J.L. Hawkins v. Adult Probation & Collections Unit, Com. of PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joyce Lynn Hawkins, :

Petitioner :

:

v. :

:

Adult Probation & Collections Unit, :

Commonwealth of Pennsylvania :

Department of Corrections, : No. 404 M.D. 2023

Respondents : Submitted: November 6, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION1

BY JUDGE FIZZANO CANNON FILED: May 15, 2025

Petitioner, Joyce Lynn Hawkins (Hawkins), seeks relief from this Court

in our original jurisdiction, asserting that the portion of her 2015 criminal sentence

ordering restitution was illegal. Currently before the Court for disposition are

preliminary objections filed by Respondent, Commonwealth of Pennsylvania

1

Because the vote of the commissioned judges was evenly divided, this opinion is filed

“as circulated” pursuant to Section 256(b) of the Court’s Internal Operating Procedures, 210 Pa.

Code §69.256(b). McLinko v. Commonwealth, 270 A.3d 1278, 1280 n.1 (Pa. Cmwlth. 2022).

Department of Corrections (DOC),2 demurring to the petition for review (Petition)3

on the basis that the Petition constitutes an improper collateral attack on Hawkins’s

conviction because such challenges are exclusively governed by proceedings in the

sentencing court under the Post Conviction Relief Act (PCRA).4 For the reasons

discussed below, this Court will sustain the DOC’s demurrer and transfer the Petition

to the sentencing court.

I. Background

In October 2014, Hawkins pleaded guilty to theft after misappropriating

funds from her employer. Pet. at 3. Her February 2015 sentence included an order

to pay restitution of $1,038,183.00. Id. Hawkins asserts that her appeal rights ended

in 2015 and that she has been paying restitution pursuant to her sentence. Id.

On October 21, 2019, the Pennsylvania Superior Court issued its

decision in Commonwealth v. Hunt, 220 A.3d 582 (Pa. Super. 2019).5 In Hunt, the

Superior Court concluded that a sentence of restitution under Section 1106(a) of the

Crimes Code, 18 Pa.C.S. § 1106(a), could not be imposed in favor of a business

entity because the applicable statutory provision defining victims entitled to

restitution under a criminal sentence did not include business entities. Hunt, 220

2

The other Respondent in the case, Chester County’s Adult Probation & Collections Unit

(County Probation), was dismissed from the action previously, as explained below.

3

Hawkins originally filed a civil complaint in the Chester County Court of Common Pleas

(Common Pleas Court), which that court transferred to this Court, as explained below. Pursuant

to this Court’s order dated October 16, 2023, the transferred complaint is treated as a petition for

review in this Court’s original jurisdiction.

4

42 Pa.C.S. §§ 9541-9546.

5

This Court is not bound by decisions of the Superior Court, but we may cite them as

persuasive authority where they address analogous issues. See Hill v. Governor of Commonwealth,

309 A.3d 238, 245 n.12 (Pa. Cmwlth. 2024).

2

A.3d at 591. The Superior Court acknowledged that a 2018 statutory amendment

had expanded the definition of a “victim” to include a business entity. See Section

1106(c)(1)(ii)(G) of the Crimes Code, 18 Pa.C.S. § 1106(c)(1)(ii)(G) (listing a

“business entity” on the prioritization of victims to receive restitution); see also

Section 1106(h) of the Crimes Code, 18 Pa.C.S. § 1106(h) (defining a “[v]ictim” as

including “any business entity”). However, because the previous version of the

statute was in effect at all times pertinent to the defendant/appellant’s arrest and

conviction and there was no indication that the amendment was intended to apply

retroactively, the previous version of the statute, which did not include business

entities in its definition of victims, applied. Hunt, 220 A.3d at 587.

Hawkins filed her civil complaint with the Common Pleas Court on

July 16, 2022, naming County Probation and the DOC as defendants. See Pet. at 1

(time stamp). Relying on Hunt, Hawkins asserted that the restitution segment of her

criminal sentence was illegal because her employer was a business entity and,

therefore, not a “victim” that Hawkins could be ordered to reimburse as part of her

sentence.6 Pet. at 3-4. Hawkins sought declaratory and injunctive relief to invalidate

her restitution sentence and to prevent further enforcement of the restitution

sentence; she also sought an award of attorneys’ fees and costs. Id. at 9.

