J-S28009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                        v.

RALPH C. FEGLEY,

                        Appellant                    No. 1397 MDA 2014


                Appeal from the Order Dated July 30, 2014
         In the Court of Common Pleas of Northumberland County
                 Criminal Division at No(s): CR-0420-1977


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 15, 2015

      Ralph C. Fegley appeals from the July 30, 2014 order denying his

“Motion to Compel” and “Motion for Conflict.” We affirm.

      On January 24, 1986, a Northumberland County jury found Appellant

guilty of the first-degree murder of his wife after he shot her five times with

a shotgun.    The court sentenced Appellant to life imprisonment without

parole on February 6, 1987.        The murder occurred in 1977.      Appellant

walked into a police station following the killing and admitted to the crime.

Appellant initially pleaded guilty but withdrew his plea.      Thereafter, he

requested a change of venue, which was granted, and he was found guilty

by a jury in Luzerne County in 1978. During post-conviction review, under

the Post-Conviction Hearing Act (“PCHA”), Appellant was awarded a new

trial. As noted, a subsequent jury found Appellant guilty of killing his wife.
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This Court affirmed on direct appeal, Commonwealth v. Fegley, 544 A.2d

1040 (Pa.Super. 1988) (unpublished memorandum), and Appellant did not

timely seek review with our Supreme Court.

      Appellant subsequently filed a PCHA petition alleging that appellate

counsel was ineffective in failing to request allowance of appeal. The PCHA

court denied that petition.     This Court affirmed.    Commonwealth v.

Fegley, 598 A.2d 1327 (Pa.Super. 1991) (unpublished memorandum).

Appellant again sought post-conviction relief, this time under the Post-

Conviction Relief Act (“PCRA”). The PCRA court dismissed his petition, and

this Court upheld that decision. Commonwealth v. Fegley, 627 A.2d 201

(Pa.Super. 1993).    Appellant filed a third collateral petition on March 15,

1994. The PCRA court denied the petition that same date. Appellant did not

appeal.

      This matter arose when Appellant filed a self-styled “Motion to

Compel” on July 8, 2014 at his criminal docket number.       In that motion,

Appellant alleged that the Clerk of Courts refused to supply him with a

certification of the nonexistence of an affidavit of probable cause for his

arrest. The trial court issued a rule to show cause on July 10, 2014. The

Clerk of Courts filed a reply and answer on July 29, 2014. That same date,

Appellant filed a “motion for conflict” wherein he asked that this matter be

transferred to federal court.



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       According to Appellant, the district attorney of Northumberland County

had previously represented him in PCRA proceedings; therefore, a conflict of

interest existed in having the case heard before the Northumberland County

Court of Common Pleas.1 The trial court dismissed both Appellant’s motion

to compel and motion for conflict.             This timely appeal ensued.   The trial

court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant complied, and the

trial court issued a Rule 1925(a) order.           The matter is now ready for this

Court’s review. Appellant presents five issues for our consideration:

       1. Did the trial court error [sic] in denying this Appellant’s
          motion to compel the Clerk of Court to issue a certified
          statement concerning the demand presented to this Clerk of
          Court?.[sic]

       2. Did the Clerk of Court deny this Appellant his constitutional
          right to access to the court, by outright refusing to issue a
          certified statement concerning the demand presented to the
          Clerk of Court?.[sic]

       3. Is there intentional prejudice and irreparable harm present if
          this Appellant is not granted relief?.[sic]

       4. Is there a direct conflict present by the Office of Attorney
          General representing the Northumberland County Clerk of
          Court, wherein, this Appellant is only challenging the denial of
          the Clerk of Court in the responsibilities mandated under
          statute?.[sic]

____________________________________________


1
 The Attorney General’s Office is representing the Commonwealth in this
matter.



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       5. Has this Appellant submitted critical information and evidence
          that warrant the transfer of this Appellant’s entire file to the
          jurisdiction of the federal forum, whereas, the direct conflicts
          present, deny this Appellant a fair and unbias [sic] ruling in
          what is and will be presented to the courts for a review of the
          entirety of the case?.[sic]

Appellant’s brief at V.

       Although Appellant purports to raise five issues, his brief contains only

two separate argument sections. Aside from a citation to 42 Pa.C.S. § 2757,

defining the duties of a Clerk of Court, Appellant provides no citation to

authority in his initial argument. He baldly asserts that the Northumberland

Clerk of Court was required to prepare a certification that no affidavit of

probable cause existed in his criminal case file.

       He further maintains, for the first time, that the Office of Attorney

General is improperly acting as an appellee in this case and that the proper

appellee is the solicitor for the office of the Clerk of Court.   According to

Appellant, the Northumberland County Clerk of Court has denied him access

to unspecified records and a certification of the non-existence of a record.2

       The Commonwealth responds that the sole issue preserved for appeal

is Appellant’s initial claim. It adds that Appellant erroneously filed a motion

____________________________________________


2
  According to Appellant, the Clerk of Court responded to his request for a
copy of his criminal complaint, an affidavit of probable cause for his arrest,
and printout of the docket entries in his criminal case by informing him that
no affidavit of probable cause for arrest was filed.



