IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren, :

: Petitioner :

:

v. : No. 331 M.D. 2019 : Submitted: November 15, 2019 Andrea E. Naugle, :

: Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION PER CURIAM FILED: January 16, 2020

Before the Court are the preliminary o bjections in the nature of a

d emurrer of Andrea E. Naugle, Lehigh County Clerk of Judicial Records (Clerk),

to the A mended Petition for R eview in the Nature of a Complaint in M andamus

(Amended P etition) 1 filed in our original jurisdiction by Daniel Warren, an inmate

at the State Correctional Institution at Phoenix (Inmate). Upon review, w e dismiss

the Amended P etition as moot

. 2

1 Mandamus “will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other appropriate and adequate remedy.” Kuren v. Luze rne County

, 146 A.3d 715, 750

- 51 (Pa. 2016); accord Delaware River Port Authority v. Thornburgh , 493 A.2d 1351, 1355 (Pa. 1985). “When public officials act in an improper manner because of an erroneous interpretation of the law under which they are functi oning, mandamus will issue.” Uniroyal, Inc. v. Coleman , 328 A.2d 893, 895 (Pa. Cmwlth. 1974) (cit ation omitted ). However, mandamus will not be granted in doubtful cases. Kuren , 146 A.3d at 751.

2 As this Court has explained in another case seeking, int er alia , mandamus relief:

Although neither party argue s the mootness of the issuance

o f the occupancy permits, we may sua sponte raise the issue of (Footnote continued on next page...)2 The undisputed facts of this case are as follow s. On January 3, 2019,

Inmate submitted to the Clerk a private criminal complai nt pursuant to Section

1405 of T he County Code 3 alleging, inter alia , that the Lehigh County District

Attorney (District Attorney) had violated Section s 405(c) and 411 of T he C ounty

(continued...)

mootness as “courts cannot ‘decide moot or abstract questions, nor can we enter a judgment or decree to wh ich effect cannot be given.’”

Battiste v. Borough of East McKeesport , 94 A.3d 418, 424 (Pa. Cmwlth. 2014) (citations omitted). See also Menger et ux. v. Lyon. , 93 A.2d 451 (Pa. 1953) (holding that a mandamus proceeding seeking to compel city officials to revoke a building permit previously issued for the construction of a motel was rendered moot by a contemporaneous decision of the Court that the

landowners had no right to construct the motel under the city’s zoning ordinance).

3 Act of August 9, 1955, P.L. 323, as amended , 16 P.S. §1405. Section 1405 states, in relevant part:

(a) If any district attorney

. . . shall be guilty of willful and gross

negligence in the execution of the duties of the office, that individual shall be guilty of a misdemeanor in office, and, on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars ($1,000) and to undergo imprisonment not

exceedin g one year, and the office shall be declared vacant

.

(b) Upon complaint in writing, verified by oath or affirmation of the party aggrieved, made to the court in which any district attorney shall prosecute the pleas of the Commonwealth, charging

such dis trict attorney with willful and gross negligence in the execution of the duties of the office, the court shall cause notice of the complaint to be given to the district attorney and of the time fixed by the court for a hearing. If after the hearing the co urt shall be of opinion that there is probable cause for the complaint, [it] shall hand over or commit the district attorney to answer the same

in due course of law. If the court shall be of opinion that there is no probable cause for such complaint, [it] shall dismiss the same [.]3

Code 4 by failing to file with the Clerk and maintain in his office a copy of the oath

of office that he was required to execute when entering that off ice pursuant to

Section 403 of T he County Code. 5 Amended Petition ¶¶8, 11, 13

- 17. The Clerk

4 16 P.S. §405(c) 411. Section 405(c) states:

(c) Any officer failing or refusing to maintain the office and to keep all public records and papers of the office in the buildings appropriated for such purpose in accordance wit h the provisions of this section, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to undergo imprisonment until the officer complies with the provisions of this section, or until sooner discharged by order of the court, a nd to pay a fine not exceeding five hundred dollars ($500), to be paid to the use of the
county.

In turn, Section 411 states, in pertinent part, “ If any county officer neglects or refuses to perform any duty imposed on the officer by the provisions of thi s or any other act,

. . . the officer shall, for each neglect or refusal, be guilty of a misdemeanor, and, on conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars ($500) .”

5 16 P.S. §403. Section 403 states, in relevant part :

(a) In addition to any oath or affirmation required by any other act of Assembly, all county officers

. . . shall, before entering on the duties of their respective offices or employments, take and subscribe the oath as provided in [Section 1141 of the General Local Government Code,] 53 Pa. C.S. § 1141 (relating to form of oaths of office)

.

(b) The foregoing oath shall be administered by some person authorized to administer oaths, and shall be filed in the office of the prothonotary of the count y in which the same is taken. Any person refusing to take said oath or affirmation shall forfeit his

office.

