P.F. Katonka v. PBPP King & Assoc., Inc.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Frank Katonka, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole; King and Associates, Inc., : No. 377 M.D. 2019
Respondents : Submitted: July 22, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 26, 2022
Before this Court, in our original jurisdiction, is an amended petition
for a writ of mandamus (Petition)1 filed by Paul Frank Katonka (Katonka) against
the Pennsylvania Board of Probation and Parole (Board)2 and King and Associates,
Inc. (Counselor). Because we lack subject matter jurisdiction over Katonka’s claim,
1
Previous pleadings and motions were withdrawn.
2
Subsequent to the filing of the Katonka’s original petition commencing this action, the
Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See
Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective February
18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.
C.S. §§ 6101, 6111(a).
we transfer this case to the Court of Common Pleas of Westmoreland County
(sentencing court).3
I. Background
Katonka avers that he was adjudicated a sexually violent predator in
2013. Petition at 1. As such, beginning with his parole in 2018, he is required to
attend mandatory monthly counseling for the remainder of his life under Section
9799.70(a) of the Sexual Offender Registration and Notification Act (SORNA II),4
42 Pa.C.S. § 9799.70(a). Petition at 3. Katonka asserts that he has been responsible
for paying the counseling costs since 2019 and that he is unable to afford the costs
of the mandatory counseling. Petition at 2-3. He seeks relief in mandamus to compel
the Board to pay the costs of his mandatory counseling for the rest of his life and to
repay the counseling fees he paid prior to filing the Petition. Id. at 3-4.
The Board has filed preliminary objections to the Petition, asserting
lack of verification, lack of jurisdiction, nonjoinder of a necessary party, failure to
include writings, and failure to state a claim upon which relief can be granted.
II. Discussion
Before considering the preliminary objections, we begin by
determining, sua sponte, whether we have jurisdiction over this matter. See, e.g.,
Pennhurst Med. Grp., P.C. v. Dep’t of Pub. Welfare, 796 A.2d 423, 425 (Pa.
Cmwlth. 2002) (explaining that “questions of jurisdiction can never be waived, and
3
The record indicates that Katonka’s criminal case was docketed at No. 1110 C 2008 in
the sentencing court.
4
Act of February 21, 2018, P.L. 27, as amended by the Act of June 12, 2018, P.L. 140, 42
Pa. C.S. §§ 9799.10-9799.75.
2
may be raised at any time by the parties or sua sponte by [the] court”); St. Clair v.
Pa. Bd. of Prob. & Parole, 493 A.2d 146, 150 (Pa. Cmwlth. 1985) (observing that
“this Court may always raise sua sponte the issue of its own subject matter
jurisdiction”) (citations omitted).
The Petition asserts as its basis Section 9799.70(a) of SORNA II, which
provides:
(a) Counseling required.-- For the period of registration
required by section 9799.55(b) (relating to registration),
a sexually violent predator shall be required to attend at
least monthly counseling sessions in a program approved
by the [State Sexual Offenders Assessment B]oard and
be financially responsible for all fees assessed from
the counseling sessions. The [State Sexual Offenders
Assessment B]oard shall monitor the compliance of the
sexually violent predator. If the sexually violent predator
can prove to the satisfaction of the court that the person
cannot afford to pay for the counseling sessions, that
person shall still attend the counseling sessions and the
parole office shall pay the requisite fees.
42 Pa.C.S. § 9799.70(a) (emphasis added). The question here, then, is which court
has jurisdiction to determine a person’s inability to pay for counseling sessions
mandated by Section 9799.70(a).
This Court’s original jurisdiction is prescribed by Section 761 of the
Judicial Code5 as follows:
(a) General rule. -- 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:
5
42 Pa.C.S. §§ 101-9909.
3
(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 court;
(ii) eminent domain proceedings;
(iii) actions or proceedings conducted
pursuant to Chapter 85 (relating to matters
affecting government units);
(iv) actions or proceedings conducted
pursuant to the act of May 20, 1937 (P.L. 728,
No. 193), referred to as the Board of Claims
Act; and
(v) actions or proceedings in the nature of
trespass as to which the Commonwealth
government formerly enjoyed sovereign or
other immunity and actions or proceedings in
the nature of assumpsit relating to such
actions or proceedings in the nature of
trespass.
(2) By the Commonwealth government, including
any officer thereof, acting in his official capacity,
except eminent domain proceedings.
