IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren, :

 Appellant :

:

v. :

:

Michael C. Potteiger, Everett A. :

Gillison, Mark D. Koch, Linda :

Pastroff Rosenberg, Theodore W. :

Johnson, Leo L. Dunn, Leslie M. Grey, :

Craig R. McKay, Edward L. Burke, :

Chris Denton, Christopher Ackerman, : No. 1713 C.D. 2017

Kevin Chaundy : Submitted: June 29, 2018

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: September 6, 2018

Daniel Warren (Warren) appeals, pro se, from the October 25, 2017 

order of the Court of Common Pleas of Lehigh County (trial court) dismissing his 

complaint with prejudice pursuant to Rule 240(j)(1) of the Pennsylvania Rules of 

Civil Procedure, Pa.R.C.P. No. 240(j)(1).1 Upon review, we agree with the trial 

court’s conclusion that Warren’s complaint is frivolous. Accordingly, we affirm. 

 

1 Rule 240(j)(1) provides, 

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, 
2

On October 24, 2017, Warren, an inmate incarcerated at a state 

correctional institution, filed a complaint against current and former members of the 

Pennsylvania Board of Probation and Parole (Board) and parole agents employed by 

the Board (collectively, Appellees). Complaint ¶¶ 3-5, 39-40. In Counts I-VI and

IX of his complaint, Warren alleges that the Appellees are “de facto” officers 

because, before entering their respective offices, they failed to take, subscribe and 

file with the Secretary of the Commonwealth, of the Department of State the oath of 

office and/or file with the State Treasurer a fidelity bond to ensure faithful 

performance of their duties. Id. ¶¶ 102-07.

2

 Further, Warren asserts that Appellees 

have, without authority and through an illegal contract, increased the maximum term 

of his judicially imposed sentence. Complaint ¶¶ 106 & 110. In Count VII, Warren 

alleges that Appellees pierced the corporate veil to perpetrate a fraud, id. ¶ 108, and 

in Count VIII, Warren alleges that Appellees violated the Racketeer Influenced and 

Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Id. ¶ 109. 

Simultaneous with the filing of his complaint, Warren filed a petition for leave to 

proceed in forma pauperis. The next day, October 25, 2017, the trial court issued 

an order dismissing the complaint with prejudice pursuant to Rule 240(j)(1) because 

the matter “lacks an arguable basis either in law or in fact and is, therefore, 

frivolous.” 

 

proceeding or appeal . . . if it is satisfied that the action, proceeding or appeal 

is frivolous.

Pa.R.C.P. No. 240(j)(1). 

2

In Counts I-VI and IX of the complaint, Warren alleges that Appellees engaged in various 

wrongdoings including having collected unlawful salaries and compensation, published false 

information regarding their positions and committed fraud against Warren as they are “de facto” 

officers. Complaint ¶¶ 103-05, 107. 
3

On November 15, 2017, Warren appealed to this Court. Subsequently, 

the trial court filed its opinion pursuant to Pennsylvania Rule of Appellate Procedure 

1925(a). Pa.R.A.P. 1925(a). In its opinion, the trial court explained that it dismissed 

the complaint as frivolous because (1) Warren lacked standing to challenge 

Appellees’ right to public office as he did not follow the proper process; (2) Warren 

should have appealed his recalculated maximum sentence date with the Board, rather 

than the trial court; (3) Warren failed to identify a corporation or corporate entity to 

support his piercing the corporate veil claim; and (4) Warren failed to assert any 

facts to support his RICO claim. 

On appeal,3 Warren contends that the trial court incorrectly dismissed 

his complaint as frivolous. Rule 240(j)(1) provides that the trial court may dismiss 

an action, prior to acting on a petition to proceed in forma pauperis, if the court is 

satisfied that the action is frivolous. Pa.R.C.P. No. 240(j)(1). For an action to be 

deemed frivolous, the action must lack an arguable basis in law or fact. Jones v. 

Doe, 126 A.3d 406, 408 (Pa. Cmwlth. 2015). An action is frivolous under Rule 

240(j)(1) if, on its face, it does not set forth a valid cause of action. Id. 

First, Warren contends that the trial court erred, as a matter of law, by 

dismissing Counts I-VI and IX of his complaint for lack of standing. Warren’s Brief 

at 7. Relying on this Court’s decision in Bolus v. Murphy, 823 A.2d 1075 (Pa. 

Cmwlth. 2003), the trial court concluded that Warren failed to follow the 

requirements necessary to challenge Appellees’ right to hold public office, i.e., the 

“writ of quo warranto process.” Trial Court Opinion, 2/9/18, at 2. The trial court 

 

3

In reviewing a decision of the trial court 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 the trial court abused its discretion, and whether the trial court committed an error of law. 

Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015). 
4

explained, in relevant part, that “Plaintiff did not attempt to require either the Lehigh 

County District Attorney or Pennsylvania Attorney General to file a quo warranto 

action, as [it] is a prerequisite to filing a quo warranto action in one’s individual 

capacity.” 4 Id. Warren suggests that our Supreme Court in Reed v. Harrisburg City 

Council, 995 A.2d 1137 (Pa. 2010) overturned Bolus and, therefore, the trial court 

erred by relying on it to dismiss his claim. Warren’s Brief at 7. Warren is incorrect.

In Reed, our Supreme Court reiterated the general rule that a quo 

warranto action is the “exclusive means” of challenging the title or right to public 

office and “only the Attorney General or local district attorney may institute a quo 

warranto action.” Reed, 995 A.2d at 1139 (citing In re One Hundred or More 

Qualified Electors of the Municipality of Clairton, 683 A.2d 283, 286 (Pa. 1996)). 

Further, the Supreme Court explained, 

[A] private person, with no special right or interest in the 

public office, must first seek to have either the Attorney 

General or local district attorney file a quo warranto

action. It is only after both the Attorney General and the 

local district attorney decline to bring such an action that 

a private person will have standing to seek the removal of 

the holder of a public office . . . .

Id. (emphasis in original) (quoting In re One Hundred, 683 A.2d at 287 n.10). 

Warren did not allege in his complaint that he sought the assistance of the Attorney 

General and the local district attorney and that they both declined to bring such an 

 

4

In its reasoning, the trial court relied on the fact that it dismissed another complaint filed 

by Warren pertaining to the same matter and noted Warren’s repeated failure to follow the proper 

process, namely, Warren did not attempt to require either the Lehigh County District Attorney or 

Pennsylvania Attorney General to file a quo warranto action. However, this Court’s analysis is 

focused on whether the complaint filed in this case lacks an arguable basis in law or fact. 

 
5

action. To support his argument that the Supreme Court overturned Bolus, Warren 

quotes the following in Reed: 

We have never required a private party with a special 

interest to notify the Attorney General and local district 

attorney before filing a quo warranto action. Consistent 

with our long-standing precedent, we hold a private party 

with a special interest in the matter may institute a quo 

warranto action without first notifying the Attorney 

General or the local district attorney. We disapprove of 

the Commonwealth Court’s holding[] . . . in Bolus insofar 

as [i]t is inconsistent with our holding. 

Id. at 1140 (emphasis added) (citation omitted). As explained by the Supreme Court, 

its holding was limited to addressing the “private party with special interest”

exception. The Supreme Court specifically explained, 

Our decision today is not carte blanche for anyone 

adversely affected by a public official’s decision to bring 

a quo warranto claim against that public official. A 

private person “‘must show in himself an interest in the 

controversy . . . . He must possess some peculiar, personal 

interest aside from his general interest as a member of the 

public.’” Stroup v. Kapleau, 455 Pa. 171, 313 A.2d 237, 

238-39 (1973) (quoting Commonwealth ex rel. Schermer 

v. Franek, 311 Pa. 341, 166 A. 878, 879 (1933)).

Reed, 995 A.2d at 1140. 

Relying on this reasoning, the Supreme Court concluded in Reed that 

appellees, the mayor of Harrisburg and a member of the Harrisburg Authority Board,

had standing as private parties with a special interest in their offices to bring a quo 

warranto action to challenge the validity of an ordinance. Id. at 1140-41. The 
6

ordinance, enacted by the city council, granted the council the “sole power” to 

appoint members to the Harrisburg Authority Board; previously, the mayor held this 

power of appointment with the council’s advice and consent. Id. at 1138. The 

Supreme Court reasoned that the mayor had a special interest in defending his 

authority to appoint board members and the board member had a special interest in 

retaining his position by protecting the power of the mayor to appoint him. Id. 

Stated otherwise, the appellees in Reed had standing because they sought the right 

to hold and to exercise the powers of their own offices by challenging the ordinance 

at issue. 

Here, Warren made no allegations in his complaint that he, as a private 

party, has a special interest in Appellees’ offices or employment, or that he suffered 

any damages separate from damages suffered by the public generally as a result of 

Appellees’ decision making. To the contrary, Warren alleges that the Appellees are 

unlawfully holding public office, receiving compensation for services to which they 

are not entitled, and should be required to return “all unauthorized payments to the 

public treasury.” Complaint ¶¶ 35-37. Warren’s allegations and request for relief 

(i.e., returning taxpayer money) are damages that, if actually incurred, apply to the 

public generally, not Warren specifically. Though Warren asserts that Appellees, in 

their capacity as current and former members of the Board and as parole agents, did 

not have the authority to recalculate his maximum sentence date, this allegation 

relates to what has already been done under Appellees’ authority rather than

Appellees’ specific right to hold and exercise their powers of office.

