             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan Lichtman,                                   :
                              Appellant          :
                                                 :
                      v.                         :    No. 1563 C.D. 2017
                                                 :    Submitted: July 20, 2018
Kelley Hodge                                     :
John Delaney                                     :
R. Seth Williams                                 :
Kathleen Martin                                  :
in their personal and professional               :
capacities                                       :



OPINION NOT REPORTED


MEMORANDUM OPINION
PER CURIAM                                       FILED: September 13, 2018


       Joan Lichtman (Lichtman), pro se, appeals from an Order of the Court of
Common Pleas of Philadelphia County (common pleas), dated October 4, 2017,
which dismissed Lichtman’s Complaint without prejudice1 pursuant to Rule
240(j)(1) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 240(j)(1).2

       1
          Although common pleas did not dismiss Lichtman’s Complaint with prejudice, common
pleas did not grant Lichtman leave to amend and, therefore, we conclude that the October 4, 2017
Order is a final order. Fizz v. Kurtz, Dowd & Nuss, Inc., 519 A.2d 1037, 1038 n.1 (Pa. Super.
1987); see Lichtman v. Williams (Pa. Cmwlth., No. 1435 C.D. 2017, filed May 8, 2018), slip op.
at 1 n.1 (concluding that the order dismissing Lichtman’s prior complaint without prejudice was a
final order).
        2
          Rule 240(j)(1) states:

       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
Upon review, we hold that common pleas correctly concluded that the Complaint
was frivolous within the meaning of Rule 240(j)(1) of the Pennsylvania Rules of
Civil Procedure, and, therefore, we affirm.
       Previously, on June 20, 2017, Lichtman filed a complaint in the nature of
mandamus against former District Attorney for the City of Philadelphia, R. Seth
Williams, and former First Assistant District Attorney for the City of Philadelphia,
Kathleen Martin, seeking to compel them to investigate and bring criminal charges
against certain members of the Pennsylvania Bar, both public officials and private
attorneys, who allegedly illegally seized her personal and real property, and then
sold that property at a sheriff’s sale or diverted it to themselves. Lichtman v.
Williams (Pa. Cmwlth., No. 1435 C.D. 2017, filed May 8, 2018) (Lichtman I).
Common pleas dismissed the complaint in Lichtman I as frivolous under Rule
240(j)(1) of the Pennsylvania Rules of Civil Procedure without prejudice, and we
affirmed, although we cited different reasons than common pleas for concluding the
complaint was frivolous.
       Shortly before filing the notice of appeal in Lichtman I, Lichtman filed the
instant Complaint, again in the nature of mandamus, against Williams and Martin,
and adding, as named defendants, former Interim District Attorney Kelley Hodge
and First Assistant District Attorney John Delaney.3 The Complaint contains 261

       if the allegation of poverty is untrue or if it is satisfied that the action, proceeding
       or appeal is frivolous.

Pa.R.C.P. No. 240(j)(1). “A frivolous action or proceeding has been defined as one that ‘lacks an
arguable basis either in law or in fact.’” Id., Note (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)).
         3
           We take judicial notice of the fact that Hodge is no longer the District Attorney for the
City of Philadelphia. It also appears, based on the business address Lichtman listed on Lichtman’s
brief, that Delaney is also no longer employed by the Philadelphia District Attorney’s Office. As



                                                  2
paragraphs spanning 58 pages, attached to which are two memoranda of law.4 While
the Complaint is nearly 100 more paragraphs than her complaint in Lichtman I, the
thrust of Lichtman’s action, as even she acknowledges, remains the same.
(Complaint ¶ 5 (“This Mandamus Complaint and its predecessor Complaint are
essentially identical, save for references in the new Complaint necessary for the
addition of . . . Hodge and . . . Delaney.”).) She seeks to compel Williams, Martin,
and now Hodge and Delaney (collectively, Defendants), to investigate and prosecute
certain members of the Pennsylvania Bar on the same basis as alleged in her prior
complaint in Lichtman I. Lichtman claims that a district attorney has a “mandatory,
ministerial obligation[] . . . to file criminal complaints, accept evidence, investigate
crime, to apply the [l]aw, universally and uniformly, and to exercise discretion.”
(Id. ¶ 8 (emphasis in original).) Contemporaneous with the filing of the Complaint,
Lichtman petitioned to proceed in forma pauperis (IFP).
       By Order dated October 4, 2017, common pleas, upon considering Lichtman’s
IFP Petition and her Complaint, dismissed, pursuant to Rule 240(j)(1) of the
Pennsylvania Rules of Civil Procedure, the Complaint for failure to state a claim
upon which relief could be granted.5 Following the filing of the notice of appeal,
common pleas issued its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules
of Appellate Procedure, Pa.R.A.P. 1925(a), explaining that Lichtman’s Complaint
was frivolous because she did not have a clear legal right to the relief requested and