The DOC filed preliminary objections in the Common Pleas Court that

included both a jurisdictional challenge and a demurrer.7 See Hawkins v. Adult Prob.

6

Section 1106(g) of the Crimes Code provides that an order of mandatory restitution as

part of a criminal sentence does not prevent a person or entity against which a crime has been

committed from seeking recovery of a resulting loss from the perpetrator directly in civil court.

18 Pa.C.S. § 1106(g).

7

County Probation also filed preliminary objections in the Common Pleas Court. County

Probation’s preliminary objections are not contained in the record before this Court, but the DOC’s

3

& Enforcement Unit (C.P. Chester Cnty., No. 2022-04223-IR) (Hawkins I),

Defendant DOC’s Preliminary Objections (filed July 26, 2022) (DOC Common

Pleas POs). In its jurisdictional challenge, the DOC asserted that this Court has

exclusive original jurisdiction over claims related to deductions of restitution costs.

Id. at 2. In its two-pronged demurrer, the DOC asserted, as an alternative to

transferring the action pursuant to the jurisdictional challenge, that the Common

Pleas Court could decline to transfer the case to this Court and could instead dismiss

the action on the basis that this Court would not be able to grant relief in any event.

First, the DOC averred that the case against it was moot because Hawkins is no

longer in DOC custody and is not subject to deductions by the DOC from her inmate

account. Id. at 2-3. Second, the DOC posited that Hawkins’s claim constituted a

collateral attack on the legality of her criminal sentence that could be asserted only

under the PCRA, not in a separate civil action. Id. at 3-4.

By order dated May 26, 2023, the Common Pleas Court sustained the

DOC’s preliminary objection challenging jurisdiction and agreed that Hawkins’s

request for declaratory and injunctive relief relating to deductions from her inmate

account lay exclusively in this Court’s jurisdiction. Hawkins I (citing

Commonwealth v. Danysh, 833 A.2d 151 (Pa. Super. 2003)). The Common Pleas

Court therefore transferred the action to this Court. Hawkins I.

On October 16, 2023, this Court issued an order stating that it would

treat Hawkins’s civil complaint in the Common Pleas Court as a petition for review

addressed to this Court’s original jurisdiction. The order also set a briefing schedule

brief before this Court states that the Common Pleas Court sustained County Probation’s

preliminary objection and dismissed County Probation from the action. DOC Br. at 4-5. Neither

Hawkins nor the DOC suggests that any claim against County Probation remains.

4

relating to the DOC’s remaining preliminary objection, the demurrer. The briefs

having been filed, this matter is ready for disposition.

II. Issues

In its preliminary objections before this Court, the DOC renews the

arguments it asserted in its demurrer before the Common Pleas Court. The DOC

asserts that Hawkins’s claim is really a collateral attack on the legality of her

criminal sentence that could be asserted only under the PCRA, not in a separate civil

action. The DOC also argues that Hawkins’s claim against it is moot because she is

no longer in DOC custody and, thus, it is no longer deducting funds from her inmate

account to apply toward restitution.

Because the DOC’s PCRA argument, although it is in the nature of a

demurrer, implicates this Court’s subject matter jurisdiction, we address it first.

III. Discussion

Rule 1516(b) of the Pennsylvania Rules of Appellate Procedure

authorizes the filing of preliminary objections to an original jurisdiction petition for

review in this Court. Pa.R.A.P. 1516(b). In ruling on preliminary objections, we

accept as true all well-pleaded material allegations in the Petition and all reasonable

inferences deduced from the Petition; however, we need not accept conclusions of

law, unwarranted inferences from facts, argumentative allegations, or expressions of

opinion. Hill v. Governor of Commonwealth, 309 A.3d 238, 242 (Pa. Cmwlth. 2024)

(quoting McNew v. E. Marlborough Twp., 295 A.3d 1, 8-9 (Pa. Cmwlth. 2023)). “A

preliminary objection in the nature of a demurrer . . . tests the legal sufficiency of

the challenged pleadings and will be sustained only in cases where the pleader has

clearly failed to state a claim for which relief can be granted.” Hill, 309 A.3d at 242

(quoting McNew, 295 A.3d at 8-9).

