J-S01019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOAN LICHTMAN,                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ERIC FEDER                                 :   No. 2551 EDA 2019


                   Appeal from the Order Entered July 29, 2019,
              in the Court of Common Pleas of Philadelphia County,
                Civil Division at No(s): May Term, 2019 No. 2213.

BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 02, 2020

        Joan Lichtman appeals, pro se, from the order dismissing her Complaint

in this mandamus proceeding. The trial court concluded it lacked subject-

matter jurisdiction, because Ms. Lichtman sued Eric Feder, the Deputy Court

Administrator (“DCA”) for the Office of Judicial Records of Philadelphia County,

in his official capacity. We agree. However, the trial court then erroneously

decided the merits of the case and dismissed it as frivolous. We therefore

transfer this case to the Supreme Court of Pennsylvania for disposition under

that Court’s original jurisdiction.

        Ms. Lichtman has filed many appeals to this Court.1 Here, she again

attempts to collect a judgment based on an order that the Honorable Gary S.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 By our latest count, this appears to be Ms. Lichtman’s thirteenth time before
this Court as an appellant.
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Glazer of the Court of Common Pleas of Philadelphia County issued on July 1,

2009. To do so, Ms. Lichtman filed a mandamus action against the DCA in

the Court of Common Pleas of Philadelphia County – i.e., the court where the

DCA works.

      By way of background, we note that, in April of 2011, Judge Glazer

revoked Ms. Lichtman’s in forma pauperis status and ordered the DCA to

decline any filings from her in the matter of Lichtman v. Zelenkofske,

Axelrod & Co., Ltd., June Term 2003 No. 1092 (C.C.P. Philadelphia), unless

she pays the filing fee. In her current Complaint, Ms. Lichtman avers she is

entitled to enter the July 2009 judgment against certain parties connected to

Lichtman v. Zelenkofske, Axelrod & Co., Ltd. She further claims that “the

Court of Common Pleas [of Philadelphia County] must enter the judgment on

the public record, so [she] can get Writs of Execution issued, and thereby . .

. collect payment of her moneys, which, for one decade, have been unlawfully

withheld.” Complaint at 4.

      She asserts that, despite numerous attempts to record her judgment,

“the Office of Judicial Records [of Philadelphia County] has repeatedly refused

to perform its mandated duty of entering the judgment in [her] favor.” Id. at

5. Ms. Lichtman alleges that the Office of Judicial Records will not accept her

filings, because Judge Glazer illegally ordered the DCA to reject them. She

therefore sued the DCA and asked the court to compel him to record her

judgment. In her prayer for relief, Ms. Lichtman also seeks sanctions against

Judge Glazer, even though she failed to name him as a defendant.

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      The DCA filed preliminary objections, asserting that the trial court lacked

jurisdiction. He believes that only the Supreme Court of Pennsylvania may

exercise original jurisdiction over him in a mandamus proceeding. Because

the DCA is an officer of the trial court, he argues that only the High Court may

issue such a writ to an inferior court. See Preliminary Objections at 3.

      The Honorable Arnold L. New, Jr. considered Ms. Lichtman’s application

for in forma pauperis status in this mandamus action. Upon review of that

application, he found that the trial court lacked subject-matter jurisdiction,

because the Supreme Court of Pennsylvania has exclusive, original jurisdiction

over actions in mandamus against the DCA. The trial court then dismissed

Ms. Lichtman’s Complaint as frivolous, and she timely appealed that order to

this Court.

      She raises three issues on the merits.       See Lichtman’s Brief at 2.

Instead of addressing those issues, we must preliminarily determine:

         1.    Whether the court of common pleas had subject-
               matter jurisdiction over this proceeding?

         2.    If subject-matter jurisdiction was lacking, whether the
               court could dismiss the Complaint as frivolous?

      Neither party objected to the trial court’s dismissal of the Complaint on

the grounds that it lacked subject-matter jurisdiction. But, as the DCA states,

“Subject-matter jurisdiction can be raised at any time in a proceeding and

cannot be waived.”      DCA’s Brief at 4 (citing Alexander v. Dept. of

Transportation, 880 A.2d 552, 556 (Pa. 2005)). Thus, Ms. Lichtman’s failure



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to object to the dismissal of her case on jurisdictional grounds is irrelevant.

The DCA raised the issue of subject-matter jurisdiction below, and he repeats

those arguments in this Court.      As the error-correcting court, we may not

ignore the oddity of a trial court acting on a case, despite its finding that it

lacked jurisdiction.

      Whether a trial court has subject-matter jurisdiction is a pure question

of law. As such, “the standard of review . . . is de novo, and the scope of

review is plenary.” In re Admin. Order No. 1-MD-2003, 936 A.2d 1, 5 (Pa.

2007) (case citations and some punctuation omitted). The issue of subject-

matter jurisdiction “may be raised at any time . . . including by a reviewing

court sua sponte.”     Id.   Finally, “subject-matter jurisdiction may not be

conferred by consent of the parties, and a defect of such jurisdiction may not

be waived.” Id.

      The General Assembly has granted the courts of common pleas broad,

but not absolute, subject-matter jurisdiction. They lack jurisdiction over any

case “where exclusive, original jurisdiction of an action or proceeding is by

statute . . . vested in another court of this Commonwealth . . . .” 42 Pa.C.S.A.

§ 931(a). Hence, if another court of this Commonwealth enjoys exclusive,

original jurisdiction over this matter, then the trial court correctly ruled that it

had no jurisdiction.

      The DCA contends (and the trial court agrees) that exclusive, original

jurisdiction over Ms. Lichtman’s request for mandamus against the DCA lies in

the Supreme Court of Pennsylvania. See DCA’s Brief at 4; Trial Court Opinion,

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10/2/19, at 5-6. They both rely on cases from the Commonwealth Court of

Pennsylvania for support. The DCA argues that his office is in the judicial

branch and that, by suing him in his official capacity, Ms. Lichtman is actually

suing the Court of Common Pleas of Philadelphia County.         Thus, the DCA

reasons that, due to the Supreme Court’s constitutional power to oversee the

judicial branch,2 only the High Court may hear this matter.

       Ms. Lichtman agrees with the DCA that the Office of Judicial Records is

“within the judicial system.” Lichtman’s Brief at 7. Because the parties agree

on that point, we consider what impact, if any, the DCA’s inclusion within the

Unified Judicial System of Pennsylvania has on the trial court’s jurisdiction.

       Under Pennsylvania law, officers of the Unified Judicial System are part

of the Commonwealth. “Commonwealth government” means “government of

the Commonwealth, including the courts and other officers or agencies of the

unified judicial system . . . .” 42 Pa.C.S.A. § 102. Hence, Ms. Lichtman’s suit

against the DCA in his official capacity is a suit against the judicial system

and, by extension, the Commonwealth government.

       Generally, the Commonwealth Court has original jurisdiction over “all

civil actions or proceedings against the Commonwealth government, including

any officer thereof, acting in his official capacity . . . .”   42 Pa.C.S.A. §


____________________________________________


2 See The Constitution of the Commonwealth of Pennsylvania Art. V, § 10
(empowering the Supreme Court of Pennsylvania to supervise the inferior
courts and appoint the court administrators and other court staff).



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761(a)(1) (some punctuation omitted). The statute then lists five exceptions

to that rule, none of which is applicable here.3       The original jurisdiction of

Commonwealth Court over such proceedings is “exclusive, except as provided

in section 721 (relating to original jurisdiction [of the Supreme Court]) and

except with respect to actions or proceedings by the Commonwealth

government, including any officer thereof, acting in his official capacity, where

the jurisdiction of the court shall be concurrent with the several courts of

common pleas.” 42 Pa.C.S.A. § 761(b) (emphasis added).




____________________________________________


3 The statutory exceptions to Commonwealth Court’s original jurisdiction over
civil actions against the Commonwealth government are as follows:

          (i)     actions or proceedings in the nature of applications for
                  a writ of habeas corpus or post-conviction relief not
                  ancillary to proceedings within the appellate
                  jurisdiction of the court;

          (ii)    eminent domain proceedings;

          (iii)   actions or proceedings conducted pursuant to Chapter
                  85 (relating to matters affecting government units);

          (iv)    actions or proceedings conducted pursuant to the act
                  of May 20, 1937 (P.L. 728, No. 193), referred to as
                  the Board of Claims Act; and

          (v)     actions or proceedings in the nature of trespass as to
                  which the Commonwealth government formerly
                  enjoyed sovereign or other immunity and actions or
                  proceedings in the nature of assumpsit relating to
                  such actions or proceedings in the nature of trespass.

