IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Konieczny, Anthony J. : Golembiewski, Christopher W. : Humphrey, and Therese : Thompson Miles

, :

Appellant s :

:

v. :
: Stephen A. Zappala, Jr., District : No. 941 C.D. 2020 Attorney of Allegheny County : Argued: Ma y 16 , 202 2

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE FIZZANO CANNON FILED: June 7, 2022

Mary Konieczny, Anthony J. Golembiewski, Christopher W.
Humphrey, and Therese Thompson Miles (collectively, Appellants) appeal from the
order of the Court of Common Pleas of Allegheny County (trial court) dated October
16, 2019 (Order) , that granted the preliminary objections filed by Stephen A. Zappala, Jr. (Appellee) to Appellants’ complaint in mandamus and dismissed the
action with prejudice. Upon review, we reverse the O rder and remand the matter for
further proceedings

.2 The Superior Court outlined the underlying facts and proc edural
posture of this matter 1 as follows:

On April 9, 2019, members of the Pittsburgh City Council passed, and Mayor William Peduto signed, firearm and firearm accessory ordinances outlawing certain firearms and firearms accessories within the city lim its of Pittsburgh [(the Firearms Ordinances)] . On April 12, 2019, Appellants presented to Appellee’s office private criminal complaint forms [( the P rivate C riminal C omplaints)] against Mayor Peduto and various members of Pittsburgh City Council. Appellan ts contend that the act of passing new firearm legislation constitutes official oppression pursuant to 18 Pa.C.S. § 5301. [ 2 ] It is alleged that Appellee refused to accept the [P] rivate [C] riminal [C] omplaints or take further action. However, Appellants have conceded that at the time they presented the [P] rivate [C] riminal [C] omplaints to Appellee, they were handed copies of a press release regarding Appellee’s position that he would not review anything connected with any alleged

1 Appellants originally filed this appeal in the Superior Court, which then transferred the matter to this C ourt. See Konieczny v. Zappala (Pa. Super., No. 1762 WDA 2019, filed Aug. 19, 2020).

2 Section 5301 of the Criminal Code defines the crime of official oppression as follows:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, kn owing that his conduct is illegal, he:

(1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enj oyment of any right, privilege, power or immunity.

18 Pa. C

. S. § 5301

.3 violations of the [Firearms O] rdinances that the Mayor and the City Council had passed.

On Augu st 15, 2019, Appellants filed the instant “complaint in mandamus seeking review of the denial of the private criminal complaint under Pa.R.Crim.P. 506 and request for writ of mandamus under Pa.R.C [iv] .P. 1093[]” [(Mandamus Complaint)]

. Specifically, Appel lants asserted that Appellee was required to accept their p rivate criminal complaints against Mayor Peduto and Pittsburgh Council as stated in Pa.R.Crim.P. 506. Appellants sought mandamus relief pursuant to Pa.R.C [iv] .P. 1093, noting that the rule provide s the right of a Pennsylvania citizen to file a writ of mandamus against a government official who has refused to act in accordance with the legal responsibilities of his position or office.

On September 9, 2019, Appellee filed preliminary objections to the [M andamus Complaint] and a supporting brief. On October 16, 2019, Appellants filed a brief in opposition to Appellee’s preliminary objections. Also on October 16, 2019, the trial court entered an order that granted Appellee’s preliminary objections a nd dismissed the [Mandamus Complaint] with prejudice. This timely appeal followed.

Konieczny v. Zappala (Pa. Super., No. 1762 WDA 2019, filed Aug. 19, 2020) , slip
op. at 1

- 3 (internal record citations , brackets, and some quotation marks omitted).

On app eal, 3 Appellants claim the trial court abused its discretion and
erred as a matter of law by denying the Mandamus Complaint. See Appellants’ Br.
at 7, 12

- 21. Specifically, Appellants argue that Appellee’s failure to accept the
completed private criminal complaint forms and to provide a written reason for this

3 In reviewing a trial court’s decision dismissing a mandamus complaint on preliminary objections, this Court’s review is limited to determining whether the trial court committed an err or of law or an abuse of discretion. Dotterer v. Sch. Dist. of Allentown , 92 A.3d 875, 880 (Pa. Cmwlth. 2014).4

failure contravened his duty under Pennsylvania Rule of Criminal Procedure 506
(Rule 506)

. See id. Appellants furth er allege that they had standing to bring the
underlying claims contained in the P rivate C riminal C omplaints, which they argue
were ripe for consideration. See id. Appellee counters that trial court properly
dismissed the Mandamus Complaint because the Firearms O rdinance s upon which

the P rivate C riminal C omplaints were based never became law. See Appellee’s Br.
at 2, 8

- 1 7 . Therefore, Appellee argues that the P rivate C riminal C omplaints alleged
no crimes and Appellants suffered no injury that would confer standing to bring the
charges contained in the P rivate C riminal C omplaints. See id. at 8

- 17. Additionally,
Appellee argues that Appellants have waived their arguments by failing to app eal as
required to obtain review of denied private criminal complaints. See id. at 17

- 20.

