D.R. Gentilquore v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darren R. Gentilquore, :

Petitioner :

:

v. : No. 45 M.D. 2021

: Submitted: September 11, 2024

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION BY

JUDGE DUMAS FILED: October 29, 2024

Darren R. Gentilquore (Petitioner) has pro se filed a petition for review

in this Court’s original jurisdiction, challenging procedures adopted by the

Department of Corrections (the Department) to administer its medical services

program. In response, the Department has filed preliminary objections in the nature

of a demurrer, but the Department also cites Portalatin v. Pennsylvania Department

of Corrections, 979 A.2d 944 (Pa. Cmwlth. 2009), in which this Court determined

that similar due process claims were outside this Court’s original jurisdiction. Upon

review, we agree with the Department’s reliance on Portalatin and conclude that

Petitioner has failed to invoke this Court’s original jurisdiction. Accordingly, we

dismiss the petition for review. Because we lack jurisdiction, we dismiss the

Department’s preliminary objections as moot.

I. BACKGROUND1

Petitioner is a state inmate held by the Department.2 He suffers from

type-2 diabetes and, in August 2020, developed complications associated with his

condition. Upon informing prison medical staff that his left foot and ankle had

turned purple, staff directed Petitioner to sign up for a sick call. The form for

requesting treatment requires an inmate to describe his ailment. Additionally, the

form requires an inmate to pre-authorize the deduction of co-payment charges from

the inmate’s prison account.

Petitioner does not assert that the Department deducted a co-payment

from his inmate account. Nevertheless, dissatisfied with the pre-authorization

requirement, Petitioner filed a grievance with prison officials. A grievance officer

denied Petitioner’s grievance as frivolous, noting that Petitioner had been seen by

medical department staff for chronic care issues without charge. Petitioner then

appealed the grievance denial to the facilities manager, who upheld the denial.

Petitioner also sought final review of his grievance but was denied relief.3

1

We base the statement of facts on those alleged in the petition for review. See Pet. for

Rev., 3/3/21. Additionally, Petitioner attached exhibits to his petition; any citations to said exhibits

are specifically noted. See Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1 (Pa. Cmwlth. 2019)

(observing that courts reviewing preliminary objections may not only consider the facts pleaded

in the petition for review, but also any documents or exhibits attached to it).

2

Petitioner pleads that he is an inmate incarcerated at the State Correctional Institution at

Houtzdale (SCI-Houtzdale). However, we note that Petitioner is currently housed at the State

Correctional Institution at Pine Grove (SCI-Pine Grove). See Inmate Locator, Pa. Dep’t of Corr.,

http://inmatelocator.cor.pa.gov (last visited October 28, 2024). This fact does not alter our

analysis.

3

Petitioner did not attach this final denial to his petition but pleads that he received the

decision on January 11, 2021. See Pet. for Rev., ¶ 13.

2

Dissatisfied with the outcome of the grievance process, Petitioner filed

the instant petition.4 According to Petitioner, the Department adopted this pre-

authorization requirement “years [ago] to achieve monetary control over the

patient’s inmate account.” Pet. for Rev., ¶ 17. In relief, Petitioner seeks an order

directing the Department to comply with the law.5 Id., wherefore clause.

The Department filed preliminary objections by demurrer. Prelim.

Objs., 4/7/21, ¶¶ 8-34; see Resp’t’s Br. at 10-13. In relevant part, the Department

cites to this Court’s decision in Portalatin, asserting that “the medical co-pay

program does not impose the type of atypical and significant hardship that would

implicate a constitutional right . . . .” Id. (quoting Portalatin, 979 A.2d at 949). In

response, Petitioner baldly asserts that he has pleaded and proved his claim by a

preponderance of the evidence; he offers no argument responsive to Portalatin. See

Pet’r’s Br. at 7 (exclusive of white space).

II. DISCUSSION6

Petitioner has challenged procedures adopted by the Department to

administer its medical services program. See Pet. for Rev., Ex. 1. According to

4

Petitioner pleaded that this Court has jurisdiction over his petition pursuant to both 42

Pa.C.S. §§ 761 and 763, which respectively define our original and appellate jurisdiction.

However, in his brief, Petitioner has clarified that he seeks relief in this Court’s original

jurisdiction. See Pet’r’s Br. at 3 (unpaginated).

5

To the extent Petitioner seeks a ruling from this Court that the Department has failed to

comply with medical payment regulations, we infer that Petitioner seeks declaratory and injunctive

relief.

6

When reviewing preliminary objections, we “must treat as true all well-pleaded, material

and relevant facts together with any reasonable inference[s] that can be drawn from those facts.”

Cnty. of Berks v. Pa. Off. of Open Rec., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019) (citations

omitted). We are not required to accept as true “conclusions of law, unwarranted inferences from

facts, expressions of opinion or argumentative allegations.” Id. “[W]here any doubt exists as to

whether the preliminary objections should be sustained, the doubt must be resolved in favor of

overruling the preliminary objections.” Pa. State Lodge, Fraternal Ord. of Police v. Dep’t of

Conservation & Nat. Res., 909 A.2d 413, 416 (Pa. Cmwlth. 2006).

3

Petitioner, the Department has not adhered to regulations that define a state inmate’s

co-payment obligations for medical treatment. Id., ¶¶ 4, 17.7 Petitioner initially

sought relief through the Department’s internal grievance process. Id., Ex. 1. Upon

exhausting this administrative remedy, Petitioner turned to this Court for relief.

