P. Jensen v. B. Silver Clerk of Courts, & Montgomery County Prothonotary ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philip Jensen, :
Petitioner :
:
v. : No. 225 M.D. 2021
: Submitted: July 1, 2022
Barry Silver; Clerk of Courts, and :
Montgomery County Prothonotary, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 17, 2023
Before this Court are the Preliminary Objections (POs) filed by Respondents,
Montgomery County Prothonotary (Prothonotary) and Barry Silver (Silver),1 a
senior counter clerk in the Montgomery County Prothonotary’s Office (collectively,
Respondents), to Petitioner Philip Jensen’s (Petitioner) pro se Amended Complaint
in Mandamus (Complaint) filed in this Court’s original jurisdiction on September 1,
2021.2 In his Complaint, Petitioner seeks a writ of mandamus to compel
Respondents to file an appeal that Petitioner mailed on June 11, 2021, in an ancillary
civil action. Following our review, we sustain Respondents’ PO challenging subject
matter jurisdiction in this Court pursuant to Pa.R.Civ.P. 1028(a)(1) and transfer this
matter to the Court of Common Pleas of Montgomery County.
Petitioner identified Silver as “Processor Barry, (Clerk of Court).” (See Amended
1
Complaint in Mandamus (Complaint), filed 9/1/2021, ¶ 2.)
2
Petitioner initially filed a Petition for Writ of Mandamus on July 19, 2021.
I. BACKGROUND AND ISSUES PRESENTED
In his Complaint, Petitioner alleges that on June 11, 2021, he mailed his
“Appeal Nunc Pro Tunc” to Respondents for filing “to attack a bogus, fraudulent
default judgment that was entered regarding civil action [Cavalry SPV I, LLC, as
assignee of Citibank N.A. v. [] Jensen,] MJ-38121-CV-0000399-2018 against
[Petitioner.]” (Cavalry) (Complaint ¶ 4.) Petitioner asserts that despite his
compliance “with the procedure for filing applications for relief” with the
Prothonotary, Silver “refused” to file his appeal. (Id. ¶ 8.) Petitioner attaches to his
Complaint as Exhibit H correspondence from Prothonotary listing Silver as the
processor and indicating that Prothonotary was unable to file his Complaint because
“[a] writ of certiorari cannot be filed as a subsequent [sic]; the judgment was already
registered” [and] “[his] time frame to file a writ of certiorari has passed[.]”
(Complaint, Ex. H.)
Petitioner avers that Silver’s indication that the appeal would not be filed
because a judgment had already been entered ignores that “[Petitioner] wasn’t
properly served any notice,” which Petitioner pled in his appeal seeking to open the
default judgment. (Id. ¶12.) Petitioner states that it was for the trial court to grant
or deny his appeal, and “[Silver]’s action[] refusing to file is [an] erroneous
interpretation of the law[.]” (Id.) Petitioner concludes by stating that if he is not
given the opportunity to file his appeal nunc pro tunc, he will be responsible for
paying a default judgment in the amount of $4,300.94, “tarnishing his name and
[him] financial[l]y into the future.” (Id. ¶ 15.) Petitioner requests that this Court
“ent[er] [] judgment against [Respondents], direct [] [Respondents] to file and docket
[Petitioner’s] appeal nunc pro tunc[,]” and that “costs for filing be paid.” (Id.,
Wherefore Clause.)
2
On September 30, 2021, Respondents filed POs pursuant to Pa.R.Civ.P.
1028(a)(1)3 alleging that this Court lacks both personal jurisdiction over
Respondents and subject matter jurisdiction over the Complaint.4 Respondents
argue that even if this Court accepts as true each of the allegations Petitioner sets
forth in the Complaint, his cause of action necessarily fails because he did not (1)
establish this Court’s personal jurisdiction over Respondents by properly
effectuating service of original process and (2) invoke this Court’s original
jurisdiction pursuant to Section 761(a)(1) of the Judicial Code, 42 Pa.C.S.
§ 761(a)(1). (POs ¶¶ 9, 12-15, 18.)
II. DISCUSSION
Mandamus is an extraordinary remedy; thus, “[t]his Court may only issue a
writ of mandamus where the petitioner possesses a clear legal right to enforce the
performance of a ministerial act or mandatory duty, the [respondent] possesses a
corresponding duty to perform the act, and the petitioner possesses no other adequate
or appropriate remedy.” Detar v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006)
(citation omitted). In ruling on POs, we will accept as true all well-pled material
allegations raised therein and any reasonable inferences that may be drawn from
3
This Rule states:
(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[.]