5

A. Challenge to the Legality of the Restitution Sentence

Although couched in terms of declaratory and injunctive relief

regarding the DOC’s enforcement of restitution payments, the Petition

unequivocally demonstrates that Hawkins is mounting a collateral attack on the

legality of the restitution sentence. See Pet. at 2 (asserting that the DOC is “enforcing

[a] faulty judgment[]”), 4 (asserting that “it was contrary to law for the [sentencing]

court to order restitution to a victim who is a corporate entity . . .”), 5 (asserting that

“[a] judicial declaration invalidating the judgment in regard to the restitution order

is necessary and appropriate . . .”), 7-8 (asserting that there was no statutory authority

for the restitution sentence), 9 (requesting “[d]eclaratory relief that the judgment

entered by the [sentencing c]ourt on February 3, 2015, be ruled as invalid and

unenforceable in as far as it orders restitution payments . . .” and “[i]njunctive relief

prohibiting [the DOC] from enforcing the judgment of restitution payments . . .”).

The legal principles on which Hawkins bases the Petition further clarify

that the purport of the Petition is a challenge to the legality of the sentence. As

discussed above, Hawkins posits that the governing statute, Section 1106 of the pre-

2018 version of the PCRA, former 18 Pa.C.S. § 1106, was in effect at all times

pertinent to her crime, conviction, and sentencing. Pet. at 6-7. Former Section 1106

required a sentencing court to order restitution to the victim of a crime as part of the

convicted criminal’s sentence, but it did not list business entities in its definition of

a “victim” for purposes of a restitution sentence. Former 18 Pa.C.S. § 1106. In

2018, three years after Hawkins’s restitution sentence, Section 1106(h) was amended

to include business entities in the definition of victims entitled to restitution as part

of a criminal sentence. See 18 Pa.C.S. § 1106(h). Hawkins cites and relies on Hunt,

220 A.3d 582, in which the Superior Court held that a restitution sentence entered

6

before the 2018 amendment of Section 1106 was illegal because it ordered restitution

to a business entity. Hawkins argues that her restitution sentence was likewise illegal

because her former employer was a business entity and former Section 1106 did not

authorize a restitution sentence in favor of a business entity in 2015. Pet. at 6-8.

Thus, it is clear Hawkins is challenging the legality of her restitution sentence.

In its demurrer, the DOC asserts that Hawkins cannot challenge the

legality of her sentence in a separate civil action. We agree.

The PCRA provides the exclusive method for a collateral challenge to

the legality of a sentence. As explained in Section 9542 of the PCRA,

[the PCRA] provides for an action by which persons

convicted of crimes they did not commit and persons

serving illegal sentences may obtain collateral relief. The

action established in [the PCRA] shall be the sole means

of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose

that exist when [the PCRA] takes effect, including habeas

corpus and coram nobis. [The PCRA] is not intended to

limit the availability of remedies in the trial court or on

direct appeal from the judgment of sentence, to provide a

means for raising issues waived in prior proceedings or to

provide relief from collateral consequences of a criminal

conviction. Except as specifically provided otherwise, all

provisions of [the PCRA] shall apply to capital and

noncapital cases.

42 Pa.C.S. § 9542 (emphasis added). Moreover, this Court has observed that the

exclusivity of the PCRA applies “regardless of the manner in which the petition is

titled.” Moss v. SCI – Mahanoy Superintendent Pa. Bd. of Prob. & Parole, 194 A.3d

1130, 1138 (Pa. Cmwlth. 2018).

7

Here, as discussed above, Hawkins is raising a challenge to her

sentence. The Petition itself alleges, inter alia, that the restitution sentence is a

“faulty judgment . . . ,” Pet. at 2; that the sentence “was contrary to law . . . ,” id. at

4; that “[a] judicial declaration invalidating the judgment in regard to the restitution

order is necessary and appropriate at this time . . . ,” id. at 5; that there was no

statutory authority for the restitution sentence, id. at 7-8; and that Hawkins is seeking

an order declaring that the restitution sentence was invalid and unenforceable, id. at

9. Thus, it is clear that Hawkins is challenging the legality of the restitution portion

of her sentence. That challenge falls squarely within the exclusive purview of the

PCRA.

Further, we reject Hawkins’s assertion that the DOC is employing

“semantics” in arguing that Hawkins is asserting a PCRA claim. Hawkins Br. at 4.

