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 : Argued: May 16, 2022

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 Order and remand the matter for
further proceedings.
 The Superior Court outlined the underlying facts and procedural
posture of this matter1 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
limits of Pittsburgh [(the Firearms Ordinances)]. On April
12, 2019, Appellants presented to Appellee’s office
private criminal complaint forms [(the Private Criminal
Complaints)] against Mayor Peduto and various members
of Pittsburgh City Council. Appellants 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 Court. 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, knowing 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 enjoyment

of any right, privilege, power or immunity.

18 Pa.C.S. § 5301.
2
 violations of the [Firearms O]rdinances that the Mayor and
the City Council had passed.

On August 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, Appellants
asserted that Appellee was required to accept their private
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 provides 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 [Mandamus 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 and 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 appeal,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 error
of law or an abuse of discretion. Dotterer v. Sch. Dist. of Allentown, 92 A.3d 875, 880 (Pa.
Cmwlth. 2014).
3
failure contravened his duty under Pennsylvania Rule of Criminal Procedure 506
(Rule 506). See id. Appellants further allege that they had standing to bring the
underlying claims contained in the Private Criminal Complaints, which they argue
were ripe for consideration. See id. Appellee counters that trial court properly
dismissed the Mandamus Complaint because the Firearms Ordinances upon which
the Private Criminal Complaints were based never became law. See Appellee’s Br.
at 2, 8-17. Therefore, Appellee argues that the Private Criminal Complaints alleged
no crimes and Appellants suffered no injury that would confer standing to bring the
charges contained in the Private Criminal Complaints. See id. at 8-17. Additionally,
Appellee argues that Appellants have waived their arguments by failing to appeal 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 of 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. 2012).
Rule 506 allows private citizens to request the initiation of criminal
proceedings against others by submitting a private criminal complaint for review by

4
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, where 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. 2010). 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, write 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).

5
private criminal complaint form before returning the complaint form to the
complainant. See Pa.R.Crim.P. 506. Following a denial of a private 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 the 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 faith, 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 appeal, 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 Private Criminal Complaints and either approve and forward them to the issuing
authority (a Magisterial District Judge), or deny them, stating the reasons for the
denials in writing on the Private Criminal Complaints. Appellee failed to comply
with these obligations. Instead, without conducting a review of or investigation into
the allegations contained in the Private Criminal Complaints, Appellee’s office
simply provided Appellants with a previously drafted press release setting forth
Appellee’s position that he would not be “reviewing anything connected with any

6
alleged violations of the illegal [Firearms] Ordinances 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 violated Appellee’s duty under
Rule 506, which requires district attorneys to review, investigate, and rule on
submitted private criminal complaints. Appellants therefore properly requested a
writ of mandamus to require Appellee to perform his duty to review, investigate, and
accept or deny their properly submitted Rule 506 Private Criminal Complaints.
Accordingly, the denial of the Mandamus Complaint represents error on the part of
the trial court.
Additionally, we are not persuaded by Appellee’s argument that the
press release provided to Appellants at the time they submitted the Private Criminal
Complaints constitutes a written denial of the complaints in compliance with Rule
506. See Appellee’s Br. at 17-20. First, we 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
investigate private criminal complaints remain and were not followed in this matter.

5
Neither the trial court record nor the reproduced record contains a copy of this press
release.
6
Where reviewing courts have accepted 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 complaint 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 prescribed by Rule 506(B)(2)).

7
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 offering 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, without 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 Ordinances, but instead alleged instances of official oppression in violation of
18 Pa.C.S. § 5301 in connection with the enactment of the Ordinances. 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 any rationale for Appellee’s refusal to
review the Private Criminal Complaints. Instead, the press release merely stated that

8
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 statement of the reasons for Appellee’s denial of the
Private Criminal Complaints, 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 directions that Appellee comply
with Rule 506 by reviewing and either accepting the Private Criminal Complaints or
denying the same with written reasons for such denials provided thereon.7 See
Seeton.

s/Christine Fizzano Cannon

__________________________________
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, we acknowledge that
review of the Private Criminal Complaints on remand may 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 while the result of observing the requirements of Rule 506
on remand may be a foregone conclusion, as the 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.
9
 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 :

ORDER

AND NOW, this 7th day of June, 2022, 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.

s/Christine Fizzano Cannon

__________________________________
CHRISTINE FIZZANO CANNON, Judge