             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan Lichtman,                                   :
                              Appellant          :
                                                 :
                       v.                        :    No. 1435 C.D. 2017
                                                 :    Submitted: March 16, 2018
R. Seth Williams, in his personal and            :
professional capacities and Kathleen             :
Martin, in her personal and                      :
professional capacities                          :



OPINION NOT REPORTED


MEMORANUM OPINION
PER CURIAM                                           FILED: May 8, 2018



       Joan Lichtman (Lichtman), pro se, appeals from an Order of the Court of
Common Pleas of Philadelphia County (common pleas), entered July 13, 2017,
which denied her motion for reconsideration of its Order, entered June 28, 2017. In
the June 28, 2017 Order, common pleas dismissed Lichtman’s Complaint without
prejudice1 pursuant to Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure,

       1
         Although common pleas did not dismiss Lichtman’s Complaint with prejudice, common
pleas did not grant Lichtman leave to amend and, therefore, we conclude that the June 28, 2017
Order is a final order. Fizz v. Kurtz, Dowd & Nuss, Inc., 519 A.2d 1037, 1038 (Pa. Super. 1987);
see Schneller v. Prothonotary of Montgomery Cty. (Pa. Cmwlth., No. 1316 C.D. 2016, filed Sept.
12, 2017), slip op. at 5 n.4 (holding that order sustaining preliminary objections was a final order
where the order did not specify whether or not complaint was dismissed with prejudice, and order
did not grant leave to amend); Weaver v. Rohrer (Pa. Cmwlth., No. 1286 C.D. 2007, filed Feb. 25,
2008), slip op. at 16-17 (affirming order dismissing complaint without prejudice pursuant to
Pennsylvania Rule of Civil Procedure No. 240(j)(1)). Schneller and Weaver are cited for their
persuasive value in accordance with Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures. 210 Pa. Code § 69.414(a).
Pa.R.C.P. No. 240(j)(1).2 Upon review, we conclude, albeit for different reasons,
that common pleas correctly concluded that the Complaint was frivolous within the
meaning of Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure and,
therefore, we affirm.3
       Although Lichtman’s 169-paragraph Complaint is difficult to decipher, she
appears to allege the following. Certain members of the Pennsylvania Bar, both
public officials and private attorneys, illegally seized her personal and real property,
which was then sold at a sheriff’s sale. When Lichtman brought this to the attention
of former District Attorney for the City of Philadelphia, R. Seth Williams, and
former First Assistant District Attorney for the City of Philadelphia, Kathleen
Martin, they failed to bring criminal charges against these members of the Bar
despite Williams and Martin having a mandatory, ministerial obligation to do so. As
relief, Lichtman sought to compel Williams and Martin to bring criminal charges
against these members of the Bar, as well as damages.4 (Complaint (Compl.) ¶¶ 2-
20, Wherefore Clause.)              Contemporaneous with the filing of the Complaint,
Lichtman petitioned to proceed in forma pauperis (IFP) (IFP Petition).

       2
           Rule 240(j)(1) states:

       (j)(1) If, simultaneous with the commencement of an action or proceeding or the
       taking of an appeal, a party has filed a petition for leave to proceed in forma
       pauperis, the court prior to acting upon the petition may dismiss the action,
       proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the
       action, proceeding or appeal is frivolous.

Pa.R.C.P. No. 240(j)(1). A frivolous action or proceeding has been defined as one that “lacks an
arguable basis either in law or in fact.” Id., Note (citing Neitzke v. Williams, 490 U.S. 319 (1989)).
        3
          Lichtman’s motion to disqualify counsel for R. Seth Williams and Kathleen Martin is
denied.
        4
          Neither party addresses the significance of the fact that Williams and Martin are no longer
employed by the City of Philadelphia District Attorney’s Office and that Lichtman did not name
the Office of the District Attorney for the City of Philadelphia itself as a defendant.


