S. W. Bender v. N. D. Vernon, D.A., et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steve Wayne Bender, : Appellant : : v. : : Nancy D. Vernon, District Attorney : for the County of Fayette; Fayette : County Children and Youth Services, : and David Madison, Executive Director : BEFORE: No. 2030 C.D. 2007 Submitted: March 28, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: May 12, 2008 Steven Wayne Bender (Appellant) appeals, pro se, from the order entered by the Court of Common Pleas of Fayette County (common pleas court) which granted the preliminary objections of Nancy D. Vernon, District Attorney for the County of Fayette, Fayette County Children and Youth Services (FCCYS) and David Madison, Executive Director (collectively Appellees ) and dismissed Appellant s Complaint in Mandamus.1 On February 18, 2007, Appellant mailed to the Pennsylvania Commonwealth Court a Complaint in Mandamus asking this Court to compel Appellees to investigate alleged acts of child abuse pursuant to the Child Protective Services Law (Law), 23 Pa.C.S. §§6301-6385. 1 PA. At all times relevant to these proceedings, Appellant was incarcerated at S.C.I. Dallas, Appellant alleged that Appellees failed and refuse to act upon and abide by the ¦ child Protective Services Law and that Appellees ignored and suppressed evidence of sexual and physical abuse of his minor daughter, A.B., and his minor nieces, S.B., and M.B. Complaint in Mandamus at ¶5. Specifically, in Paragraphs 9-12, Appellant alleged that in 1997, at age 6 months, S.B. suffered a skull fracture. Records from Child Protective Services indicated that there was some inconsistency between the type of injury and the mother s explanation of how it had occurred. Exhibit B to Complaint in Mandamus. Further, in a letter dated July 7, 1997, the Department of Public Welfare confirmed that an investigation was performed by FCCYS which resulted in a finding that the child abuse report was indicated. Exhibit C to Complaint in Mandamus. In the Child Protective Services report, there was a recommendation for the parent of the child to undergo counseling and instruction. Exhibit B to Complaint in Mandamus. Appellant alleged in Paragraph 13, his other niece, M.B., then 3-years old, was taken to Frick Hospital in 2000, by her paternal grandparents because they were concerned that she was sexually abused. Appellant attached a report by the Emergency Room physician, Thomas L. Whitten, M.D. (Dr. Whitten) in which he concluded that there was no physical evidence of penetrating sexual trauma. However, based on the grandparents reports of M.B. s precocious sexual activity Dr. Whitten felt that this behavior could well be the manifestation of improper sexual exposure or contact. Emergency Room Report, 1/13/2000 at 1-2; Exhibit E to Complaint in Mandamus. 2 Consequently, Dr. Whitten notified ChildLine2 and advised the grandparents to seek an evaluation by experts in child abuse. Several letters from the DPW are also attached to the Complaint. One is a letter to Appellant from Scott Fries, the Director of ChildLine and Abuse Registry. The letter, dated June 18, 2002, is in response to Appellant s reports of child abuse involving S.B., M.B. and A.B. The letter states that the DPW contacted the Western Regional Office of Children Youth and Families (WROCYF) and that Wayne McNeil would investigate his allegations with the FCCYS. Letter to Steven Bender, June 13, 2002, at 1; Exhibit F to Complaint in Mandamus. Appellant sent other letters to the DPW on July 25, 2002, and November 4, 2002, and expressed his concern for his daughter and two nieces. However, those letters are not in the certified record or attached to the Complaint. On January 8, 2003, the DPW responded to Appellant and informed him that no report of suspected child abuse was filed by [Appellant] or anyone else concerning your daughter, [A.B.] : Please be advised that this office has no further information to offer you. As we have already reported to you, the WROCYF did review the materials you presented as well as any available through Fayette County Children and Youth Services (FCCYS). It was found that no record of a report of suspected child abuse 2 ChildLine is a unit of the DPW that operates a statewide toll-free system for receiving reports of suspected child abuse, makes referrals for investigation and maintains the reports in the appropriate files. 55 Pa.Code § 3490.4; 23 Pa.C.S. § 6332. 3 was filed by you or anyone else concerning your daughter to either FCCYS or the ChildLine Abuse Registry. It is clear from the materials that you submitted that you believe you filed such a report with the police. The court transcripts that you sent indicate that their perception of your conversations concerning [A.B.] were (sic) not that a report of suspected child abuse was being filed. This office is unable to address this and the other concerns that you have expressed regarding the police department and your attorney s handling of this matter. You continue to express concerns for your nieces, [S.B.] and [M.B.]