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to compel where the proper action would have been a writ of mandamus.

Appellant himself in his own brief acknowledges that this “appeal is in the

Nature of a Petition for Writ of Mandamus[.]”         Appellant’s brief at 5.    The

Commonwealth maintains that Appellant improperly filed a motion in his

criminal case instead of a separate writ of mandamus.              In addition, the

Commonwealth submits that there is no statutory authority requiring a Clerk

of Court to certify the non-existence of a record.

       Preliminarily, we note that a Clerk of Court is a public official,

Pa.Const. Art. 9, § 4; see also Richardson v. Peters, 19 A.3d 1047, 1048

(Pa.   2011),   and   the   acts   of   a     Clerk   of   Court   are   ministerial.

Commonwealth v. Williams, 106 A.3d 583, 588 (Pa. 2014). In order to

compel a public official to perform an official mandatory act or duty, the

proper action is a writ of mandamus. Brown v. Levy, 73 A.3d 514, 516 n.2

(Pa. 2013) (“mandamus will lie to compel action by an official where his

refusal to act in the requested way stems from his erroneous interpretation

of the law.”); Commonwealth Department of Health v. Hanes, 78 A.3d

676, 685 n. 19 (Pa.Cmwlth. 2013) (“When the petitioner seeks the official

performance of a ministerial act or mandatory duty, the petitioner properly

sounds in mandamus.”). Mandamus does not lie where the public official’s

act or duty requires the exercise of judgment, i.e., is discretionary.          See

Levy, supra.



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        The writ, however, when involving a Commonwealth government

official acting in his official capacity, must ordinarily be filed with the

Commonwealth Court. 42 Pa.C.S. § 761(a)(1) (“The Commonwealth Court

shall have original jurisdiction of all civil actions or proceedings: (1) Against

the Commonwealth government, including any officer thereof, acting in his

official   capacity[.]”);   cf.   Peters,      supra;   see   also   Humphrey   v.

Department of Corrections, 939 A.2d 987, 991 (Pa.Cmwlth. 2007), aff'd

in part, appeal denied in part, 955 A.2d 348 (Pa. 2008); compare

Commonwealth v. LeBar, 860 A.2d 1105 (Pa.Super. 2004) (court of

common pleas had jurisdiction over motion to compel against Clerk of Court

and Department of Corrections).

        Of course, where a party erroneously files a legal document with the

wrong court, that court is required to transfer the matter to the proper

court. See 42 Pa.C.S. § 5103;3 Pa.R.A.P. 751. In this case, Appellant did

____________________________________________


3
    42 Pa.C.S. § 5103 provides:

        If an appeal or other matter is taken to or brought in a court or
        magisterial district of this Commonwealth which does not have
        jurisdiction of the appeal or other matter, the court or
        magisterial district judge shall not quash such appeal or dismiss
        the matter, but shall transfer the record thereof to the proper
        tribunal of this Commonwealth, where the appeal or other
        matter shall be treated as if originally filed in the transferee
        tribunal on the date when the appeal or other matter was first
        filed in a court or magisterial district of this Commonwealth. A
(Footnote Continued Next Page)


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not file a writ of mandamus with the court of common pleas, thereby

triggering the transfer requirement.             We acknowledge that the title of a

motion is not necessarily dispositive. However, in LeBar, supra, this Court

considered an appeal from a motion to compel a Clerk of Court and the

Department of Corrections to return money to LeBar because he was not

ordered to pay fines and costs.             We did not conclude that the court of

common pleas did not have jurisdiction and should have considered the

matter as a writ of mandamus and then transferred the case. Instead, we

reached the merits and determined that the Clerk of Court and DOC had

violated governing statutory law by taking $406.            Accordingly, we ordered

the return of that money.          In light of LeBar, we decline to hold that the

court of common pleas lacked jurisdiction to consider the motion to compel.

Further, there is no obligation on the part of a Clerk of Court to certify the

non-existence of a record; indeed, such a rule would be nonsensical since




                       _______________________
(Footnote Continued)

      matter which is within the exclusive jurisdiction of a court or
      magisterial district judge of this Commonwealth but which is
      commenced in any other tribunal of this Commonwealth shall be
      transferred by the other tribunal to the proper court or
      magisterial district of this Commonwealth where it shall be
      treated as if originally filed in the transferee court or magisterial
      district of this Commonwealth on the date when first filed in the
      other tribunal.




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items dehors the record are not considered to exist for purposes of litigation.

Thus, the court did not err in dismissing the motion.

      With respect to Appellant’s second argument, since he did not cite to

any legal authority, it fails. Appellant’s position is that because the district

attorney represented him during earlier proceedings in this case and a senior

judge in Northumberland County prosecuted him, the matter should have

been transferred to the federal courts.     Initially, no conflict exists because

neither individual with an alleged conflict was involved in the underlying

litigation in this appeal.   Moreover, Appellant provides no indication under

what authority a federal court would have jurisdiction in this case. Where a

conflict of interest does exist, the proper remedy is not a transfer to federal

court, but to remove the conflict. Since there is no conflict, Appellant’s claim

is baseless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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