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SKOK AND THURNER v. HOCH (12/17/71)

decided: December 17, 1971.

SKOK AND THURNER
v.
HOCH



Original jurisdiction.

COUNSEL

Peter Krehel for plaintiffs.

Salvatore Cucinotta, Deputy Attorney General, with him Edgar R. Casper, Deputy Attorney General, Edward Weintraub, Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendant.

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

Author: Crumlish

[3 Pa. Commw. 640 Page 641]

Plaintiffs matriculated at Bloomsburg State College and were dismissed. Seeking to remedy the alleged injustice, they erroneously filed a Complaint in Mandamus naming the Vice President and Dean as a party defendant.

Lest plaintiffs are unmindful of hornbook law, we repeat: "'Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy. Borough of Easton v. Lehigh Water, 97 Pa. 554, 560; Goodman v. Meade, 162 Pa. Superior Ct. 587, 60 A.2d 577.' Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952) (emphasis in original)." City of Williamsport v. Department of Agriculture, 1 Pa. Commonwealth Ct. 332, 334

[3 Pa. Commw. 640 Page 642]

(1971). Plaintiffs herein have failed to allege a "clear legal right" with a "corresponding duty" owed them by this defendant.

Mandamus actions are those brought against public officials and usually rest upon the failure of the official to perform a statutorily mandated duty. Veratti v. Ridley Township, 416 Pa. 242, 206 A.2d 13 (1965). The plaintiffs, in their complaint, have not alleged that there is such a statutorily created duty imposed on the defendant, as a public official (if indeed he is one) to submit to their demand. Nor does the pertinent statute, The Public School Code, Act of March 10, 1949, P.L. 30, Article XX, 24 P.S. 20-2004.1(3), create such a duty. Although the Public School Code requires the defendant to promulgate academic rules, obviously for the purpose of promoting orderly administration, it does not with specificity put the Legislature in the profession of operating education. Therefore, the Public School Code does not provide plaintiffs with any "clear legal right" to have a particular rule enforced by the administrator.

On rare occasions, the rights and duties created under contract have been adjudicated by mandamus. But those rights must be spelled out and not be the subject of judicial speculation. Boslover A.A.B. Association v. Philadelphia Redevelopment Authority, 425 Pa. 535, 229 A.2d 906 (1967). Even assuming that they are advancing this theory, plaintiffs have not alleged that defendant owes them a legally enforceable contractual duty which defendant must recognize and grant plaintiffs the relief they seek. If the relationship between the parties herein is indeed considered contractual, clearly it is a unique one. It cannot be said that there exists a clear, explicit contract. To the contrary, academic administration-student contractual agreements embody numerous express and implied agreements, many of which are subject to unilateral

[3 Pa. Commw. 640 Page 643]

    alteration or revocation. Plaintiffs acknowledge in their Complaint the academic rules relating to dismissal from the institution are not specifically delineated in any one contractual document. The most that can be said for these rules upon which plaintiffs rely is that they ...


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