A. Edwards v. PA's Sentencing Scheme in Sentencing Third Degree Murder Convictions to Mandatory Life without Parole for their Second Murder Conviction

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Edwards, :

Petitioner

:

:

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, : No: 184 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

Presently before this Court are the preliminary objections filed by the

Pennsylvania General Assembly (General Assembly) and the Pennsylvania Attorney

General (AG) (collectively, Respondents) to the petition for review (Petition) filed

by pro se petitioner Anthony Edwards (Petitioner) in this Court’s original

jurisdiction. In the Petition, Petitioner challenges the constitutionality of his

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).

sentence of life in prison without the possibility of parole (LWOP) imposed pursuant

to Section 9715(a) of the Sentencing Code,2 42 Pa.C.S. § 9715(a) (Section 9715(a))3

which requires that an individual previously convicted of murder or voluntary

manslaughter receive a sentence of life imprisonment for a subsequent third-degree

murder conviction. For the reasons that follow, we (1) sustain Respondents’

preliminary objections as to Petitioner’s constitutional claims for lack of jurisdiction

and transfer those claims to the Court to Common Pleas of Philadelphia County; and

(2) sustain Respondents’ demurrer to Petitioner’s statutory claims pursuant to

Pa.R.Civ.P. 1028(a)(4) and dismiss those claims.

I. The Petition

Petitioner pleaded guilty to second-degree murder in 1973 (First

Murder) and thereafter, in 1999, was found guilty of third-degree murder (Second

Murder) and sentenced to LWOP pursuant to Section 9715(a). See Petition at 9.

In his first constitutional claim, the Petition argues that Section 9715(a)

violates the cruel and unusual punishment prohibitions contained in article I, section

13 of the Pennsylvania Constitution4 and the Eighth Amendment of the United States

2

42 Pa.C.S. §§ 9701-9799.75.

3

Section 9715(a), entitled “Life Imprisonment for Homicide,” provides:

(a) Mandatory life imprisonment.–Notwithstanding [certain

provisions of the Sentencing Code not applicable here,] any person

convicted of murder of the third degree in this Commonwealth who

has previously been convicted at any time of murder or voluntary

manslaughter in this Commonwealth or of the same or substantially

equivalent crime in any other jurisdiction shall be sentenced to life

imprisonment, notwithstanding any other provision of this title or

other statute to the contrary.

42 Pa.C.S. § 9715(a).

4

Article I, section 13 of the Pennsylvania Constitution provides: “Excessive bail shall not

be required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa. Const. art. I, § 13.

2

Constitution5 by imposing a sentence of LWOP for an unintentional killing. See

Petition at 5-15. Next, the Petition alleges that Section 9715(a), which was enacted

in 1982, is impermissibly retroactive, in violation of the provisions of the United

States and Pennsylvania Constitutions against ex post facto laws,6 if applied to his

First Murder.7 See Petition at 15-19.

Petitioner also challenges the statutory basis for his LWOP sentence.

See Petition at 2-5. Petitioner argues that “[t]he General Assembly’s intent [in

drafting Section 9715(a)] was not to incarcerate [Petitioner] for the remainder of his

5

The Eighth Amendment of the United States Constitution provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII.

6

Article I, Section 10 of the United States Constitution provides:

No State shall enter into any Treaty, Alliance, or Confederation;

grant Letters of Marque and Reprisal; coin Money; emit Bills of

Credit; make any Thing but gold and silver Coin a Tender in

Payment of Debts; pass any Bill of Attainder, ex post facto Law, or

Law impairing the Obligation of Contracts, or grant any Title of

Nobility.

U.S. CONST. art. I, § 10, cl. 1. Likewise, the Pennsylvania Constitution provides:

No ex post facto law, nor any law impairing the obligation of

contracts, or making irrevocable any grant of special privileges or

immunities, shall be passed.

PA. CONST. art. I, § 17. Our analysis remains the same under either Constitution. See

Commonwealth v. Rose, 127 A.3d 794, 798 n.11 (Pa. 2015). “In order for a criminal or penal law

to be deemed an ex post facto law, ‘two critical elements’ must be met: ‘it must be retrospective,

that is, it must apply to events occurring before its enactment, and it must disadvantage the offender

affected by it.’” Rose, 127 A.3d at 799 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)).

7

The Petition lists both 1973 and 1974 as the date of the commission of Petitioner’s First

Murder. See Petition at 9, 16 & 18. The docket number listed for the first murder, CP-51-CR-

0609411-1974, relates to a defendant with a different name (James Smart). See Petition at 16.

This issue is of no moment, however, as the exact year of Petitioner’s First Murder is immaterial

to our determination here.

3

life without the chance of parole.” Petition at 4. Petitioner argues that, because

Section 9715(a) does not include the phrase “without the possibility of parole,” the

sentencing court was required to sentence him to a minimum sentence of 20 years.

See id. at 4-5.

Based on these claims, Petitioner asks this Court to declare

unconstitutional his LWOP sentence imposed pursuant to Section 9715(a) for the

Second Murder. See Petition at 19-20. Petitioner further seeks to have the Court

resentence him to a 20-year minimum sentence for the Second Murder.

II. The Preliminary Objections

Initially, we note that

[i]n ruling on preliminary objections, we must accept as

true all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the [petition for review] and all

inferences reasonably deducible therefrom. It 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. When

ruling on a demurrer, a court must confine its analysis to

the [petition for review].

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).

Respondents each filed preliminary objections (collectively, the

Preliminary Objections) in this matter seeking dismissal of the Petition with

4

prejudice.8 Respondents first claim this Court lacks jurisdiction over Petitioner’s

claims, which Respondents argue challenge the legality of his criminal sentence and

therefore constitute claims properly raised solely under the Post Conviction Relief

Act9 (PCRA), over which claims this Court lacks jurisdiction. In a related challenge,

Respondents also seek dismissal of the Petition because Petitioner has failed to

exhaust the statutory remedies available to him under the PCRA. Respondents also

raise demurrers, claiming that the Petition fails to state claims against them and

because they are not proper parties. Respondents also argue for the dismissal of the

Petition based on a failure to join a necessary party, the Pennsylvania Parole Board.

8

Pennsylvania Rule of Civil Procedure 1028(a) provides:

(a) Preliminary objections may be filed by any party to any pleading

and are limited to the following grounds:

(1) lack of jurisdiction over the subject matter of the action

or the person of the defendant, improper venue or improper

form or service of a writ of summons or a complaint;

(2) failure of a pleading to conform to law or rule of court

or inclusion of scandalous or impertinent matter;

(3) insufficient specificity in a pleading;

(4) legal insufficiency of a pleading (demurrer);

(5) lack of capacity to sue, nonjoinder of a necessary party

or misjoinder of a cause of action;

(6) pendency of a prior action or agreement for alternative

dispute resolution;

(7) failure to exercise or exhaust a statutory remedy; and

(8) full, complete and adequate non-statutory remedy at

law.

