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GERNERT v. RICHARD W. LINDSAY (08/10/71)

decided: August 10, 1971.

GERNERT
v.
RICHARD W. LINDSAY, CHAIRMAN OF PENNSYLVANIA BOARD OF PROBATION AND PAROLE; GRACE M. SLOAN, STATE TREASURER; ROBERT P. CASEY, AUDITOR GENERAL; RAYMOND P. SHAFER, GOVERNOR. GERNERT V. SHAPP



Original jurisdiction. Complaint in Mandamus at No. 300 C.D. 1970, in case of Paul Gernert v. Richard W. Lindsay, Chairman of the Pennsylvania Board of Probation and Parole et al. and Complaint in Quo Warrantor at No. 226 C.D. 1971, in case of Paul Gernert v. Milton Shapp, Governor.

COUNSEL

Thomas D. Caldwell, Jr., with him Caldwell, Clouser & Kearns, for plaintiff.

Carolyn E. Temin, Chief Counsel, Pennsylvania Board of Probation and Parole, with her J. Shane Creamer, Attorney General, for defendants.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino and Rogers. Opinion by President Judge Bowman.

Author: Bowman

[2 Pa. Commw. 576 Page 577]

Paul J. Gernert, plaintiff, was appointed to membership on the Pennsylvania Board of Probation and Parole (Board) by former Governor William W. Scranton on August 4, 1964. The commission read in part that such appointment would run ". . . for a term of four years, or until your successor shall have been duly appointed and qualified. . . ." This appointment was confirmed by the Senate of Pennsylvania on March 23, 1965. On December 3, 1970, then Governor Raymond P. Shafer informed plaintiff by letter that William C. Boor had been appointed to replace him as a member of the Board which appointment has not yet been confirmed by the Senate.

Contending that his ouster was unlawful and improper, plaintiff instituted an action in mandamus against Richard W. Lindsay, Chairman of the Board, and sundry other State officials.*fn1 The defendants filed

[2 Pa. Commw. 576 Page 578]

    preliminary objections challenging the jurisdiction of this Court to entertain an action in mandamus contending that the proper form of action is in quo warrantor. Further, the defendants demurred to the complaint in mandamus for failure to state a proper cause of action.

Following the filing of these preliminary objections, plaintiff filed a second complaint in quo warrantor based upon the same facts as set forth in the earlier complaint in mandamus. The second complaint named Milton Shapp, incumbent Governor, as defendant. The defendant again filed preliminary objections in the form of a demurrer stating that Milton Shapp is not a proper defendant in an action seeking a declaration that plaintiff continues to be a member of the Board.

The events precipitating the filing of these two complaints are not in dispute as the allegations set forth in plaintiff's complaint must be taken as true in passing upon preliminary objections. "This rule requires that the facts as set forth in the complaint be 'clearly pleaded' so that the Court may consider them as true and complete in dismissing or sustaining defendant's preliminary objections in the form of a demurrer. . . . Where the plaintiff has not sufficiently established such clear facts in his complaint, he cannot receive the benefit of such principle, and the defendant's preliminary objections could be sustained for plaintiff's failure to set forth a legal cause of action." Williams v. Pennsylvania Board of Probation and Parole, 2 Pa. Commonwealth Ct. 312, A.2d (1971).

As we apply our own recent statement of this well-established principle, we must decide only the very narrow issue of whether mandamus or quo warrantor is the proper form of action to obtain the relief plaintiff ...


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