Original jurisdiction in case of Clear Vue Acres Homeowners Association, a Pennsylvania unincorporated nonprofit association, by Richard Domrzalski and Donald J. Breslauer, and Bruce Frace, Trustees Ad Litem, and Richard Domrzalski and Susan Domrzalski, Individually and jointly, v. Commonwealth of Pennsylvania, Department of Environmental Resources, Maurice Goddard, Secretary, William Eichbaum, Deputy Attorney General and General Counsel to Department of Environmental Resources, Marvin Fine, Special Assistant Attorney General, Douglas Blazey, Special Assistant Attorney General, and Martha Traylor, Special Assistant Attorney General.
Darold L. Hemphill, with him Butterfield, Joachim, Brodt, Hemphill and Houser, for plaintiffs.
Michael S. Alushin, Special Assistant Attorney General, for defendants.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
This action in mandamus was commenced in this Court by plaintiffs, two individuals and an unincorporated nonprofit homeowners association, upon filing a complaint against the Secretary of the Department of Environmental Resources (DER), a Deputy Attorney General, and three Special Assistant Attorneys General. The prayer of the complaint in mandamus was to require the defendants to bring legal action
against the Clear Vue Water Company (Water Company) to insure compliance with a DER order; to revoke, upon noncompliance, a permit granted to the Water Company by DER; to take over and operate the water supply system of the Water Company; and to supply plaintiffs with an adequate quantity of potable water. The defendants filed preliminary objections claiming that mandamus will not lie to compel discretionary acts, that the plaintiffs failed to conform to Rule 1097 of the Pennsylvania Rules of Civil Procedure as to proper service, and that the Deputy and Special Assistant Attorneys General are not officers of the Commonwealth subject to mandamus jurisdiction. We must sustain the defendants' preliminary objections.
The dispute here is between the plaintiffs and the Water Company which has been ordered by DER to supply water to the plaintiffs. DER issued a water supply permit to the Water Company in July, 1972, and in February, 1973, ordered the Water Company to transport potable water to plaintiffs. Plaintiffs allege that the Water Company has failed to comply with the DER order and that the defendants have failed to initiate the appropriate proceedings against the Water Company. This action in mandamus followed.
Plaintiff's argument loses sight of the fact that this is an action in mandamus which "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." Wheatcroft v. Tax Claim Bureau of Chester County, 11 Pa. Commonwealth Ct. 322, 323, 312 A.2d 840, 841 (1973). (Emphasis in original.) The defendants here have no duty to act just because the Water Company may have failed to act; nor are they under any duty to perform any of the acts requested by the plaintiffs.
A review of the statutes cited by plaintiffs in their complaint*fn1 reveals no duty by the defendants to commence legal action against those who may have failed to comply with a DER order. Commencement of such action is discretionary and "mandamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of the law." Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 825 (1973) (Citations omitted.) Inasmuch as the defendants' view of the law is not mistaken concerning the commencement of legal action and inasmuch as the plaintiffs have not alleged arbitrary or fraudulent exercise or non-exercise of discretion, mandamus will not lie.
Similarly, the defendants have no mandatory duty to revoke the permit of the Water Company. Nor do the defendants have a duty to take over and operate the water system and to supply plaintiffs with an adequate quantity of potable water. A review of the statutes reveals that DER's power and authority are primarily directed toward maintaining or improving the quality of water. For example, Section 20 of the Act of December 3, 1970, P.L. 834, 71 ...