“Prison inmates do not enjoy the same level of constitutional

protections afforded to non-incarcerated citizens.” Feliciano v. Dep’t of Corr., 250

A.3d 1269, 1274 (Pa. Cmwlth. 2021) (en banc) (citation omitted), aff’d, 283 A.3d

196 (Pa. 2022). “Admittedly, prisoners do not shed all constitutional rights at the

prison gate, . . . but lawful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction justified by the considerations

underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (cleaned

up). The limitation of these protections manifests in different ways.

For example, and relevant here, a prisoner’s right of access to judicial

review is limited. This Court does not review prison grievances or misconduct

appeals. See Bronson v. Cent. Off. Rev. Comm., 721 A.2d 357, 358-59 (Pa. 1998).

This is because “internal prison operations are more properly left to the legislative

and executive branches, and . . . prison officials must be allowed to exercise their

judgment in the execution of policies necessary to preserve order and maintain

security free from judicial interference.” Id. at 358 (agreeing with analysis from this

Court that the Department’s internal grievance review does not function on the level

of a government agency); see 42 Pa.C.S. § 763(a)(1).8

7

Petitioner cites 37 Pa. Code § 93.12, which outlines the prison medical services program.

Subsection (f) defines the program’s payment requirements, including that an inmate must

authorize the institution to deduct a co-payment fee from the inmate’s account for certain medical

treatments.

8

As noted, see supra n.4, Petitioner does not seek review in our appellate jurisdiction.

4

Nevertheless, there is a narrow category of prisoner due process claims

that fall within our original jurisdiction.9 To invoke this Court’s original jurisdiction,

a petitioner must identify a constitutionally-protected liberty or property interest.

Williams v. Wetzel, 232 A.3d 652, 653-54 (Pa. 2020). The interest must not be

limited by Department regulations yet be affected by a final Department decision.

Bronson, 721 A.2d at 359; Feliciano, 250 A.3d at 1275. States may also create a

liberty or property interest protected by due process by adopting certain regulations

that “impose[] atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84.10 In such cases, the

focus of inquiry is on the nature of the alleged deprivation, not the language of a

particular regulation. Portalatin, 979 A.2d at 949 (discussing Sandin).

Absent a protected interest, this Court lacks jurisdiction to consider a

claim. See, e.g., Williams, 232 A.3d at 654 (reversing this Court because there is

“no constitutionally protected interest in maintaining prison employment”);

9

The original jurisdiction of this Court is wholly statutory and narrowly circumscribed.

See 42 Pa.C.S. § 761. “The conferral of original and exclusive jurisdiction creates subject-matter

jurisdiction in the Commonwealth Court for the specified classes of claims.” Scott v. Pa. Bd. of

Prob. & Parole, 284 A.3d 178, 186 (Pa. 2022). “[S]ubject matter delineations must be policed by

the courts on their own initiative even at the highest level.” Id. at 188 (cleaned up). Accordingly,

we may consider whether a litigant has invoked this Court’s jurisdiction sua sponte. Blount v.

Phila. Parking Auth., 965 A.2d 226, 229 (Pa. 2009); see also Ferguson v. Pa. Dep’t of Corr. (Pa.

Cmwlth., No. 310 M.D. 2022, filed November 30, 2023); Coats v. Dep’t of Corr. (Pa. Cmwlth.,

No. 329 M.D. 2022, filed October 2, 2023). We may cite memorandum opinions of this Court for

their persuasive value. Section 414(a) of the Commonwealth Court’s Internal Operating

Procedures, 210 Pa. Code § 69.414(a).

10

In Sandin v. Connor, 515 U.S. 472 (1995), the United States Supreme Court determined

that 30 days in disciplinary segregation “did not work a major disruption in his environment,” such

as would entitle the inmate to procedural protections. Id. at 487.

5

Bronson, 721 A.2d at 359 (disapproving this Court’s exercise of original jurisdiction

in Kisner v. Dep’t of Corr., 683 A.2d 353 (Pa. Cmwlth 1996)).11

In Portalatin, a state inmate suffered from a skin condition. 979 A.2d

at 946. Citing the Prison Medical Services Act12 and Department regulations, the

inmate sought to invoke this Court’s original jurisdiction so he could challenge the

Department’s assessment of co-payment fees for his medical treatment and

prescription refills. Id. According to the inmate, the assessment affected his

protected interests not otherwise limited by the Department’s regulations.13 Id. at

948-49. The Portalatin Court disagreed, observing that “[t]here is no constitutional

right to free medical services and prescription medicine.” Id. at 949. The Court then

considered whether the Department’s regulations had created a protected interest

subject to this Court’s review. See id. (construing Sandin). However, the Portalatin

Court rejected any such interest because the co-payment program did not “impose

11

In Kisner, this Court accepted original jurisdiction over an inmate’s complaint in

mandamus, reasoning that the complaint was directed against an officer of the Commonwealth

government. 683 A.2d at 355. The Kisner Court then sustained the Department’s demurrer

because the claimant had not established a clear right to relief. Id. at 356. The Court did not

consider whether the claimant had identified a protected constitutional interest. See generally id.

Subsequently, the appellant in Bronson relied on Kisner, but the Supreme Court rejected the Kisner

Court’s analysis, stating, “we reject the rationale of Kisner that Commonwealth Court had original

jurisdiction in a case not involving constitutional rights not limited by the [D]epartment of

[C]orrections.” Bronson, 721 A.2d at 359.

