A. Brown v. E.W. Behr

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton Brown, :

:

Appellant :

:

v. : No. 1170 C.D. 2019

: Submitted February 3, 2023

Eileen W. Behr, Mark Barbee, :

Mark Levy :

OPINION NOT REPORTED

MEMORANDUM OPINION

PER CURIAM FILED: August 15, 2023

Alton Brown (Inmate), an inmate at the State Correctional Institution at

Fayette (SCI-Fayette), appeals pro se from the order of the Montgomery County

(County) Court of Common Pleas (trial court) granting the Motion for Summary

Judgment (Summary Judgment Motion) filed by Eileen W. Behr, the County’s

former sheriff, Mark Barbee, the County’s prothonotary, and Mark Levy, a former

supervisor in the prothonotary’s office (collectively, Defendants), filed in response

to Inmate’s Petition for Writ of Mandamus (Mandamus Petition). We remand.

On October 16, 2015, Inmate filed the Mandamus Petition seeking to

compel Defendants to perform their respective legal duties regarding service of

original process, and to perform mandatory ministerial duties regarding docketing

and entering filings, with respect to six civil actions that Inmate commenced in the

trial court. Original Record Docket Entry (OR Dkt.) #0. On December 16, 2015,

Defendants filed a Motion to Dismiss Petition for Mandamus pursuant to Section

6602 of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. §6602 (Motion to

Dismiss I). OR Dkt. #5. On December 28, 2017, Defendants filed a Motion to

Dismiss Petition for Writ of Mandamus (3 Strikes) (Motion to Dismiss II). OR Dkt.

#71. In addition, On January 12, 2018, Defendants filed their Summary Judgment

Motion. OR Dkt. #74.

On June 12, 2019, the trial court issued an order that stated, in relevant

part:

[U]pon consideration of Defendants’ Motion to Dismiss

[I], filed on 12/16/15 ([OR Dkt.] #5); Defendants’ Motion

to Dismiss [II], filed on 12/28/17 ([OR Dkt.] #71);

Defendants’ [Summary Judgment Motion], filed 1/12/18

([OR Dkt.] #74); and [Inmate’s] Answer/Response filed

on 2/11/19 (OR Dkt. #112), and Argument held on May

17, 2019, by Video Conference via link with [SCI-

Fayette], it is hereby ORDERED and DECREED that

Defendants’ [Summary Judgment Motion] is GRANTED.

Defendants’ Motion to Dismiss [II] is DISMISSED as

MOOT in view of the [c]ourt’s ruling on Defendants’

[Summary Judgment Motion].

It is further ORDERED that [Inmate’s] Motion to

Strike Defendants’ Preliminary Objections and Motion for

Summary Judgment, filed on 5/28/19 and 6/3/19 ([OR

Dkt.] #123, #124, #125) are DENIED.

Trial Ct. 6/12/19 Order (emphasis in original). On August 14, 2019, Inmate filed

the above-captioned appeal from the trial court’s order.1

1

As this Court has observed:

Our standard of review on appeal from the grant or denial of

summary judgment is de novo, and our scope of review is plenary.

Our review is limited to determining whether the trial court

committed an error of law or abuse of discretion. Summary

judgment is only appropriate where, upon examination of the record

in the light most favorable to the nonmoving party, no genuine issue

(Footnote continued on next page…)

2

On December 5, 2019, this Court issued an order in which we noted

that the instant appeal appeared to be untimely, and directed the parties to address

this issue in their principal briefs on the merits.2 In his appellate brief, Inmate

explains that he timely deposited his notice of appeal with the prison authorities on

July 12, 2019, but it was rejected by Defendants on July 22, 2019, as evidenced by

the “Voided Dockets” portion of the trial court’s docket entries contained in the

Original Record. See Brief of Appellant at 21. In support, Inmate claims that he

“can support his filings mentioned above with prison ‘Postage Slips’ if given the

opportunity[.]” Id.

As the Pennsylvania Supreme Court explained:

We note . . . that [Pa.R.A.P.] 1514 explicitly provides that

an appeal may be deemed “filed” either on the date the

prothonotary receives it or on the date the appellant

deposits it with the United States Postal Service if he uses

a Postal Form 3817, Certificate of Mailing, on which the

postal clerk stamps the date of mailing. [Pa.R.A.P.] 903

states generally that an appellant may file the notice of

appeal with the clerk of the lower court and [Pa.R.A.P.]

905 explains that the date of filing will be the date that the

clerk receives the appeal. We believe that the language of

[Pa.R.A.P.] 903 is amenable to an exception for pro se

prisoners. Therefore, we extend the prisoner mailbox rule

to all appeals by pro se prisoners. . . .

of material fact exists and the moving party is clearly entitled to a

judgment as a matter of law.

Clean Air Council v. Sunoco Pipeline L.P., 185 A.3d 478, 485-86 (Pa. Cmwlth. 2018) (citations

omitted).

2

See, e.g., Section 5571(b) of the Judicial Code, 42 Pa. C.S. §5571(b) (“[A]n appeal . . .

from a court to an appellate court must be commenced within 30 days after the entry of the order

from which the appeal is taken, in the case of an interlocutory or final order.”); Pa.R.A.P. 903(a)

(“[T]he notice of appeal . . . shall be filed within 30 days after the entry of the order from which

the appeal is taken.”).

