Appeals from orders of Superior Court, Oct. T., 1964, Nos. 192, 193, and 194, affirming in part and reversing in part judgments of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1961, No. 4315, in case of John E. Francis and Harold V. Varani v. Fred T. Corleto, Commissioner of Public Property, Alexander Hemphill, City Controller, and P. P. Poorman, City Treasurer, of City of Philadelphia.
Levy Anderson, First Deputy City Solicitor, with him Matthew W. Bullock, Jr., Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellants.
Domenick Vitullo, with him A. Charles Peruto, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
These appeals are from an order of the Superior Court affirming in part and reversing in part the judgment on the pleadings entered in plaintiffs' favor by the trial court in a mandamus action against officials of the City of Philadelphia.
Plaintiffs below, John E. Francis and Harold V. Varani, were employees of the City of Philadelphia, the former having been Deputy Commissioner of Public Property and the latter Director of Architecture and Engineering. Their employment was terminated by the City for alleged misconduct and criminal acts while so employed.*fn1 After discharge from their city
positions, plaintiffs demanded payment of terminal vacation pay as provided by the city's civil service regulations.*fn2 In addition, on the basis of provisions of the Retirement System Ordinance,*fn3 they sought return of payments which had been made by them into the retirement system pension fund.
When the City refused to pay plaintiffs the amounts claimed, plaintiffs instituted an action of mandamus against the Philadelphia City Controller and the City Treasurer seeking to compel such payments. Preliminary objections to the complaint were dismissed. Thereafter, defendants filed an answer asserting, inter alia, a right to offset against plaintiffs' payment demands the City's claims for losses arising from plaintiffs' misconduct during their employment. The trial court granted plaintiffs' motion for judgment on the pleadings. On appeal, the Superior Court affirmed the trial court with regard to return of the pension fund payments
and directed defendants to repay to plaintiffs those contributions. With regard to terminal vacation pay, however, the Superior Court reversed the trial court and held that mandamus to compel payment of that money did not lie.*fn4 We granted the petitions for allocatur filed both by plaintiffs and defendants.
Mandamus is a high prerogative writ representing an extraordinary remedy which will not be granted in doubtful cases. It will issue only where there is a clear and specific legal right in plaintiff and a corresponding duty in defendant and a want of any other adequate and appropriate remedy. Verratti v. Ridley Twp., 416 Pa. 242, 206 A.2d 13 (1965). In addition, mandamus may be used only to compel performance of a purely ministerial or mandatory duty. Volunteer Firemen's Relief Ass'n v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964).
Careful review of the claims in this case persuades us that mandamus may not be utilized by plaintiffs to recover the amounts they seek. Plaintiffs establish neither a clear right to the funds sought nor a corresponding mandatory, ministerial duty on the part of defendants to pay those sums. Plaintiffs' demands for payment were refused by defendants because of the right asserted by the City to set off against such funds claims by the City arising out of plaintiffs' misconduct in office. It is true that a counterclaim may not be asserted in an action in mandamus. Pa. R. C. P. 1096. Mandamus would not be precluded, however, by the mere assertion by the City of a claim against plaintiffs if, notwithstanding ...