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LOUIS J. KAPLAN v. PAUL J. SMITH (01/22/79)

decided: January 22, 1979.

LOUIS J. KAPLAN, PETITIONER
v.
PAUL J. SMITH, IN HIS OFFICIAL CAPACITY AS SECRETARY OF LABOR AND INDUSTRY AND JAMES WADE, IN HIS OFFICIAL CAPACITY AS SECRETARY OF ADMINISTRATION, RESPONDENTS



Original jurisdiction in case of Louis L. Kaplan v. Paul J. Smith, in his official capacity as Secretary of Labor and Industry, and James Wade, in his official capacity as Secretary of Administration.

COUNSEL

Stephen A. Sheller, with him Bruce M. Ludwig, for petitioner.

Louis J. Rovelli, Deputy Attorney General, with him Kathleen F. McGrath, Deputy Attorney General, J. Austin Blewitt, Jr., Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Blatt, DiSalle and Craig. Judges Rogers and MacPhail did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Crumlish, Jr. Judge Wilkinson, Jr., joins in this dissent.

Author: Mencer

[ 40 Pa. Commw. Page 96]

Louis L. Kaplan (Kaplan), Secretary of the Workmen's Compensation Appeal Board, has filed a petition for review in the nature of an action in mandamus seeking to compel a salary increase to which he is allegedly entitled under Section 441 of The Administrative

[ 40 Pa. Commw. Page 97]

Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. ยง 151. The named respondents, Paul J. Smith (Smith), Secretary of Labor and Industry, and James Wade (Wade), Secretary of Administration, have filed preliminary objections in the nature of a demurrer which are presently before us for disposition. We sustain the preliminary objections with regard to Wade but overrule them as to Smith.

Kaplan's allegations, insofar as relevant to our decision, may be briefly stated. In March 1974, Kaplan met with Smith and Governor Milton J. Shapp to discuss possible adjustments to his salary. At this meeting, it was agreed that Kaplan's salary should be increased. When Smith failed to implement this decision, Kaplan again brought the matter to the attention of the Governor. As a result, a meeting was arranged between Smith and Dr. Zalmon H. Garfield, Special Assistant to the Governor. Smith and Garfield agreed that Kaplan's salary would be increased from $18,602 to $21,457. Smith, by memorandum dated April 2, 1975, requested Wade, agent for the Governor in personnel matters, to take the necessary steps to formally approve the salary increase. Wade, acting for the Governor, formally approved the increase on June 4, 1975 and directed Smith to implement the change. Smith, despite Kaplan's numerous requests, refused to process the necessary papers, and Kaplan therefore filed this action seeking to compel implementation of his salary increase.

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. Styers v. Wade, 30 Pa. Commonwealth Ct. 38, 372 A.2d 1236 (1977), aff'd, 478 Pa. 631, 387 A.2d 666 (1978). Mandamus

[ 40 Pa. Commw. Page 98]

    does not normally lie to compel the performance of discretionary acts. See, e.g., Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972).

Kaplan claims a clear right to implementation of his salary increase under Section 441 of the Code, which provides, inter alia, that the Secretary of the Workmen's Compensation Appeal Board " shall receive such salary as the Secretary of Labor and Industry, with the approval of the Governor, shall determine." (Emphasis added.) Smith, however, contends that the ...


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