(3) Arising under Article V of the act of May 17,
1921 (P.L. 789, No. 285), known as “The Insurance
Department Act of 1921.”
(4) Original jurisdiction of which is vested in the
Commonwealth Court by any statute hereafter
enacted.
(b) Concurrent and exclusive jurisdiction. -- The
jurisdiction of the Commonwealth Court under subsection
(a) shall be exclusive except as provided in section 721
(relating to original jurisdiction) and except with respect
to actions or proceedings by the Commonwealth
government, including any officer thereof, acting in his
official capacity, where the jurisdiction of the court shall
be concurrent with the several courts of common pleas.
4
(c) Ancillary matters. -- 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.
42 Pa.C.S. § 761 (emphasis added). Here, Katonka’s mandamus claim hinges on
establishing a duty to pay for counseling arising under 42 Pa.C.S. § 9799.70(a).
Therefore, the only potential source of original jurisdiction over this matter is the
statutory reference in Section 9799.70(a) of SORNA II to determination by “the
court” concerning a person’s inability to pay for mandatory counseling. Id.; see also
42 Pa.C.S. § 761(a)(4).
SORNA II does not define what court is referenced in Section
9799.70(a). Section 1991 of the Statutory Construction Act of 1972,6 which
provides generally applicable definitions, likewise does not include “court” as a
defined term. 1 Pa.C.S. § 1991. However, the general rule is that original
jurisdiction over all actions lies in the courts of common pleas. Section 931(a) &
(b) of the Judicial Code provides:
(a) General rule. -- Except where exclusive original
jurisdiction of an action or proceeding is by statute or by
general rule . . . vested in another court of this
Commonwealth, the courts of common pleas shall have
unlimited original jurisdiction of all actions and
proceedings, including all actions and proceedings
6
1 Pa.C.S. §§ 1501-1991.
5
heretofore cognizable by law or usage in the courts of
common pleas.
(b) Concurrent and exclusive jurisdiction. -- The
jurisdiction of the courts of common pleas under this
section shall be exclusive except with respect to actions
and proceedings concurrent jurisdiction of which is by
statute or by general rule adopted pursuant to section 503
vested in another court of this Commonwealth or in the
magisterial district judges.
42 Pa.C.S. § 931(a) & (b) (emphasis added); see also PA. CONST. art. V, § 5(b)
(providing that courts of common pleas “hav[e] unlimited original jurisdiction in all
cases except as may otherwise be provided by law”). Nothing in SORNA II’s
reference to “the court” in Section 9799.70(a) suggests an intent to confer
jurisdiction on this Court rather than the courts of common pleas. Accordingly, we
conclude that the “court” referenced in Section 9799.70(a) is the sentencing court
and that Section 9799.70(a) does not confer original jurisdiction on this Court to
determine whether a parolee is unable to pay counseling fees pursuant to Section
9799.70(a).
Because we lack jurisdiction over the subject matter of the Petition, we
do not address its merits or those of the preliminary objections. However, rather
than dismiss the Petition, we will transfer it to the sentencing court.7 See 42 Pa. C.S.
§ 5103(a) (providing that where a matter is brought in a court lacking jurisdiction,
the court shall not “dismiss the matter, but shall transfer the record thereof to the
proper tribunal”); Pa. R.A.P. 751(a) (providing that where a matter is brought in a
court that does not have jurisdiction over the matter, the court shall not “dismiss the
7
We note that nine days before Katonka filed his original petition in this Court, the
sentencing court issued an order in his original case, finding it lacked jurisdiction over a mandamus
motion Katonka had filed. See Petition at 19. However, the record in this Court does not include
any other filings in the sentencing court. We are, therefore, unable to determine whether the
motion Katonka filed in the sentencing court bore any relation to the claim he asserts here.
6
matter, but shall transfer the record thereof to the proper court of this
Commonwealth, where the . . . matter shall be treated as if originally filed in [the]
transferee court on the date first filed in a court . . .”).
III. Conclusion
Based on the foregoing discussion, we conclude that we lack
jurisdiction over this matter. Therefore, we transfer this matter to the sentencing
court for disposition.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Frank Katonka, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole; King and Associates, Inc., : No. 377 M.D. 2019
Respondents :
ORDER
AND NOW, this 26th day of October, 2022, inasmuch as this Court
lacks subject matter jurisdiction over this action, this matter is transferred to the
Court of Common Pleas of Westmoreland County for disposition.
__________________________________
CHRISTINE FIZZANO CANNON, Judge