Appeal 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.
Deake G. Porter, in propria persona, for appellant.
J. Justin Blewitt, Jr., Deputy Attorney General, with him J. Shane Creamer, Attorney General, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
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 After diverse pleadings were filed, all were withdrawn and an amended complaint was filed.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. Commonwealth Ct. 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 non-tenured employee,*fn1 could not contend
that he had a clear right to his position or that reinstatement to his position by the ...