5

 As our 

Supreme Court in Spykerman v. Levy, 421 A.2d 641 (Pa. 1980) explained, 

 

5 As explained infra, if Warren seeks to challenge the Board’s decision regarding his 

recalculated maximum sentence date, he must appeal that determination with the Board rather than 

initiating a civil action in the trial court. 
7

A quo warranto is addressed to preventing a continued 

exercise of authority unlawfully asserted, rather than to 

correct what has already been done under the authority . . . 

The gravamen of the complaint is the right to hold and 

exercise the powers of the office in contradistinction to an 

attack upon the propriety of the acts performed while in 

office. 

Id. at 648 (emphasis added). Because Warren failed to follow the requirements to 

bring a quo warranto action, the trial court appropriately concluded that Warren 

lacked standing for the claims asserted in Counts I-VI and IX of the complaint. 

Second, Warren argues that the trial court erred by dismissing his 

complaint because the Board recalculated his maximum sentence date without 

authority and through an illegal contract. Warren’s Brief at 26-28. In his complaint, 

Warren alleges that he was sentenced to incarceration for 10 to 20 years and that his 

initial maximum sentence date was November 28, 2017. Complaint ¶¶ 55-57. 

Warren claims that Appellees “played a part and a role” in increasing his maximum 

date to February 24, 2023. Id. ¶ 57. Warren attached to the complaint a copy of the 

Board’s Order to Recommit and decision setting forth the new maximum sentence 

date based on his status as a technical and convicted parole violator. Complaint, 

Exhibits 3-4. 

To appeal the Board’s decision to revoke his parole, the pertinent 

regulation, 37 Pa. Code § 73.1(a)(1), provides that appeals “shall” be received at the 

Board’s Central Office within 30 days of the mailing date of the Board’s order. 

“When a timely appeal of a revocation decision has been filed, the revocation 

decision will not be deemed final for purpose of appeal to a court until the Board has 

mailed its decision on the appeal.” Id. To the extent that Warren asserts that the 

Board erred when it recalculated his maximum date, Warren should have raised this
8

issue in an appeal to the Board, not the trial court. The trial court appropriately 

concluded that it was not the proper forum for Warren’s claims relating to his 

recalculated maximum sentence and appropriately dismissed Count IX of his 

complaint. 

 Third, Warren argues that the trial court erred by dismissing Count 

VII of his complaint wherein he purports to assert a claim concerning the Board 

piercing the corporate veil because the Board “is an independent entity and fits the 

definition of corporation.” Warren’s Brief at 17. Warren is incorrect. Warren did 

not name the Board as a party to the action; he only named current and former 

members of the Board and agents employed by the Board, all of whom are 

individuals, not corporations. Complaint ¶¶ 3-5, 39-40. Further, even if Warren had 

named the Board as a party, Warren’s claim could not stand because as the trial court 

correctly explained, “[f]or there to be an attempt to pierce the corporate veil, there 

must be a corporation or corporate entity to pierce.” Trial Court Opinion at 3 (citing 

Lumax Indus., Inc. v. Aultman, 669 A.2d 893, 895 (Pa. 1995)). The Prisons and 

Parole Code defines the Board as “an independent administrative board for the 

administration of the probation and parole laws of this Commonwealth,” 61 Pa. C.S. 

§ 6111(a), rather than a corporation or corporate entity. Because Warren did not 

name a corporation or corporate entity in his complaint, we agree with the trial court 

that this count must fail as a matter of law. Given that Warren failed to allege a fact 

required to support his claim, the trial court appropriately dismissed Count VII of 

the complaint. 

Finally, Warren argues that the trial court erred by dismissing Count 

VIII of his complaint because he alleges violations of RICO. Warren’s Brief at 19-

20. To bring a claim under RICO, Warren must allege facts in his complaint to show
9

that Appellees engaged in “racketeering activity” or that Appellees are part of an 

“enterprise which is engaged in, or the activities of which affect, interstate or foreign 

commerce” as set forth in 18 U.S.C. §§ 1961(1) and 1962. We agree with the trial 

court that Warren failed to do so. Because Warren’s complaint did not specify, in 

any manner, how Appellees engaged in racketeering activity or an enterprise

affecting commerce, the trial court appropriately dismissed Count VIII of the 

complaint for failing to aver facts to support the claim.

Based on the foregoing, Warren’s complaint does not set forth any valid 

causes of action. We conclude that the trial court appropriately dismissed the 

complaint as frivolous pursuant to Rule 240(j)(1) and, therefore, affirm.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren, :

 Appellant :

:

v. :

:

Michael C. Potteiger, Everett A. :

Gillison, Mark D. Koch, Linda :

Pastroff Rosenberg, Theodore W. :

Johnson, Leo L. Dunn, Leslie M. Grey, :

Craig R. McKay, Edward L. Burke, :

Chris Denton, Christopher Ackerman, : No. 1713 C.D. 2017

Kevin Chaundy :

O R D E R

AND NOW, this 6

th day of September, 2018 the order of the Court of 

Common Pleas of Lehigh County dated October 25, 2017 is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge