Payne v. Commonwealth Department of Corrections

CONCURRING AND DISSENTING OPINION BY

Judge FRIEDMAN.

I agree with Parts I, II, IV and V of the majority opinion. However, I respectfully dissent with respect to Parts III(B), III(C) and 111(D) of the majority opinion. I also *933disagree with the dissenting view of Judge Pellegrini with respect to Part 111(A) of the majority opinion.

I. Majority Opinion

A. Section 6602(e)

In Part III.B, the majority holds that section 6602(e) of the Judicial Code1 is not inconsistent with the rules of civil procedure prescribed by the Pennsylvania Supreme Court pursuant to Article V, section 10(c) of the Pennsylvania Constitution.2 (813 A.2d at 928.) I disagree.

Section 6602(e) of the Judicial Code provides rules for the sua sponte dismissal of prison conditions litigation even where the litigant has paid the proper filing fee.

(e) Dismissal of litigation. — Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines ... [that the] prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude the relief....

42 Pa.C.S. § 6602(e) (emphasis added).

First, Rule 1028 of the Pennsylvania Rules of Civil Procedure does not allow a court to consider sua sponte whether a complaint fails to state a claim upon which relief may be granted. Rule 1028 requires that an opposing party file preliminary objections alleging that a complaint fails to state a claim upon which relief may be granted. See Pa. R.C.P. No. 1028(a)(4). The majority does not discuss whether this aspect of section 6602(e) of the Judicial Code is inconsistent with the rules prescribed by our supreme court.

Second, Rule 1030 of the Pennsylvania Rules of Civil Procedure does not allow a court to consider sua sponte whether there is a valid affirmative defense to a claim. Rule 1030 requires that an affirmative defense be pleaded in a responsive pleading under the heading “New Matter.” See Pa. R.C.P. No. 1030(a). The majority does not discuss whether this aspect of section 6602(e) of the Judicial Code is inconsistent with the rules prescribed by our supreme court.

Third, no rule prescribed by our supreme court allows a court to dismiss sua sponte a complaint as frivolous or malicious where the litigant has paid the appropriate fifing fee. Indeed, our supreme court has stated that, when a party has paid the required filing fee, that party has “activated the judicial machinery of the Commonwealth.” Boyle v. O’Bannon, 500 Pa. 495, 498, 458 A.2d 183, 185 (1983).

There are no special rules that apply to lawsuits which, upon private examination, a judge or panel of judges may regard as frivolous. Our system of justice does not include a judicial minister of undesirable lawsuits whose function it is to review all suits as they are filed, and whose powers include arbitrary and summary dismissal of those filings deemed to be frivolous, or otherwise without merit.
Whether the appellant’s averments are sufficient to allege a cause of action is not the question; and, if a cause of *934action is stated, the appellant’s ability to prove his allegations by competent evidence likewise is not the point. The fundamental issue is the appellant’s right to due process of law.... The precipitate abortion of appellant’s embryonic lawsuit before service of process, without appearance by the defendant, and without proper motion and hearing is repugnant to traditional notions of justice and fair play, and conflicts with the due process requirements of the United States Constitution and The Pennsylvania Constitution.
There is no rule of civil procedure which authorizes a court to arbitrarily deny a litigant service of process of a complaint lawfully filed. If a court could decide summarily which lawsuits are worthy of service and which are not, we would be on the threshold of judicial tyranny. The law cannot sanction a court ignoring procedural rules and arbitrarily dismissing a plaintiffs complaint absent service of process and an opportunity for the plaintiff to be heard.... Despotic governmental action of this sort cannot be countenanced in a democracy.

Id. at 498-99, 458 A.2d at 185 (citations omitted, footnotes omitted, emphasis added). In other words, not only is section 6602(e) of the Judicial Code in conflict with the rules of civil procedure prescribed by our supreme court, section 6602(e) of the Judicial Code violates the due process rights of litigants who have paid a proper filing fee.

The majority addresses only whether section 6602(e) of the Judicial Code conflicts with Rule 240(j) of the Pennsylvania Rules of Civil Procedure, which allows a court to dismiss an action if the litigant has filed a petition for leave to proceed in forma pauperis and the court is satisfied that the action is frivolous. Pa. R.C.P. No. 240(j). In other words, Rule 240(j) applies only to litigation initiated by a litigant who has not paid the required filing fee. The majority then interprets section 6602(e) so that it applies only to prison conditions litigation initiated by a litigant who has not paid the required filing fee. (813 A.2d at 927.) However, such a construction ignores the plain language of section 6602(e) of the Judicial Code, which explicitly applies “[n]otwithstanding any filing fee which has been paid....” 42 Pa.C.S. § 6602(e). When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.3 Section 1921(b) of the Statutory Construction Act of 1972,1 Pa.C.S. § 1921(b).