Pa.R.Civ.P. 1028(a).

9

42 Pa.C.S. §§ 9541-9546.

5

The General Assembly also raises a subject matter defense under Pa.R.Civ.P.

1028(a)(1) based on the speech and immunity clause of the Pennsylvania

Constitution.10

We address Respondents’ PCRA argument first, as it implicates this

Court’s jurisdiction.

III. Discussion

A. The Petition’s Constitutional Claims

Section 761(a)(1)(i) of the Judicial Code outlines this Court’s original

jurisdiction as follows:

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 [C]ourt[.]

42 Pa.C.S. § 761(a)(1)(i) (emphasis added). Our Supreme Court has held that, “if

the necessary consequence of granting relief is that the conviction or sentence is

undone or otherwise modified, then the claim is in the nature of . . . a writ of habeas

10

Article II, section 15 of the Pennsylvania Constitution provides that “[t]he members of

the General Assembly . . . for any speech or debate in either House [] shall not be questioned in

any other place.” Pa. Const. art. II, § 15.

6

corpus or post-conviction relief.” Scott v. Pa. Bd. of Prob. & Parole, 284 A.3d 178,

189 (Pa. 2022) (Scott II) (internal quotation marks omitted).

Here, Petitioner asserts that he was sentenced to LWOP for the Second

Murder pursuant to an unconstitutional statute. In the Petition, he asks this Court to

declare the LWOP sentence imposed pursuant to Section 9715(a) for the Second

Murder unconstitutional and to resentence him to a 20-year minimum sentence. As

such, through both his cruel and unusual punishment claim and his ex post facto

claim, the Petition seeks post-conviction relief by means of a collateral challenge to

the legality of the Second Murder sentence. See Scott v. Pa. Bd. of Prob. & Parole,

256 A.3d 483, 486 & 488-89 (Pa. Cmwlth. 2021), aff’d, Scott II (concluding that

inmates’ petition contesting the constitutionality of their criminal sentences in fact

levied “challenges [] in the nature of claims seeking post-conviction relief”);

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1089 (Pa. Super. 2015)

(recounting the petitioner’s prior PCRA petition challenging the legality of a

criminal sentence predicated on mandatory minimum sentence requirements of

Section 9712.1 of the Sentencing Code, 42 Pa.C.S. § 9712.1).

Section 9542 of 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 this subchapter 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 this subchapter takes effect, including

habeas corpus and coram nobis.[11]

42 Pa.C.S. § 9542; see also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001)

(explaining that “[t]he plain language of [Section 9542 of the PCRA, 42 Pa.C.S.

“A writ of coram nobis ‘is generally available to challenge the validity of a judgment

11

based on facts not before the court when the judgment was entered.’” Commonwealth v.

7

§ 9542,] demonstrates quite clearly that the General Assembly intended that claims

that could be brought under the PCRA must be brought under that Act” (emphasis

in original)); Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citing Section

9542 of the PCRA, 42 Pa.C.S. § 9542) (stating that “[b]y its own language, and by

judicial decisions interpreting such language, the PCRA provides the sole means for

obtaining state collateral relief”). Petitioner, therefore, can challenge the legality of

his criminal sentence only through a PCRA petition. See Guarrasi v. Scott, 25 A.3d

394, 402 (Pa. Cmwlth. 2011) (quoting Section 9542 of the PCRA, 42 Pa.C.S. § 9542)

(explaining that a petitioner “may not use a civil action for declaratory judgment in

our original jurisdiction to collaterally attack the legality of his criminal

proceedings,” as “[t]he PCRA is the sole means ‘by which persons convicted of

crimes they did not commit and persons serving illegal sentences’ may obtain

collateral relief”).

However, this Court lacks jurisdiction to entertain claims under the

PCRA. See Section 761(a)(1)(i) of the Judicial Code, 42 Pa.C.S. § 761(a)(1)(i); see

also 42 Pa.C.S. § 9545(a) (“Original jurisdiction over a proceeding under [the

PCRA] shall be in the court of common pleas.”). Accordingly, we sustain the

Preliminary Objections to the extent they challenge the Petition for lack of

jurisdiction over Petitioner’s PCRA claims.

Lacking jurisdiction over Petitioner’s PCRA claims, this Court may

transfer the claim to the appropriate court. See Dockery v. Wolf, 259 A.3d 566, 572

(Pa. Cmwlth. 2021); see also 42 Pa.C.S. § 5103 (“Transfer of erroneously filed

Descardes, 136 A.3d 493, 494 n.1 (Pa. 2016) (quoting Commonwealth v. Sheehan, 285 A.2d 465,

467 (Pa. 1971)).

8

matters”);12 Pa.R.A.P. 751 (“Transfer of Erroneously Filed Cases”).13 However,

where a PCRA petition would be late-filed and would lack an applicable timeliness

exception under the PCRA,14 transfer to the court of common pleas for the purpose

12

Section 5103 of the Judicial Code provides as follows:

(a) General rule.--If an appeal or other matter is taken to or brought

in a court or magisterial district of this Commonwealth which does

not have jurisdiction of the appeal or other matter, the court or

magisterial district judge shall not quash such appeal or dismiss the

matter, but shall transfer the record thereof to the proper tribunal of

this Commonwealth, where the appeal or other matter shall be

treated as if originally filed in the transferee tribunal on the date

when the appeal or other matter was first filed in a court or

magisterial district of this Commonwealth. A matter which is within

the exclusive jurisdiction of a court or magisterial district judge of

this Commonwealth but which is commenced in any other tribunal

of this Commonwealth shall be transferred by the other tribunal to

the proper court or magisterial district of this Commonwealth where

it shall be treated as if originally filed in the transferee court or

magisterial district of this Commonwealth on the date when first

filed in the other tribunal.

42 Pa.C.S. § 5103(a).

13

Pennsylvania Rule of Appellate Procedure 751(a) provides as follows:

(a) General rule. If an appeal or other matter is taken to or brought

in a court or magisterial district which does not have jurisdiction of

the appeal or other matter, the court or magisterial district judge

shall not quash such appeal or dismiss the matter, but shall transfer

the record thereof to the proper court of this Commonwealth, where

the appeal or other matter shall be treated as if originally filed in

transferee court on the date first filed in a court or magisterial

district.

Pa.R.A.P. 751(a).