                                                   2
       By Order entered June 28, 2017, common pleas, upon considering Lichtman’s
IFP Petition and her Complaint, dismissed the Complaint for failure to state a claim
upon which relief could be granted pursuant to Rule 240(j)(1) of the Pennsylvania
Rules of Civil Procedure, Pa.R.C.P. No. 240(j)(1).
       Lichtman then moved for reconsideration of the June 28, 2017 Order. By
Order entered July 13, 2017, common pleas denied Lichtman’s motion for
reconsideration. On July 17, 2017, Lichtman filed a notice of appeal with this Court,
appealing from the July 13, 2017 Order.
       Following the filing of the notice of appeal, common pleas issued its opinion
pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925(a), explaining that Lichtman’s Complaint was frivolous because
Lichtman failed to allege the facts necessary to support her claims of violations of
the Philadelphia Code and fraud.
       On appeal,5 Lichtman appears to argue that common pleas erred: (1) in not
ruling on her IFP Petition; (2) in transferring a civil case to a sitting judge in the
criminal division; (3) in incorrectly applying the rule governing an IFP petition as
the basis for dismissing the Complaint on the merits; (4) in not reporting alleged
attorney misconduct to attorney disciplinary and prosecutorial authorities; (5) in not
applying relevant provisions of the Philadelphia Code6 to this matter; and (6) in
dismissing the Complaint without actually having read it.




       5
          In reviewing a decision of common pleas to dismiss a complaint pursuant to Pa.R.C.P.
No. 240(j)(1), this Court is limited to determining whether the plaintiff’s constitutional rights were
violated, whether common pleas abused its discretion, and whether common pleas committed an
error of law. Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).
        6
          Lichtman cites to Chapter 9-1600 of the Philadelphia Code, which prohibits unlawful
eviction practices. Philadelphia, Pa., Code §§ 9-1600-1608 (2016).


                                                  3
      Lichtman’s notice of appeal states that she is appealing from common pleas’
July 13, 2017 Order, which denied her motion for reconsideration of common pleas’
June 28, 2017 Order, which dismissed her Complaint without prejudice pursuant to
Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure. However, an order
denying reconsideration of a final order is not an appealable order. Young v. Estate
of Young, 138 A.3d 78, 84 (Pa. Cmwlth. 2016). Nevertheless, Lichtman filed her
notice of appeal on July 17, 2017, less than 30 days after common pleas’ June 28,
2017 Order. Therefore, we will consider the notice of appeal as an appeal of the
June 28, 2017 Order and address the merits of Lichtman’s appeal. Id.
      Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure allows the court
to dismiss a complaint, prior to acting upon an IFP petition, if the court determines
the accompanying complaint is frivolous. Pa.R.C.P. No. 240(j)(1). “A frivolous
action is one that ‘lacks an arguable basis either in law or in fact.’” Jones v. Doe,
126 A.3d 406, 408 (Pa. Cmwlth. 2015) (quoting Pa.R.C.P. No. 240(j)(1), Note). An
action is frivolous under Rule 240(j)(1) “if, on its face, it does not set forth a valid
cause of action.” McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth. 1997).
      As noted, Lichtman sought to compel Williams and Martin to bring criminal
charges against certain members of the Bar who she alleges illegally seized
Lichtman’s personal and real property, which was then sold at a sheriff’s sale. In
essence, therefore, what Lichtman seeks is a writ of mandamus. A writ of mandamus
is an extraordinary remedy that compels an official’s performance of a ministerial
act or mandatory duty. Sturgis v. Doe, 26 A.3d 1221, 1223 (Pa. Cmwlth. 2011).
However, mandamus will not lie to compel discretionary acts. Id.; see Bronson v.
Pa. Bd. of Prob. and Parole, 421 A.2d 1021, 1023 (Pa. 1980).