. As we have already informed you, we cannot provide you with specific information about your nieces. However, this office did review your concerns in context with any materials available at FCCYS, and have found the agency to be acting within applicable laws and regulations. Letter to Steven Bender from DPW, January 8, 2003, at 1; Exhibit G to Complaint in Mandamus (Emphasis added). This Court transferred the matter to the common pleas court by per curiam Order dated February 23, 2007. Appellees filed Preliminary Objections in the nature of a demurrer pursuant to Pa. R.C.P. No. 1028(a)(4), and averred: 5. The Child Protective Services Law, 23 Pa.C.S. Section 6301, et seq., specifically Section 6362, designates the county agency, here Fayette County Children and Youth Services, as the ¦sole civil agency responsible for receiving and investigating all reports of child abuse made pursuant to ¦ the Law. 6. Nothing in the Child Protection Services Law places the responsibility to investigate reports of 4 suspected child abuse on the Office of the District Attorney. 7. Nothing in the Child Protection Services Law requires the local agency (FCCYS) to investigate suspected child abuse which is not reported in the manner established by that Law. 8. Plaintiff s [Appellant] own evidence, Exhibits G and H, indicate that no such reports to be investigated were filed in the manner required by the Law. 9. The allegations of the Complaint are therefore legally insufficient to support the claim for relief requested by Plaintiff [Appellant] and his complaint should, for that reason, be dismissed without prejudice. Appellees Preliminary Objections at ¶¶5-9 at 2. On June 21, 2007, Appellant requested an evidentiary hearing. The common pleas court denied the request on June 29, 2007. On October 16, 2007, the common pleas court sustained Appellees preliminary objections and dismissed Appellant s Complaint in Mandamus on the grounds of legal insufficiency. On appeal3, Appellant raises two issues: (1) whether the common pleas court erred when it sustained Appellees preliminary objections; and (2) 3 An appellate court should affirm an order of a trial court sustaining preliminary objections in the nature of a demurrer where, when all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts are accepted as true, the plaintiff is not entitled to relief. The court need not, however, accept any of the complaint's conclusions of law or argumentative allegations. Stilp v. Commonwealth of Pennsylvania General Assembly, __ Pa. __ , 940 A.2d 1227 (2007). 5 whether the common pleas court erred when it denied Appellant s request for an evidentiary hearing? A writ of mandamus is an extraordinary remedy, which compels official performance of a ministerial act. Rosario v. Beard, 920 A.2d 931 (Pa. Cmwlth. 2007). A writ of mandamus may be issued only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and lack of any other appropriate and adequate remedy. McGill v. Pennsylvania Department of Health, Office of Drug and Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000). Mandamus will not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based upon a mistaken view of the law. Camiel v. Thornburgh, 507 Pa. 337, 489 A.2d 1360 (1985). If [an official] abuses his [or her] discretion or acts under a mistaken view of the law, mandamus will lie to compel proper action. Duncan Meter Corporation v. Gritsavage, 361 Pa. 607, 610, 65 A.2d 402, 403 (1949). Appellant contends that the District Attorney should be ordered to investigate Appellant s allegations of sexual and physical abuse of A.B., M.B. and S.B. alleged to have occurred some time prior to 2002. He alleges that the District Attorney did not investigate these reports of child abuse as required under the Law, 23 Pa. C.S. §§6301 6385. Generally, a District Attorney has the responsibility to investigate and prosecute any complaint that he or she approves. Commonwealth v. Malloy, 450 A.2d 689 (Pa. Super. 1982). However, a District Attorney may, in good faith, use discretion in refraining from prosecuting a criminal case which would not further the best interests of the state. Additionally, it is established that courts assume 6 that persons holding responsible public positions act in good faith until the contrary is clearly shown. Glesenkamp v. City of Pittsburgh, 320 Pa. 219, 181 A. 763 (1935). Since the investigation of a crime is a discretionary act by a District Attorney, the moving party must establish that the use of discretion was arbitrary, fraudulent or based on a mistake of law before mandamus can be granted. Bainfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007). This Court agrees with the common pleas court that Appellant averred no facts that establish that the District Attorney acted in bad faith, fraudulently or that she abused her discretion or that the lack of investigation was based upon a mistaken view of the law. First, the Law does not require the District Attorney to investigate or prosecute reports of suspected child abuse. Rather, the Law is a vehicle for reporting abuse and invoking the involvement of county protective services for the child s care. If there is evidence that the abuse is a criminal offense, perpetrated by persons who are not family members or involves serious physical injury, the Law requires county agency to immediately provide the District Attorney or other law enforcement official with the report. 