Initially, we note that “ [m] andamus is an extraordinary writ which will
only issue to compel performance of a ministerial act or mandatory duty where there

exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy.” Dotterer v. Sch. Dist. of

Allentown , 92 A.3d 875, 880 (Pa. Cmwlth. 2014) (internal quotation marks omitted). “If any one o f the foregoing elements is absent, mandamus does not lie.” Id. at 881.

However , while a court in a mandamus proceeding may not compel a public official
to exercise discretionary power in a specific manner that the court would deem wise

or desirable, “ a writ of 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 .” Seeton v. Adams , 50 A.3d
268, 274 (Pa. Cmwlth . 20 12)

.

Rule 506 allows private citizens to request the initiation of criminal
proceedings against others by submitting a private criminal complaint for review by5

an attorney of the Commonwealth

– a district attorney or the Attorney General. See

Pa.R.Crim.P . 506

. Regarding the submission and approval of private criminal
complaints, Rule 506 provides as follows:

(A) When the affiant is not a law enforcement officer, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.

(B) If the attorney for the Commonwealth:

(1) approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;

(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter, the affiant may petition the court of common pleas for review of the decision.

Pa.R.Crim.P. 506

. Additionally, w here the allegations contained in a private
criminal complaint are supported by factual averments, “ [t] he district attorney must
investigate the allegations of the complaint to permit a proper decision whether to approve or disapprove the complaint.” In re Ullman , 995 A.2d 1207, 1213 (Pa.
Super. 20 10)

. Thus, under Rule 506, upon the receipt of a private criminal complaint

submitted by a citizen that contains factual averments , the attorney for the
Commonwealth is obligated to review

, investigate

, 4 and either approve or deny the
complaint, and, when denying a complaint, writ e the reasons for the denial on the

4 “Such investigation is not necessary where the allegations of criminal conduct in the complaint are unsupported by factual averments. ” Ullman , 995 A.2d at 1213 (quoting Commonwealth v. Muroski, 506 A.2d 1312 , 1317 ( Pa. Super. 1986) ( en banc ) ) (brackets omitted).6

private criminal complaint form before return ing the complaint form to the
complainant. See Pa.R.Crim.P. 506. Following a denial of a privat e criminal
complaint by an attorney for the Commonwealth , the complainant may then appeal
to a court of common pleas, which reviews the denial according to the following
principles:

Where the district attorney ’ s denial is based on a legal

evaluation of th e evidence, the trial court undertakes a de

novo review of the matter. Where the district attorney ’ s disapproval is based on policy considerations, the trial court accords deference to the decision and will not interfere with it in the absence of bad fait h, fraud or unconstitutionality. In the event the district attorney offers a hybrid of legal and policy reasons for disapproval, deference to the district attorney ’ s decision, rather than de

novo review, is the appropriate standard to be employed. On app eal, this court is limited to determining whether the trial court abused its discretion.

In re Priv. Complaint of Owens Against Coker , 810 A.2d 172, 175

- 76 ( Pa. Super.
2002) (quoting In re: Priv

. Complaint of Adams, 764 A.2d 577, 579 (Pa. Super.
2000) ) (internal citations and footnote omitted).

In the instant matter, Appellee was required under Rule 506 to review

the P rivate C riminal C omplaints and either approve and forward them to the issuing
authority ( a Magisterial District Judge) , or deny th e m , stating the reasons for the

denial s in writin g on the P rivate C riminal C omplaints . Appellee failed to comply
with these obligations . I nstead

, without conducting a review of or investigation into
the allegations contained in the P rivate C riminal C ompl aints, Appellee’s office
simply provided Appellants with a previously drafted press release setting forth Appellee’s position that he would not be “ review ing anything connected with any7

alleged violations of the illegal [Firearms ] O rdinances that the Mayor and the City has passed.” See Appellee’s Br. at 4. 5 This express refusal to even review any claims

related to the passage of the Firearms Ordinances violat ed Appellee’s duty under
Rule 506, which requires district attorneys to review, in vestigate, and rule on
submitted private criminal complaints. Appellants therefore properly requested a

writ of mandamus t o require Appellee to perform his duty to review, investigate, and
accept or deny their properly submitted Rule 506 P rivate C riminal C omplaints.
Accordingly, the denial of the M andamus Complaint represents error on the part of

the trial court.

