NO. 735 PHILADELPHIA, 1981, NO. 922 PHILADELPHIA, 1981, Appeal from the Order entered April 3, 1981 1981, of the Court of Common Pleas of Lancaster County, Criminal Division, at Common Pleas Journal No. 4, Page 39, Appeal from the Order dated February 24, 1981, of the Court of Common Pleas of Lancaster County, Criminal Division, at Common Pleas Journal No. 4, Page 34.
Thomas A. Dittoe, Lancaster, for appellant.
William A. Atlee, Jr., Lancaster, for appellees.
Cavanaugh, McEwen and Beck, JJ. Cavanaugh and McEwen concur in the result.
[ 311 Pa. Super. Page 185]
In this appeal, Constable Paul O. Henry, Jr. claims that the lower court improperly dismissed his action charging Misconduct of District Attorney, 16 Pa.S. § 1405, against appellees Michael H. Ranck, District Attorney, and John A. Kenneff, Assistant District Attorney, of Lancaster County. For the reasons that follow, we affirm the order of dismissal.
The sequence of events pertinent to this appeal grew out of an underlying suit initiated by D. Patrick Zimmerman, Esquire, president of Binkley and Kurtz, Inc., a corporation which owns a multi-use building in Lancaster County which includes an apartment leased to Grant Ross and Susan Ross. The Rosses fell behind in rental payments. Zimmerman, as president of Binkley and Kurtz, obtained a default judgment in the amount of $544.12 against them and they were ordered to quit the property no later than September 29.
On September 26, appellant Henry attempted to levy on the personal property of the tenants and discovered that
[ 311 Pa. Super. Page 186]
they were in the process of moving out. He returned on September 29 to evict them, and found that they were already gone. In October 1979 Henry filed a criminal complaint against the Rosses as Defrauding Secured Creditors, pursuant to 18 Pa.S. § 4110.
Henry's § 1405 action, charging Ranck and Kenneff with wilful and gross negligence in the execution of their prosecutorial duties, is grounded on their alleged violations of Pa.R.Crim.P. 1100 in as much as they failed timely to prosecute the Rosses pursuant to the criminal complaint he had filed against them. Henry's complaint against the Rosses was signed on October 12, 1979, and on July 9, 1981, more than 180 days later, the Rosses and the Commonwealth reached an agreement to resolve the case by nolle prosequi, upon the Rosses' paying restitution and costs. The formalities of this nolle prosequi were executed on February 27, 1981. Henry also charges that the nolle prosequi disappointed his hope and expectation that the case would be resolved either by trial and conviction or by guilty plea.
Before reaching the merits of Henry's § 1405 suit against Ranck and Kenneff, it is necessary to determine whether Henry has standing to bring such a suit based upon Ranck's and Kenneff's handling of the case against the Rosses.
We hold that a constable, who has filed a criminal complaint against persons for defrauding secured creditors pursuant to 18 Pa.C.S. § 4110, has no standing to bring suit against the District Attorney under 16 Pa.S. § 1405 for resolving ...