Lichtman, J. v. Feder, E.

J-S01019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOAN LICHTMAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ERIC FEDER : No. 2551 EDA 2019
Appeal from the Order Entered July 29, 2019,
in the Court of Common Pleas of Philadelphia County,
Civil Division at No(s): May Term, 2019 No. 2213.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 02, 2020
Joan Lichtman appeals, pro se, from the order dismissing her Complaint
in this mandamus proceeding. The trial court concluded it lacked subject-
matter jurisdiction, because Ms. Lichtman sued Eric Feder, the Deputy Court
Administrator (“DCA”) for the Office of Judicial Records of Philadelphia County,
in his official capacity. We agree. However, the trial court then erroneously
decided the merits of the case and dismissed it as frivolous. We therefore
transfer this case to the Supreme Court of Pennsylvania for disposition under
that Court’s original jurisdiction.
Ms. Lichtman has filed many appeals to this Court.1 Here, she again
attempts to collect a judgment based on an order that the Honorable Gary S.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 By our latest count, this appears to be Ms. Lichtman’s thirteenth time before
this Court as an appellant.
J-S01019-20
Glazer of the Court of Common Pleas of Philadelphia County issued on July 1,
2009. To do so, Ms. Lichtman filed a mandamus action against the DCA in
the Court of Common Pleas of Philadelphia County – i.e., the court where the
DCA works.
By way of background, we note that, in April of 2011, Judge Glazer
revoked Ms. Lichtman’s in forma pauperis status and ordered the DCA to
decline any filings from her in the matter of Lichtman v. Zelenkofske,
Axelrod & Co., Ltd., June Term 2003 No. 1092 (C.C.P. Philadelphia), unless
she pays the filing fee. In her current Complaint, Ms. Lichtman avers she is
entitled to enter the July 2009 judgment against certain parties connected to
Lichtman v. Zelenkofske, Axelrod & Co., Ltd. She further claims that “the
Court of Common Pleas [of Philadelphia County] must enter the judgment on
the public record, so [she] can get Writs of Execution issued, and thereby . .
. collect payment of her moneys, which, for one decade, have been unlawfully
withheld.” Complaint at 4.
She asserts that, despite numerous attempts to record her judgment,
“the Office of Judicial Records [of Philadelphia County] has repeatedly refused
to perform its mandated duty of entering the judgment in [her] favor.” Id. at
5. Ms. Lichtman alleges that the Office of Judicial Records will not accept her
filings, because Judge Glazer illegally ordered the DCA to reject them. She
therefore sued the DCA and asked the court to compel him to record her
judgment. In her prayer for relief, Ms. Lichtman also seeks sanctions against
Judge Glazer, even though she failed to name him as a defendant.
-2-
J-S01019-20
The DCA filed preliminary objections, asserting that the trial court lacked
jurisdiction. He believes that only the Supreme Court of Pennsylvania may
exercise original jurisdiction over him in a mandamus proceeding. Because
the DCA is an officer of the trial court, he argues that only the High Court may
issue such a writ to an inferior court. See Preliminary Objections at 3.
The Honorable Arnold L. New, Jr. considered Ms. Lichtman’s application
for in forma pauperis status in this mandamus action. Upon review of that
application, he found that the trial court lacked subject-matter jurisdiction,
because the Supreme Court of Pennsylvania has exclusive, original jurisdiction
over actions in mandamus against the DCA. The trial court then dismissed
Ms. Lichtman’s Complaint as frivolous, and she timely appealed that order to
this Court.
She raises three issues on the merits. See Lichtman’s Brief at 2.
Instead of addressing those issues, we must preliminarily determine:
1. Whether the court of common pleas had subject-
matter jurisdiction over this proceeding?
2. If subject-matter jurisdiction was lacking, whether the
court could dismiss the Complaint as frivolous?
Neither party objected to the trial court’s dismissal of the Complaint on
the grounds that it lacked subject-matter jurisdiction. But, as the DCA states,
“Subject-matter jurisdiction can be raised at any time in a proceeding and
cannot be waived.” DCA’s Brief at 4 (citing Alexander v. Dept. of
Transportation, 880 A.2d 552, 556 (Pa. 2005)). Thus, Ms. Lichtman’s failure
-3-
J-S01019-20
to object to the dismissal of her case on jurisdictional grounds is irrelevant.
The DCA raised the issue of subject-matter jurisdiction below, and he repeats
those arguments in this Court. As the error-correcting court, we may not
ignore the oddity of a trial court acting on a case, despite its finding that it
lacked jurisdiction.