3

Next, we turn to the type of evidence a pro se

prisoner may present to prove that he mailed the appeal

within the deadline. As provided in [Pa.R.A.P.] 1514, a

Postal Form 3817, Certificate of Mailing, constitutes proof

of the date of mailing. In Smith [v. Pennsylvania Board of

Probation and Parole, 683 A.2d 278 (Pa. 1996)], we said

that the “Cash Slip” that the prison authorities gave Smith

noting both the deduction from his account for the mailing

to the prothonotary and the date of the mailing, would also

be sufficient evidence. We further stated in Smith that an

affidavit attesting to the date of deposit with the prison

officials likewise could be considered. This Court has also

accepted evidence of internal operating procedures

regarding mail delivery in both the prison and the

Commonwealth Court, and the delivery route of the mail,

to decide the last possible date on which the appellant

could have mailed an appeal based on the date that the

prothonotary received it. Proof is not limited to the above

examples and we are inclined to accept any reasonably

verifiable evidence of the date that the prisoner deposits

the appeal with the prison authorities.

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (citations omitted). Relevant

here, the Supreme Court also observed that “[w]here . . . the facts concerning

timeliness are in dispute, a remand for an evidentiary hearing may be warranted.”

Id. at 426 n.3.

To this end, this Court has previously noted:

A timely appeal is a jurisdictional prerequisite.

Monroe [County Board] of Assessment Appeals v. Miller,

570 A.2d 1386 (Pa. Cmwlth. 1990) (timeliness of an

appeal is a jurisdictional question; it cannot be waived and

may be raised at any time by a party or by the court sua

sponte). Accordingly, if [the appellant’s] appeal is not

properly before this Court, we lack jurisdiction to decide

it. Moreover, an appellate court “may not enlarge the time

for filing a notice of appeal . . . .” Pa.R.A.P. 105(b).

Because this Court is unable to determine whether

[the appellant’s] notice of appeal was timely filed, we

4

remand to the trial court for that determination, including

holding a hearing if necessary.

Moyer v. PPL Electric Utilities Corporation (Pa. Cmwlth., No. 587 C.D. 2019, filed

February 28, 2020), slip op. at 4.3 Likewise, the above-captioned appeal will be

remanded to the trial court to determine whether Inmate’s notice of appeal was

timely filed.

Moreover, with respect to the merits of Inmate’s appellate claims, our

review of the Original Record in this matter demonstrates that a number of critical

docket entries are not contained therein. Specifically, the following original

documents, referred to in the trial court’s order, are not contained in the Original

Record: (1) Inmate’s October 16, 2015 Mandamus Petition, OR Dkt. #0; (2)

Defendants’ December 16, 2015 Motion to Dismiss I, OR Dkt. #5; (3) Defendants’

December 28, 2017 Motion to Dismiss II, OR Dkt. #71; and (4) Defendants’

[Summary Judgment Motion], filed 1/12/18, OR Dkt. #74).

Pa.R.A.P. 1926(b)(1) states, in pertinent part:

If anything material to a party is omitted from the record

by error, breakdown in processes of the court, or accident

. . . the omission . . . may be corrected . . . [b]y the trial

court or the appellate court . . . by its own initiative at any

time; in the event of correction or modification by the trial

court, that court shall direct that a supplemental record be

certified and transmitted if necessary[.]

In a similar circumstance, this Court recounted:

On appeal, this [C]ourt in an unpublished [m]emorandum

[o]pinion . . . explained its review of the record and its

attempt to correlate the transcript of testimony and

references in counsel’s brief with the proffered exhibits.

3

See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an

unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. Non-

precedential decisions . . . may be cited for their persuasive value.”).

5

We determined that numerous exhibits were not included

in the official record transferred to this Court.

Furthermore, we could not determine the apparent reason

for this omission, but concluded that [a local rule],

concerning the docketing of original exhibits with the

[p]rothonotary subsequent to trial, had not been followed.

We deemed it inadvisable to dismiss the appeal and, in the

interest of justice, directed the [court of common pleas],

pursuant to Pa.R.A.P.1926, to allow counsel for all parties

concerned to make certain that originals of any and all

exhibits be transmitted to this Court as a supplemental

record.

Stefanovits v. Magrino, 583 A.2d 841, 842-43 (Pa. Cmwlth. 1990). Likewise, this

matter will be remanded to the trial court to compile and transmit the omitted items

from the Original Record to this Court as a supplemental record.

Judge Fizzano Cannon did not participate in the decision of this case.

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton Brown, :

:

Appellant :

:

v. : No. 1170 C.D. 2019

:

Eileen W. Behr, Mark Barbee, :

Mark Levy :

PER CURIAM

ORDER

AND NOW, this 15th day of August, 2023, the above-captioned matter

is REMANDED to the Montgomery County Court of Common Pleas (trial court)

for a determination of whether Alton Brown filed a timely notice of appeal. On

remand, the trial court may hold an evidentiary hearing on the issue, if necessary.

The trial court shall issue a Supplemental Opinion on the issue of timeliness within

ninety (90) days of the date of this Order and shall transmit a Supplemental Record,

including the omitted items outlined above, to this Court within ten (10) days after

filing its Supplemental Opinion.

The Prothonotary is directed to send a copy of this Order and the

foregoing Memorandum Opinion to the Honorable Steven C. Tolliver, Sr. and the

prothonotary of the trial court.

Jurisdiction is retained.