14

Section 9545(b)(1) of the PCRA provides exceptions to the PCRA’s one-year filing

deadline only when

the petition alleges and the petitioner proves that:

9

of litigating the petition is not warranted, as the petition would be properly dismissed

as untimely. See Scott II, 284 A.3d at 198 n.17 (noting that transfer of a PCRA case

to the trial/PCRA court is not warranted where the PCRA petition would be

dismissed as untimely). However, in previous cases where this Court has dismissed

PCRA claims outright in lieu of transferring them to the trial court to act as the

PCRA court, the petitioner had previously conceded the untimeliness of the PCRA

claim or the Superior Court had already decided that issue. See Scott II, 284 A.3d at

198 nn.16-17 (citing Section 5103 of the Judicial Code, 42 Pa.C.S. § 5103)

(“declin[ing] to remand the case to the Commonwealth Court with directions to

transfer the petitions to the relevant courts of common pleas”; concluding that

“judicial economy dictate[d] . . . affirm[ing] the order” where the inmates

“concede[d] that their petitions would be dismissed as untimely,” such that “there

[was] no possibility that the result would be any different”; and further explaining

that “[t]he PCRA exists to provide finality to the criminal process and the General

Assembly did not intend to permit an end-run around the time-bar through creative

pleading”); Commonwealth v. Jackson, 30 A.3d 516, 518 & 521-22 (Pa. Super.

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation

of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United

States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to

apply retroactively.

42 Pa.C.S. § 9545(b)(1).

10

2011) (affirming the dismissal of an inmate’s “motion to correct illegal sentence,”

which the trial court treated as a PCRA petition, where the trial court lacked

jurisdiction under Section 9545 of the PCRA, 42 Pa.C.S. § 9545, to consider the

“patently untimely” motion, and the inmate “concede[d] that he filed his [motion]

years after his judgment of sentence became final, and that the [trial court] lacked

statutory jurisdiction to consider his claim”); see also Boyd v. Pa.’s Sent’g Scheme

for Sent’g 18 Year Old’s to Mandatory Life Without Parole AG, 311 A.3d 63, 66-67

& 72 (Pa. Cmwlth. 2024) (declining to transfer a PCRA petition, where the trial

court had already denied the inmate’s PCRA claim as untimely, and the

Pennsylvania Superior Court affirmed the trial court’s denial on appeal). Where a

petitioner has not conceded that a PCRA petition would not satisfy any of the PCRA

timeliness exceptions and the Superior Court has not already ruled on such

timeliness, on the other hand, this Court should transfer the matter to the common

pleas court with jurisdiction to rule on the timeliness of the PCRA petition. See

Birdwell v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 80 M.D. 2023, filed

September 5, 2024)15 (transferring petition raising a collateral challenge to a

conviction to court of common pleas to litigate petition as PCRA court, including

determining timeliness of PCRA claims, where the Superior Court had not already

determined that a petitioner’s PCRA petition would be untimely and not subject to

any exception and petitioner had not conceded as much).

Here, having concluded that this Court lacks jurisdiction to hear

Petitioner’s PCRA claims, we nonetheless will transfer rather than dismiss the

matter. We note that the Superior Court has not already determined that the PCRA

claims raised in the Petition, if filed, would be untimely and not subject to any PCRA

15

Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.

Code § 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be

cited for their persuasive value.

11

timeliness exception, and Petitioner has not conceded as much. Accordingly,

although the Petition appears facially untimely, we decline to dismiss this action

outright. Instead, we conclude that Petitioner must be allowed an opportunity to

raise and argue a PCRA timeliness exception, however unlikely its merit, before a

court with jurisdiction over the collateral claims raised herein. Accordingly, we

transfer the PCRA claims to the Court of Common Pleas of Philadelphia County,

which is the court with jurisdiction over the collateral claims raised herein.

We also decline to dismiss the matter based on Petitioner having

arguably named improper parties in the Petition. Because we lack jurisdiction over

the underlying claims, it is for the transferee court, the court with jurisdiction, to

dismiss improper parties to the action. See 42 Pa.C.S. § 5103(a); Pa.R.A.P. 751. We

find this to be especially so where, as here, dismissing certain parties would have the

functional effect of dismissing the Petition. Thus, here, the task of dismissing certain

parties on preliminary objections (or to entertaining motions to substitute the proper

parties to the action) falls to the court with jurisdiction over the matter – here, the

court of common pleas acting as a PCRA court.

B. The Petition’s Statutory Claims

The Petition also raises a statutory interpretation claim in which

Petitioner claims that, in enacting Section 9715(a), the General Assembly did not

intend that Petitioner would receive a LWOP sentence for a third-degree murder

committed after he had committed a second-degree murder. Petitioner claims that,

because Section 9715(a) does not include the words “without the possibility of

parole,” the sentencing court should have imposed a minimum as part of his Second

Murder sentence, which he argues should have been 20 years.

This claim is distinct from Petitioner’s PCRA claims discussed supra.

Petitioner does not contend that the imposition of his sentence was greater than the

lawful maximum, which would bring the claim into the realm of a PCRA claim. See

12

42 Pa.C.S. § 9543(a)(2)(vii). Instead, Petitioner argues that his sentence for the

Second Murder should have included a minimum date (for parole eligibility

purposes). As a result, this claim is one of statutory interpretation as opposed to one

seeking post-conviction relief, and we need not dismiss it for lack of jurisdiction.

As a result, we need not dismiss Petitioner’s statutory claim against Respondents on

jurisdictional grounds.

However, Respondents also demur to the Petition’s statutory

interpretation claims on the basis that are not proper parties to the claim because they

do not impose sentences under the Sentencing Code, and therefore, the Petition fails

to allege that any of their actions resulted in harm to Petitioner. We agree with

Respondents that they are improper parties to Petitioner’s statutory interpretation

claims. This Court has determined that a litigant must bring suit against the party

charged with maintaining the enforcement and administration of a statute, and that

state actors who lack such duties and responsibilities are improper parties to actions.

See Wagaman v. Att’y Gen. of Com., 872 A.2d 244, 247 (Pa. Cmwlth. 2005) (holding

that Attorney General improper party to sex offender registration case where

Pennsylvania State Police was party charged with administration and enforcement

of the sex offender registration statute); see also Key v. Pa. Dep’t of Corr. (Pa.

Cmwlth., No. 304 M.D. 2022, filed March 22, 2024), slip op. at 6 (dismissing

Department of Corrections from declaratory judgment action because the

Department of Corrections is not the state agency responsible for prosecuting crimes

or appointing counsel and has no discernible role in administering the PCRA

process). In this case, neither the AG nor the General Assembly is a proper party.