In support of this argument, Hawkins maintains that the Petition is more than a

challenge to the legality of the restitution sentence because it also “seeks to correct

that illegal sentence.” Id. Obviously, any challenge to the legality of a sentence

seeks a correction of that sentence; otherwise, the challenge would be pointless.

Hawkins, not the DOC, is the party seeking to employ semantics to sidestep the

PCRA’s limitations.

Section 9545(a) of the PCRA provides, in pertinent part, that “[o]riginal

jurisdiction over a proceeding under [the PCRA] shall be in the court of common

pleas.” 42 Pa.C.S. § 9545(a); see also Boyd v. Pa.’s Sentencing Scheme for

Sentencing 18 Year Old[]s to Mandatory Life without Parole AG, 311 A.3d 63, 69

(Pa. Cmwlth. 2024) (quoting Section 9545). Because Hawkins’s claim is governed

by the PCRA, this Court lacks subject matter jurisdiction over it. See Boyd, 311

8

A.3d at 69 (citing Dockery v. Wolf, 259 A.3d 566 (Pa. Cmwlth. 2021) and concluding

that “this Court lacks jurisdiction to decide this matter . . . ).”

Where an action filed in this Court belongs elsewhere, we generally

transfer it to the proper court. Boyd, 311 A.3d at 69 (citing Dockery); see also

Section 5103(a) of the Judicial Code, 42 Pa.C.S. § 5103(a) (stating the general rule

that a matter filed in a tribunal lacking jurisdiction will be transferred to the proper

tribunal). Here, however, Hawkins initially filed her claim in the Common Pleas

Court, which transferred it to this Court. Therefore, we next consider whether a

retransfer to the Common Pleas Court is appropriate. For the reasons explained

below, we conclude that retransfer is the proper disposition of this matter.

In Balshy v. Rank, 490 A.2d 415 (Pa. 1985), our Supreme Court briefly

mentioned the issue of retransferring cases. This Court has, on occasion, cited

Balshy for the general proposition that retransfers are disapproved by the Supreme

Court. However, that general statement paints our Supreme Court’s comment in

Balshy with too broad a brush as applied here.

Our Supreme Court recited the course of the multiple transfers in

Balshy as follows:

Believing the action to be controlled by [Section]

761(a)(1) of the Judicial Code, Act of July 9, 1976, P.L.

586, No. 142, § 2, as amended, 42 Pa.C.S.[]

§ 761(a)(1) . . . , which generally vests in Commonwealth

Court original jurisdiction of all civil actions against the

Commonwealth government and its officers in their

official capacity, on April 24, 1981 appellee filed a

complaint in trespass in Commonwealth Court. That

court, under 42 Pa.C.S.[] § 761(a)(1)(iv) (1981) (since

amended), which provided an exception to the jurisdiction

of Commonwealth Court in “actions or proceedings in

trespass as to which the Commonwealth government

formerly enjoyed sovereign or other immunity,” sua

sponte transferred the matter to the Court of Common

9

Pleas of Dauphin County. On September 20, 1983,

Common Pleas Court ordered the matter retransferred to

Commonwealth Court inasmuch as Common Pleas Court

could find no exception to the exclusive original

jurisdiction of Commonwealth Court under [Section] 761

for civil rights actions. We disapprove the practice of

Courts of Common Pleas refusing jurisdiction and

attempting to “retransfer” matters to Commonwealth

Court. The proper practice in cases such as this one would

be for Common Pleas Court to dismiss the action and for

the parties to take an appeal. No appeal was taken. The

statute having, in the interim, been amended,

Commonwealth Court then reconsidered its original order

in light of the amended [Section] 761(a)(1)(v), and again

ordered the matter transferred to Common Pleas

Court. On motion of the Commonwealth, the matter was

certified for interlocutory appeal under 42 Pa.C.S.[] § 702.

490 A.2d at 416-17 (bold added; italics original). Notably, our Supreme Court’s

expression of disapproval was specifically directed at retransfers by a court of

common pleas where this Court has found that we lack jurisdiction. That the

Supreme Court’s comment was limited to retransfers by common pleas is

demonstrated by its disposition of the appeal in Balshy, which affirmed this Court’s

order transferring the case to common pleas for a second time. See id. at 421.

