The opinion
J-S05035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RASHEED NIFAS IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SUSAN DARR AND ANDREA WEIMER
Appellees No. 1133 WDA 2014
Appeal from the Order Entered June 20, 2014
In the Court of Common Pleas of Somerset County
Civil Division at No: 382 Civil 2014
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 19, 2015
Appellant, Rasheed Nifas, appeals from the trial court’s June 20, 2014
order dismissing his petition to file an in forma pauperis (“IFP”) civil action
against Appellees, Susan Darr and Andrea Weimer. The trial court deemed
Appellant’s underlying complaint frivolous and dismissed Appellant’s petition
pursuant to Pa.R.C.P. 200(j). We vacate and remand.
According to Appellant’s complaint, he is an inmate at SCI Somerset,
and Appellees are Pennsylvania Department of Corrections (“DOC”)
employees who work there.1 Complaint, 6/11/14, at ¶¶ 4-6. Appellant
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1
The complaint purportedly sues Appellees in their individual capacities.
Complaint, 6/11/14, at ¶ 7. Nonetheless, Appellant’s allegations relate to
Appellees’ activities as DOC employees. Arguably, Appellant should have
filed this appeal with the Commonwealth Court pursuant to 42 Pa.C.S.A.
(Footnote Continued Next Page)
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alleges Appellees have been opening and reading his legal mail, in violation
of various statutory and constitutional rights. Id. at ¶¶ 13-16. Appellant
requests declaratory relief and damages. Id. at Part VIII.
“A party who is without financial resources to pay the costs of litigation
is entitled to proceed in forma pauperis.” Pa.R.C.P. 240(b). Pursuant to
Rule 240, Appellant filed his IFP petition simultaneously with his complaint
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(Footnote Continued)
§ 762(a). Since he did not, and since Appellees do not object to our
jurisdiction, we may entertain this appeal. Benner v. Silvis, 950 A.2d 990,
993 (Pa. Super. 2008). Indeed, § 704 of the Judicial Code provides:
The failure of an appellee to file an objection to the
jurisdiction of an appellate court within such time as may be
specified by general rule, shall, unless the appellate court
otherwise orders, operate to perfect the appellate jurisdiction of
such appellate court, notwithstanding any provision of this title,
or of any general rule adopted pursuant to section 503 (relating
to reassignment of matters), vesting jurisdiction of such appeal
in another appellate court.
42 Pa.C.S.A. § 704(a). Rule 741 of the Pennsylvania Rules of Appellate
Procedure contains similar language. See Pa.R.A.P. 741(a).
We observe that Appellant’s Brief evinces some confusion on this point,
citing § 762 in his statement of jurisdiction but heading his cover page with
“In the Superior Court of Pennsylvania.” Appellant’s Brief, Cover and p. 1.
We note that precedent supports the trial court’s exercise of original
jurisdiction, subject to sovereign immunity, over an IFP petition filed by an
inmate naming DOC employees as defendants in the proposed complaint.
See Williams v. Strickman, 917 A.2d 915 (Pa. Commw. 2007), appeal
denied, 932 A.2d 1290 (Pa. 2007). Likewise, this Court has exercised
jurisdiction over an order denying an IFP petition based on the frivolity of an
inmate’s action against prison officials. Ocasio v. Prison Health Srvs.,
979 A.2d 352 (Pa. Super. 2009); Commonwealth ex. rel. Fortune v.
Dragovich, 792 A.2d 1257 (Pa. Super. 2002), appeal denied, 803 A.2d 732
(Pa. 2002).
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against Appellees. The trial court dismissed Appellant’s complaint pursuant
to Rule 240(j):
If, simultaneous with the commencement of an action or
proceeding or the taking of an appeal, a party has filed a petition
for leave to proceed in forma pauperis, the court prior to acting
upon the petition may dismiss the action, proceeding or appeal if
the allegation of poverty is untrue or if it is satisfied that the
action, proceeding or appeal is frivolous.
Pa.R.C.P. 240(j)(1). “A frivolous action or proceeding has been defined as
one that ‘lacks an arguable basis either in law or in fact.’” Pa.R.C.P.
240(j)(1), Note (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989));
see also, Robinson v. Commonwealth, Bd. of Prob. and Parole, 582
A.2d 857, 860 (Pa. 1990). “When reviewing a trial court’s denial of an in
forma pauperis petition, this court is limited to a determination of whether
constitutional rights were violated, or whether the trial court abused its
discretion or committed an error of law.” Williams v. Syed, 782 A.2d
1090, 1093 (Pa. Commw. 2001).
The trial court dismissed Appellant’s complaint pursuant to Brown v.
Pa Dep’t of Corr., 932 A.2d 316 (Pa. Commw. 2007). In Brown, the
Commonwealth Court explained DOC policy on the opening of legal mail
addressed to inmates:
[A]n attorney or court may correspond confidentially with
an inmate by obtaining a ‘control number’ from DOC and placing
the number on the envelope. DOC avers that the purpose of the
control number is to ensure that contraband does not enter the
prison under the guise of privileged correspondence or
confidential court mailings. DOC further avers that when mail
not bearing a control number is opened outside the inmate’s
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presence, it is inspected but may not be read without the
written order of its Regional Deputy Secretary.
Id. at 318 (emphasis added). The Brown Court held the DOC policy to be
constitutional. Id. at 322. The Third Circuit has reached the same result.
Fontroy v. Beard, 559 F.3d 173, 184 (3d Cir. 2009).
The fatal defect in Appellant’s complaint, according to the trial court,
was Appellant’s failure to allege he obtained a control number for the mail in
question. At paragraph 13 of Appellant’s complaint, however, Appellant
alleges Appellees “constantly opened, read, and reproduced incoming
privilege [sic] legal mail ….” Complaint, 6/11/14, at ¶ 13. He repeats that
allegation several times. Id. at ¶¶ 14-16. Based on that allegation, Brown
is not dispositive. The DOC policy, as described in Brown, forbade DOC
personnel to open and read an inmate’s legal mail, even if that mail lacked
a control number.2 Since Appellant has alleged that Appellees open and
read his legal mail, his failure to allege the presence of a control number is
immaterial under the Brown Court’s analysis.
The trial court was therefore incorrect in dismissing Appellant’s
complaint as frivolous based solely on Brown. The trial court did not
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2
Appellant does not allege the absence of an order from the Regional
Deputy Secretary authorizing Appellees to read Appellants’ mail. See
Brown, 932 A.2d at 318. We cannot rely on this omission as an alternate
basis for affirming the trial court, as we have no reason to assume Appellant
has sufficient information to allege the absence of such an order.
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address Appellant’s allegation that Appellees read his legal mail. Trial Court
Opinion, 8/5/14.3 Appellees likewise ignore this allegation. We conclude the
trial court committed an error of law in deeming Appellant’s complaint
frivolous pursuant to Brown, because Brown does not support a conclusion
that Appellant’s complaint lacks an arguable basis in law or fact.4
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2015
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3
The trial court’s opinion is not paginated. It spans only two pages, with
the second page containing only the signature line.
4
We express no opinion on whether Appellant’s lawsuit is frivolous for
reasons other than the one given by the trial court.
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