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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

GLAVIN IVY,                              :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :         No. 1188 WDA 2019
                                         :
PETER ACKER                              :


                 Appeal from the Order Entered July 8, 2019,
               in the Court of Common Pleas of Mercer County
                       Civil Division at No. 2018-0322


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 25, 2020

      Glavin Ivy appeals pro se from the trial court’s July 8, 2019 order

granting the motion for summary judgment1 filed by then-Mercer County

District Attorney Miles Karson.2 After careful review, we affirm.

      The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows: Appellant, who is incarcerated, filed a


1 We note that a trial court’s order granting summary judgment in favor of a
defendant constitutes a final and appealable order where “it effectively
resolve[s] all of the claims presented in the action[.]” Briggs v. Sw. Energy
Prod. Co., 184 A.3d 153, 164 n.1 (Pa.Super. 2018), appeal granted, 197
A.3d 1168 (Pa. 2018), citing inter alia, Feidler v. Morris Coupling Co., 784
A.2d 812, 814 n.1 (Pa.Super. 2001) (stating that the trial court’s order
granting defendant’s motion for summary judgment was final and appealable
because it disposed of the entire matter).

2 Mercer County District Attorney Peter C. Acker was substituted as appellee
in this appeal on August 15, 2019. For ease of discussion, we collectively refer
to appellee as “the District Attorney.”
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pro se petition for writ of mandamus in the Court of Common Pleas of Mercer

County on February 5, 2018, requesting all relevant documentation related to

his multiple outstanding criminal cases in Mercer County. Therein, appellant

challenged the District Attorney’s policy that precludes criminal defendants

who are represented by counsel from obtaining copies of discovery material

and case-related documentation from their defense counsel.         On July 26,

2018, appellant filed an amended petition for writ of mandamus, arguing that

he was entitled to “all the discovery materials related to his [two outstanding

criminal cases] so that [he] could assist in his defense” and that the District

Attorney was in violation of Pennsylvania’s Right-to-Know Law (“RTKL”).3

(“Amended Petition for Writ of Mandamus,” 7/26/18 at ¶¶ 9, 22-24.)

Appellant initially added Matthew Parson, Esq., the court-appointed attorney

for appellant’s two criminal cases in Mercer County, as an additional

defendant, but Attorney Parson is no longer a party to this case. (See notes

of testimony, 3/20/19 at 2.) The District Attorney filed an answer and new

matter to appellant’s petition on August 20, 2018, stating:

             the policy of the District Attorney’s office is an open
             file policy in which the Commonwealth’s complete file
             is given to each defendant’s attorney. [Appellant’s]
             attorney was given a copy of all material in the
             Commonwealth’s file relating to [appellant].

Answer and new matter, 8/20/18 at ¶ 8.




3   See 65 P.S. §§ 67.101-67.3104.


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      Thereafter, the trial court held hearings in this matter on February 13

and March 20, 2019. During the latter hearing, the District Attorney clarified

that under its “open file discovery” policy,

            we give the file to the [defense] attorney with the
            understanding that there is information in there that
            may be sensitive and not appropriate for the
            Defendant to have, and so we take it at [defense
            counsel’s] word that they are going to manage that
            communication with their client to make sure that
            they are not receiving things that we would otherwise
            be entitled to redact[.]

Notes of testimony, 3/20/19 at 25.

      Following said hearings, the District Attorney filed the aforementioned

motion for summary judgment, arguing that “[appellant’s] exclusive remedy

for obtaining documents in [his] ongoing criminal case would be to request

the information through the criminal discovery process,” and that he is barred

from seeking relief for an alleged violation of the RTKL through a mandamus

action. (“Motion for Summary Judgment,” 4/17/19 at ¶¶ 4-9.) As noted, the

trial court entered an opinion and order on July 8, 2019, holding that

mandamus is not an available form of relief and granting the District

Attorney’s motion for summary judgment. (See trial court opinion and order,




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7/8/19 at 2.) Appellant filed a motion for reconsideration that was denied by

the trial court on August 15, 2019. This timely appeal followed.4

      Appellant raises the following issues for our review:

            I.     Did the [trial] court abuse its discretion and/or
                   err as a matter of law when it granted [the
                   District Attorney’s] motion for summary
                   judg[]ment when there was no other adequate
                   remedy avail[a]ble to compel the District
                   Attorney to abolish its unwritten and unspoken
                   policy[,] which infringes upon the attorney-
                   client relationship and other constitutional
                   rights of [appellant]?

            II.    Is [the District Attorney] permitted, under the
                   Pennsylvania and United States Constitutions
                   and their laws, or under the rules of professional
                   conduct, to deny [appellant] inspection, study,
                   retention,    and    access    to    case-related
                   documentation and evidence which has been
                   obtained through the discovery process or
                   otherwise?

            III.   Do the rule-based discovery rights and other
                   rights mentioned in the rules of criminal
                   procedure belong exclusively and/or personally
                   to the criminal defendant and not his lawyer?

