Original jurisdiction in cases of Gerald R. Styers v. James N. Wade, Secretary of Administration, and James D. Barger, Pennsylvania State Police Commissioner; and John S. Gencavage v. James N. Wade, Secretary of Administration, and James D. Barger, Pennsylvania State Police Commissioner.
George J. Kanuck, with him Wallace C. Worth, Jr., Worth Law Offices, P.C., for plaintiffs.
Jeffrey G. Cokin, Deputy Attorney General, with him Robert P. Kane, Attorney General, for defendants.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
We have before us preliminary objections to two complaints in mandamus*fn1 each brought by a Pennsylvania State Police Trooper seeking either promotion to the rank of Lieutenant or the convening of a court martial to hear the matter of his alleged demotion. We sustain the objections on the single ground that, on the facts as alleged by Plaintiffs, mandamus does not lie.
Following the institution of the new Technical Specialist Program by the State Police, Plaintiffs, in 1969, were reclassified from the rank of Trooper to that of Technical Specialist (TS) and received an increase in pay. On September 7, 1972, Plaintiffs were reclassified back to Trooper, but received no salary reduction. This action resulted from the abolishment of the TS program following an opinion letter by the Attorney General stating that the program as it then existed was illegal because it lacked governing rules and regulations and had been initiated without consideration of merit principles.
On October 29, 1975, a new four-step grievance procedure was promulgated by the State Police Commissioner (Commissioner). Plaintiffs availed themselves of the procedure reaching, at Step 4, the Secretary of Administration (Secretary). They were denied a hearing at all steps. Plaintiffs appealed to this Court but, upon motion of the Secretary, we quashed the appeal (at No. 520 C.D. 1976, Order filed June 21, 1976) on the grounds that it was not timely. This action, and the attendant preliminary objections, followed.
Plaintiffs contend that their reclassification to Technical Specialist was in law a promotion, and that the second reclassification back to Trooper was a demotion
which, since it was accomplished without court martial as required by the Administrative Code,*fn2 was invalid. Plaintiffs contend that the rank of Lieutenant is equivalent to that of Technical Specialist II and that, as a remedy for the alleged improper demotion, they are entitled to be "restored" to the rank of Lieutenant with all its appurtenant benefits. They contend that, as a result of the reclassification to Trooper, they suffered damage to their professional and personal reputations, as well as embarrassment and loss of professional and personal prestige and stature, and were deprived of the opportunity to take the appropriate promotional examination and were thereby precluded from further advancement in the State Police ranks.
The facts thus closely parallel, if they do not track exactly, those of Roberts v. Office of Administration, 30 Pa. Commonwealth Ct. 19, 372 A.2d 1233 (1977). However, the legal posture of this case is different from that of Roberts and requires an opposite result.
It is now well settled that mandamus is an extraordinary writ and lies only 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 adequate remedy. See Wyoming Sand and Stone Co. v. Department of Revenue, 24 Pa. Commonwealth Ct. 366, 355 A.2d 860 (1976). Stated differently, mandamus lies only to compel official performance where there is a refusal to perform in the face of an absolute duty to do so. An official may have an absolute duty to exercise his discretion, in which case mandamus will lie, ...