J. Lichtman v. The Honorable Arnold New ( 2015 )

4N THE COMMONWEALTH COURT OF PENNSYLVANIA
Joan Lichtman, :
Appellant :
: No. 549 C.D. 2015
v. :
: Submitted: July 24, 2015
The Honorable Arnold New :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: August 27, 2015
Joan Lichtman (Appellant) appeals, pro se, from the October 21, 2014
order of the Court of Common Pleas of Philadelphia County (trial court) denying her
petition to open a judgment of non pros. We affirm.
On July 9, 2013, Appellant filed a pro se complaint in mandamus against
the Honorable Arnold New (Judge New) of the Court of Common Pleas of
Philadelphia County. In this complaint, Appellant alleged that Judge New had erred
in denying her motions to proceed in forma pauperis in previous and separate civil
actions. (Trial court op. at 1-2.)
Appellant did not serve the complaint on Judge New, and, on February
6, 2014, the trial court ordered Appellant to complete service within sixty days or a
judgment of non pros would be entered. Appellant did not comply, and on July 11,
2014, the trial court issued an order entering a judgment of non pros against
Appellant. (Trial court op. at 1-2.)1
On July 25, 2014, Appellant filed a petition to open the judgment of non
pros, contending that she had good cause for failing to serve the complaint because
another trial judge granted her in forma pauperis status in this action and she did not
have the financial means or physical ability to effectuate service on Judge New. By
order dated October 21, 2014, the trial court denied Appellant’s petition to open. The
trial court concluded that the judgment of non pros was properly entered and declined
to open it because: Appellant never attempted to serve the complaint on Judge New
in direct defiance of court order; Appellant did not offer a reasonable excuse for
failing to serve the complaint; and Judge New was prejudiced by Appellant’s failure
to serve the complaint. The trial court further declined to open the judgment because
Appellant’s underlying complaint in mandamus did not allege a meritorious cause of
action. (Trial court op. at 3-8.)
On appeal to this Court,2 Appellant asserts that the trial court erred in
failing to open the judgment of non pros. We disagree.
1
“A Court may properly enter a judgment of non pros when a party to the proceeding has
shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been
no compelling reason for the delay, and the delay has caused some prejudice to the adverse party,
such as the death of or unexplained absence of material witnesses.” Ulsh v. Zoning Hearing Board
of Lower Paxton, 22 A.3d 244, 250 (Pa. Cmwlth. 2011).
2
A petition to open judgment is an appeal to the equitable powers of the court. Therefore,
this Court’s standard of review is limited to determining whether the trial court abused its discretion
or committed an error of law. Horner v. CS Myers Sons, Inc., 721 A.2d 394, 396 n.4 (Pa. Cmwlth.
1998).
2
An order entering a judgment of non pros can only be challenged by
filing a petition pursuant to Pa.R.C.P. No. 3051. Sahutsky v. H.H. Knoebel Sons, 782
A.2d 996, 999 (Pa. 2001). In pertinent part, this rule provides:
(a) Relief from a judgment of non pros shall be sought by
petition. All grounds for relief, whether to strike off the
judgment or to open it, must be asserted in a single petition.
(b) If the relief sought includes the opening of the
judgment, the petition shall allege facts showing that
(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse
for the inactivity or delay, and
(3) there is a meritorious cause of action.
Pa.R.C.P. No. 3051.
In its opinion, the trial court concluded, inter alia, that Appellant failed
to allege a meritorious cause of action against Judge New in her complaint in
mandamus because Appellant had an adequate remedy at law. (Trial court op. at 8.)
For purposes of opening a judgment of non pros, a meritorious cause of action exists
if the claim as pleaded and proved at trial would entitle the plaintiff to relief.
Simmons v. Luallen, 763 A.2d 810, 813 (Pa. 2000).
“Mandamus is an extraordinary remedy designed to compel official
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 remedy at law.” County of Allegheny v. Commonwealth of Pennsylvania,
490 A.2d 402, 408 (Pa. 1985). If there is an adequate remedy at law, mandamus
relief is precluded. Pennsylvania Tavern Association v. Pennsylvania Liquor Control
3
Board, 372 A.2d 1187, 1189 (Pa. 1977). Our Supreme Court has held that an order
denying in forma pauperis status in a civil case is a final and appealable order
because “[a] litigant who is denied the ability to bring a cause of action due to his true
inability to pay the costs is effectively put out of court.” Grant v. Blaine, 868 A.2d
400, 402-403 (Pa. 2005).
In Edwards Engineering Corp. v. Davies, 471 A.2d 119 (Pa. Cmwlth.
1984), this Court upheld the trial court’s dismissal of a plaintiff’s mandamus
complaint against a township’s Board of Supervisors. In the complaint, the plaintiff
requested the trial court to order the Board to revoke its approval of a subdivision
plan and to hold another public hearing, alleging that the Board violated mandatory
duties imposed by the Pennsylvania Municipalities Planning Code.3 We concluded
that mandamus was not proper because the plaintiff “failed to use an available,
adequate and appropriate remedy at law, to wit: statutory appeal to the zoning hearing
board and then to the courts.” Id. at 122.
Likewise, in Hutnik v. Duquesne School District, 302 A.2d 873 (Pa.
Cmwlth. 1973), this Court affirmed a trial court’s dismissal of a plaintiff’s mandamus
complaint against a school board, contending that the board violated statutory law
when it discharged her. We concluded that mandamus relief was inappropriate
because the plaintiff had an adequate remedy at law, i.e., the plaintiff had the right to
file a direct appeal from the board’s termination decision to an appellate court under
the Local Agency Law in effect at that time.4
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
4
Former Act of December 2, 1968, P.L. 1133, 42 P.S. §§11301-11311.
4
Here, we agree with the trial court that Appellant’s complaint does not
state a meritorious cause of action in mandamus because Appellant possessed an
adequate remedy at law. In her mandamus complaint, Appellant alleged that Judge
New erred in previously denying her in forma pauperis status in separate civil
actions. Rather than file timely direct appeals from Judge New’s denial orders in
those civil actions, Appellant instituted a complaint in mandamus. However,
Appellant had the right to immediately appeal an order denying in forma pauperis
status, Grant, 868 A.2d at 402-403, which constitutes an available and adequate
remedy at law. Therefore, we conclude that the trial court did not abuse its discretion
in denying Appellant’s petition to open on the grounds that an adequate remedy at
law exists and precludes mandamus relief.
Accordingly, we affirm.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joan Lichtman, :
Appellant :
: No. 549 C.D. 2015
v. :
:
The Honorable Arnold New :
PER CURIAM
ORDER
AND NOW, this 27th day of August, 2015, the October 21, 2014 order
of the Court of Common Pleas of Philadelphia County is affirmed.