Pa.R.Civ.P. 1028(a)(1).
4
Only Respondents have filed a brief with this Court. Petitioner indicated he would not
be filing a responsive brief. (Petitioner’s “Notice to All Parties,” filed 3/29/22, ¶ 1.)
3
those averments, and we will resolve any doubt in favor of the petitioner. Williams
v. Wetzel, 178 A.3d 920, 923 (Pa. Cmwlth. 2018). However, we are “not bound by
legal conclusions, unwarranted inferences from facts, argumentative allegations, or
expressions of opinion” set forth in POs. Id. Thus, we will sustain POs only when
the law makes clear that a petitioner cannot succeed on his or her claim. Id. Finally,
we “may sustain a demurrer only when a petitioner has failed to state a claim for
which relief may be granted.” Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub.
Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (citation omitted).
We first address Respondents’ challenge to this Court’s subject matter
jurisdiction, as it is dispositive. In doing so, we note that the Pennsylvania
Constitution provides for a statewide Unified Judicial System, PA. CONST. art. V, §1;
42 Pa.C.S. § 301, and our original jurisdiction is limited. Section 761(a)(1) of the
Judicial Code provides, in pertinent part, that this Court “shall have original
jurisdiction of all civil actions or proceedings: . . . [a]gainst the Commonwealth
government, including any officer thereof, acting in his official capacity” subject to
certain exceptions not applicable here. 42 Pa.C.S. § 761(a)(1). Moreover, our
original jurisdiction is subject to further limitation under Section 761(c) for
mandamus actions as follows:
The Commonwealth Court shall have original jurisdiction in cases of
mandamus and prohibition to courts of inferior jurisdiction and other
government units where such relief is ancillary to matters within its
appellate jurisdiction, and it, or any judge thereof, shall have full
power and authority when and as often as there may be occasion, to
issue writs of habeas corpus under like conditions returnable to the said
court. To the extent prescribed by general rule the Commonwealth
Court shall have ancillary jurisdiction over any claim or other matter
which is related to a claim or other matter otherwise within its exclusive
original jurisdiction.
4
42 Pa.C.S. § 761(c).
In determining whether the present action was properly brought in our original
jurisdiction, we are guided by our decision in Brown v. Evers (Pa. Cmwlth., No. 9
M.D. 2019, filed January 31, 2020),5 the facts of which are similar to those presented
herein. In Brown, the petitioner was an inmate in a Pennsylvania State Correctional
Institution who sought mandamus relief from this Court in our original jurisdiction.
Specifically, the petitioner sought the issuance of an order directing the named court
administrator with the court of common pleas to accept for filing a private criminal
complaint. Brown, slip op. at 1. As is the case instantly, POs were filed alleging
improper service, lack of subject matter jurisdiction, and immunity. Id. Upon
finding that the “original jurisdiction matter actually [sought] mandamus relief
against a court of the statewide Unified Judicial System[,]” and that such jurisdiction
in this Court is limited under Section 761(c) “to situations in which such relief is
ancillary to matters within [our] appellate jurisdiction[,]” we held that “[b]ecause
there is no appeal properly within our appellate jurisdiction now pending before this
Court such that the issuance of this writ is necessary to protect this Court’s appellate
jurisdiction, we lack jurisdiction to entertain this matter.” Id., slip op. at 2 (citations
and internal quotation marks omitted).
5
While not binding, this Court’s unreported opinions may be cited for their persuasive
authority pursuant to Pa.R.A.P. 126(b)(1) and Section 414(a) of our Internal Operating Procedures,
210 Pa. Code § 69.414(a).
5
Applying this sound logic to the facts presented herein, we reach the same
result. Petitioner’s Complaint essentially seeks mandamus relief against the Court
of Common Pleas of Montgomery County to accept for filing his appeal in Cavalry.
There is no appeal properly pending within our appellate jurisdiction in Cavalry,
which necessitates the issuance of a writ to protect our appellate jurisdiction. Id.Thus, we lack jurisdiction to entertain Petitioner’s Complaint. Id.However, because our original jurisdiction does not extend to the instant
mandamus action, the Complaint should not be dismissed. To the contrary, it is
axiomatic that where a party erroneously files a legal document with the wrong
court, that court is required to transfer the matter to the proper court. See 42 Pa.C.S.