12

Act of May 16, 1996, P.L. 220, as amended, 61 P.S. §§ 1011–17, repealed by Act of

August 11, 2009, P.L. 147. It was replaced by the Correctional Institution Medical Services Act,

61 Pa.C.S. §§ 3301-3307.

13

We note the logic of the Portalatin inmate’s argument as follows. The inmate maintained

that his skin condition qualified as a chronic illness. See 979 A.2d at 946, 949. According to the

inmate, 37 Pa. Code § 93.12(d) prohibited the Department from charging a fee for the treatment

of chronic illnesses. Id. Thus, the inmate reasoned, the regulation had created a protected interest

not to be charged for this treatment. Id. Although not pertinent to its jurisdictional analysis, the

Portalatin Court also determined that the premise of the inmate’s argument was flawed, observing

that the list of chronic illnesses exempt from co-payment fees did not include the inmate’s skin

condition. See id. at 950-51.

6

such atypical and significant hardships as to implicate a constitutional right.” Id.

Thus, even if the inmate’s allegations were credited, “this Court does not enjoy

original jurisdiction over the case.” Id.

In our view, Portalatin is instructive. Just as the inmate therein,

Petitioner has challenged the Department’s adherence to regulations developed to

administer medical services to state inmates, including the assessment of co-

payment fees for some medical treatments. But, as the Portalatin Court recognized,

there is no constitutional right to be free of co-payments. 979 A.2d at 949.

Moreover, these regulations do not create a protected interest, the alleged

deprivation of which would trigger this Court’s original jurisdiction. See id.

Accordingly, we dismiss the petition for review for lack of jurisdiction.

Williams; Bronson; Feliciano; Portalatin. Because we lack jurisdiction, we dismiss

the Department’s preliminary objections as moot.

LORI A. DUMAS, Judge

7

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darren R. Gentilquore, :

Petitioner :

:

v. : No. 45 M.D. 2021

:

Pennsylvania Department of :

Corrections, :

Respondent :

ORDER

AND NOW, this 29th day of October, 2024, the petition for review filed by

Darren R. Gentilquore on March 3, 2021, is DISMISSED for lack of jurisdiction.

The preliminary objections filed by the Pennsylvania Department of Corrections on

April 7, 2021, are therefore DISMISSED as moot.

LORI A. DUMAS, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darren R. Gentilquore, :

Petitioner :

:

v. : No. 45 M.D. 2021

: Submitted: September 11, 2024

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

CONCURRING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: October 29, 2024

Although I firmly believe that under well-established principles of subject

matter jurisdiction, disputes like this, involving the Pennsylvania Department of

Corrections (Department), should be in this Court’s original jurisdiction pursuant to

Section 761 of the Judicial Code, 42 Pa.C.S. § 761, because of controlling

Pennsylvania Supreme Court precedent, I must concur with the majority that this

case is not. Respectfully, it appears to me that the Supreme Court has created an

“inmate exception” to this Court’s original jurisdiction, which conflates subject

matter jurisdiction with a party’s failure to state a claim, two separate and distinct

legal concepts with different consequences. For reasons explained more thoroughly

below, I feel compelled to write separately to respectfully suggest the Pennsylvania

Supreme Court reexamine this issue, particularly in light of its more recent

precedent.

I. SUBJECT MATTER JURISDICTION, GENERALLY

As a general matter, “subject matter jurisdiction inquires into the competency

of the court to determine controversies of the general class to which the case

presented for consideration belongs.” Domus, Inc. v. Signature Bldg. Sys. of PA,

LLC, 252 A.3d 628, 636 (Pa. 2021) (quoting Assouline v. Reynolds, 219 A.3d 1131,

1137 (Pa. 2019)). That authority springs from the Constitution and laws. See

Restatement (Second) of Judgments § 11 cmt. a (Am. Law. Inst. 1982) (Restatement)

(noting that courts’ legal authority to decide cases “derives from constitutional

provisions or from statutory provisions . . . [that] establish courts and provide for

their jurisdiction”); see also Heath v. Workers’ Comp. Appeal Bd. (Pa. Bd. of Prob.

& Parole), 860 A.2d 25, 29 (Pa. 2004) (subject matter jurisdiction “is conferred by

the Commonwealth’s Constitution and laws”). Therefore, a court’s possession of

subject matter jurisdiction is an essential and nonwaivable prerequisite to a court’s

resolution of a case.

In Domus, the Pennsylvania Supreme Court reiterated the “general class of

cases” understanding of subject matter jurisdiction. The Court had to decide whether

“the failure to authenticate a foreign judgment under [Section 4306 of] the Uniform

Enforcement of Foreign Judgments Act, 42 Pa.C.S. § 4306, deprives a trial court of

subject matter jurisdiction such that a challenge to that failure may not be waived[.]”

Domus, 252 A.3d at 634. Reversing the Superior Court, which found the

requirement to be jurisdictional, the Court looked to the Pennsylvania Constitution

and the relevant jurisdictional statute for courts of common pleas, concluding that

“the absence of proper authentication . . . does not render the court of common pleas

incompetent to determine controversies of the general class to which this case

belongs, i.e., actions to enforce foreign judgments.” Id. at 636 (emphasis added). It

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helpfully framed the subject matter jurisdiction question as “whether the court could

enter upon the inquiry, not whether it might ultimately decide that it was unable

to grant relief in a particular case.” Id. (quotation marks and citations omitted)

(emphasis added).

In Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d 383, 400 (Pa.