42 Pa.C.S.A. § 761(a)(1).


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      In other words, when someone sues the Commonwealth or one of its

officers, the plaintiff must file her action in Commonwealth Court, unless one

of the five exceptions applies. On the other hand, when the suit is filed by the

Commonwealth or its officers as the plaintiff, the courts of common pleas and

the Commonwealth Court share original jurisdiction. In those circumstances,

the Commonwealth may file in either Commonwealth Court or the trial court

of its choosing. The private litigant suing the Commonwealth, however, does

not have the option of filing in a court of common pleas. Thus, any mandamus

action against an officer of the Commonwealth must, according to the

statutes, originate in Commonwealth Court, not a court of common pleas.

      That said, we observe that the Commonwealth Court has declared a

constitutionally mandated, sixth exception to its original jurisdiction over

actions against judicial-branch officers. According to Commonwealth Court,

the Supreme Court’s precedents divest Commonwealth Court of its statutorily

conferred, subject-matter jurisdiction when a plaintiff sues a judge or officer

of the Unified Judicial System. See, e.g., Commonwealth, Unified Judicial

System v. Vartan, 674 A.2d 1156 (Pa.Cmwlth. 1996).

      To understand the rationale of our sister, appellate court in this regard,

we must first consider the decision of the Supreme Court of Pennsylvania in

Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia

County, 489 A.2d 1286 (Pa. 1985). There, a corporate defendant sought a

trial judge’s recusal. That judge both presided over and sat as a witness in




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his own recusal hearing. He testified, found himself credible, and denied the

motion to recuse.

       The defendant then petitioned Superior Court for a writ of prohibition,4

which we issued and disqualified all of the judges in Philadelphia County from

hearing the case. The plaintiff appealed to the Supreme Court, which found

that Superior Court lacked original jurisdiction in the prohibition proceeding.

       The High Court held that Superior Court’s jurisdiction arises solely from

statutes. Under 42 Pa.C.S.A. § 741, the Superior Court has “jurisdiction to

issue a writ of mandamus or prohibition only where an appeal properly within

its appellate jurisdiction is pending before [Superior Court] and where the

issuance of such a writ is necessary to protect [Superior Court’s] appellate

jurisdiction.” Municipal Publications, 489 A.2d at 1288 (citations omitted).

Additionally, the High Court stated that, if it were to accept this Superior

Court’s interpretation of the jurisdictional statutes, it “would be tantamount

to giving the Superior Court broad King’s Bench powers.” Id. Finding the

actions of Superior Court were not authorized by statute, the Supreme Court

vacated the decision of Superior Court and assumed plenary jurisdiction over

the case.

       The Commonwealth Court has interpreted Municipal Publications to

mean that “where a party files a petition for a writ of mandamus or prohibition

to a ‘court of inferior jurisdiction’ in an appellate court, where no appeal is
____________________________________________


4 At common law, the writ of prohibition is the remedial opposite of the writ
of mandamus. If issued, it forbids judicial action, rather than compels it.

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currently pending, the Supreme Court’s original jurisdiction over such a

petition is exclusive.” Unified Judicial System, 674 A.2d at 1159; see also

Leiber v. County of Allegheny, 654 A.2d 11 (Pa.Cmwlth. 1994).                The

Commonwealth Court “does not have jurisdiction to issue mandamus to courts

of inferior jurisdiction, including magisterial district judges, except where the

mandamus is ancillary to a pending appeal.” Kneller v. Stewart, 112 A.3d

1269, 1271 (Pa.Cmwlth. 2015).

       While this Court need not follow the decisions of the Commonwealth

Court,5 we recognize that the precedents of Commonwealth Court bind the

trial court. The court below had no way of knowing whether Ms. Lichtman

would appeal its decision to the Commonwealth Court or the Superior Court.

Thus, we cannot fault the trial court for following the precedents of the

Commonwealth Court, especially given that they were the only authority that

the DCA cited below.

       Moreover, we find no reason to question the Commonwealth Court’s

deference to the Supreme Court in mandamus and prohibition actions against

trial courts and their officers. In previous cases, the Commonwealth Court

transferred the petitions for mandamus or prohibition to the Supreme Court,

and we know of no instance where the Supreme Court remanded to the

Commonwealth Court.           Thus, the High Court has impliedly affirmed the

____________________________________________


5 See, e.g., Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n.2
(Pa.Super. 2006).


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Commonwealth Court’s rejection of subject-matter jurisdiction over such

cases.

       We believe the Commonwealth Court has correctly held that exclusive,

original jurisdiction over petitions of mandamus and prohibition against

officers of the unified judicial system lies solely in the Supreme Court of

Pennsylvania. This is true, despite statutory language that, if literally applied,

grants concurrent, original jurisdiction over such cases to the Supreme Court

and Commonwealth Court.6 Thus, the trial court correctly determined that it

lacked subject-matter jurisdiction over Ms. Lichtman’s petition for mandamus

against the DCA.