Whether a trial court has subject-matter jurisdiction is a pure question
of law. As such, “the standard of review . . . is de novo, and the scope of
review is plenary.” In re Admin. Order No. 1-MD-2003, 936 A.2d 1, 5 (Pa.
2007) (case citations and some punctuation omitted). The issue of subject-
matter jurisdiction “may be raised at any time . . . including by a reviewing
court sua sponte.” Id. Finally, “subject-matter jurisdiction may not be
conferred by consent of the parties, and a defect of such jurisdiction may not
be waived.” Id.
The General Assembly has granted the courts of common pleas broad,
but not absolute, subject-matter jurisdiction. They lack jurisdiction over any
case “where exclusive, original jurisdiction of an action or proceeding is by
statute . . . vested in another court of this Commonwealth . . . .” 42 Pa.C.S.A.
§ 931(a). Hence, if another court of this Commonwealth enjoys exclusive,
original jurisdiction over this matter, then the trial court correctly ruled that it
had no jurisdiction.
The DCA contends (and the trial court agrees) that exclusive, original
jurisdiction over Ms. Lichtman’s request for mandamus against the DCA lies in
the Supreme Court of Pennsylvania. See DCA’s Brief at 4; Trial Court Opinion,
-4-
J-S01019-20
10/2/19, at 5-6. They both rely on cases from the Commonwealth Court of
Pennsylvania for support. The DCA argues that his office is in the judicial
branch and that, by suing him in his official capacity, Ms. Lichtman is actually
suing the Court of Common Pleas of Philadelphia County. Thus, the DCA
reasons that, due to the Supreme Court’s constitutional power to oversee the
judicial branch,2 only the High Court may hear this matter.
Ms. Lichtman agrees with the DCA that the Office of Judicial Records is
“within the judicial system.” Lichtman’s Brief at 7. Because the parties agree
on that point, we consider what impact, if any, the DCA’s inclusion within the
Unified Judicial System of Pennsylvania has on the trial court’s jurisdiction.
Under Pennsylvania law, officers of the Unified Judicial System are part
of the Commonwealth. “Commonwealth government” means “government of
the Commonwealth, including the courts and other officers or agencies of the
unified judicial system . . . .” 42 Pa.C.S.A. § 102. Hence, Ms. Lichtman’s suit
against the DCA in his official capacity is a suit against the judicial system
and, by extension, the Commonwealth government.
Generally, the Commonwealth Court has original jurisdiction over “all
civil actions or proceedings against the Commonwealth government, including
any officer thereof, acting in his official capacity . . . .” 42 Pa.C.S.A. §
____________________________________________
2 See The Constitution of the Commonwealth of Pennsylvania Art. V, § 10
(empowering the Supreme Court of Pennsylvania to supervise the inferior
courts and appoint the court administrators and other court staff).
-5-
J-S01019-20
761(a)(1) (some punctuation omitted). The statute then lists five exceptions
to that rule, none of which is applicable here.3 The original jurisdiction of
Commonwealth Court over such proceedings is “exclusive, except as provided
in section 721 (relating to original jurisdiction [of the Supreme Court]) and
except with respect to actions or proceedings by the Commonwealth
government, including any officer thereof, acting in his official capacity, where
the jurisdiction of the court shall be concurrent with the several courts of
common pleas.” 42 Pa.C.S.A. § 761(b) (emphasis added).
____________________________________________
3 The statutory exceptions to Commonwealth Court’s original jurisdiction over
civil actions against the Commonwealth government are as follows:
(i) actions or proceedings in the nature of applications for
a writ of habeas corpus or post-conviction relief not
ancillary to proceedings within the appellate
jurisdiction of the court;
(ii) eminent domain proceedings;
(iii) actions or proceedings conducted pursuant to Chapter
85 (relating to matters affecting government units);
(iv) actions or proceedings conducted pursuant to the act
of May 20, 1937 (P.L. 728, No. 193), referred to as
the Board of Claims Act; and
(v) actions or proceedings in the nature of trespass as to
which the Commonwealth government formerly
enjoyed sovereign or other immunity and actions or
proceedings in the nature of assumpsit relating to
such actions or proceedings in the nature of trespass.
42 Pa.C.S.A. § 761(a)(1).
-6-
J-S01019-20
In other words, when someone sues the Commonwealth or one of its
officers, the plaintiff must file her action in Commonwealth Court, unless one
of the five exceptions applies. On the other hand, when the suit is filed by the
Commonwealth or its officers as the plaintiff, the courts of common pleas and
the Commonwealth Court share original jurisdiction. In those circumstances,
the Commonwealth may file in either Commonwealth Court or the trial court
of its choosing. The private litigant suing the Commonwealth, however, does
not have the option of filing in a court of common pleas. Thus, any mandamus
action against an officer of the Commonwealth must, according to the
statutes, originate in Commonwealth Court, not a court of common pleas.