2021), our Supreme Court again heeded that distinction. In that case, the Superior

Court had sua sponte raised two issues it believed to be “jurisdictional”: the

unauthorized practice of law by a pro se litigant and the complaint’s lack of

verification. 265 A.3d at 394-95. The Supreme Court reversed, explicitly

referencing federal subject matter jurisdiction jurisprudence. Id. at 400.1 Like

Domus, Bisher also focused its inquiry on the class of cases courts may hear,

reasoning that “there is no question that the trial court was authorized to adjudicate

the [e]state’s medical malpractice lawsuit that [the plaintiff] attempted to pursue.”

Bisher, 265 A.3d at 400. The Supreme Court reminded courts that “the label

‘jurisdictional’ should be reserved ‘only for prescriptions delineating the class of

cases (subject[ ]matter jurisdiction) and the persons (personal jurisdiction) falling

within a court’s adjudicatory authority.’” Id. (quoting Kontrick v. Ryan, 540 U.S.

443, 455 (2004)).

1

The Court explained that

[e]quating jurisdiction with the competence of the court to determine the

controversy generally aligns with the United States Supreme Court’s views.

“Jurisdiction to resolve cases on the merits requires both authority over the category

of claim in suit (subject[ ]matter jurisdiction) and authority over the parties

(personal jurisdiction), so that the court’s decision will bind them.” Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 577 (1999).

Bisher, 265 A.3d at 400.

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In sum, subject matter jurisdiction is about the general classes of controversies

a court is entrusted to hear, Domus, 252 A.3d at 636, and that authority is derived

from the Constitution and Judicial Code, 42 Pa.C.S. §§ 101-9913, not judicially self-

created, Heath, 860 A.2d at 29; Strank v. Mercy Hospital of Johnstown, 102 A.2d

170, 172 (Pa. 1954). Finally, a litigant’s failure to state a claim upon which relief

can be granted does not deprive a court of subject matter jurisdiction. Heath, 860

A.2d at 29.

One other aspect of the courts’ treatment of jurisdiction bears mentioning.

Notwithstanding its importance, courts are not always precise with their use of the

term “jurisdiction.” Even the United States Supreme Court has observed that courts

sometimes inaccurately say they are dismissing for lack of jurisdiction when, in

reality, it is because a litigant has not stated a claim. Arbaugh v. Y&H Corp., 546

U.S. 500, 511 (2006). The Supreme Court described this as the “profligate . . . use

of the term” “jurisdiction.” Id. at 510 (emphasis added). It further explained:

Judicial opinions, the Second Circuit incisively observed, “often

obscure the issue by stating that the court is dismissing ‘for lack of

jurisdiction’ when some threshold fact has not been established,

without explicitly considering whether the dismissal should be for lack

of subject matter jurisdiction or for failure to state a claim.” Da Silva

[v. Kinsho Int’l Corp.,] 229 F.3d[ 358,] 361 [(2d Cir. 2000)]. We have

described such unrefined dispositions as “drive-by jurisdictional

rulings” that should be accorded “no precedential effect” on the

question whether the federal court had authority to adjudicate the claim

in suit. Steel Co. [v. Citizens for Better Env’t], 523 U.S.[ 83,] 91

[(1998)].

Id. at 511 (emphasis added).

Since Arbaugh, as illustrated below, the United States Supreme Court has

“cleaned up” its jurisdiction jurisprudence by declining to characterize issues as

jurisdictional absent a clear statement from Congress that it intended it to be so.

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Indeed, “mindful of [the] consequences” of labeling something as jurisdictional, the

Supreme Court has “endeavored ‘to bring some discipline’ to [the] use of the

jurisdictional label.” Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S. 199,

203 (2022) (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). See also

Harrow v. Dep’t of Def., 601 U.S. 480, 489 n.1 (2024) (citing Arbaugh to disavow

an incorrect use of the term “jurisdictional,” explaining that the Court previously

“used to apply the term ‘jurisdiction’ in a ‘profligate’ manner, failing to distinguish

between statutes spelling out a court’s power and those specifying what steps a

litigant should take”) (quoting Arbaugh, 546 U.S. at 510).

II. COMMONWEALTH COURT’S SUBJECT MATTER JURISDICTION

Against that backdrop, I turn to the subject matter jurisdiction of the

Commonwealth Court. Making sure to carefully determine whether a given case

falls within the Court’s subject matter jurisdiction involves consultation of the only

sources that shapes its subject matter jurisdiction: the Constitution and the Judicial

Code.

This Court’s subject matter jurisdiction was conferred in the first

instance by article V, section 4 of the Pennsylvania Constitution,[2]

which provides that “[t]he Commonwealth Court shall . . . have such

jurisdiction as shall be provided by law.” PA. CONST. art. V, § 4.

Consistent with that constitutional mandate, the General Assembly

enacted Sections 761 through 763 of the Judicial Code to provide for

this Court’s original and appellate jurisdiction. 42 Pa.C.S. §§ 761-763.

At issue here is our original jurisdiction, and Section 761(a)(1) provides

that our original jurisdiction extends to “all civil actions or proceedings

. . . [a]gainst the Commonwealth government . . . .” 42 Pa.C.S.

§ 761(a)(1).

2

For a discussion of the background for the creation of the Commonwealth Court and the

1967-68 Constitutional Convention, see generally Abraham Lipez, History of the Commonwealth

Court, 1 Pa. Cmwlth. vii, vii-xi (1971).