Neither has authority under the Sentencing Code regarding Petitioner’s sentencing

or resentencing, which responsibility falls to Pennsylvania’s courts of common

pleas. As such, Petitioner has not asserted claims for which relief may be obtained

13

from either Respondent. Accordingly, we sustain Respondents’ demurrers and

dismiss the Petition to the extent it raises statutory claims against them.

IV. Conclusion

We are constrained to interpret the Petition’s two constitutional claims

as being “in the nature of [an] application[] for . . . post-conviction relief.” 42

Pa.C.S. § 761(a)(1)(i). Given that the action is not ancillary to any proceedings

within the appellate jurisdiction of the Court, this Court lacks jurisdiction to hear

such claims. Accordingly, we sustain Respondents’ preliminary objection to those

claims based on a lack of jurisdiction and transfer the claims to the Court of Common

Pleas of Philadelphia County as a PCRA court.16 We further sustain Respondents’

preliminary objection to the Petition’s statutory interpretation claims on the ground

that they are not proper parties.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

16

We note that by transferring these claims because we lack jurisdiction to entertain cases

under the PCRA, we take no position on the merits or timeliness of Petitioner’s claims before the

Court of Common Pleas of Philadelphia County.

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Edwards, :

Petitioner :

:

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, : No: 184 M.D. 2023

Respondents :

ORDER

AND NOW, this 15th day of May, 2025, the General Assembly’s and Attorney

General’s (Respondents) preliminary objections to Petitioner Anthony Edwards’

(Petitioner) petition for review (Petition) on the bases that we lack jurisdiction over

Petitioner’s constitutional claims and that they are not proper parties to Petitioner’s

statutory interpretation claims are SUSTAINED. The statutory interpretation claims

contained in the Petition are DISMISSED. The remaining constitutional claims

contained in the Petition are TRANSFERRED to the Court of Common Pleas of

Philadelphia County as a petition under the Post Conviction Relief Act, 42 Pa.C.S.

§§ 9541-9546.

Petitioner’s application for relief seeking leave to file an untimely reply brief,

which was docketed in this Court on November 4, 2024, is DENIED as the matter

had already been submitted to the Court, pursuant to this Court’s Order of October

9, 2024 for decision on November 6, 2024.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Edwards, :

Petitioner :

:

v. : No. 184 M.D. 2023

:

Pennsylvania’s Sentencing Scheme : Submitted: November 6, 2024

in Sentencing Third Degree Murder :

Convictions to Mandatory Life without :

Parole for their Second Murder :

Conviction; General Assembly, :

and Attorney General, :

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 agree with the thoughtful Majority that Anthony Edwards’ challenge

to the statutory basis for sentencing him to Life Without Parole (LWOP) imposed

pursuant to Section 9715(a) of the Sentencing Code, 42 Pa.C.S. § 9715(a), must be

dismissed pursuant to Pa.R.Civ.P. 1028(a)(4) because it is lodged against the

Attorney General and the General Assembly, who have no statutory authority to

make decisions as to Edwards’ sentence under the Sentencing Code and are,

therefore, not proper parties to such a claim.1 But as they are likewise not proper

parties to any potential, and not mistakenly or properly filed Post Conviction Relief

Act (PCRA)2 claim, and the sentencing court has no jurisdiction over them, the

matter should be dismissed, not transferred. The Majority further seeks to preserve

the filing date in this Court upon transfer to the sentencing court, even though it is

not a mistakenly filed PCRA petition and it is unclear what Edwards would possibly

file, even if the trial court permitted Edwards to file a brand new pleading. It is here

that I must respectfully depart ways with the Majority.

In general, and as more specifically discussed below, the controlling

precedent in this matter is currently 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, and which dictates that where the sentencing court has no

jurisdiction over the named parties, our Court should dismiss the matter. Further, as

discussed in Hill, the rules governing the transfer of cases from one court to another

are set forth in Section 5103(a) of the Judicial Code, 42 Pa.C.S. § 5103(a), and Rule

751 of the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.). These rules quite

clearly apply to the situation where a party has mistakenly filed his action in the

wrong court. These transfer rules direct courts to transfer such actions where (1) the

originating court lacks jurisdiction over the action; and (2) another court (the

transferee court) has jurisdiction over it.

Whether a court has jurisdiction to resolve a case is based not only on

the matter but the parties as well. A court must have both subject matter jurisdiction

1

I also agree with the Majority to the extent it concludes that we are without authority to

address Edwards’ constitutional claims because they implicate the legality of his sentence.

2

42 Pa.C.S. §§ 9541-9546.

PAM - 2

and personal jurisdiction to determine a legal action. “Jurisdiction to resolve cases

on the merits requires authority over the category of claim in suit (subject matter

jurisdiction) and authority over the parties involved (personal jurisdiction), so that

the court’s decision will bind them.” Bisher v. Lehigh Valley Health Network, Inc.,

265 A.3d 383, 400 (Pa. 2021) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 577 (1999)).

Here, the sentencing court does not have jurisdiction over the

Respondents named in Edwards’ Petition for Review. As such, consistent with Hill

and the rules, the Petition for Review should be dismissed, not transferred.

Nonetheless, under the auspices of “preserving” Edwards’ filing date, the Majority

seeks to implement a new rule to transfer the entire case, except where: (1) the

petitioner concedes the untimeliness of the PCRA petition; or (2) the Superior Court

or sentencing court have already denied the claim as untimely. See Majority Op. at

11 (“Where a petitioner has not conceded that a PCRA petition would not satisfy

any of the PCRA timeliness exceptions and the Superior Court has not already ruled

on such timeliness, this Court should transfer the matter to the common pleas court

with jurisdiction to rule on the timeliness of the PCRA petition.”).3 However, there

is nothing in Rule 751 or Section 5103 that requires transferring a case only if the

3

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

Majority issued memorandum en banc decisions in Hawkins v. Department of Corrections, Adult

Probation & Collections Unit (Pa. Cmwlth., No. 404 M.D. 2023, filed May 15, 2025), and Davis

v. 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), both of

which also transfer a complaint/petition for review filed in this Court’s original jurisdiction based

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

Commonwealth government parties would be timely under the PCRA. As my concurring and

dissenting opinions in those cases reflect, consistent with my opinions herein, I disagree wholly

that transfer of the complaint/petition for review to the sentencing court is appropriate under

Section 5103.

PAM - 3

petitioner has not conceded the untimeliness of his PCRA petition or the issue has

not already been denied as untimely.