Appellant’s brief at 4 (full capitalization and emphasis omitted).

      Our standard of review of a trial court’s order granting summary

judgment is well settled:




4 Although not ordered to do so, appellant filed a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on August 5,
2019. On August 15, 2019, the trial court filed its Rule 1925(a) opinion,
indicating that it was relying on the reasoning set forth in its prior opinion
authored in support of its order granting the District Attorney’s motion for
summary judgment.


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           A reviewing court may disturb the order of the trial
           court only where it is established that the court
           committed an error of law or abused its discretion. As
           with all questions of law, our review is plenary.

           In evaluating the trial court’s decision to enter
           summary judgment, we focus on the legal standard
           articulated in the summary judgment rule. The rule
           states that where there is no genuine issue of material
           fact and the moving party is entitled to relief as a
           matter of law, summary judgment may be entered.
           Where the non-moving party bears the burden of
           proof on an issue, he may not merely rely on his
           pleadings or answers in order to survive summary
           judgment. Failure of a non-moving party to adduce
           sufficient evidence on an issue essential to his case
           and on which it bears the burden of proof establishes
           the entitlement of the moving party to judgment as a
           matter of law. Lastly, we will view the record in the
           light most favorable to the non-moving party, and all
           doubts as to the existence of a genuine issue of
           material fact must be resolved against the moving
           party.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-1262

(Pa.Super. 2013) (citations and internal quotation marks omitted); see also

Pa.R.C.P. 1035.2.

     The crux of appellant’s arguments on appeal raise a pure question of

law — namely, whether appellant can use a civil mandamus action to compel

discovery in his outstanding criminal cases.5 Our scope of review of a trial

court’s decision to deny or grant mandamus is de novo and plenary. Crozer

Chester Med. Ctr. v. Dep't of Labor and Indus., Bureau of Workers’




5 Appellant acknowledges in his appellate brief that he has abandoned all
claims related to the RTKL. (See appellant’s brief at 24.)


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Comp., 22 A.3d 189, 194 (Pa. 2011) (citation omitted). Upon careful review,

we find that the record supports the trial court’s determination that the writ

of mandamus is not an appropriate remedy in this case.

      “A writ of mandamus is an extraordinary remedy, because it works to

compel a public official to perform a certain action.”        Kuren v. Luzerne

County, 146 A.3d 715, 749 (Pa. 2016).           “Where the action sought to be

compelled is discretionary, mandamus will not lie to control that discretionary

act, . . . but courts will review the exercise of the actor’s discretion where it is

arbitrary or fraudulently exercised or is based upon a mistaken view of the

law.” Banfield v. Cortes, 110 A.3d 155, 175 (Pa. 2015) (citation omitted).

Our supreme court has long recognized that a court may issue a writ of

mandamus only where the petitioner has a clear legal right, the responding

public official has a corresponding duty, and no other adequate and

appropriate remedy at law exists. See Kegerise v. Delgrande, 183 A.3d

997, 1004 (Pa. 2018) (stating, “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 or adequate remedy.” (citation omitted)). Lastly, we note

that “[t]he petitioner’s right to performance of a mandatory duty must be

well-defined, clear, and specific; where any doubt exists, mandamus relief will

not lie.” Id. (citation omitted).




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         Instantly, we discern no error on the part of the trial court in concluding

that appellant’s petition for writ of mandamus was not the appropriate

mechanism to obtain pretrial discovery in his underlying criminal cases in

Mercer County.       Our review of the record reflects that appellant failed to

demonstrate that there were no other adequate and appropriate remedies at

law.     See id.    Appellant’s proper remedy for obtaining discovery in his

outstanding criminal cases is through the normal processes provided for by

the Pennsylvania Rule of Criminal Procedure, including the filing of a motion

to compel discovery in each specific criminal case. As recognized by the trial

court,     Rule   573   governs   pretrial   discovery   and   inspection   in   this

Commonwealth, and appellant’s failure to exhaust these remedies precludes

the issuance of a writ of mandamus. (See trial court opinion, 7/8/19 at 2.)

Moreover, appellant would clearly have the right to appeal the trial court’s

discovery rulings in his criminal cases, should he elect to do so. Accordingly,

we affirm the trial court’s July 8, 2018 order granting summary judgment in

favor of the District Attorney.

         Order affirmed.6




6 We note that on November 4, 2019, appellant filed a pro se motion to amend
the certified record to include the transcripts from his two criminal proceedings
held before the Honorable Christopher St. John, as well as the transcript from
the March 20, 2019 hearing in this case. (See “Application to Modify the
Certified Record on Appeal,” 11/4/19 at ¶ 7(a)-(b).) In light of the foregoing
discussion, we deny appellant’s request for criminal case transcripts as moot.
We further note that the March 20, 2019 hearing transcript from this case
is included in the certified record.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




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