J-S64045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMAL HATCHER                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellant

                      v.

SANDY L.V. BYRD

                           Appellee                    No. 724 EDA 2016


               Appeal from the Order Entered February 2, 2016
            In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): January Term, 2016 No. 160101602


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 09, 2016

      Appellant Jamal Hatcher appeals from the order of the Court of

Common Pleas of Philadelphia County denying his petition to proceed in

forma pauperis and dismissing Appellant’s civil complaint as frivolous

pursuant to Pennsylvania Rule of Civil Procedure 240(j). For the following

reasons, we affirm.

      In 2011, a jury convicted Appellant of attempted murder and related

crimes in a trial presided over by Appellee Judge Sandy L.V. Byrd of the

Court of Common Pleas of Philadelphia County.          Atty. Charles A. Peruto

represented Appellant at sentencing, on direct appeal, and in filing a Post

Conviction Relief Act Petition.

      On May 28, 2015, Appellant filed a breach of contract action against

Atty. Peruto, alleging that counsel did not fulfill his contract to file the PCRA

*Former Justice specially assigned to the Superior Court.
J-S64045-16



petition.    It appears that this lawsuit is still pending.   See Hatcher v.

Peruto, May Term 2015, No. 3236.

      On January 14, 2016, Appellant commenced this action against Judge

Byrd and filed a motion to proceed in forma pauperis (IFP).           In his

complaint, Appellant alleges that Judge Byrd and Atty. Peruto engaged in ex

parte communications about Appellant’s pending civil case against Atty.

Peruto.     Appellant also claims Judge Byrd has refused to comply with a

subpoena issued in that case. In the instant complaint, Appellant requests a

declaration that Judge Byrd is required to appear and testify in Hatcher v.

Peruto and also asks that Judge Byrd be compelled to recuse himself from

all proceedings involving Appellant.

      On February 2, 2016, the trial court in this case dismissed Appellant’s

complaint and IFP request pursuant to Pennsylvania Rule of Civil Procedure

240(j). This timely appeal followed.

      In reviewing the dismissal of an action pursuant to Rule 240(j), we are

limited to determine whether the plaintiff's constitutional rights have been

violated and whether the trial court abused its discretion or committed an

error of law.      Ocasio v. Prison Health Servs., 979 A.2d 352, 354

(Pa.Super. 2009). Pursuant to Rule 240, “[a] party who is without financial

resources to pay the cost of litigation is entitled to proceed in forma

pauperis.”    Pa.R.C.P. 240(b).   Rule 240(j) discusses the circumstances in

which a trial court may dismiss a frivolous filing:




                                       -2-
J-S64045-16


      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. 240(j). “A frivolous action or proceeding has been defined as one

that ‘lacks an arguable basis either in law or in fact.’ ” Id. at Note (quoting

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338

(1989)). An action is frivolous under Rule 240(j) “if, on its face, it does not

set forth a valid cause of action.” Ocasio, 979 A.2d at 354.

      In arguing that the trial court abused its discretion, Appellant first

argues that the lower court in this case should have compelled Judge Byrd to

testify in his civil case against Atty. Peruto and forced him to recuse from all

of Appellant’s cases. We agree that both requests are frivolous as the lower

court had no authority to grant such relief through a separate legal action,

as Appellant should have sought relief through the relevant procedural rules

in the Hatcher v. Peruto action.

      Even if we had jurisdiction over Appellant’s requests, we note that

Appellant’s request to compel Judge Byrd to testify is moot as Judge Idee

Fox, who is presiding over that case, issued an order on March 17, 2016,

granting Judge Byrd’s Motion to Quash Appellant’s subpoena. Moreover, we

also note that it was not proper for Appellant to seek to remove Judge Byrd

from hearing his cases without filing a recusal motion. It is well-established

that a party who seeks a judge’s disqualification from a case must file a

petition for recusal with that judge to allow the judge to 1) evaluate the

                                     -3-
J-S64045-16



reasons for the recusal request firsthand and to 2) develop a record of the

judge’s reasons for granting or denying the recusal request.              In re

Adoption of L.J.B., 610 Pa. 213, 236, 18 A.3d 1098, 1112 (2011).             The

party may appeal the judge’s final determination, which an appellate court

can reverse only upon an abuse of discretion. Id. Accordingly, the lower

court did not abuse its discretion in finding Appellant’s claims to be frivolous.

      For the foregoing reasons, we affirm the lower court’s order dismissing

Appellant’s complaint and accompanying IFP request with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




                                      -4-