                                           4
       A prosecutor has broad discretion in deciding whether to prosecute an alleged
criminal offender. Konya v. Dist. Att’y of Northampton Cty., 669 A.2d 890, 892-93
(Pa. 1995). As such, a citizen has “no legal right to compel . . . a District Attorney
to prosecute the individuals named in [a] private criminal complaint.” Id. at 893;
see Rule 506 of the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 506
(setting forth the procedure for approval of a private criminal complaint); Seeton v.
Adams, 50 A.3d 268, 269-70, 275-77 (Pa. Cmwlth. 2012) (holding that mandamus
would not lie to compel Berks County District Attorney to prosecute a sportsmen’s
club for conducting a live pigeon shoot in a manner that allegedly violated the law
because the exercise of District Attorney’s prosecutorial discretion was beyond the
reach of the writ of mandamus).7 In addition, a prosecutor is absolutely immunized
in his or her decision to initiate or move forward with a criminal prosecution.
Petition of Dwyer, 406 A.2d 1355, 1359 (Pa. 1979).
       Since Lichtman seeks to compel Williams and Martin to perform a
discretionary act, and an award of damages for what constitutes an absolutely
immunized decision, Lichtman’s Complaint “lacks an arguable basis . . . in law” and,
therefore, is frivolous.8 Pa.R.C.P. No. 240(j)(1), Note. Accordingly, common pleas




       7
          Lichtman alleges that despite presenting incriminating evidence to Williams and Martin,
and despite multiple requests to initiate a criminal prosecution, Williams and Martin have not done
so. (Compl. ¶ 15.) Lichtman did not allege in the Complaint, however, that she submitted a private
criminal complaint to an attorney for the Commonwealth in accordance with Rule 506 of the
Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 506.
        8
          “We may affirm an order for any reason, regardless of [common pleas’] rationale, so long
as the basis for our decision is clear on the record.” Feldman v. Lafayette Green Condo. Ass’n,
806 A.2d 497, 502 n.3 (Pa. Cmwlth. 2002).



                                                5
properly dismissed the Complaint pursuant to Rule 240(j)(1) of the Pennsylvania
Rules of Civil Procedure.9




       9
          None of the other arguments of Lichtman warrant reversal. Once common pleas ruled
that Lichtman’s Complaint was frivolous, there was no need to address her IFP Petition. Pa.R.C.P.
No. 240(j)(1) (stating that “the court prior to acting upon the petition may dismiss the action”)
(emphasis added). At the time Judge Lisette Shirdan-Harris rendered the June 28, 2017 Order, she
was sitting in the Civil Trial Division. See generally 201 Pa. Code § 702 (giving president judge
of a court of common pleas authority to make temporary assignments of judges from one division
of the court to another). Whether common pleas had an obligation to report the conduct alleged
in the Complaint to attorney disciplinary and prosecutorial authorities is irrelevant to common
pleas’ determination to dismiss the Complaint pursuant to Rule 240(j)(1) of the Pennsylvania Rules
of Civil Procedure and, in any event, a complaint consists of mere allegations. The provisions of
the Philadelphia Code Lichtman cites do not alter the facts that she seeks to compel a discretionary
act and that the decision whether to initiate a criminal prosecution is absolutely immunized. There
is nothing in the record to suggest that common pleas did not read the Complaint before dismissing
it. In fact, to the contrary, the June 28, 2017 Order expressly states that common pleas reviewed
the Complaint.


                                                 6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan Lichtman,                          :
                         Appellant      :
                                        :
                   v.                   :   No. 1435 C.D. 2017
                                        :
R. Seth Williams, in his personal and   :
professional capacities and Kathleen    :
Martin, in her personal and             :
professional capacities                 :


PER CURIAM                           ORDER


      NOW, May 8, 2018, the Order of the Court of Common Pleas of Philadelphia
County, entered June 28, 2017, is hereby AFFIRMED. The motion of Joan
Lichtman to disqualify counsel for R. Seth Williams and Kathleen Martin is
DENIED.
