order
within 30 days of its entry, notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken or allowed.” 42 Pa. C.S. § 5505.
In the present matter, the trial court, after explaining why it cited to Greely,
provided that, “[i]n the event that it was improper to cite Greely for precedential
value, we now look to Miles v. Wiser, 847 A.2d 237, 240 (Pa. Cmwlth. 2004).”
(O.R., Item No. 9, Trial Court Opinion dated October 22, 2019, at 3.) The trial court
14
explained that Miles similarly held that under Section 6602(e) of the PLRA “a court
is required to dismiss prison conditions litigation that it deems are [sic] frivolous or
that fail to state a cause of action in a situation where, as here, [IFP] status is sought.”
(Id.) The trial court was simply adding to the authority it relied upon to support its
decision to dismiss the complaint and did not change the order that dismissed
Robertson’s complaint. Consequently, we conclude that the trial court neither erred
in substituting the Miles case for its precedential value in its Pa. R.A.P. 1925(a)
opinion, nor violated 42 Pa. C.S. § 5505 by changing its decision after thirty days
and while the matter was on appeal.
IV. CONCLUSION
For the reasons set forth above, we affirm the trial court’s order, denying
Robertson IFP status and dismissing his complaint.
P. KEVIN BROBSON, President Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin J. Robertson, :
Appellant :
:
v. : No. 1111 C.D. 2019
:
Deputy Zaken and CO 1 Johnson :
ORDER
AND NOW, this 22nd day of December, 2021, the order of the Court of
Common Pleas of Greene County, dated July 2, 2019, is AFFIRMED.
P. KEVIN BROBSON, President Judge