Unlike the majority, I would hold that Petitioners are entitled to judgment as a matter of law on this issue.

B. Section 6602(f)

In Part III.C, the majority holds that section 6602(f) of the Judicial Code4 is not inconsistent with the rules of court prescribed by the Pennsylvania Supreme Court under Article V, section 10(c) of the Pennsylvania Constitution. (813 A.2d at 927-28.) I disagree.

*935Section 6602(f) of the Judicial Code provides a rule for the dismissal of prison conditions litigation based on a finding of abusive litigation.

(f) Abusive litigation. — If the prisoner has previously filed prison conditions litigation and: (1) three or more of these prior civil actions have been dismissed pursuant to subsection (e)(2); or (2) the prisoner has previously filed prison conditions litigation against a person named as a defendant in the instant action or a person serving in the same official capacity as a named defendant and a court made a finding that the prior action was filed in bad faith or that the prisoner knowingly presented false evidence or testimony at a hearing or trial; the court may dismiss the action. The court shall not, however, dismiss a request for preliminary injunctive relief or a temporary restraining order which makes a credible allegation that the prisoner is in imminent danger of serious bodily injury.

42 Pa.C.S. § 6602(f). Quite simply, the rules prescribed by our supreme court do not allow a court to dismiss a case based on a party’s prior litigation. Thus, unlike the majority, I would conclude that section 6602(f) of the Judicial Code is inconsistent with the rules of court and that Petitioners are entitled to judgment as a matter of law on this issue.

In reaching a contrary conclusion, the majority states that section 6602(f) of the Judicial Code “is analogous to a jurisdictional hurdle which one seeking in forma pauperis -status in a prison conditions litigation case needs to overcome.” (818 A.2d at 927-28.) I recognize that the legislature has authority under the Pennsylvania Constitution to establish the jurisdiction of the courts. See Article V of the Pennsylvania Constitution. However, I do not agree that the abusive litigation provision in section 6602(f) of the Judicial Code establishes a jurisdictional requirement.5

.Jurisdiction is a question of law involving a determination as to a court’s right to proceed with litigation. 20 Am.Jur.2d Courts § 54 (1995).

There are three separate elements to the jurisdiction of a court: (1) jurisdiction over the person, (2) jurisdiction over the subject matter, and (3) jurisdiction to render the particular judgment sought, or, as is sometimes said, jurisdiction of the particular ease.

Id. (footnotes omitted). Here, there can be no question that this court has (1) jurisdiction over prisoners incarcerated in Commonwealth prisons, (2) jurisdiction over prison conditions litigation, and (3) jurisdiction to render a judgment in such cases. See Jackson v. Hendrick, 764 A.2d 1139 (Pa.Cmwlth.2000), appeal denied, 566 Pa. 671, 782 A.2d 550 (2001). In fact, section 6602(f) of the Judicial Code assumes that the party initiating the prison conditions litigation has brought similar actions before the court that were not dismissed for lack of jurisdiction.

To justify its view of section 6602(f) as a jurisdictional hurdle, the majority compares section 6602(f) with two statutory provisions requiring that a party filing an appeal must be aggrieved. (813 A.2d at 928.) However, being aggrieved is not a jurisdictional requirement; being aggrieved pertains to a party’s standing to file an appeal.6 In Pennsylvania, standing *936is not a jurisdictional question.7' See Housing Authority v. Pennsylvania State Civil Service Commission, 556 Pa. 621, 730 A.2d 935 (1999). Thus, I cannot accept the majority’s reasoning.

C. Section 6605(a)

In Part III.C, the majority holds that section 6605(a) of the Judicial Code8 is not inconsistent with the rules of court prescribed by the Pennsylvania Supreme Court under Article V, section 10(c) of the Pennsylvania Constitution. (813 A.2d at 828.) I disagree.

Section 6605(a) of the Judicial Code governs temporary restraining orders and preliminary injunctions in prison conditions litigation.

In prison conditions litigation, the court may, to the extent authorized by law, enter a temporary restraining order or preliminary injunction. A preliminary injunction shall automatically expire 90 days after its entry unless the court makes the findings required under section 6604 (relating to prospective relief) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.