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Empire Roofing & More, LLC v. Dep’t of Lab. & Indus., State Workers’ Ins. Fund,

312 A.3d 400, 405 (Pa. 2024).

Section 761(a) provides:

(a) General rule.--The Commonwealth Court shall have original

jurisdiction of all civil actions or proceedings:

(1) Against the Commonwealth government, including any

officer thereof, acting in his official capacity, except:

(i) actions or proceedings in the nature of applications for

a writ of habeas corpus or post-conviction relief not

ancillary to proceedings within the appellate jurisdiction

of the court;

(ii) eminent domain proceedings;

(iii) actions or proceedings conducted pursuant to Chapter

85 (relating to matters affecting government units);

(iv) actions or proceedings conducted pursuant to the [A]ct

of May 20, 1937[, ]P.L. 728, No. 193[], referred to as the

Board of Claims Act;[3] and

(v) actions or proceedings in the nature of trespass as to

which the Commonwealth government formerly enjoyed

sovereign or other immunity and actions or proceedings in

the nature of assumpsit relating to such actions or

proceedings in the nature of trespass.

(2) By the Commonwealth government, including any officer

thereof, acting in his official capacity, except eminent domain

proceedings.

3

Former 72 P.S. §§ 4651-1–4651-10, repealed by Sections 21(a)(2) and 22(1)(iv) of the

Act of December 3, 2002, P.L. 1147.

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(3) Arising under Article V of the [A]ct of May 17, 1921[, ]P.L.

789, No. 285[], known as “The Insurance Department Act of

1921.”[4]

(4) Original jurisdiction of which is vested in the Commonwealth

Court by any statute hereafter enacted.

42 Pa.C.S. § 761(a) (emphasis added). The text of Section 761(a)(1) bespeaks a

clear intent on the part of the legislature: when the Commonwealth government is

sued, that dispute typically belongs in Commonwealth Court in the first instance.5 It

saw fit to enact several exceptions, recognizing that notwithstanding that general

rule, there were classes of cases that belonged, in the first instance, in a different

tribunal, like a court of common pleas or the Board of Claims. But typically,

lawsuits against the Commonwealth government proceed in Commonwealth Court.6

In a recent case involving this Court’s original jurisdiction, our Supreme

Court demonstrated that it would follow the straightforward analysis espoused in

Domus and Bisher, correcting this Court’s “misstatements that [this Court] lacked

4

As amended, 40 P.S. §§ 221.1-221.63.

5

The exceptions to our original jurisdiction “reflect historical considerations and an effort

to assure that the Commonwealth Court will not become routinely involved in jury trials.”

G. Ronald Darlington et al., 20 West’s Pennsylvania Practice, Appellate Practice § 40:300 (2023-

24 ed.).

6

It has been explained that our “jurisdiction is unusual in that it is usually based upon an

analysis of both the identities of the parties to the proceedings and the nature of the cause of action

asserted.” G. Ronald Darlington et al., 20 West’s Pennsylvania Practice, Appellate Practice

§ 40:300. While that might appear unusual in the Commonwealth, it is quite routine in the federal

courts. For example, to satisfy the requirements of diversity jurisdiction in federal court, the

identity of the parties—i.e., that complete diversity of citizenship must exist between all plaintiffs

and all defendants—is implicated head-on. See 28 U.S.C. § 1332; Lincoln Prop. Co. v. Roche,

546 U.S. 81, 89 (2005). Further, there are exceptions to diversity jurisdiction that require courts

to examine the nature of the cause of action asserted, as federal courts may not hear cases involving

probate, divorce, child custody, or alimony, even if such a case otherwise satisfies the jurisdictional

requirements of Section 1332. See Marshall v. Marshall, 547 U.S. 293, 308 (2006); Ankenbrandt

v. Richards, 504 U.S. 689, 703 (1992).

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jurisdiction[.]” Ivy Hill Congregation of Jehovah’s Witnesses v. Dep’t of Hum.

Servs., 310 A.3d 742, 753 (Pa. 2024). In concluding that a declaratory judgment

action against the Department of Human Services (DHS) fell “clearly” within this

Court’s original jurisdiction, and that this Court erroneously concluded it did not,

the Supreme Court succinctly explained:

Jurisdiction relates solely to the competence of a particular court or

administrative body to determine controversies of the general class to

which the case presented for consideration belongs. See [Office of

Gov.] v. Donahue, . . . 98 A.3d 1223, 1233 ([Pa.] 2014). . . .

The Commonwealth Court has original jurisdiction over any action

brought against the Commonwealth government. 42 Pa.C.S.

§ 761(a) . . . . The “Commonwealth government” includes

departments, boards, commissions, authorities, officers, and agencies

of the Commonwealth. [Section 102 of the Judicial Code,] 42 Pa.C.S.

§ 102; see also Donahue, 98 A.3d at 1233. As DHS is part of the

Commonwealth government, the lower court clearly had

jurisdiction over [the a]ppellant’s declaratory judgment action

against DHS.

Id. at 752-53 (some citations omitted) (emphasis added).

In Donahue, cited by Ivy Hill, the question was whether this Court’s original

jurisdiction extended to a declaratory judgment action against the Office of Open

Records (OOR). There, the Supreme Court rejected OOR’s argument that the lack

of “a substantial constitutional issue in t[he] action deprive[d] the Commonwealth

Court of jurisdiction.” Donahue, 98 A.3d at 1233. It continued:

OOR’s attempt to limit the Commonwealth Court’s jurisdiction . . .

understates the reach of the Commonwealth Court’s original

jurisdiction over a Commonwealth agency like OOR. The

Commonwealth Court has original jurisdiction over any action brought

against the “Commonwealth government,” as well as the authority to

grant declaratory relief to the same. 42 Pa.C.S. §[] 761(a)[;] [Section

7541(a) of the Declaratory Judgments Act, 42 Pa.C.S. §] 7541(a); Vine

v. Commonwealth, . . . 9 A.3d 1150, 1165 ([Pa.] 2010)[, superseded by

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statute on other grounds as recognized in In re Koepfinger, 302 A.3d