That said, we observe that the Commonwealth Court has declared a
constitutionally mandated, sixth exception to its original jurisdiction over
actions against judicial-branch officers. According to Commonwealth Court,
the Supreme Court’s precedents divest Commonwealth Court of its statutorily
conferred, subject-matter jurisdiction when a plaintiff sues a judge or officer
of the Unified Judicial System. See, e.g., Commonwealth, Unified Judicial
System v. Vartan, 674 A.2d 1156 (Pa.Cmwlth. 1996).
To understand the rationale of our sister, appellate court in this regard,
we must first consider the decision of the Supreme Court of Pennsylvania in
Municipal Publications, Inc. v. Court of Common Pleas of Philadelphia
County, 489 A.2d 1286 (Pa. 1985). There, a corporate defendant sought a
trial judge’s recusal. That judge both presided over and sat as a witness in
-7-
J-S01019-20
his own recusal hearing. He testified, found himself credible, and denied the
motion to recuse.
The defendant then petitioned Superior Court for a writ of prohibition,4
which we issued and disqualified all of the judges in Philadelphia County from
hearing the case. The plaintiff appealed to the Supreme Court, which found
that Superior Court lacked original jurisdiction in the prohibition proceeding.
The High Court held that Superior Court’s jurisdiction arises solely from
statutes. Under 42 Pa.C.S.A. § 741, the Superior Court has “jurisdiction to
issue a writ of mandamus or prohibition only where an appeal properly within
its appellate jurisdiction is pending before [Superior Court] and where the
issuance of such a writ is necessary to protect [Superior Court’s] appellate
jurisdiction.” Municipal Publications, 489 A.2d at 1288 (citations omitted).
Additionally, the High Court stated that, if it were to accept this Superior
Court’s interpretation of the jurisdictional statutes, it “would be tantamount
to giving the Superior Court broad King’s Bench powers.” Id. Finding the
actions of Superior Court were not authorized by statute, the Supreme Court
vacated the decision of Superior Court and assumed plenary jurisdiction over
the case.
The Commonwealth Court has interpreted Municipal Publications to
mean that “where a party files a petition for a writ of mandamus or prohibition
to a ‘court of inferior jurisdiction’ in an appellate court, where no appeal is
____________________________________________
4 At common law, the writ of prohibition is the remedial opposite of the writ
of mandamus. If issued, it forbids judicial action, rather than compels it.
-8-
J-S01019-20
currently pending, the Supreme Court’s original jurisdiction over such a
petition is exclusive.” Unified Judicial System, 674 A.2d at 1159; see also
Leiber v. County of Allegheny, 654 A.2d 11 (Pa.Cmwlth. 1994). The
Commonwealth Court “does not have jurisdiction to issue mandamus to courts
of inferior jurisdiction, including magisterial district judges, except where the
mandamus is ancillary to a pending appeal.” Kneller v. Stewart, 112 A.3d
1269, 1271 (Pa.Cmwlth. 2015).
While this Court need not follow the decisions of the Commonwealth
Court,5 we recognize that the precedents of Commonwealth Court bind the
trial court. The court below had no way of knowing whether Ms. Lichtman
would appeal its decision to the Commonwealth Court or the Superior Court.
Thus, we cannot fault the trial court for following the precedents of the
Commonwealth Court, especially given that they were the only authority that
the DCA cited below.
Moreover, we find no reason to question the Commonwealth Court’s
deference to the Supreme Court in mandamus and prohibition actions against
trial courts and their officers. In previous cases, the Commonwealth Court
transferred the petitions for mandamus or prohibition to the Supreme Court,
and we know of no instance where the Supreme Court remanded to the
Commonwealth Court. Thus, the High Court has impliedly affirmed the
____________________________________________
5 See, e.g., Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n.2
(Pa.Super. 2006).
-9-
J-S01019-20
Commonwealth Court’s rejection of subject-matter jurisdiction over such
cases.
We believe the Commonwealth Court has correctly held that exclusive,
original jurisdiction over petitions of mandamus and prohibition against
officers of the unified judicial system lies solely in the Supreme Court of
Pennsylvania. This is true, despite statutory language that, if literally applied,
grants concurrent, original jurisdiction over such cases to the Supreme Court
and Commonwealth Court.6 Thus, the trial court correctly determined that it
lacked subject-matter jurisdiction over Ms. Lichtman’s petition for mandamus
against the DCA.