42 Pa.C.S. § 6605(a) (emphasis added). Rule 1531(c) of the Pennsylvania Rules of Civil Procedure, which governs preliminary injunctions in civil actions, states, “Any party may move at any time to dissolve an injunction.” Pa. R.C.P. No. 1531(c). In addition, Rule 1531 states that a preliminary injunction may be dissolved or deemed dissolved under appropriate circumstances. See Pa. R.C.P. Nos. 1531(d), (e) and (f). However, Rule 1531 does not provide for automatic dissolution of an injunction after ninety days under any circumstances. Therefore, I would conclude that section 6605(a) of the Judicial Code is inconsistent with Rule 1531 and that Petitioners are entitled to judgment as a matter of law on this issue.

The majority finds no inconsistency between section 6605(a) of the Judicial Code and Rule 1531 because the statutory provision “merely mandates that findings be made in order to support what is essentially a cause of action for injunctive relief in excess of ninety days.” (813 A.2d 828.) However, Rule 1531 does not require that a court make certain findings in order to continue a preliminary injunction beyond a ninety-day period. Therefore, section 6605(a) of the Judicial Code is inconsistent with Rule 1531 and should be suspended.

II. Concurring/Dissenting Opinion

In his concurring and dissenting opinion, Judge Pellegrini does not agree with the majority that sections 6602(a) to (c) of the Judicial Code9 are inconsistent with Rule 240(f) of the Pennsylvania Rules of Civil Procedure. I am in agreement with the majority on this issue. The statute provides that prisoners proceeding in forma pauperis in prison conditions litigation must pay filing fees “when funds exist.” 42 Pa.C.S. § 6602(b)(1). However, Rule *937240(f) states that a party proceeding in forma pauperis in such an action shall not be required to pay any fee imposed by law.10 Pa. R.C.P. No. 240(f). Clearly, the statute and rule are inconsistent, and, as a result, the statute must be suspended. See Pa. Const., Art. V, § 10(c).

Nevertheless, Judge Pellegrini states that the legislature has authority, through its power over the budget, to require prisoners proceeding in forma pauperis to pay filing fees in prison conditions litigation. (C.O./D.O. at 4-5.) Thus, Judge Pellegrini concludes that the legislature’s enactment of sections 6602(a) to (c) does not usurp the judicial function of prescribing rules of court and, therefore, the statute does not violate the separation of powers doctrine. However, if requiring the payment of filing fees by in forma pauperis litigants is a legislative function relating to the budget, then our supreme court has usurped that function by promulgating a rule excusing the payment of filing fees. In other words, it appears to me that Judge Pelle-grini would hold that our supreme court, rather than the legislature, has violated the separation of powers doctrine. I could not agree with such a holding.

Finally, Judge Pellegrini notes that the federal Prisoner Litigation Reform Act of 199511 and similar state laws have been upheld on numerous occasions. Judge Pellegrini cites federal cases from various circuit courts and state court cases from New York, Massachusetts, Alaska, Wisconsin and Missouri. (813 A.2d at 831 n. 2.) However, the case before us involves the application of Article V, section 10(c) of the Pennsylvania Constitution. The holdings of the federal courts or other state courts have no relevance.

Judge SMITH-RIBNER joins in this concurring/dissenting opinion.

. 42 Pa.C.S. § 6602(e).

. Pa. Const., Art. V., § 10(c). “All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions [the provisions of Article V, section 10(c) of the Pennsylvania Constitution].” Id. Thus, any statute that conflicts with the Pennsylvania Rules of Civil Procedure is invalid under this constitutional provision.

. This court may presume that the legislature does not intend to violate the constitution. Section 1922(3) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3). However, when the language of a statute obviously violates the constitution, this court has no power to re-write a statute or delete the offending language.

Moreover, I cannot comprehend how the words "[n]otwithstanding any filing fee which has been paid” can mean "where no filing has been paid.” I submit that such an interpretation is absurd. See Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(1).

. 42 Pa.C.S. § 6602(f).

. If the abusive litigation requirement is merely "analogous to” jurisdiction, I point out that the majority cites no provision of the Pennsylvania Constitution authorizing the legislature to impose requirements on the courts that are "analogous to” jurisdiction.

. The core concept of standing is that a person who is not adversely affected in any way *936by the matter challenged is not aggrieved thereby and has no standing to obtain a judicial resolution of the challenge. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975).

.In the federal courts, standing is a jurisdictional question; however, in Pennsylvania, it is not. See Housing Authority. Thus, it appears to me that the majority is relying on an irrelevant federal law concept to decide the issue before us here.

. 42 Pa.C.S. § 6605(a).

. 42 Pa.C.S. §§ 6602(a)-(c):

. It is firmly rooted in the common law that a plaintiff has the right to proceed in forma pauperis, free from filing fees, where the plaintiff is proved to be in poverty. Selby v. Brown, 292 Pa.Super. 463, 437 A.2d 767, 768 (1981).

. 28 U.S.C. § 1915.