Balshy, therefore, does not require this Court to refrain from retransferring this case

to the Common Pleas Court. Accord Valentine v. Lock Haven Univ., 36 A.3d 104

(Pa. 2012) (per curiam order in an appeal from this Court’s dismissal of an action,

agreeing with this Court’s determination that we lacked original jurisdiction and

remanding to common pleas) (first citing Stackhouse v. Pa. State Police, 832 A.2d

1004 (Pa. 2001); then citing Hill v. Pa. Dep’t of Env’t Prot., 679 A.2d 773 (Pa. 1996)

(Hill I); and then citing Balshy); Stackhouse, 832 A.2d at 1009 (where an action was

commenced in a common pleas court and transferred to this Court, which dismissed

for lack of jurisdiction rather than retransferring, our Supreme Court agreed that

10

jurisdiction lay in the common pleas court and remanded to common pleas); Hill

I, 679 A.2d at 774 (in an appeal from this Court’s dismissal of an action that had

been transferred to us by common pleas, agreeing with this Court’s determination

that we lacked original jurisdiction and remanding to common pleas). Indeed, a

rule precluding retransfer to common pleas by this Court would allow a common

pleas court to avoid jurisdiction in any case by simply transferring it to this Court,

leaving this Court powerless to correct an erroneous transfer.

We recognize that there have been cases in which this Court has

dismissed actions rather than transferring them to common pleas. We did so recently

in Hill v. Governor of Pennsylvania, 309 A.3d 238 (Pa. Cmwlth.) (Hill II), aff’d per

curiam, 317 A.3d 551 (Pa. 2024). In Hill II, an inmate serving a life sentence without

parole for a murder conviction filed a petition for review in this Court’s original

jurisdiction challenging the constitutionality of that sentence more than 30 years

after it was imposed. Although the petitioner was 20 years old when he committed

the murder, he argued that he should be treated as a juvenile and, therefore, that he

could not receive a life sentence without parole. Id. at 240-41. This Court

determined the petition was in the nature of a request for post-conviction relief over

which the common pleas sentencing court, not this Court, would have original

jurisdiction. Id. at 243-45. We acknowledged that this Court will generally transfer

a case to the proper court where we lack jurisdiction. Id. at 245. However, in the

specific circumstances of Hill II, we dismissed the action rather than transferring it

to common pleas, agreeing with the respondents that they were not proper parties to

a PCRA case. Id. As a result, we concluded that “transfer to common pleas would

be inappropriate and result in an unjustifiable expenditure of judicial resources . . . .”

Id. at 246; see also Mines v. Wolf (Pa. Cmwlth., No. 102 M.D. 2022, filed Sept. 8,

11

2023)8 (dismissing rather than transferring a PCRA claim where the respondents

were not proper parties and the petitioner was a pro se inmate improperly seeking to

pursue a class action).

Nonetheless, we do not construe these opinions as compelling a

dismissal under the circumstances present in this case. Here, unlike in Hill II and

Mines, we find no circumstances favoring a departure from the general transfer rule

set forth in the Judicial Code. Unlike issues of proper parties in Hill II and the

propriety of a class action in Mines, the timeliness of Hawkins’s petition and the

availability of PCRA relief after completion of her sentence require specific

consideration and interpretation of the PCRA’s provisions. Therefore, we take no

position on Hawkins’s argument concerning the timeliness of the Petition under

Section 9545(b)(1) & (2) the PCRA, 42 Pa.C.S. § 9545(b)(1) & (2). See Scott v. Pa.

Bd. of Prob. & Parole, 256 A.3d 483, 494-95 (Pa. Cmwlth. 2021), aff’d, 284 A.3d

178 (Pa. 2022) (observing that “whether a PCRA petitioner is time-barred from

bringing a claim that, substantively, is cognizable under the PCRA is immaterial to

whether this Court has jurisdiction . . .” and that we lack jurisdiction over a PCRA

claim “regardless of whether a court of proper jurisdiction is precluded from

exercising it on timeliness grounds”). We likewise take no position on Hawkins’s

eligibility for PCRA relief after completion of her sentence under Section

9543(a)(1)(i) of the PCRA, 42 Pa.C.S. § 9543(a)(1)(i). We decline to enter into such

an analysis where we lack subject matter jurisdiction. Accord Davis v. Pa.

Legislature (Pa. Cmwlth., No. 245 M.D. 2023, filed May 15, 2025), slip op. at 12

(transferring, rather than dismissing, a facially untimely PCRA petition filed in our

8

Unreported opinions of this Court issued after January 15, 2008 are not binding authority

but may be cited for their persuasive value pursuant to Section 414(a) of this Court’s Internal

Operating Procedures. 210 Pa. Code § 69.414(a).

12

original jurisdiction; where the sentencing court had not previously determined that

a PCRA petition filed there would be untimely and the petitioner had not conceded

untimeliness, the petitioner “should be allowed to argue the application of a PCRA

timeliness exception before the court with jurisdiction over his PCRA claim,” i.e.,

the sentencing court); Edwards v. Pa.’s Sentencing Scheme (Pa. Cmwlth., No. 184

M.D. 2023, filed May 15, 2025), slip op. at 11-12 (transferring, rather than

dismissing, a facially untimely PCRA claim filed in our original jurisdiction, where

the petitioner had not conceded untimeliness and there had been no previous judicial

determination that the petition was untimely and not subject to a timeliness exception

under the PCRA). Accordingly, rather than dismissing this matter for lack of subject

matter jurisdiction, we will transfer this action to the Common Pleas Court in its

capacity as the sentencing court for consideration of the claims under the PCRA.

B. Mootness

The DOC’s alternative demurrer asserts that the Petition is moot as

against the DOC because Hawkins is no longer in the DOC’s custody and, as a

consequence, is no longer subject to deductions from her inmate account by the DOC

for reimbursement payments. Because, as discussed above, this Court lacks subject

matter jurisdiction over this matter, we do not reach the alternative demurrer.

IV. Conclusion

Based on the foregoing discussion, we sustain the DOC’s demurrer and,

finding that we lack subject matter jurisdiction over what is actually a PCRA claim,

transfer this matter to the Common Pleas Court as the sentencing court.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joyce Lynn Hawkins, :

Petitioner :

:

v. :

:

Adult Probation & Collections Unit, :

Commonwealth of Pennsylvania :

Department of Corrections, : No. 404 M.D. 2023

Respondents :

ORDER

AND NOW, this 15th day of May, 2025, the preliminary objection of the

Commonwealth of Pennsylvania Department of Corrections demurring on the basis

that the Petition for Review constitutes an impermissible collateral attack on a

criminal sentence that can be challenged, if at all, only before the sentencing court

as a claim under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, is

SUSTAINED. The petition for review filed by Joyce Lynn Hawkins is transferred

to the Court of Common Pleas of Chester County as the sentencing court.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joyce Lynn Hawkins, :

Petitioner :

:

v. : No. 404 M.D. 2023

:

Adult Probation & Collections Unit, : Submitted: November 6, 2024

Commonwealth of Pennsylvania :

Department of Corrections, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING

OPINION BY JUDGE McCULLOUGH FILED: May 15, 2025

I respectfully concur and dissent for the reasons set forth in my

dissenting opinion in Anthony Edwards v. Pennsylvania’s Sentencing Scheme in

Sentencing Third Degree Murder Convictions to Mandatory Life without Parole for

their Second Murder Conviction; General Assembly, and Attorney General (Pa.

Cmwlth., No. 184 M.D. 2023, filed May 15, 2025).1 Specifically, I disagree with

1

Contemporaneously with the filing of the en banc memorandum decision in this case, the

Majority issued memorandum en banc decisions in Edwards and Davis v. Commonwealth of

Pennsylvania, Pennsylvania Legislature (General Assembly), Allegheny County Court of Common

Pleas, and Pennsylvania Attorney General (Pa. Cmwlth., No. 245 M.D. 2023, filed May 15, 2025),

(Footnote continued on next page…)

the decision to re-transfer Joyce Lynn Hawkins’ complaint to the Court of Common

Pleas of Chester County (sentencing court), rather than dismiss it. Hawkins named

the Adult Probation & Collections Enforcement Unit of Chester County (County)

and the Department of Corrections (DOC) as defendants. The Court of Common

Pleas of Chester County (sentencing court) does not have personal jurisdiction over

DOC. Neither party is a proper party in a PCRA proceeding. As such, consistent

with Hill v. Governor of Commonwealth, 309 A.3d 238 (Pa. Cmwlth.), aff’d, 317

A.3d 551 (Pa. 2024), which was affirmed by our Supreme Court, Section 5103(a) of

the Judicial Code, 42 Pa.C.S. § 5103(a), and Rule 751 of the Pennsylvania Rules of

Appellate Procedure, the complaint should be dismissed, not re-transferred to the

sentencing court.

As I noted in Edwards, the Majority did not discuss, distinguish, or

overrule Hill. It also did not discuss Section 5103(a) in any meaningful way, other

than to reproduce it in a footnote. In this case, the Majority attempts, unsuccessfully

in my view, to distinguish Hill and rationalize transferring the case under Section

5103(a). Specifically, it explains that

we find no circumstances favoring a departure from the

general transfer rule set forth in [Section 5103(a) of] the

Judicial Code. Unlike issues of proper parties in Hill . . .,

the timeliness of Hawkins’s petition and the availability

of PCRA relief after completion of her sentence

require specific consideration and interpretation of the

PCRA’s provisions.

both of which also transfer actions filed in this Court’s original jurisdiction based on the Majority’s

sua sponte inquiry into whether, if transferred, the petitioners’ claims against certain

Commonwealth government parties would be timely under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. As my concurring and dissenting opinions in those cases

reflect, consistent with my opinions herein, I disagree that transfer of the actions to the sentencing

court is appropriate under Section 5103(a) of the Judicial Code, 42 Pa.C.S. § 5103(a).

PAM - 2

Hawkins v. Adult Probation & Collections Unit (Pa. Cmwlth., No. 404 M.D. 2023,

filed May 15, 2025), slip op. at 12 (emphasis added).

First, contrary to this statement, I believe the Majority’s decision is a

major departure from the general transfer rule set forth in Section 5103(a). As I

pointed out in my dissenting opinion in Edwards, Section 5103(a) contemplates

transferring an action to a court that has personal jurisdiction over the named

respondents. Hawkin’s complaint against the County and DOC is not a mistakenly

filed PCRA petition (an action) against the Commonwealth, and the sentencing

court does not have personal jurisdiction over DOC. Therefore, transfer is simply

not appropriate here.

Second, the Majority’s attempt to distinguish Hill is untenable. The

only difference between Hill and this case is that in Hill, the Court did not sua sponte

raise concerns about timeliness of a possible PCRA petition. Here, the Majority sua

sponte raises the “timeliness of Hawkins’ petition.” In Hill, we declined to transfer

the action regardless of any timeliness concerns specifically because the Governor

and the Pennsylvania Parole Board were not proper parties to a PCRA proceeding.

In other words, we must look first at whether the sentencing court would have

personal jurisdiction over the named respondents before deciding to transfer. If it

does not have personal jurisdiction over the named respondents, whether a potential

and presumably properly filed PCRA petition raising the claim would have been

timely in the sentencing court is simply beside the point.

In short, the Majority’s decision in this case now stands for the

proposition that, even if the action was filed against the wrong parties (which

ordinarily would deprive the transferee sentencing court of personal jurisdiction),

we nevertheless may transfer the action as long as: (1) there is an argument raised

PAM - 3

before us that should have been raised in another court irrespective of whether that

court has personal jurisdiction over the named respondents; (2) we decide sua sponte

that there is a question as to whether a potential PCRA petition raising the underlying

argument would be timely; and (3) we are satisfied from a review of the sentencing

court docket and Superior Court docket that it would be. As I explained in my

dissenting opinion in Edwards, none of this appears in Section 5103(a).

In addition, I oppose re-transferring the complaint back to the

sentencing court. The sentencing court transferred this complaint to this Court

because Hawkins’ causes of action for declaratory and injunctive relief against DOC

“fall within the exclusive jurisdiction of the Commonwealth Court.” (Common

pleas court order, May 26, 2023 at 1, n.1.) The sentencing court saw this case for

what it is and what it is not. Hawkins’ complaint is not a PCRA petition, and it does

not belong before the sentencing court. If it was a PCRA petition, the sentencing

court would not have transferred it to this Court.

For these reasons, I dissent.

________________________________

PATRICIA A. McCULLOUGH, Judge

President Judge Cohn Jubelirer and Judge Covey join in this Concurring and

Dissenting Opinion.

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