630, 635 (Pa. 2023)]. The Judicial Code defines the “Commonwealth

government” as including “. . . the departments, boards, commissions,

authorities and officers and agencies of the Commonwealth.” 42

Pa.C.S. § 102. [] OOR, as a Commonwealth agency, plainly falls

within the statutory definition of “Commonwealth government” and is

therefore subject to the original jurisdiction of the Commonwealth

Court in any action properly brought against it. . . . [S]ee also Vine,

9 A.3d at 1165 (jurisdiction “relates solely to the competency of the

particular court or administrative body to determine controversies of

the general class to which the case then presented for its consideration

belongs”). The fact that [petitioner] is bringing a declaratory judgment

action against [] OOR, a Commonwealth agency, to challenge its

interpretation of [a statute], places this matter squarely within the scope

of the Commonwealth Court’s original jurisdiction.

Id. (emphasis added).

Here, as in Ivy Hill and Donahue, the resolution of the present controversy

should be simple: “As [the Department] is part of the Commonwealth government,

[this Court] clearly ha[s] jurisdiction over [Petitioner’s] . . . action against [the

Department],” Ivy Hill, 310 A.3d at 753, provided it does not fall into any of the

five statutory exceptions, which it does not.

III. THE “INMATE EXCEPTION” TO JURISDICTION

However, there are two Supreme Court decisions, which support a special rule

or a sixth exception for subject matter jurisdiction for certain types of prisoner

litigation: Bronson v. Central Office Review Committee, 721 A.2d 357 (Pa. 1998),

and more recently, Williams v. Wetzel, 232 A.3d 652 (Pa. 2020) (Williams II), which

put its imprimatur on that special rule or exception.

The basic question as articulated by the Supreme Court in Bronson was

whether inmates could effectively “appeal” grievance outcomes, and if they could,

whether those “appeals” would fall properly within this Court’s original or appellate

jurisdiction. 721 A.2d at 357. The inmate filed a petition for review addressed to

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this Court’s original jurisdiction “seeking compensation for the confiscated

property.” Id. at 358. However, the petition for review was docketed in this Court’s

appellate jurisdiction and, upon doing so, the Court dismissed it. Id.

The Supreme Court began its analysis by agreeing with a line of this Court’s

cases in which this Court had held that the Department’s Central Office Review

Committee, now known as the Secretary’s Office of Inmate Grievances and Appeals,

exercises “functions [which] are purely internal to the Department . . . and does not

function on the level of a government agency.” Id. The Court agreed with the basic

premise that “internal prison operations are more properly left to the legislative and

executive branches, and that prison officials must be allowed to exercise their

judgment in the execution of policies necessary to preserve order and maintain

security free from judicial interference.” Id. The Court did not examine the text of

Sections 761 or 763 of the Judicial Code, instead explaining that because “the

procedures for pursuing inmate grievances and misconduct appeals are a matter of

internal prison administration[,]” it followed that “the [C]ommonwealth [C]ourt

d[id] not have appellate jurisdiction . . . over inmate appeals of decisions by intra-

prison disciplinary tribunals.” Id. at 358-59 (emphasis added). Although the

Supreme Court’s conclusion regarding this Court’s appellate jurisdiction alone was

dispositive—given that this Court had docketed the matter only in its appellate

jurisdiction and had dismissed it therefrom—the Supreme Court nonetheless

described why such a claim would fall outside this Court’s original jurisdiction as

well.

Again, without examining or explaining the textual basis in the Judicial Code,

the Supreme Court “reject[ed] the rationale of Kisner [v. Pennsylvania Department

of Corrections, 683 A.2d 353 (Pa. Cmwlth. 1996),] that [the] Commonwealth Court

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had original jurisdiction in a case not involving constitutional rights not limited by

the [D]epartment . . . .” Bronson, 721 A.2d at 359. While it did not disapprove of

the holding in Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996), which

overruled the Department’s jurisdictional preliminary objection on the basis

Holloway was “clearly within [this Court’s] original jurisdiction under Section

761(a)(1) of the Judicial Code since it is an action against a Commonwealth official,

the Commissioner of Correction,7 to which none of the exceptions set forth in

Section 761 of the Judicial Code applies,” Holloway, 671 A.2d at 1181, the Supreme

Court in Bronson, nonetheless concluded Holloway was unlike the facts before it

because it “involve[d] the claim of the violation of a specific constitutional right[,]”

Bronson, 721 A.2d at 359.

The Bronson Court posited that even if the appellant had “attempt[ed] to color

the confiscation of his clothing as a violation of his protected constitutional property

rights, his claim would fail[,]” noting the longstanding principle that “incarceration

brings about the necessary withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal system.” Id. (citation

and quotation marks omitted). It concluded the opinion by explaining that “[u]nless

‘an inmate can identify a personal or property interest . . . not limited by Department

. . . regulations and which has been affected by a final decision of the

[D]epartment[,]’ the decision is not an adjudication subject to the Court’s

review.” Id. (quoting Lawson v. Dep’t of Corr., 539 A.2d 69, 71 (Pa. Cmwlth.

1988)) (emphasis added).

7

The Commissioner of Correction is now known as the Secretary of Corrections. Section

901-B of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by

Section 4 of the Act of December 30, 1984, P.L. 1299, 71 P.S. § 310-1.

