Virgo, V. v. County of Lehigh

• Court: Superior Court of Pennsylvania
• Decided: March 8, 2022
• Docket: 2335 EDA 2021
• Status: Unpublished

Opinion

J-S09019-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VIRGILLIO VIRGO : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : v. : : COUNTY OF LEHIGH AND JOSEPH N. : HANNA, IN HIS OFFICIAL CAPACITY : AS SHERIFF OF LEHIGH COUNTY : No. 2335 EDA 2021

Appeal from the Order Entered October 15, 2021 in the Court of Common Pleas of Lehigh County, Criminal Division at No(s): CP-39-MD-0001323-2021.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY KUNSELMAN, J.: FILED MARCH 8, 2022

Virgillio Virgo appeals, pro se, from the trial court’s order affirming the

Sheriff of Lehigh County’s refusal to issue Mr. Virgo a license to carry a

concealed firearm.1 We transfer this appeal.

As Sheriff Hanna correctly observes, an “appeal of a license-to-carry

issue normally is submitted to the Commonwealth Court for appellate review.”

Sheriff Hanna’s Brief at 1. Whether this Court has jurisdiction over an appeal

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 6109. The record reveals that Mr. Virgo correctly headed his Petition for Judicial Review by listing himself as the Petitioner and Lehigh County (and, by implication, Sheriff Hanna) as the Respondents. See 18 Pa.C.S.A. § 6114. However, he mistakenly filed his appeal in the Office of the Clerk of Courts, rather than in the Office of the Prothonotary. Instead of transferring Mr. Virgo’s petition to the Prothonotary, the Clerk of Courts changed his caption to “Commonwealth of Pennsylvania v. Virgillio Virgo” and listed Mr. Virgo as the Defendant. We have rectified that administrative error by returning the caption to its proper form. J-S09019-22

is a pure question of law, for which “the standard of review . . . is de novo,

and the scope of review is plenary.” In re Admin. Order No. 1-MD-2003,

936 A.2d 1, 5 (Pa. 2007) (case citations and some punctuation omitted). The

issue of subject-matter jurisdiction “may be raised at any time . . . including

by a reviewing court sua sponte.” Id. This includes “whether an appeal should

be transferred to the Commonwealth Court.” Smith v. Ivy Lee Real Estate,

LLC, 152 A.3d 1062, 1065 (Pa. Super. 2016).

This Court only hears certain appeals. Superior Court has “exclusive

appellate jurisdiction of all appeals from final orders of the courts of common

pleas . . . except such classes of appeals [that are] within the exclusive

jurisdiction of the Supreme Court or the Commonwealth Court.” 42 Pa.C.S.A.

§ 742 (emphasis added). If an appeal is under the subject-matter jurisdiction

of Pennsylvania’s other two appellate courts, then this Court lacks jurisdiction.

Here, Mr. Virgo sought judicial review of Sheriff Hanna’s administrative

decision. Under 42 Pa.C.S.A. § 933(a)(2), he properly filed his appeal in the

Court of Common Pleas of Lehigh County.

When the common pleas court denied relief, Mr. Virgo appealed to this

Court. However, our legislature has mandated that “the Commonwealth Court

shall have exclusive jurisdiction of appeals from final orders of the courts of

common pleas in . . . all appeals from government agencies . . . decided under

Section 933 . . . .” 42 Pa.C.S.A. § 762(a)(4)(ii). This secondary appeal falls

under Commonwealth Court’s jurisdiction, because Mr. Virgo initially appealed

from Sheriff Hanna’s administrative decision, pursuant to 42 Pa.C.S.A. § 933.

-2- J-S09019-22

Simply put, Commonwealth Court has secondary, appellate jurisdiction

when a local agency (such as the sheriff) made the original decision. We

therefore order that this appeal be TRANSFERRED to the Commonwealth Court

of Pennsylvania.2

Appeal transferred.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/2022

2 See 42 Pa.C.S.A. § 705.

-3-