Opinion
November 21, 1972.
March 16, 1973.
Practice — Mandamus — When action lies — Discretion of lower court — Appellate review — Action by nontenured professor at State College seeking reinstatement to his position.
1. Mandamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant, and the act requested is not discretionary but only ministerial.
2. Mandamus will not lie to control an official's discretion or judgment where that official is vested with a discretionary power.
3. Whether a mandamus action will lie is a matter within the discretion of the trial court, and on appeal the scope of review of the Supreme Court is merely to determine whether the court below abused its discretion.
4. In this action in mandamus, in which plaintiff, a nontenured employee of defendant State College, sought reinstatement to his position as an associate professor, it was Held that the court below did not abuse its discretion in sustaining preliminary objections to the complaint.
Argued November 21, 1972. Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 360, Jan. T., 1972, from order of Commonwealth Court of Pennsylvania, No. 292, C.D. 1971, in case of Deake G. Porter v. Bloomsburg State College, Robert J. Nossen, President et al. Order affirmed.
Same case in Commonwealth Court: 5 Pa. Commw. 26.
Mandamus action in Commonwealth Court.
Defendant's preliminary objections sustained and complaint dismissed, opinion per curiam. Defendant appealed.
Deake G. Porter, in propria persona, for appellant.
J. Justin Blewitt, Jr., Deputy Attorney General, with him J. Shane Creamer, Attorney General, for appellees.
Appellant filed a complaint in mandamus against certain officers of Bloomsburg State College and the Pennsylvania Department of Education, seeking reinstatement to his position as an Associate Professor of Economics at Bloomsburg State College. After diverse pleadings were filed, all were withdrawn and an amended complaint was filed. Preliminary objections to this amended complaint were then interposed. After a hearing before the Commonwealth Court sitting en banc, appellee's preliminary objections were sustained on the grounds that appellant had failed to state a cause of action for an action of mandamus. We agree.
In Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738 (1956), we stated: ". . . mandamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant, and the act requested is not discretionary but only ministerial, [but] . . . mandamus will not lie to control an official's discretion or judgment where that official is vested with a discretionary power." (Emphasis in original.) See also Martin v. Garnet Valley School District, 441 Pa. 502, 272 A.2d 913 (1971), Travis v. Teter, 370 Pa. 326, 87 A.2d 177 (1952), Skok and Thurner v. Hoch, 3 Pa. Commw. 640 (1971).
Whether a mandamus action will lie was a matter left to the sound discretion of the Commonwealth Court, and our scope of review is merely to determine whether the court below abused its discretion. Verratti v. Ridley Township, 416 Pa. 242, 206 A.2d 13 (1965). A review of the record reveals that the Commonwealth Court did not abuse its discretion in this instance because appellant, a nontenured employee, could not contend that he had a clear right to his position or that reinstatement to his position by the college was purely a ministerial act.
Although appellant was never granted continuous employment (tenure), the proceedings in which he was involved were conducted according to the procedure outlined for terminating those in continuous employment. Appellant was given a hearing before an administrative board, was afforded a hearing before the Committee on Professional Affairs, was given reasons for his termination and notice of his conditional reappointment, and also was given notice of his failure to meet the conditions and the institution of hearings on the matter.
Order affirmed.