             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren,                             :
                                           :
                                Petitioner :
                                           :
                 v.                        : No. 331 M.D. 2019
                                           : Submitted: November 15, 2019
Andrea E. Naugle,                          :
                                           :
                                Respondent :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                     FILED: January 16, 2020

                 Before the Court are the preliminary objections in the nature of a
demurrer of Andrea E. Naugle, Lehigh County Clerk of Judicial Records (Clerk),
to the Amended Petition for Review in the Nature of a Complaint in Mandamus
(Amended Petition)1 filed in our original jurisdiction by Daniel Warren, an inmate
at the State Correctional Institution at Phoenix (Inmate). Upon review, we dismiss
the Amended Petition as moot.2

       1
         Mandamus “will only lie to compel official performance of a ministerial act or
mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the
defendant, and want of any other appropriate and adequate remedy.” Kuren v. Luzerne County,
146 A.3d 715, 750-51 (Pa. 2016); accord Delaware River Port Authority v. Thornburgh, 493
A.2d 1351, 1355 (Pa. 1985). “When public officials act in an improper manner because of an
erroneous interpretation of the law under which they are functioning, mandamus will issue.”
Uniroyal, Inc. v. Coleman, 328 A.2d 893, 895 (Pa. Cmwlth. 1974) (citation omitted). However,
mandamus will not be granted in doubtful cases. Kuren, 146 A.3d at 751.

       2
           As this Court has explained in another case seeking, inter alia, mandamus relief:

                        Although neither party argues the mootness of the issuance
                 of the occupancy permits, we may sua sponte raise the issue of
(Footnote continued on next page…)
              The undisputed facts of this case are as follows. On January 3, 2019,
Inmate submitted to the Clerk a private criminal complaint pursuant to Section
1405 of The County Code3 alleging, inter alia, that the Lehigh County District
Attorney (District Attorney) had violated Sections 405(c) and 411 of The County



(continued…)

              mootness as “courts cannot ‘decide moot or abstract questions, nor
              can we enter a judgment or decree to which effect cannot be
              given.’”

Battiste v. Borough of East McKeesport, 94 A.3d 418, 424 (Pa. Cmwlth. 2014) (citations
omitted). See also Menger et ux. v. Lyon., 93 A.2d 451 (Pa. 1953) (holding that a mandamus
proceeding seeking to compel city officials to revoke a building permit previously issued for the
construction of a motel was rendered moot by a contemporaneous decision of the Court that the
landowners had no right to construct the motel under the city’s zoning ordinance).

       3
         Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §1405. Section 1405 states, in
relevant part:

               (a) If any district attorney . . . shall be guilty of willful and gross
              negligence in the execution of the duties of the office, that
              individual shall be guilty of a misdemeanor in office, and, on
              conviction thereof, be sentenced to pay a fine not exceeding one
              thousand dollars ($1,000) and to undergo imprisonment not
              exceeding one year, and the office shall be declared vacant.

                (b) Upon complaint in writing, verified by oath or affirmation of
              the party aggrieved, made to the court in which any district
              attorney shall prosecute the pleas of the Commonwealth, charging
              such district attorney with willful and gross negligence in the
              execution of the duties of the office, the court shall cause notice of
              the complaint to be given to the district attorney and of the time
              fixed by the court for a hearing. If after the hearing the court shall
              be of opinion that there is probable cause for the complaint, [it]
              shall hand over or commit the district attorney to answer the same
              in due course of law. If the court shall be of opinion that there is
              no probable cause for such complaint, [it] shall dismiss the same[.]

                                                 2
Code4 by failing to file with the Clerk and maintain in his office a copy of the oath
of office that he was required to execute when entering that office pursuant to
Section 403 of The County Code.5 Amended Petition ¶¶8, 11, 13-17. The Clerk

       4
           16 P.S. §405(c) 411. Section 405(c) states:

                  (c) Any officer failing or refusing to maintain the office and to
                 keep all public records and papers of the office in the buildings
                 appropriated for such purpose in accordance with the provisions of
                 this section, shall be guilty of a misdemeanor, and, upon
                 conviction thereof, shall be sentenced to undergo imprisonment
                 until the officer complies with the provisions of this section, or
                 until sooner discharged by order of the court, and to pay a fine not
                 exceeding five hundred dollars ($500), to be paid to the use of the
                 county.

In turn, Section 411 states, in pertinent part, “If any county officer neglects or refuses to perform
any duty imposed on the officer by the provisions of this or any other act, . . . the officer shall,
for each neglect or refusal, be guilty of a misdemeanor, and, on conviction thereof, shall be
sentenced to pay a fine not exceeding five hundred dollars ($500).”

       5
           16 P.S. §403. Section 403 states, in relevant part:

                  (a) In addition to any oath or affirmation required by any other act
                 of Assembly, all county officers . . . shall, before entering on the
                 duties of their respective offices or employments, take and
                 subscribe the oath as provided in [Section 1141 of the General
                 Local Government Code,] 53 Pa. C.S.§ 1141 (relating to form of
                 oaths of office).

                  (b) The foregoing oath shall be administered by some person
                 authorized to administer oaths, and shall be filed in the office of
                 the prothonotary of the county in which the same is taken. Any
                 person refusing to take said oath or affirmation shall forfeit his
                 office.