in Lichtman I, we question whether the proper parties have been named in this action. Lichtman I,
slip op. at 2 n.4.
        4
          Rules 1019(a) and 1022 of the Pennsylvania Rules of Civil Procedure require that “[t]he
material facts on which a cause of action . . . is based shall be stated in a concise and summary
form” and “[e]ach paragraph [in a pleading] shall contain as far as practicable only one material
allegation.” Pa.R.C.P. Nos. 1019(a), 1022.
        5
          Lichtman subsequently moved for reconsideration of common pleas’ October 4, 2017
Order, which common pleas denied.


                                               3
Defendants did not have a corresponding duty to act on Lichtman’s behalf. (1925(a)
Opinion at 2.)       Further, common pleas noted, the Complaint was “the same
complaint” as Lichtman had previously filed, with the exception of her having
“added two additional Defendants.” (Id.)
       On appeal,6 as best we can discern, Lichtman argues that the Complaint should
not have been dismissed for the following reasons. Lichtman claims she alleged
facts showing that she satisfied the three-prong test warranting the issuance of a writ
of mandamus because Defendants have a mandatory, non-discretionary duty to
investigate and to accept and file criminal complaints, which they failed to do despite
her having presented them with evidence of the crimes underlying the Complaint.
Lichtman further asserts that common pleas incorrectly interpreted and applied Rule
240(j)(1) and the law governing mandamus and failed to read the Complaint and
consider the evidence Lichtman submitted. Lichtman appears to argue that common
pleas could not dismiss the Complaint under Rule 240(j)(1) because she previously
has been permitted in other lawsuits to proceed IFP.7 Lichtman also raises many of
the same arguments that she raised in Lichtman I, such as that this civil case should
not have been transferred to a judge in the criminal division, and that common pleas
should have applied relevant provisions of the Philadelphia Code8 to this matter and



       6
           In reviewing a decision of common pleas to dismiss a complaint pursuant to Rule
240(j)(1), this Court is limited to determining whether the appellant’s constitutional rights were
violated, whether common pleas abused its discretion, and whether common pleas committed an
error of law. Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).
        7
          By order dated July 13, 2018, we precluded Defendants from filing a brief based on their
failure to file a brief in accordance with our order of June 4, 2018. Lichtman v. Hodge (Pa.
Cmwlth., No. 1563 C.D. 2017, filed July 13, 2018).
        8
          Lichtman cites to Chapter 9-1600 of the Philadelphia Code, which prohibits unlawful
eviction practices. Phila., Pa., Code §§ 9-1600-1608 (2016).



                                                4
reported the conduct alleged in the Complaint to attorney disciplinary and
prosecutorial authorities.9
       Pursuant to Rule 240(j)(1):

       [I]f, 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 [IFP], 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. No. 240(j)(1). “A frivolous action or proceeding has been defined as one
that ‘lacks an arguable basis either in law or in fact,’” id., Note (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)), or, stated differently, fails to “set forth a valid
cause of action” on its face, McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth.
1997).
       “A writ of mandamus is an extraordinary remedy that compels an official’s
performance of a ministerial act or mandatory duty.” Sturgis v. Doe, 26 A.3d 1221,
1223 (Pa. Cmwlth. 2011). The issuance of a writ of mandamus is warranted “where
there exists a clear legal right in the plaintiff and a corresponding duty in the
defendant and a lack of another appropriate and adequate remedy.”                           Lutz v.
Commonwealth, 505 A.2d 1356, 1357 (Pa. Cmwlth. 1986) (quotation omitted).


       9
          In addition, Lichtman’s brief contains accusations that the common pleas judge, by her
dismissal of the Complaint, done at the behest of the supervising judge of the civil trial division,
became “a willing participant in the underlying crimes” alleged in the Complaint, thereby
“exposing herself to potential prosecution and disciplinary action,” and is attempting to “silenc[e]”
Lichtman. (Lichtman’s Brief at 17, 19, 38.) These accusations, and others like them in Lichtman’s
brief, are “immaterial and inappropriate to the proof of the cause of action,” that is, they are
scandalous and impertinent and, therefore, we will not consider them. See Dep’t of Envtl. Res. v.
Peggs Run Coal Co., 423 A.2d 765, 769 (Pa. Cmwlth. 1980).