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It is befuddling how this statement about a Departmental “adjudication”

pertains to our Court’s original jurisdiction. Obviously, if there was an adjudication

subject to this Court’s review, that would have occurred in the context of this Court’s

appellate jurisdiction. Interestingly, the language from the Lawson case quoted by

the Bronson Court was about appellate jurisdiction:

It appears then that if an inmate can identify a personal or property

interest which is not limited by Department regulations and which is

affected by a final decision of the Department, the Department’s

decision in those circumstances may constitute an adjudication

subject to our appellate review.

Lawson, 539 A.2d at 71 (emphasis added). The Lawson Court did ultimately

conclude that the petitioner there would also not be able to proceed in this Court’s

original jurisdiction, but that too appears based on the premise that the petitioner was

not able to state a claim, not jurisdiction in its traditional sense. Id. at 72.

It is also difficult to square Bronson with Ivy Hill and Donahue. Bronson

cited, but did not analyze, the text of Section 761 of the Judicial Code; rather it

appears to have analyzed what types of claims might survive a demurrer in this

Court’s original jurisdiction. It would be possible to read Bronson as suggesting that

the only cognizable claims by inmates in this Court’s original jurisdiction are those

“involving constitutional rights not limited by the [D]epartment[.]” Bronson, 721

A.2d at 359. Further, because the result in Bronson was affirmance of a dismissal

from this Court’s appellate jurisdiction, the Supreme Court’s commentary about this

Court’s original jurisdiction would appear to be dicta.

While Bronson could have been a “drive-by jurisdictional ruling[],” Arbaugh,

546 U.S. at 511, the Supreme Court’s decision in Williams was not. In Williams II,

the Supreme Court confirmed that it intended to follow the language it used in

Bronson about this Court’s original jurisdiction. In Williams II, a petitioner sought

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mandamus in this Court’s original jurisdiction against the Department, alleging that

the Department had failed to follow its own procedures regarding misconducts in

removing him from his prison employment. A majority opinion, authored by then-

Judge, now Justice Brobson, granted summary relief to the petitioner over a dissent.

Williams v. Wetzel, 222 A.3d 49, 56 (Pa. Cmwlth. 2019) (Williams I), rev’d,

Williams II, 232 A.3d 652. The majority in Williams I held that the Department had

failed to comply with its own procedures in discharging the petitioner from his

prison employment and ordered notice and an opportunity to be heard on his claims.

Neither the parties nor the majority discussed jurisdiction, but the dissent hinted at

it by pointing to a line of cases “holding that a prison’s adoption of policies and

practices creates neither rights in inmates nor a constitutionally protected interest

triggering inmates’ due process protections.” Williams I, 222 A.3d at 57 (Simpson,

J., dissenting).

On appeal, the Supreme Court in Williams II began by pointing out that the

dissenting opinion was “correct per this Court’s decision in Bronson . . . .” Williams

II, 232 A.3d at 653. It cited Bronson for the proposition that “the Commonwealth

Court lacks original jurisdiction to entertain a prisoner’s due process challenge to

the actions of prison officials, where the inmate fails to assert a constitutionally-

protected liberty or property interest.” Id. at 653 (emphasis added).8 Because

inmates have no constitutionally protected interest in maintaining prison

employment, the Supreme Court reversed, sua sponte finding this Court lacked

original jurisdiction. Id. at 654. Williams II neither cited nor discussed Section 761

8

Notably, the opinion was careful not to include the reference to an “adjudication” in its

discussion, presumably realizing it is nonsensical to require an adjudication in this Court’s original

jurisdiction; the presence of an adjudication is what triggers an administrative agency appeal. See

Rule 1512(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1512(a) (requiring

petitions for review of a quasijudicial order to be filed within 30 days of entry thereof).

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of the Judicial Code, but rather offered only Bronson as its basis for this

understanding of this Court’s original jurisdiction.

In sum, Williams II holds that, for all practical purposes, Section 761’s general

rule that this Court has original jurisdiction over civil actions against the

Commonwealth government contains an inmate exception not delineated in the text

of the Judicial Code itself but borne from caselaw. Essentially, the Supreme Court

judicially drafted and enacted Section 761(a)(1)(vi), “inmate litigation against the

Department in which the petitioner fails to allege a constitutionally protected liberty

or property interest.”

IV. THE EFFECTS OF THIS NEW EXCEPTION

I have several concerns with the Bronson and Williams “inmate exception.”

First, and quite simply, it amounts to “an act of judicial legislation, not within

[courts’] scope of authority.” Tyrone Area Sch. Dist. v. Delbaggio, 638 A.2d 416,

418 (Pa. Cmwlth. 1994). The General Assembly provided for several exceptions in

Section 761. It could have, but did not, mention the inmate litigation exception

reflected in Bronson and confirmed in Williams. And it is known that the General

Assembly is aware of, and has in the past addressed, the potential problems that

excessive and meritless inmate litigation can cause. See, e.g., Prison Litigation

Reform Act, 42 Pa.C.S. §§ 6601-6608. Certainly, the Supreme Court, with its power

to shape the common law of this Commonwealth, has the power to determine

whether certain “claim[s]” are “cognizable” in its courts. Marion v. Bryn Mawr Tr.

Co., 288 A.3d 76, 78 (Pa. 2023). Thus, to the extent Bronson and Williams II could

be read as simply defining which claims inmates could bring against the Department

under the common law, there would be no issue. But I question whether even the

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Supreme Court should rewrite Section 761 and alter this Court’s subject matter

jurisdiction, which is set forth therein. See In re Nov. 3, 2020 Gen. Election, 240

A.3d 591, 611 (Pa. 2020) (“It is not our role under our tripartite system of

governance to engage in judicial legislation and to rewrite a statute in order to supply

terms which are not present therein.”)