23 Pa.C.S. §6340(10). Appellant did not aver that a report of suspected child abuse was ever submitted to the District Attorney or that the District Attorney was ever aware of such allegations. The attachments to the Complaint establish only that Appellant contacted the DPW, which in turn advised him that: (1) no report of suspected sexual abuse was ever filed with the FCCYS with respect to his daughter; (2) the FCCYS did investigate the allegations concerning his nieces, and that the DPW concluded, after an audit conducted in accordance 23 Pa. C.S. §6343, that FCCYS 7 had acted in compliance with the Law.4 Absent some averment that the District Attorney was provided with a report from FCCYS pursuant to the Law, or that the District Attorney knew of Appellant s allegations and refused to investigate, there are no factual allegations that would establish that the District Attorney acted in bad faith or abused her discretion. This conclusion is not altered by Appellant s reliance on Section 6365(c) of the Law, 23 Pa.C.S. §6365(c). That particular Section directs the District Attorney and the county agency charged with investigating reports of suspected child abuse to develop a protocol to promote sharing confidential information developed by the agency in its investigation. This Section does not require a District Attorney to investigate reports of child abuse. Rather, it addresses how the District Attorney is to act on information obtained as a result of investigations by the county agency. With respect to Appellant s claim against FCCYS, this Court also agrees with the common pleas court that Appellant s Complaint is legally insufficient to support an action in mandamus to compel FCCYS to perform an investigation. As a child protection agency, FCCYS is required by statute to immediately commence an appropriate investigation upon receipt of a report of child abuse. 23 Pa.C.S. §6368(a). Therefore, the duty to investigate is mandatory, 4 23 Pa.C.S. § 6343(b) provides: (b) Performance Audit.-Notwithstanding any other provision of this chapter, the secretary or a designee of the secretary may direct, at their discretion, and after reasonable notice to the county agency, a performance audit of any activity engaged in pursuant to this chapter. 8 not discretionary. The investigation shall include a determination of the risk of harm to the child ¦ as well as a determination of the nature, extent, and cause of any condition enumerated in the report, any action necessary to provide for the safety of the child or children. ¦ Once an investigation has been initiated, it shall be completed with 60 days and conclude whether the report is founded, indicated or unfounded. 23 Pa.C.S. §6368(c). Again, taking the averments of the Complaint as true establishes that he did not file a report of child abuse concerning his daughter, A.B., although he was under the impression that he did. FCCYS will not be castigated for failure to investigate a nonexistent report. With regard to his nieces, the attachments to the Complaint reveal that FCCYS received a report of child abuse concerning M.B. in 1997, and one in 2000 from Dr. Whitten concerning S.B., and that the FCCYS did, in fact, investigate the allegations. Significantly, the letter from Robert J. Stefan confirms that pursuant to Appellant s request, the DPW conducted a performance audit of FCCYS pursuant to 23 Pa.C.S. §6343, in context of Appellant s allegations and found the agency to be acting within applicable laws and regulations. Letter to Steven Bender from DPW, January 8, 2003, at 1; Exhibit G top Complaint in Mandamus. Therefore, the record reflects an adequate remedy at law exists and that Appellant attached documents to his Complaint that establish that he, in fact, utilized this remedy when he contacted DPW, which, in turn, inquired into the performance of FCCYS. There exists no reason to grant mandamus when the 9 DPW, who has statutory authority to review the actions of FCCYS, has already made a determination that FCCYS complied with the law. Next, Appellant asserts that the common pleas court erred because the court did not grant his request for an evidentiary hearing before it ruled on the preliminary objections. This argument is also without merit. Contrary to Appellant s contention, the law does not give a party the right to an evidentiary hearing on preliminary objections and, in fact, the common pleas court was prohibited in these circumstances from receiving evidence outside the pleadings. A court may not consider testimony or anything outside the pleadings in ruling upon a demurrer. International Union of Operating Engineers v. Linesville Construction Company, 457 Pa. 220, 322 A.2d 353 (1974). Only such matters as arise out of the complaint itself may be considered and the decision must be on the pleadings alone. Bonanni v. Weston Hauling Inc., 392 Pa. 248, 140 A.2d 591 (1958). Finally, Appellant contends that his constitutional rights were violated because he demonstrated a clear legal right to have his reports of abuse properly and completely investigated and exposed. This argument is rejected because there is no constitutional right to have someone criminally prosecuted or to compel the district attorney to investigate alleged criminal wrongdoing. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990); Sattler v. Johnson, 857 F.2d 224, 227 (5th Cir.1988). 10 For the foregoing reasons, the order of the common pleas court granting Appellees preliminary objections must be affirmed. ____________________________ BERNARD L. McGINLEY, Judge 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Steve Wayne Bender, : Appellant : : v. : : Nancy D. Vernon, District Attorney : for the County of Fayette; Fayette : County Children and Youth Services, : and David Madison, Executive Director : No. 2030 C.D. 2007 ORDER AND NOW, this 12th day of May, 2008, the order of the Court of Common Pleas of Fayette County in the above-captioned case is hereby affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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