Lichtman, J. v. Bomstein, M. ( 2015 )

J-S63005-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JOAN LICHTMAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MICHAEL S. BOMSTEIN, ESQ., :
:
Appellee : No. 440 EDA 2015
Appeal from the Order January 7, 2015,
Court of Common Pleas, Philadelphia County,
Civil Division at No. September Term, 2014 00259
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 17, 2015
Appellant, Joan Lichtman (“Lichtman”), appeals pro se from the order
entered on January 7, 2015 by the Court of Common Pleas, Philadelphia
County, dismissing her complaint with prejudice. For the reasons set forth
herein, we affirm.
A brief summary of the factual and procedural history is as follows.
Since 2001, Rittenhouse Plaza, Inc. (“Rittenhouse”) and Lichtman have been
engaged in various lawsuits regarding Lichtman’s nonpayment of rent for her
cooperative apartment in Philadelphia. In 2007, Rittenhouse initiated a civil
action to evict Lichtman. On May 8, 2009, the trial court entered judgment
against Lichtman, ordering a monetary award to Rittenhouse as well as the
right to gain possession of the apartment. For several years thereafter,
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Lichtman unsuccessfully filed several motions and appeals in an attempt to
postpone and set aside the sheriff’s sale of the apartment.
On August 31, 2014, Lichtman filed a pro se writ of summons against
Appellee Michael Bomstein, Esq. (“Attorney Bomstein”) and a motion to
proceed in forma pauperis. Lichtman filed a complaint on October 30, 2014,
seeking relief in the form of damages from and disbarment and incarceration
of Attorney Bomstein. In her complaint, Lichtman alleged that Attorney
Bomstein, who assisted or represented Lichtman in some capacity during the
eviction proceedings, “undermined judicial machinery and interfered with the
administration of justice, while aiding, abetting, and perpetrating the
commission of crimes by public officials and private attorneys.” Lichtman’s
Complaint, 10/23/14, at 1. Lichtman alleged that Attorney Bomstein
violated the Rules of Professional Conduct by failing to report crimes
committed by other attorneys and/or judges during the eviction proceedings.
Specifically, Lichtman alleged that the Philadelphia Sheriff illegally seized her
home, that Philadelphia judges buried criminal evidence, and that opposing
counsel, Jon Sirlin, Esq. (“Attorney Sirlin”), committed perjury and fraud.
Lichtman alleged that Attorney Bomstein had knowledge of these crimes and
remained silent instead of reporting the crimes to relevant authorities.
On December 2, 2014, Attorney Bomstein filed preliminary objections
in the nature of a demurrer averring that Lichtman failed to plead a
cognizable cause of action. On January 6, 2015, the trial court entered an
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order sustaining Attorney Bomstein’s preliminary objections and dismissing
the case with prejudice. Pa.R.C.P. 1028(a)(4). Lichtman timely filed a
notice of appeal on February 3, 2015, raising the following issues for our
review:
I. Did the trial court abuse [its] discretion and/or
make error(s) of law, act in the absence of
jurisdiction; act outside the scope of judicial
authority; aid, abet, or commit crimes against
[Lichtman]; retaliate against [Lichtman]; act with
bias, malice, ill-will; violate the Rules of Professional
Conduct and/or the Canons of Judicial Conduct, when
a trial judge suddenly injecting himself into a case, in
which, Supervising Judge failed to make a pauper
petition decision, so as to manipulate judicial
machinery in order to protect members of the
Pennsylvania Bar, et al., from prosecution,
disbarment, and/or incarceration: i.e., by the trial
court’s blocking service of original process, denying
due process, locking an adjudicated pauper-Plaintiff
out of the courts, aiding and abetting public
servants’ commission of crimes, including unlawful
seizure and theft of [Lichtman’s] home, assets,
moneys, and property; and, thereby, interfere in the
administration of justice; alter the outcome of a
case; and/or endanger the welfare and survival of an
innocent, unrepresented, adjudicated pauper, while
willfully leaving an innocent, but designated, crime
victim, homeless and destitute in Philadelphia
streets, literally, to die?
II. Did [Attorney Bomstein] fail/refuse to make
mandatory reports, required by the Rules of
Professional Conduct, and/or aid, abet, and commit
crimes, in violation of Philadelphia and Pennsylvania
statutes, to protect colleagues, while illegally
remaining silent, and thereby, deliberately
endangering the welfare and life of an innocent,
crime victim?
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Lichtman’s Brief at 1.