Second, the Bronson and Williams II approach, in transforming a

nonjurisdictional issue into a jurisdictional one, obligates this Court to unnecessarily

do something highly disfavored: raise issues sua sponte. See Commonwealth v.

Hamlett, 234 A.3d 486, 502-03 (Pa. 2020) (Wecht, J., dissenting) (“[S]ua sponte

decision-making is roundly disfavored in the law,” as it “deprives counsel of the

opportunity to brief and argue the issues . . . disturb[ing] the process of orderly

judicial decision-making by depriving the court of the benefit of counsel’s

advocacy.”) (italics and internal quotation marks omitted; emphasis added). See also

Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte

Decisions by Appellate Courts, 69 TENN. L. REV. 245, 316 (2002); Blake R. Hills,

Sua Sponte Dismissals: Is Efficiency More Important Than Procedural Fairness?,

89 UMKC L. REV. 243, 259 (2020). Certainly, raising subject matter jurisdiction sua

sponte is a necessary evil—indeed, the strong medicine required—when the risk is

adjudicating a dispute the Pennsylvania Constitution and laws did not entrust to this

Court. However, that strong medicine, which has the potential to create a perception

that the Court has departed from its role as neutral arbiter to that of advocate, has no

place outside the subject matter jurisdiction context.9 What is more, courts are more

likely to make mistakes without the benefit of advocacy from both sides.

9

To the extent sua sponte raising of nonjurisdictional issues may diminish litigants’

perception of the courts, that concern is real. Indeed, research in the area of law and psychology

(Footnote continued on next page…)

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Third and relatedly, because no analytic framework has been provided to

guide courts as to when an exception to the application of the jurisdictional statute

should apply, courts are left without guidance as to when a failure to state a claim

should be considered jurisdictional, in which case a court must raise it sua sponte

because it is without authority to otherwise act, or is really a matter of failing to state

a claim, a demurrer, which a court cannot raise sua sponte. In short, the lack of clear

guidance eviscerates jurisdictional jurisprudence and blurs the line between

jurisdiction and failure to state a claim, which have always been two very different

legal concepts. Until the Supreme Court clarifies its holdings from Bronson and

Williams II, there is no principled way to understand when they apply, except as one

judicially created purely for one type of litigant, inmates, which brings me to my

fourth and final concern.

This approach has the practical effect of treating inmates unlike any other

litigant in the same situation. While the courts frame these cases as turning on

jurisdiction, in truth, the courts are reviewing the merits of their claims and

determining they have not set forth a cognizable cause of action that would entitle

them to relief. For instance, in Williams II, the Court disagreed that an inmate has a

has confirmed that “[w]hen people feel that they have received fair treatment, they are more likely

to adhere to, accept, and feel satisfied with a given outcome, and to view the system that gave rise

to that outcome as legitimate.” Rebecca Hollander-Blumoff, The Psychology of Procedural

Justice in the Federal Courts, 63 HASTINGS L.J. 127, 134 (2011). And people do not just care

about fair process because it might promise a winning outcome. Indeed,

the empirical evidence suggests that individuals value fairness of process, separate

and apart from outcome, because of the special message that fairness of process

sends to its recipients: an authority [which] acts in a fair manner is an authority

[that] is legitimate and cares about the dignity and social standing of those who

stand before it.

Id. at 137-38 (emphasis added).

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right to require the Department to comply with regulations involving prison

employment, noting the inmate admitted to stealing two and a half pounds of sugar

during his employment in the kitchen. 232 A.3d at 654. If the petitioners in these

cases were not inmates, the Court would have either sustained a demurrer filed by

the respondents on the basis that petitioners failed to state a claim or ultimately

granted relief to respondents for the same reason. Instead, because they are inmates,

the Court essentially examined the petition, found it failed to state a claim and then,

says the Court lacks original jurisdiction. In this Court, the adage is well worn that

“[p]rison inmates do not enjoy the same level of constitutional protections afforded

to non-incarcerated citizens.” Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269, 1274

(Pa. Cmwlth. 2021) (quoting Bronson, 721 A.2d at 359). However, until Section

761(a) of the Judicial Code is legislatively amended to provide for an inmate

exception to this Court’s original jurisdiction, I respectfully disagree with the

majority that “a prisoner’s right of access to judicial review is limited.” Gentilquore

v. Pa. Dep’t of Corr., __ A.3d __, __ (Pa. Cmwlth., No. 45 M.D. 2021, filed Oct. 29,

2024), slip op. at 4. Rather, I believe that they are entitled to have the court review

the sufficiency of their allegations, to the extent it would any other litigant’s claims,

provided they otherwise satisfy the jurisdictional requirements set forth in Section

761(a) of the Judicial Code, which I believe Petitioner has done here.

Based upon its recent precedent, such as Ivy Hill and Donahue, the Supreme

Court has shown that it will call it like it is – failure to state a claim, not lack of

jurisdiction, when confusion exists. However, until the Supreme Court analyzes

cases involving inmate challenges to the Department under the same analytic

framework as for non-inmates, I am constrained to agree that this Court lacks subject

matter jurisdiction to entertain Petitioner’s claims against the Department because

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he has failed to state a claim, by not “assert[ing] a constitutionally-protected liberty

or property interest.” Williams II, 232 A.3d at 653. See also Bronson, 721 A.2d at

358-59.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

Judge Wallace joins.

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