# D.R. Gentilquore v. PA DOC

> Commonwealth Court of Pennsylvania · October 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10628853

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 29, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Dumas. Cohn Jubelirer
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

RCJ-4
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).

RCJ-5
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10628853. Public record. Not legal advice.