       This brings us to the question of whether the trial court erred when it

dismissed Ms. Lichtman’s Complaint on the merits as frivolous. We conclude

that it did.

       A court without jurisdiction may not decide a case on its merits, because

it is incompetent to do so. As we have explained:

                 Jurisdiction is the capacity to pronounce a judgment
          of the law on an issue brought before the court through due
          process of law. It is the right to adjudicate concerning the
          subject matter in a given case. Without such jurisdiction,
          there is no authority to give judgment, and one so entered
          is without force or effect.




____________________________________________


6 See 42 Pa.C.S.A. § 721 (directing that the Supreme Court of Pennsylvania
“shall have original but not exclusive jurisdiction of all cases of . . . mandamus
or prohibition to courts of inferior jurisdiction.”)

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In re Estate of Ciuccarelli, 81 A.3d 953, 958 (Pa.Super. 2013) (quoting

Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa.Super. 2001).

      Here, once the trial court determined that it lacked jurisdiction, it also

lacked the authority to declare Ms. Lichtman’s Complaint frivolous. That ruling

and its accompanying dismissal were “without force or effect.” Id.

      The General Assembly granted leniency to plaintiffs, such as Ms.

Lichtman, who erroneously commence their actions in a court without

jurisdiction by providing them a remedy.       “A matter which is within the

exclusive jurisdiction of a court . . . 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 . . . of this Commonwealth where it

shall be treated as if originally filed in the transferee court . . . on the date

when first filed in the other tribunal.”   42 Pa.C.S.A. § 5103(a) (emphasis

added). “As used in this section ‘tribunal’ means a court . . . .” 42 Pa.C.S.A.

§ 5103(d).

      Under Section 5103(a) of the Judicial Code, the trial court should have

transferred this matter to the Supreme Court for disposition under the High

Court’s original jurisdiction. As Commonwealth Court has opined, “where a

petitioner requests this court to issue a writ of mandamus or prohibition to a

‘court of inferior jurisdiction’ and there is no appeal pending before

[Commonwealth Court,] . . . we must transfer the matter to the Supreme

Court pursuant to Sections 721 and 5103(a) of the Judicial Code.” Unified

Judicial System, 674 A.2d at 1159 (citing Leiber, supra) (emphasis added).

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See also Feingold v. Feder, 230 MD 2016, unpublished Judgment Order

(Pa.Cmwlth. 2016) (transferring a mandamus action against the DCA, filed in

Commonwealth Court’s original jurisdiction, to the Supreme Court of

Pennsylvania); Vu v. Evers, 13 MD 2014, unpublished Judgment Order

(Pa.Cmwlth. 2014) (accord).          We find these cases to be persuasive 7 and

illustrative of the proper disposition for Ms. Lichtman’s Complaint which she

mistakenly filed in a court of common pleas.

       It is clear that this matter should proceed before the Supreme Court of

Pennsylvania. We therefore modify8 the appealed-from order as follows:

                 AND NOW, this 29th day of July, 2019, upon
          consideration of the Motion to Proceed In Forma Pauperis
          filed by Joan Lichtman, and upon a finding that the Court of
          Common Pleas of Philadelphia has no subject-matter
          jurisdiction over this mandamus action against Deputy
          Court Administrator Eric Feder, in his official capacity, the
          action is hereby TRANSFERRED to the Supreme Court of
          Pennsylvania, pursuant to 42 Pa.C.S.A. § 5103(a) for
          disposition under the exclusive, original jurisdiction of the
          Supreme Court.

       Order affirmed as modified.9
____________________________________________


7The Commonwealth Court permits citation to its unpublished, panel decisions
dating after January 15, 2008 “for [their] persuasive value, but not as binding
precedent.” 210 Pa. Code § 69.414; I.O.P. Pa.Cmwlth. § 414(a).

8 This Court “may . . . modify . . . any order brought before it for review . . .
.” 42 Pa.C.S.A. § 706. We use this statutory tool of order modification in the
interest of judicial economy, instead of vacating the order and remanding to
the trial court with instructions to transfer the case to the Supreme Court for
disposition, as if Ms. Lichtman had originally filed in the High Court.

9 In light of our disposition of this appeal, the motion that Ms. Lichtman filed
in this Court is denied as moot.

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J-S01019-20



     Case transferred to the Supreme Court of Pennsylvania.

     Judge Strassburger joins this Memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/20




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