       In turn, Section 1141 of General Local Government Code states:

                  Whenever an elected or appointed official of a municipality is
                 required to take, subscribe or file an oath or affirmation of office,
(Footnote continued on next page…)
                                                  3
refused to file the private criminal complaint in the Criminal Division of the
Lehigh County Court of Common Pleas (trial court), but instead forwarded it to a
magisterial district judge (MDJ) who, in turn, referred it to the District Attorney’s
Office. Id. ¶18. As a result, on May 14, 2019, Inmate again submitted a private
criminal complaint to the Clerk, which was filed in the Miscellaneous Docket of
the trial court’s Criminal Division, at No. CP-39-MD-0001789-2019,6 but was
subsequently forwarded to the Attorney General’s Office by the trial court.
Amended Petition ¶19; Inmate’s Brief in Opposition to Respondent’s Preliminary
Objections at 4.
              On July 29, 2019, Inmate filed the instant Amended Petition seeking
mandamus relief and alleging, in relevant part: (1) “[t]he [C]lerk has no discretion
to make any judicial determinations on any filings into the office”; (2) “[s]he must
and has a ministerial duty to file all properly filed documents”; (3) “[t]he [Clerk]
has refused her mandatory duty to file the private criminal complaint into the


(continued…)

              the oath or affirmation shall be in the form prescribed in this
              section, as follows:

                     I do solemnly swear (or affirm) that I will support,
                     obey and defend the Constitution of the United
                     States and the Constitution of this Commonwealth
                     and that I will discharge the duties of my office with
                     fidelity.
53 Pa. C.S. §1141.

       6
          We may take judicial notice of the trial court’s docket. See Pa. R.E. 201(b)(2)
(permitting courts to take judicial notice of facts that may be “determined from sources whose
accuracy cannot reasonably be questioned”); Germantown Cab Company v. Philadelphia
Parking Authority, 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011) (taking judicial notice of a Supreme
Court docket in a case involving a similar point of law).

                                               4
[C]riminal [D]ivision to be processed accordingly”; and (4) “[Inmate] has no
adequate remedy at law to compel [the Clerk] to perform her mandatory duty.”
Amended Petition ¶¶20-23.             As a result, Inmate asked this Court to “[e]nter
judgment against the [Clerk] commanding [her] to file [his] private criminal
complaint into the [C]riminal [D]ivision to be processed in accordance with
[Section 1405(a) and (b) of The County Code, 16 P.S. §1405(a), (b)].” Id. at 4.
               However, as outlined above, it is undisputed that Inmate’s private
criminal complaint has already been filed in the trial court’s Criminal Division and
docketed at No. CP-39-MD-0001789-2019. Because the Clerk has already filed
the Inmate’s private criminal complaint in the trial court’s Criminal Division, we
need not grant the mandamus relief that he seeks in the Amended Petition.7
               Accordingly, the Amended Petition is dismissed as moot.


       7
          To the extent that Inmate is seeking additional mandamus relief in the form of an order
directing the trial court to dispose of the private criminal complaint pursuant to Section 1405 of
The County Code, or to direct an interdivisional transfer pursuant to Section 5103 of the Judicial
Code, 42 Pa. C.S. §5103, we are without subject matter jurisdiction to grant such further
mandamus relief. See, e.g., St. Clair v. Pennsylvania Board of Probation and Parole, 493 A.2d
146, 150 (Pa. Cmwlth. 1985) (“[T]his Court may always raise sua sponte the issue of its own
subject matter jurisdiction.”) (citations omitted). Section 761(c) of the Judicial Code provides
that we “have original jurisdiction in cases of mandamus . . . to courts of inferior jurisdiction . . .
where such relief is ancillary to matters within [our] appellate jurisdiction[.]” 42 Pa. C.S.
§761(c). The Amended Petition was filed in our original jurisdiction, and the requested
mandamus relief is not ancillary to any matter now pending in our appellate jurisdiction. As a
result, “there [is] no predicate” for this Court to exercise jurisdiction over the Amended Petition
seeking such further mandamus relief. Municipal Publications, Inc. v. Court of Common Pleas
of Philadelphia County, 489 A.2d 1286, 1288 (Pa. 1985). Rather, Section 721 of the Judicial
Code vests the Pennsylvania Supreme Court with “original but not exclusive jurisdiction of all
cases of . . . [m]andamus . . . to courts of inferior jurisdiction.” 42 Pa. C.S. §721. Nevertheless,
“[w]e decline to transfer this case pursuant to [Section 5103 of the Judicial Code,] 42 Pa. C.S.
§5103, because . . . there is no statute of limitations involved which necessitates preservation of
Petitioner’s original filing date.”          Pennsylvania Gamefowl Breeders Association v.
Commonwealth, 551 A.2d 361, 364 n.4 (Pa. Cmwlth. 1988).

                                                  5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren,                    :
                                  :
                       Petitioner :
                                  :
           v.                     : No. 331 M.D. 2019
                                  :
Andrea E. Naugle,                 :
                                  :
                       Respondent :


PER CURIAM

                                ORDER


           AND NOW, this 16th day of January, 2020, Petitioner’s Amended
Petition for Review in the Nature of a Complaint in Mandamus is DISMISSED as
moot.