In turn, Section 1141 of General Local Government Code states:

Whenever an elected or appointed official of a municipality is required to take, subscribe or file an oath or affirmation of office, (Footnote continued on next page...)4

refused to file the private criminal complaint in the Criminal Division of the

Lehigh County Court of Common Pleas (trial court), but instead forwarded it to a

magisterial district judge (MDJ) who, in turn, referred it to the District Attorney’ s

Office. Id. ¶18. As a result, on May 14, 2019, Inmate again submitted a private

criminal complaint to the Clerk, which was filed in the Miscellaneous Docket of

the trial court’s Criminal Division, at No. CP

- 39

- MD

- 0001789

- 2019, 6 but was

subsequently for warded to the Attorney General’s Office by the trial court

. Amended Petition ¶19; Inmate’s Brief in Opposition to Respondent’s Preliminary

Objections at 4

.

On July 29, 2019, Inmate filed the instant Amended Petition seeking

mandamus relief and alleging, in relevant part: (1) “[t]he [C]lerk has no discretion

to make any judicial determinations on any filings into the office”; (2) “[s]he must

and ha s a ministerial duty to file all properly filed documents”; (3) “[t]he [Clerk]

has refused her mandatory duty to file the private criminal compla i nt into the

(continued...)

the oath or affirmation shall be in the form prescribed in this section, as follows:

I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United

States and t he Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.

53 Pa. C.S. §1141.

6 W e may take judicial notice of the trial court’s docket. See Pa. R.E. 201(b)(2) (permitting courts to take judicial notice of facts that may be “ determined from sources whose

accuracy cannot reasonably be questioned” ); Germantown Cab Company v. Philadelphia Parking Authority , 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011) (taking judicial notice of a Supreme Court docket in a case involving a similar point of law)

.5

[C]riminal [D]ivision to be processed accordingly”; and (4) “ [Inmate ] has no

adequate remedy at law to compel [the Clerk] to perform her mandatory duty.”

Amended Petition ¶¶20

- 23. As a result, Inmate ask ed this Court to “[e]nter

judgment against the [Clerk] commanding [her] to file [his] private criminal

complaint into the [C]riminal [D]ivision to be processed in accordance wi th

[Section 1405(a) and (b) of T he County Code, 16 P.S. §1405(a) , (b)].” Id. at 4

.

However, as outlined above, it is undisputed that Inmate’s private

criminal complaint has already been filed in the trial court’s Criminal Division and

docketed at No. CP

- 39

- MD

- 0001789

- 2019. Because the Clerk has already filed

the Inmate’s private crim inal complaint in the trial court’s Criminal Division, we

need not grant the mandamus relief that he seeks in the Amended Petition

. 7

Accordingly, the Amended Petition is dismissed as moot

.

7 To the extent that Inmate is seeking additional mandamus relief in the form of an order directing the trial court to dispose of the private criminal complai nt pursuant to Section 1405 of

T he County Code, or to direct an interdivis ional transfer pursuant to Section 5103 of the Judicial Code, 42 Pa. C.S. §5103, we are without subject matter jurisdiction to grant such further

mandamus relief

. See, e.g.

, St. Clair v. Pennsylvania Board of Probation and Parole , 493 A.2d 146, 150 (Pa. C mwlth. 1985) (“[T] his Court may always raise sua sponte the issue of its own subject matter jurisdiction .”) (citations omitted). Section 761(c) of the Judicial Code provides that we “have original jurisdiction in cases of mandamus .

. . to courts of infer ior jurisdiction .

. . where such relief is ancillary to matters within [our] appellate jurisdiction[.]” 42 Pa. C.S. §761(c). Th e Amended Petition was filed in our original jurisdiction, and the requested mandamus relief is not ancillary to any matter now pending in our appellate jurisdiction. As a result, “ there [ is ] no predicate ” for this Court to exercise jurisdiction over the Amended Petition

s eeking such further mandamus relief. Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia County , 489 A.2d 1286, 1288 (Pa. 1985). Rather, Section 721 of the Judicial

Code vests the Pennsylvania Supreme Court with “original but not exclus ive jurisdiction of all

cases of .

. . [m]andamus .

. . to courts of inferior jurisdiction.” 42 Pa. C.S. §721. Nevertheless, “[w]e decline to transfer this case pursuant to [Section 5103 of the Judicial Code

, ] 42 Pa. C.S. §5103, because .

. . there is no statute of limitations involved which necessitates preservation of Petitioner’s original filing date.” Pennsylvania Gamefowl Breeders Association v.

Commonwealth , 551 A.2d 361, 364 n.4 (Pa

. Cmwlth. 1988).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Warren, :

: Petitioner :

:

v. : No. 331 M.D. 2019

: Andrea E. Naugle, :

: Respondent :

PER CURIAM

O R D E R

AND NOW, this 16 th day of January , 20 20

, Petitioner ’s Amended

Petition for Review in the Nature of a Complaint in Mandamus is DISMISSED as

moot

.