In crafting this new rule out of whole cloth, the Majority has committed

a series of missteps. First, an inmate’s petition for review filed in this Court’s

original jurisdiction that does not contain the averments required in a PCRA petition

is not a PCRA Petition “filed in the wrong court” merely because the relief requested

is a change to his sentence. Second, the transfer rules require that the transferee

court have jurisdiction over the transferred action. Suffice it to say, if the transferee

court does not have jurisdiction over the action, it cannot, and should not, be

transferred. The Majority, however, decides only that the “transferred” Petition for

Review in this case would not be futile from a timeliness standpoint, and completely

ignores the fact that the sentencing court is not a “proper tribunal” to consider the

action because it clearly does not have jurisdiction over the named respondents, the

Attorney General and the General Assembly. Third, neither of the “exceptions to

transfer” created by the Majority appear in Section 5103. The Majority has

erroneously added conditions to Section 5103 that do not exist. I believe the

necessary and correct statutory interpretation analysis of Section 5103 and Rule 751

dictate that the transfer of Edwards’ Petition for Review filed against the Attorney

General and General Assembly is simply not proper, irrespective of any timeliness

concerns.

I.

FIRST: A petitioner’s petition for review filed in this

Court’s original jurisdiction that does not contain the

averments required in a PCRA petition is not a PCRA

petition “filed in the wrong court” merely because the

relief requested is a change to his sentence

PAM - 4

A. Edwards’ Petition for Review is Not a “Mistakenly” Filed PCRA

Petition That Can Simply be “Transferred” to the Sentencing Court

i. Section 5103(a)

Section 5103(a) of the Judicial Code, titled “Transfer of Erroneously

Filed Matters,” requires this Court to transfer an “appeal or other matter” when we

do not have jurisdiction over an action and another court does have jurisdiction.

It provides:

(a) General rule.--If an appeal or other matter is taken to

or brought in a court or magisterial district of this

Commonwealth which does not have jurisdiction of the

appeal or other matter, the court or magisterial district

judge shall not quash such appeal or dismiss the matter,

but shall transfer the record thereof to the proper

tribunal of this Commonwealth, where the appeal or other

matter shall be treated as if originally filed in the transferee

tribunal on the date when the appeal or other matter was

first filed in a court or magisterial district of this

Commonwealth. A matter which is within the exclusive

jurisdiction of a court or magisterial district judge of this

Commonwealth but which is commenced in any other

tribunal of this Commonwealth shall be transferred by

the other tribunal to the proper court or magisterial

district of this Commonwealth where it shall be treated as

if originally filed in the transferee court or magisterial

district of this Commonwealth on the date when first filed

in the other tribunal.

42 Pa.C.S. § 5103(a) (emphasis added).

Transfer under this section is without prejudice (“shall be treated as if

originally filed in the transferee tribunal on the date when the appeal”). The tolling

theory behind this rule requiring transfer is that a plaintiff who timely files an action

should not lose his opportunity to litigate the case simply because he is technically

in error regarding the jurisdiction of the court. Oleski v. Department of Public

Welfare, 822 A.2d 120 (Pa. Cmwlth. 2003).

PAM - 5

Even though the Majority transfers Edwards’ Petition for Review

pursuant to Section 5103(a), it pays no heed to its actual language. Instead, it is

relegated to a footnote and not discussed in any meaningful way.

Section 5103(a) defines exactly when an action should be transferred.

Transfer is triggered when a “matter” is brought to a court which “does not have

jurisdiction” of the matter, and another tribunal does. In that situation, the court

shall transfer the “matter” to the “proper tribunal.” Where a “matter” is within the

“exclusive jurisdiction” of a court, but is commenced in another court, the matter

shall be transferred to the proper court.

Based on a reading of Section 5103(a), which is unambiguous, it is clear

that the only concern the legislature had in enacting Section 5103 was to provide a

vehicle by which entire cases (not isolated arguments or issues) mistakenly filed in

the wrong court could be transferred to the court in which they should have initially

been brought. Crucial to my interpretation is our legislature’s use of the term

“matter” to describe what may be transferred under this statute. A “matter” is

defined in the Judicial Code as “an action, proceeding or appeal.” 42 Pa.C.S. § 102

(emphasis added). An “action” is “[a]ny action at law or in equity.” Id. This

legislative language thus forces the conclusion that Section 5103 only provides

authority to transfer an action as a result of the transferring court’s lack of

jurisdiction over it.

ii. Rule 751

The same is true for Rule 751, which is based upon Section 5103(a) of

the Judicial Code, and titled “Transfer of Erroneously Filed Cases.” It provides:

(a) General rule. If an appeal or other matter is taken to

or brought in a court or magisterial district which does not

have jurisdiction of the appeal or other matter, the court or

PAM - 6

district justice shall not quash such appeal or dismiss the

matter, but shall transfer the record thereof to the proper

court of this Commonwealth, where the appeal or other

matter shall be treated as if originally filed in the

transferee court on the date first filed in a court or

magisterial district.

Pa.R.A.P. 751(a) (emphasis added).

iii. “Matter”

In turn, “matter” is defined in the Appellate Rules to include (1) action

(which is defined as any action or proceeding at law or in equity); (2) proceeding

(which is undefined); and (3) appeal (which is defined as any petition or other

application to a court for review). Pa.R.A.P. 102 (Definitions).

Thus, under a clear reading of both the transfer statute and appellate

rule, if a party mistakenly files an appeal in an appellate court or in an incorrect

office within the Unified Judicial System, the court that receives the mistakenly filed

appeal must transfer the appeal or action to the proper court. Similarly, if an action

is originally filed in the wrong court, the court must transfer the action to the proper

court.

In concluding that Section 5103 authorizes the transfer of Edwards’

entire Petition for Review, Respondents and all, to the sentencing court merely

because he includes an argument that should have been raised in a properly and

timely filed PCRA petition, the Majority interprets Section 5103 too broadly. It is

clear to me that Edwards did not “mistakenly” file “a PCRA action” in this Court

that we are required under Section 5103 to transfer to the sentencing court so as to

“preserve his filing date.” At best, Edwards makes an argument in his two-count

Petition for Review against the Attorney General and General Assembly that he

should have raised in a valid and timely filed PCRA petition filed against the

PAM - 7

Commonwealth as the defendant in the sentencing court. Notably, Edwards has

already filed three other PCRA petitions in the sentencing court. This Court’s

research reveals that the Superior Court has already affirmed the PCRA court’s

dismissal of three PCRA petitions filed by Edwards. His first PCRA petition, filed

on April 22, 2002, was dismissed as meritless. Edwards did not appeal from that

order. The Superior Court affirmed the dismissal of his second PCRA petition as

untimely. In his third PCRA petition, Edwards alleged that the imposition of LWOP

for his conviction of second-degree murder under Section 9715 of the Sentencing

Code violated Alleyne v. United States, 570 U.S. 99 (2013). The Superior Court

affirmed the dismissal of his third PCRA petition because he failed to plead and

prove an exception to the PCRA’s one-year time bar. See Commonwealth v.