In reviewing this appeal, we are mindful that “[o]ur standard of review
of an order of the trial court overruling or granting preliminary objections is
to determine whether the trial court committed an error of law. The
appellate court must apply the same standard as the trial court[,]” which
this Court has defined as follows:
Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
Estate of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 305 (Pa.
Super. 2015) (citations omitted).
In her appellate brief, Lichtman combines the discussion of her two
claims of error into one argument. Lichtman’s Brief at 7. Lichtman devotes
several pages of her brief to complaints regarding actions taken by Attorney
Sirlin during the prior eviction proceedings, as well as actions taken by
opposing counsel in an unrelated lawsuit. See id. at 7-11. Lichtman asserts
that Attorney Bomstein “knew or should have known” that Attorney Sirlin
perjured the eviction complaints that he filed against her and that Attorney
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Bomstein aided and abetted Attorney Sirlin’s crimes by not reporting it and
by assisting in the eviction proceedings. Id. at 10-11. In support of her
claims below and on appeal, Lichtman contends only that Attorney Bomstein
violated the Rules of Professional Conduct by ignoring his obligation to report
Attorney Sirlin’s crimes. Id. at 10-12.
Lichtman’s reliance on the Rules of Professional Conduct as the basis
for obtaining relief from Attorney Bomstein is unavailing. This Court
previously held that a violation of the Rules of Professional Conduct is not an
independent basis for civil liability:
The Pennsylvania Supreme Court adopted the
Rules of Professional Conduct and the Rules of
Disciplinary Enforcement in order to exercise its
exclusive constitutional authority to regulate and
supervise the conduct of the attorneys who are its
officers. The Supreme Court has held that the Rules
of Professional Conduct do not have the effect of
substantive law but, instead, are to be employed in
disciplinary proceedings. The Preamble to the Rules
state that:
Failure to comply with an obligation or prohibition
imposed by a Rule is a basis for invoking the
disciplinary process …
Violation of a Rule should not give rise to a
cause of action nor should it create any
presumption that a legal duty has been
breached. The Rules are designed to
provide a structure for regulating conduct
through disciplinary agencies. They are not
designed to be a basis for civil liability.
Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing
parties as procedural weapons. The fact that a
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Rule is a just basis for a lawyer’s self-
assessment, or for sanctioning a lawyer under
the administration of a disciplinary authority, it
does not imply that an antagonist in a collateral
proceeding or transaction has standing to enforce
the Rule. Accordingly, nothing in the Rules
should be deemed to augment any
substantive legal duty of lawyers or the
extra-disciplinary consequences of violating such
a duty.
Pa.P.R.C., Preamble (emphasis added).
Smith v. Morrison, 47 A.3d 131, 135 (Pa. Super. 2012) (internal quotation
and citation omitted). Given the foregoing, we conclude that Lichtman failed
to set forth a cause of action for Attorney Bomstein’s failure to report the
alleged crimes committed by Attorney Sirlin during the underlying
proceedings.
Lichtman also asserts that Attorney Bomstein and the trial court
violated sections 9-1603 through 9-1606 of the Philadelphia Code, which
prohibit “unlawful self-help eviction actions.” Lichtman’s Brief at 12-13. The
Philadelphia Code defines self-help eviction practices as “actions by a
landlord or landlords’ agents taken without legal process to dispossess or
attempt to dispossess a tenant from a dwelling unit or engaging or
threatening to engage in any other conduct which prevents or is intended to
prevent a tenant(s) from lawfully occupying their dwelling unit.”
Philadelphia Code § 9-1602(1)(a). Lichtman’s argument fails, however, as
she admits, and the record reflects, that her eviction was secured through a
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lengthy legal process that included a judgment of possession entered by the
Court of Common Pleas. See Philadelphia Code § 9-1603 (“The requisite,
legal process for lawful eviction must consist of execution of a judgment of
possession entered by a court of competent jurisdiction in accordance with
State law.”). Thus, there is no support for her claim that Attorney Bomstein
and Judge Bernstein participated in any self-help eviction practices.
We therefore conclude that Lichtman failed to set forth a cause of
action against Attorney Bomstein. “Where the complaint fails to set forth a
valid cause of action, a preliminary objection in the nature of a demurrer is
properly sustained.” Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super.
2008) (citing McArdle v. Tronetti, 627 A.2d 1219, 1221 (Pa. Super. 1993),
appeal denied, 641 A.2d 587 (Pa. 1994)). Accordingly, we do not discern of
any error by the trial court and conclude that the trial court properly
dismissed Lichtman’s complaint under Rule 1028(a)(4).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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