                                                 5
Mandamus will not lie “to revise a public official’s decision that results from the
exercise of discretion.” Seeton v. Adams, 50 A.3d 268, 273 (Pa. Cmwlth. 2012).
However, “mandamus can be used to compel a public official to exercise discretion
where the official has a mandatory duty to perform a discretionary act and has
refused to exercise discretion.” Id. at 274.
      As we stated in Lichtman I, “[a] prosecutor has broad discretion in deciding
whether to prosecute an alleged criminal offender.” Lichtman I, slip op. at 5 (citing
Konya v. Dist. Att’y of Northampton Cty., 669 A.2d 890, 892-93 (Pa. 1995)).
Further, other than the “narrow exception” of Rule 506 of the Pennsylvania Rules of
Criminal Procedure, “a prosecutor’s decision not to enforce a law is beyond judicial
review.” Seeton, 50 A.3d at 276 (emphasis in original). In other words, the
“discretionary power not to enforce is almost always immune to judicial review,
even for abuse of discretion.” Id. (emphasis omitted) (quoting 2 KENNETH C. DAVIS,
ADMINISTRATIVE LAW TREATISE § 9:1, at 218 (2d ed. 1979)).            Consequently, a
citizen has “no legal right to compel . . . a District Attorney to prosecute the
individuals named in [a] private criminal complaint.” Konya, 669 A.2d at 893
(emphasis added); see Rule 506 of the Pennsylvania Rules of Criminal Procedure,
Pa.R.Crim.P. 506 (setting forth the procedure for approval of a private criminal
complaint); Roman v. Phila. Cty. Dist. Att’y (Pa. Cmwlth., No. 2071 C.D. 2011, filed
June 27, 2012), slip op. at 2, 4 (where inmate filed private criminal complaint against
his ex-wife claiming that she perjured herself in connection with his criminal
conviction, but District Attorney’s Office refused to prosecute, we affirmed denial
of inmate’s writ of mandamus as frivolous under Rule 240(j)(i) because mandamus




                                          6
is not available to compel a District Attorney “to exercise prosecutorial discretion in
a particular way”).10
       Here, Lichtman has not cured the deficiencies that led to the dismissal of her
prior complaint. As in Lichtman I, since Lichtman seeks to compel Defendants to
perform a discretionary act in a particular way, and an award of damages for what
constitutes an immunized decision, Lichtman’s Complaint “lacks an arguable basis
. . . in law” and, therefore, is frivolous.11 Pa.R.C.P. No. 240(j)(1), Note (quoting
Neitzke, 490 U.S. at 325). Accordingly, common pleas properly dismissed the
Complaint pursuant to Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure.12




       10
           Roman is cited for its persuasive value in accordance with Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
        11
           We note that there is no allegation that Lichtman even submitted a private criminal
complaint to any of Defendants, only that she submitted evidence to them.
        12
           Lichtman’s remaining contentions do not warrant reversal. There is nothing in Rule
240(j)(1) that prohibits a court from dismissing an action as frivolous merely because in a prior
action the same party was granted permission to proceed IFP. Cf. Grosso v. Love, 667 A.2d 43,
44 (Pa. Cmwlth. 1995) (holding that it was improper to dismiss the complaint as frivolous under
Rule 240(j) where the trial court, in the same action, granted IFP status “and then dismissed the
action”). There is nothing in the record to suggest that common pleas did not read the Complaint,
and the documents attached to it, before dismissing it. In fact, to the contrary, the October 4, 2017
Order expressly states that common pleas reviewed the Complaint. Nor is there anything in the
record to suggest that the common pleas judge who dismissed the Complaint was biased. Adverse
rulings, without more, are insufficient to demonstrate bias. Dow v. Workers’ Comp. Appeal Bd.
(Household Fin. Co.), 768 A.2d 1221, 1225 (Pa. Cmwlth. 2001). Finally, we find Lichtman’s
remaining contentions without merit for the same reasons we articulated in Lichtman I.


                                                 7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan Lichtman,                         :
                          Appellant    :
                                       :
                   v.                  :   No. 1563 C.D. 2017
                                       :
Kelley Hodge                           :
John Delaney                           :
R. Seth Williams                       :
Kathleen Martin                        :
in their personal and professional     :
capacities                             :



PER CURIAM                            ORDER


      NOW, September 13, 2018, the Order of the Court of Common Pleas of
Philadelphia County, dated October 4, 2017, is hereby AFFIRMED.