Additionally, we are not persuaded by Appellee’s argu ment that the
press release provided to Appellants at the time they submitted the P rivate C riminal

C omplaints constitutes a written denial of the complaints in compliance with Rule

506

. See Appellee’s Br. at 17

- 20. First, w e note that the press release was not a

statement of denial reasons written on each complaint form and returned to the
affiant, as required by Rule 506(B)(2). Even accepting that a writing other than one
placed on an actual private criminal complaint itself can suffice to fulfill the
requirements of Rule 506, 6 we note that the Rule 506 obligations to review and
investiga t e private criminal complaints remain and were not followed in this matter.

5 Neither the trial court record nor the reproduced record contain s a copy of this press release.

6 Where reviewing courts have acce pted denials of private criminal complaints contained in writings other than the private criminal complaint itself, the denials were still specifically tailored to the private criminal complaint in response to which those writings were drafted. See In

re Priv

. Criminal Complaints of Rafferty , 969 A.2d 578 (Pa. Super. 2009) (complainant supplied with letter specifically denying the private criminal compl ai nt with an explanation of the denial); In re Brown (Pa. Super., No. 1997 MDA 2014, filed Aug. 21, 2015) (disapproval returned to complainant after review on form other than private criminal complaint contained the same information that would have been provided had it come in the form pr e scribed by Rule 50 6(B)(2))

.8

In lieu of reviewing and investigating the allegations contained in the Private Criminal Complaints, Appellee’s office simply handed Appellants a pre

- written
press release offerin g a blanket statement that Appellee did not intend to address any
complaints dealing with violation of the Firearms Ordinances. Not only could this
previously written press release not have been drafted in consideration of the
allegations contained in the Private Criminal Complaints, it was effectively an abdication of Appellee’s Rule 506 duties to review, investigate, and rule on all
private criminal complaints properly submitted by citizens of the Commonwealth
that concerned the Firearms Ordinances, with out consideration of the factual
allegations or legal arguments contained therein. We find this protocol for
addressing private criminal complaints to be insufficient for an attorney of the

Commonwealth to fulfill his Rule 506 obligations.

Further, although facially related to the Firearms Ordinances, we note
that the Private Criminal Complaints did not actually concern alleged violations of

those O rdinances, but instead alleged instances of official oppression in violation of
18 Pa.C.S. § 5 301 in connection with the enactment of the O rdinances

. Thus, the Private Criminal Complaints did not actually concern complaints “connected with
any alleged violation of the illegal [Firearms] Ordinances that the Mayor and the City had passed[,]” and the press release therefore was inapplicable to the allegations

of contained therein.

Appellee’s argument that Appellants were not entitled to mandamus
because they failed to petition for review pursuant to Rule 506(B)(2) based on the

rationale set forth in the press release is likewise unconvincing. See Appellee’s Br.

at 17

- 20. The press release did not set forth a ny rationale for Appellee’s refusal to
review the Private Criminal Complaints. Instead, the press release merely stated that9

no review would be conducted. Review of a denial of a private criminal complaint
depends on the given reason for the denial. See Coker , 810 A.2d at 175

- 76. Appellants cannot be faulted for failing to seek review of a reason that was not
provided. Indeed, without a state ment of the reasons for Appellee’s denial of the

Private Criminal C omplaints, the trial court had nothing to review.

For the foregoing reasons, we reverse the Order and remand this matter

to the trial court to further remand to Appellee with direct ions that Appellee comply
with Rule 506 by reviewing and either accept ing the P rivate C riminal C omplaints or
deny ing the same with written reasons for such denial s provided thereon

. 7 See

Seeton

.

_ __________________________ _______ CHRISTINE FIZZANO CANNON , Judge

7 We pass no judgment at this time on any of the standing or ripeness issues addressed by the parties and the trial court, as those questions are not before us. Further, w e acknowledge that review of the P rivate C riminal C omplaints on remand ma y result in the same outcome as before, possibly for the reasons already stated by Appellee in his preliminary objections to the Mandamus Complaint

. We observe, however, that w hile the result of observing the requirements of Rule 506 on remand may be a fo regone conclusion, as th e attorney for the Commonwealth to whom such private criminal complaints must be presented in Allegheny County, Appellee is mandated by Rule 506 to conduct this exercise.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mary Konieczny, Anthony J. : Golembiewski, Christopher W. : Humphrey, and Therese : Thompson Miles

, :

Appellants :

:

v. :
: Stephen A. Zappala, Jr., District : No. 941 C.D. 2020 Attorney of Allegheny County :

O R D E R

AND NOW, this 7 th day of June , 20 2 2

, the October 16, 2019 order of
the Court of Common Pleas of Allegheny County (trial court) is REVERSED . The

matter is REMANDED to the trial court to further remand the matter to the office of
the District Attorney of Allegheny County to review, consider, and approve or disapprove the previously filed private criminal complaints without unreasonable
delay

. Jurisdiction relinquished.

__________________________________ CHRISTINE FIZZANO CANNON , Judge