Edwards (Pa. Super., No. 2553 EDA 2014, filed July 22, 2015) (recounting the

history of Edwards’ PCRA petitions and finding Edwards’ third PCRA petition

untimely). Thus, it does not appear that he is confused or “mistaken” as to which

court they belong.

In order to justify the transfer here, the Majority misconstrues Edwards’

Petition for Review as though it was a valid PCRA petition that can simply be

transferred lock, stock and barrel to the sentencing court for the continuation of

proceedings. However, Edwards’ Petition for Review is not a PCRA petition.

Under Section 9543 of the PCRA, a PCRA petition4 must plead and support the

4

Specifically, Section 9543 of the PCRA provides:

(a) General rule.--To be eligible for relief under this

subchapter, the petitioner must plead and prove by a preponderance

of the evidence all of the following:

(1) That the petitioner has been convicted of a crime under

the laws of this Commonwealth and is at the time relief is granted:

(Footnote continued on next page…)

PAM - 8

(i) currently serving a sentence of imprisonment,

probation or parole for the crime;

(ii) awaiting execution of a sentence of death for

the crime;

(iii) serving a sentence which must expire before

the person may commence serving the disputed

sentence; or

(iv) has completed a sentence of imprisonment,

probation or parole for the crime and is seeking

relief based upon DNA evidence obtained under

section 9543.1(d) (relating to postconviction DNA

testing).

(2) That the conviction or sentence resulted from one or

more of the following:

(i) A violation of the Constitution of this

Commonwealth or the Constitution or laws of the United

States which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.

(iii) A plea of guilty unlawfully induced where the

circumstances make it likely that the inducement

caused the petitioner to plead guilty and the

petitioner is innocent.

(iv) The improper obstruction by government

officials of the petitioner’s right of appeal where a

meritorious appealable issue existed and was

properly preserved in the trial court.

(vi) The unavailability at the time of trial of

exculpatory evidence that has subsequently become

(Footnote continued on next page…)

PAM - 9

essential elements of a claim. Commonwealth v. Rivers, 786 A.2d 923, 937-38 (Pa.

2001). The PCRA includes very specific requirements that must be stated in a PCRA

petition. Also, the PCRA contains a jurisdictional time bar, which is subject to

limited statutory exceptions.5 42 Pa.C.S. § 9545(b)(1). For the sentencing court to

available and would have changed the outcome of

the trial if it had been introduced.

(vii) The imposition of a sentence greater than the

lawful maximum.

(viii) A proceeding in a tribunal without

jurisdiction.

(3) That the allegation of error has not been previously

litigated or waived.

(4) That the failure to litigate the issue prior to or during trial,

during unitary review or on direct appeal could not have been the

result of any rational, strategic or tactical decision by counsel.

42 Pa.C.S. § 9543. See also Rule 901 of the Pennsylvania Rules of Criminal Procedure

(Pa.R.Crim.P.) 903 (Initiation of Post-Conviction Collateral Proceedings); Pa.R.Crim.P. 902

(Content of Petition for Post-Conviction Collateral Relief, Request for discovery) (“A petition for

post-conviction collateral relief shall bear the caption, number, and court term of the case or cases

in which relief is requested”); Pa.R.Crim.P. 903(A)-(B) (explaining that, upon receipt of PCRA

petition, the clerk of court shall “make a docket entry, at the same term and number as the

underlying conviction and sentence . . . and . . . place the petition in the criminal case file,” then

“transmit a copy of the petition to the attorney for the Commonwealth”); Pa.R.Crim.P. 906(A)

(providing, generally, that an attorney for Commonwealth may elect to file answer or must do so

if ordered by court).

5

The statutory exceptions to the PCRA’s one-year time bar are as follows:

(1) Any petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the

judgment becomes final, unless the petition alleges and the

petitioner proves that:

(Footnote continued on next page…)

PAM - 10

have jurisdiction to review the claims raised therein, the PCRA petition must

demonstrate the applicability of one of the exceptions to the PCRA’s one-year time

bar. Commonwealth v. Beasley, 741 A.2d 1258, 1261-62 (Pa. 1999).

Here, Edward’s Petition for Review does not meet the pleading and

proof requirement of the PCRA. Edwards’ Petition for Review is not styled as a

PCRA petition, i.e., it does not include the requisite averments for a valid PCRA

petition, and it is not brought against the Commonwealth, which is the only proper

party to a PCRA proceeding. Edwards does not raise a single exception to timeliness

under Section 9545(b).6 He does not claim that his late filing was the result of

interference by government officials. He does not claim that the facts upon which

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation

of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United

States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to

apply retroactively.

(2) Any petition invoking an exception provided in paragraph (1)

shall be filed within 60 days of the date the claim could have been

presented.

42 Pa.C.S. § 9545(b)(1)-(2).

6

A PCRA petition seeking to invoke one of these exceptions must be filed “within 60 days

of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

PAM - 11

he bases his Petition for Review were unknown to him. He does not base his

argument on any newly recognized constitutional right. Consequently, this is not a

situation where an inmate clearly intended to proceed under the PCRA but

“mistakenly” filed his PCRA action in this Court, instead of in the sentencing court.

The Majority is, in effect, transferring to the sentencing court a case that will need

to be completely re-pled to adhere to the PCRA, re-captioned to name the correct

parties, re-docketed to reflect the criminal docket number, and re-served on the

Commonwealth. The Attorney General and General Assembly will need to appear

before the sentencing court and seek removal from the case.

The Majority is also requiring this Court to assume that Edwards wants

to pursue his claims in the PCRA context and that he “mistakenly” filed his PCRA

petition in the wrong court. We may not assume that. It is equally likely that

Edwards very purposely did not file his current claims in the PCRA court against the

Commonwealth, but rather very purposely filed his action in this Court against

those respondents he believes are responsible for enacting and implementing the

various laws he challenges. If we were to assume anything, it would be that Edwards

knows exactly how and where to file a PCRA petition and against whom.

II.

SECOND: The Transfer Rules Require that the

Transferee Court Have Jurisdiction Over the

Transferred Action, and the Sentencing Court Does

Not Have Jurisdiction in this Case

Not only does Edwards’ Petition for Review lack the essential elements

of a PCRA petition, but the sentencing court also lacks personal jurisdiction over the

named respondents, the Attorney General and General Assembly. Again, in order

to toll the filing date under Section 5103(a), the action must be mistakenly brought

PAM - 12

in a court that lacks jurisdiction and there must be a proper court to transfer it to

(“[i]f [a] matter is taken to or brought in a court . . . which does not have

jurisdiction of the . . . other matter, the court . . . shall transfer the record thereof to

the proper tribunal”) (emphasis added).

Edwards filed his Petition for Review against the Attorney General

and the General Assembly, which consists of two causes of action alleging (1)

constitutional violations, and (2) statutory violations.

A. The Sentencing Court Lacks Personal Jurisdiction Over the

Attorney General and General Assembly

As explained, under Section 5103(a), it is contemplated that in order to

transfer an action to another court, that transferee court must be the “proper” court

that has both subject matter jurisdiction and personal jurisdiction (“shall transfer the

record thereof to the proper tribunal of this Commonwealth”). See Bisher, 265

A.3d at 400. Otherwise, it would be futile to transfer it.

Edwards’ action, as pleaded, is against the Attorney General and the

General Assembly, neither of which are proper parties in a PCRA proceeding; the

Commonwealth is the proper party to participate in post-conviction proceedings.

Without question, the sentencing court has no personal jurisdiction over the Attorney

General or the General Assembly. See Section 761(a) of the Judicial Code, which

provides, “[t]he Commonwealth Court shall have original jurisdiction of all civil

actions or proceedings: (1) [a]gainst the Commonwealth government, including any

officer thereof, acting in his official capacity[.]” 42 Pa.C.S. § 761(a) (emphasis

added). Therefore, we cannot transfer the petition for review to the sentencing court

because it does not have personal jurisdiction over the named Respondents.

As noted, the most recent published case that held this is Hill, authored

by the Court’s current President Judge, Judge Cohn Jubelirer. In Hill, a pro se

PAM - 13

inmate serving a mandatory life sentence for second-degree murder filed a petition

for review in our original jurisdiction against the Governor and the Pennsylvania

Parole Board asking this Court (as Edwards does here) to change his sentence. Upon

finding that we lacked authority to change his sentence, this Court then undertook a

separate analysis to determine whether dismissal or transfer to the sentencing court

would be appropriate. This Court first noted that Section 5103(a) states that,

generally, a court “shall not dismiss an erroneously filed matter for lack of

jurisdiction, but shall transfer the case to the proper tribunal.” 42 Pa.C.S. § 5103(a).

However, notwithstanding that general provision, we decided not to

transfer the action to the sentencing court because, as here, the Governor and Parole

Board were not proper parties to the criminal action at the criminal docket. We

explained that it is the Commonwealth that participates in proceedings under the

PCRA. Therefore, transfer would be inappropriate and “an unjustifiable expenditure

of judicial resources.” Critically, we found that the inmate was not without recourse.

We explained that the inmate’s “proper recourse would be to pursue relief under the

requirements of the PCRA.” Hill, 309 A.3d at 246. That is precisely what Edwards

is required to do here.

Prior to Hill, this Court was inconsistent in the way in which it handled

the disposition of these types of petitions for review that are brought against the

wrong parties.7 Hill clarified that if the wrong parties are named, we should not

7

See, e.g., Cook v. Wolf (Pa. Cmwlth., No. 472 M.D. 2019, filed May 13, 2020) (transfers

petition for review against the Governor to the common pleas court; follows no case, statute or

rule); Ellis v. Wolf (Pa. Cmwlth., No. 596 M.D. 2019, filed April 13, 2021) (follows Cook); Henry

v. Wolf, 256 A.3d 48, 53 (Pa. Cmwlth. 2021) (transfers petition for review against the Governor to

the common pleas court, citing Section 5103(a) of the Judicial Code); Dockery v. Wolf, 259 A.3d

566 (Pa. Cmwlth. 2021) (same); Green v. Wolf (Pa. Cmwlth., No. 336 M.D. 2021, filed July 5,

2022) (transfers petition for review against the Governor to the common pleas court, citing Henry

and Dockery).

PAM - 14

transfer the petition for review to the sentencing court. However, Birdwell v.

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 80 M.D. 2023, filed

September 5, 2024), decided after Hill, did not follow its precedent but, rather, citing

no case, statute, or rule, transferred the petitioner’s petition for review to the

common pleas court, even though the named respondent was the Parole Board, over

which the common pleas court had no personal jurisdiction. Like this case, the

Hawkins and Davis decisions, filed contemporaneously with this decision, also do

not follow Hill. 8 They also all conflict with a line of cases that have applied this

same rationale applied in Hill to cases seeking a writ of habeas corpus ad

testificandum and mandamus relief.

For example, in Borsello v. Colleran, 833 A.2d 1213 (Pa. Cmwlth.

2003), this Court held that an inmate’s Petition for a Writ of Habeas Corpus Ad

Testificandum against the prison superintendent (not an officer of the

Commonwealth) was properly dismissed by the trial court for lack of subject matter

jurisdiction, rather than being transferred to this Court as an “erroneously filed”

matter under Section 5103(a). The petition raised constitutional questions relating

to the Parole Board’s decision to recommit the inmate as a technical parole violator

and the Parole Board’s decision to deny him parole. We held:

the trial court did not err in failing to transfer this matter

pursuant to 42 Pa.C.S. § 5103, which mandates the transfer

of erroneously filed matters. In the instant case, although

the trial court acknowledged this Court’s exclusive

8

I respectfully note that panel decisions of this Court, such as Hill and the cases cited in

Hill, can only be overruled by an en banc panel of this Court. See Commonwealth Court IOP §

257, 210 Pa. Code § 69.257. However, the Majority has elected not to publish its decision and

does not specifically overrule Hill. Thus, it is entirely unclear to me if Hill has been overruled sub

silentio by the Majority. If perchance Hill remains valid law, I do not see how the Majority’s

decision and Hill can be interpreted to give effect to each other.

PAM - 15

jurisdiction over parole revocation appeals, the Board is

not a party named in the caption of Borsello’s petition.

Id. at 1215 (emphasis added).

In Burton v. Wetzel (Pa. Cmwlth., No. 130 M.D. 2021, filed February

10, 2022), an inmate filed a petition for review against the Department of Corrections

(DOC) in our original jurisdiction, seeking an order directing DOC to terminate his

restitution obligations to his murder victim’s mother. We held that we did not have

jurisdiction over the matter because the inmate’s request to terminate his restitution

obligation must be directed to the sentencing court. We dismissed the action for lack

of jurisdiction, rather than transferring it to the sentencing court, because the District

Attorney, who represents the Commonwealth’s interests in criminal matters, was not

named in the caption:

This Court acknowledges that, pursuant to Section 5103(a)

of the Judicial Code: “A matter which is within the

exclusive jurisdiction of a court . . . of this Commonwealth

but which is commenced in any other tribunal of this

Commonwealth shall be transferred by the other

tribunal to the proper court . . . of this Commonwealth .

. . .” 42 Pa.C.S. § 5103(a) (emphasis added). However, in

the instant case, [DOC] is not a party to the criminal

action at the criminal docket. Rather, the

Commonwealth’s interests in the criminal matter are

represented by the District Attorney. See

Commonwealth v. Jury, 636 A.2d 164 (Pa. Super. 1993).

Because the District Attorney is not named in the

caption of [p]etitioner’s [p]etition, rather than transfer

the matter to the sentencing court, this Court must

dismiss the [p]etition. See Borsello v. Colleran, 833 A.2d

1213, 1215 (Pa. Cmwlth. 2003) (trial court did not err in

not transferring case to this Court because, inter alia, “the

[Pennsylvania] Board [of Probation and Parole, the proper

party,] is not a party named in the caption of the

petitioner's petition[]”).

PAM - 16

Id. at 2 (emphasis added). See also Lee v. Pennsylvania Board of Probation and

Parole, 251 A.3d 842 (Pa. Cmwlth. 2021) (court declined to treat improper appellate

petition for review as original jurisdiction petition for review in the nature of

mandamus because proper respondent would have been DOC, which was not named

as a party or served, explaining “the Court cannot simply transfer this matter to its

original jurisdiction against an unnamed party, here, DOC”); Scott v. Pennsylvania

Board of Probation and Parole, 256 A.3d 483 (Pa. Cmwlth. 2021) (declining to

transfer action against Parole Board attacking a sentence of LWOP as

unconstitutional because Parole Board was not a proper party to post-conviction

proceedings); Hudson v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,

No. 364 M.D. 2021, filed August 30, 2023) (declining to transfer case to sentencing

court under Section 5103(a) of the Judicial Code because the Commonwealth and

not the Parole Board is the proper party to participate in post-conviction

proceedings); Freeman v. Pennsylvania Board of Probation and Parole and General

Assembly (Pa. Cmwlth., No. 238 M.D. 2021, filed December 7, 2022) (declining to

transfer under Section 5103(a) of the Judicial Code a petition for review seeking

declaratory judgment that Section 6137 of the Prisons and Parole Code violates

constitutional prohibition against cruel and unusual punishment because the Parole

Board and General Assembly do not participate the post-conviction proceedings).

III.

THIRD: neither of the “Exceptions to Transfer”

created by the Majority appear in Section 5103(a)

Rather than adhering to the plain language of Section 5103(a), Hill, and

the multitude of other cases that have declined to transfer an action where it was

brought against parties which would not be proper parties in the proceedings before

the transferee court, the Majority has created a new rule to be applied in PCRA cases

PAM - 17

– by distilling from other cases which have declined to transfer an action filed in this

Court if it would be futile from a timeliness standpoint, irrespective of the sentencing

court’s lack of jurisdiction over the named defendants. The Majority, therefore,

countenances that (1) we should not consider whether the petitioner has named the

appropriate respondents or whether the sentencing court has jurisdiction over the

action as pled, and (2) we should raise, sua sponte, the question of the timeliness of

a petition for review that raises an argument that should have been raised in a PCRA

petition and factor timeliness into the transfer analysis. That consideration is not

present in either Section 5103(a) or Rule 751, and the Majority does not rely upon,

distinguish, or otherwise discuss Hill, even though it is directly on point.

Addressing briefly the issue of wrong parties, the Majority “declines”

to dismiss the matter on the grounds that Edwards “arguably” named improper

parties to a PCRA petition. First, Edwards did not arguably name the wrong parties

to a PCRA petition, he did name the wrong parties. We definitely can, and should,

take that obvious reality into consideration when deciding whether to transfer the

case to the sentencing court. That is precisely what Section 5103(a) requires us to

do before transferring an action to another court. The Majority, without any support

whatsoever, declares that “it is for the transferee court, the court with jurisdiction, to

dismiss improper parties to the action.” To the extent it does so, I submit that it is

inappropriate to leave that decision to the sentencing court after the action has been

transferred ostensibly under Section 5103(a). Section 5103(a) specifically provides

that if an action is “brought in a court or magisterial district of this Commonwealth

which does not have jurisdiction of the appeal or other matter, the court or

magisterial district judge shall not quash such appeal or dismiss the matter, but shall

transfer the record thereof to the proper tribunal.” There is no principled reason

PAM - 18

to transfer an action to a court that obviously does not have jurisdiction over the

named parties, as is the case here. To do so is in clear violation of Section 5103(a).

Finally, I note that if we transfer Edwards’ Petition for Review under

Section 5103(a) (which preserves filing dates), the sentencing court would be bound

to treat the matter as if originally filed on the date the Petition for Review was filed

in this Court, in a situation where the pleading is not a valid PCRA petition and must

first be amended in order to bring into compliance with the PCRA. In reviewing a

PCRA petition for timeliness, it is for the sentencing court to decide if the inmate’s

filing meets the requirements of a PCRA petition, and whether the PCRA petition

contains the requisite averments to invoke an exception to timeliness. Transferring

this action under Section 5103(a) would, in essence, “preserve a filing date” for a

pleading that does not comply with the PCRA. In this situation, we would be

usurping the sentencing court’s role in deciding PCRA matters.

Conclusion

Basing the decision to transfer a case simply on whether the petition is

facially untimely, without consideration of the other requisite transfer factors in

Section 5103(a) and our current precedent, Hill, misses the mark. As noted, there

are problems inherent in attempting to craft a rule for transfer that requires this Court

to sua sponte raise issues of timeliness, assume the petitioner really meant to file it

in the sentencing court, and ignore whether proper parties have been named so as to

give the transferee court jurisdiction over the matter—an express requirement of

Section 5103. The bottom line is that an action which merely seeks some of the

relief that can only be awarded under the PCRA should not be treated as a “mis-

filed” PCRA petition. This Court should not treat a petition for review as a PCRA

petition simply because it raises one issue that should have been raised in a PCRA

PAM - 19

petition, particularly when the petition is filed against parties who are not proper

parties in post-conviction proceedings. Hill. The better course of action is to follow

our precedent, dismiss the Petition for Review as baseless, and allow the petitioner

to refile a compliant PCRA petition under the PCRA, as we held in Hill.

For these reasons, I must dissent to the portion of the Majority’s

decision to transfer the Petition for Review to the sentencing court.

__________________

PATRICIA A. McCULLOUGH, Judge

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

Dissenting Opinion.

PAM - 20