§ 5103(a);6 Pa.R.A.P. 751;7 see also Gay v. Pines, 835 A.2d 402, 404 (Pa. Cmwlth.
6
Entitled “Transfer of erroneously filed matters,” this statute provides, in relevant part:
(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).
7
Entitled “Transfer of Erroneously Filed Cases,” this Rule states:
(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
(Footnote continued on next page…)
6
2003) (noting that mandamus action had been originally filed in this Court and
transferred to the court of common pleas).
III. CONCLUSION
Petitioner’s Complaint seeks mandamus relief against Respondents for the
performance of a ministerial duty. Such relief is not ancillary to a matter properly
within our appellate jurisdiction; therefore, the trial court has subject matter
jurisdiction over the Complaint. Because Petitioner did not initiate this action with
the court of common pleas, the matter must be transferred.8
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.
(b) Transfers by prothonotaries. An appeal or other matter may be transferred
from a court to another court under this rule by order of court or by order of the
prothonotary of any appellate court affected.
Pa.R.A.P. 751.
8
We are mindful that we declined to transfer a petition brought in our original jurisdiction
and seeking mandamus relief in Poplawski v. Marlier (Pa. Cmwlth., No. 135 M.D. 2021, filed
May 6, 2022), slip op. at 4-5. Therein we found this Court had original jurisdiction over a
mandamus action pursuant to 42 Pa.C.S. § 761 where the Pennsylvania Supreme Court had
determined a prothonotary is a clerk of the court of common pleas, and a county clerk of court is
a Commonwealth officer, and reasoning that “it logically follows that a prothonotary is also a
Commonwealth officer.” However, in that case, we dismissed the petition in mandamus as moot
upon finding that the petitioner “no longer ha[d] a stake in the outcome” where he requested this
Court to order a prothonotary to file a cross-complaint in a divorce action that had already been
closed. Id., slip op. at 5. As such, the jurisdictional finding was not dispositive of the holding.
Conversely, Petitioner’s appeal has yet to be filed, and he certainly has a stake in the outcome;
therefore, the proper result is to transfer this action to the court of common pleas.
7
Accordingly, we grant Respondents’ PO for lack of subject matter jurisdiction
and transfer this matter to the Court of Common Pleas of Montgomery County. In
light of this holding, we do not reach Respondents’ remaining PO.9
__________________________________________
RENÉE COHN JUBELIRER, President Judge
9
We note that two petitions/applications appear to remain on the docket in this case: a
“Petition for Judicial Notice” and an “Application for a Stay of Proceedings,” both of which were
filed on December 27, 2021. Petitioner’s Petition for Judicial Notice requests that the Court take
judicial notice of Respondents’ failure to answer his objection to Respondents’ entry of
appearance. Petitioner’s Response and Objection to Respondents’ Entry of Appearance were
previously denied by Order dated November 10, 2021, and his subsequent Application for
Summary Relief based upon this same objection was dismissed as moot on January 3, 2022, in
light of the November 10, 2021 Order. We similarly dismiss the Petition for Judicial Notice as
moot in light of the November 10, 2021 Order. The Application for a Stay of Proceedings
requested the Court to stay any action until Petitioner’s appeal to the Pennsylvania Supreme Court
of the November 10, 2021 Order had been determined. On February 9, 2022, the Supreme Court
returned his Notice of Appeal as untimely and because the November 10, 2021 Order was not a
final appealable order. We therefore dismiss Petitioner’s Application for a Stay of Proceedings as
moot.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Philip Jensen, :
Petitioner :
:
v. : No. 225 M.D. 2021
:
Barry Silver; Clerk of Courts, and :
Montgomery County Prothonotary, :
Respondents :
ORDER
NOW, August 17, 2023, the Preliminary Objection asserting lack of subject
matter jurisdiction filed by Barry Silver and the Montgomery County Prothonotary
is SUSTAINED. This matter is transferred to the Court of Common Pleas of
Montgomery County.
The Prothonotary shall certify a copy of the docket entries of the above-
captioned matter to the Prothonotary of the Court of Common Pleas of Montgomery
County.
The Petition for Judicial Notice and Application for a Stay of Proceedings
filed by Philip Jensen on December 27, 2021, are DISMISSED AS MOOT.
__________________________________________
RENÉE COHN JUBELIRER, President Judge