This brings us to the question of whether the trial court erred when it
dismissed Ms. Lichtman’s Complaint on the merits as frivolous. We conclude
that it did.
A court without jurisdiction may not decide a case on its merits, because
it is incompetent to do so. As we have explained:
Jurisdiction is the capacity to pronounce a judgment
of the law on an issue brought before the court through due
process of law. It is the right to adjudicate concerning the
subject matter in a given case. Without such jurisdiction,
there is no authority to give judgment, and one so entered
is without force or effect.
____________________________________________
6 See 42 Pa.C.S.A. § 721 (directing that the Supreme Court of Pennsylvania
“shall have original but not exclusive jurisdiction of all cases of . . . mandamus
or prohibition to courts of inferior jurisdiction.”)
- 10 -
J-S01019-20
In re Estate of Ciuccarelli, 81 A.3d 953, 958 (Pa.Super. 2013) (quoting
Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 568 (Pa.Super. 2001).
Here, once the trial court determined that it lacked jurisdiction, it also
lacked the authority to declare Ms. Lichtman’s Complaint frivolous. That ruling
and its accompanying dismissal were “without force or effect.” Id.
The General Assembly granted leniency to plaintiffs, such as Ms.
Lichtman, who erroneously commence their actions in a court without
jurisdiction by providing them a remedy. “A matter which is within the
exclusive jurisdiction of a court . . . of this Commonwealth but which is
commenced in any other tribunal of this Commonwealth shall be transferred
by the other tribunal to the proper court . . . of this Commonwealth where it
shall be treated as if originally filed in the transferee court . . . on the date
when first filed in the other tribunal.” 42 Pa.C.S.A. § 5103(a) (emphasis
added). “As used in this section ‘tribunal’ means a court . . . .” 42 Pa.C.S.A.
§ 5103(d).
Under Section 5103(a) of the Judicial Code, the trial court should have
transferred this matter to the Supreme Court for disposition under the High
Court’s original jurisdiction. As Commonwealth Court has opined, “where a
petitioner requests this court to issue a writ of mandamus or prohibition to a
‘court of inferior jurisdiction’ and there is no appeal pending before
[Commonwealth Court,] . . . we must transfer the matter to the Supreme
Court pursuant to Sections 721 and 5103(a) of the Judicial Code.” Unified
Judicial System, 674 A.2d at 1159 (citing Leiber, supra) (emphasis added).
- 11 -
J-S01019-20
See also Feingold v. Feder, 230 MD 2016, unpublished Judgment Order
(Pa.Cmwlth. 2016) (transferring a mandamus action against the DCA, filed in
Commonwealth Court’s original jurisdiction, to the Supreme Court of
Pennsylvania); Vu v. Evers, 13 MD 2014, unpublished Judgment Order
(Pa.Cmwlth. 2014) (accord). We find these cases to be persuasive 7 and
illustrative of the proper disposition for Ms. Lichtman’s Complaint which she
mistakenly filed in a court of common pleas.
It is clear that this matter should proceed before the Supreme Court of
Pennsylvania. We therefore modify8 the appealed-from order as follows:
AND NOW, this 29th day of July, 2019, upon
consideration of the Motion to Proceed In Forma Pauperis
filed by Joan Lichtman, and upon a finding that the Court of
Common Pleas of Philadelphia has no subject-matter
jurisdiction over this mandamus action against Deputy
Court Administrator Eric Feder, in his official capacity, the
action is hereby TRANSFERRED to the Supreme Court of
Pennsylvania, pursuant to 42 Pa.C.S.A. § 5103(a) for
disposition under the exclusive, original jurisdiction of the
Supreme Court.
Order affirmed as modified.9
____________________________________________
7The Commonwealth Court permits citation to its unpublished, panel decisions
dating after January 15, 2008 “for [their] persuasive value, but not as binding
precedent.” 210 Pa. Code § 69.414; I.O.P. Pa.Cmwlth. § 414(a).
8 This Court “may . . . modify . . . any order brought before it for review . . .
.” 42 Pa.C.S.A. § 706. We use this statutory tool of order modification in the
interest of judicial economy, instead of vacating the order and remanding to
the trial court with instructions to transfer the case to the Supreme Court for
disposition, as if Ms. Lichtman had originally filed in the High Court.
9 In light of our disposition of this appeal, the motion that Ms. Lichtman filed
in this Court is denied as moot.
- 12 -
J-S01019-20
Case transferred to the Supreme Court of Pennsylvania.
Judge Strassburger joins this Memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/20
- 13 -