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LIEUTENANT MATTHEW E. HUNT v. COMMONWEALTH PENNSYLVANIA (04/25/79)

decided: April 25, 1979.

LIEUTENANT MATTHEW E. HUNT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE ET AL., RESPONDENTS



Original jurisdiction in case of Lieutenant Matthew E. Hunt v. Pennsylvania State Police; Colonel Paul J. Scylak, Commissioner, Pennsylvania State Police; and Major Jay C. Hileman, Director, Bureau of Personnel, Pennsylvania State Police.

COUNSEL

Paul J. Esposito, with him Arthur L. Goldberg, and Goldberg, Evans & Katzman, for plaintiff.

John L. Heaton, Assistant Attorney General, for defendant.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 42 Pa. Commw. Page 254]

Matthew E. Hunt has filed a petition for review in the nature of mandamus asking us to order the respondents, the Pennsylvania State Police, the State Police Commissioner and the State Police Director of Personnel to assign him to the Department's Bureau of Criminal Investigation (B.C.I.) and to oust from that position one Frank W. Lesch.

Hunt holds the rank of Lieutenant of the Pennsylvania State Police. In February 1977, pursuant to State Police Regulation FR 3-2, 2.02, Hunt submitted a request for a so-called Troop of Preference transfer from his troop in Punxsutawney to the B.C.I. at Department Headquarters in Harrisburg. The response to his request was by means of a stamped legend on his written request reading: "As of this date 3-1-77 this officer is in 1st position tied with 0 others for B.C.I.," under which appears the initials of some person not identified in this record.

On July 21, 1977, the Commissioner of State Police transferred Lieutenant Lesch to B.C.I. to fill a vacancy in B.C.I. which had occurred after Hunt made his request. Hunt filed a grievance with his commanding

[ 42 Pa. Commw. Page 255]

    officer as allowed by State Police regulations, alleging that Lesch had less time than he in grade and in assignment and asserting that he, not Lesch, should have been appointed. The grievance was denied and Hunt appealed to the Commissioner. The Commissioner denied the grievance on the ground that Lieutenant Lesch had been transferred to B.C.I. under FR 3-2, 2.01 and that neither State Police regulation nor policy were violated by his action.

Hunt filed a second grievance with his commanding officer requesting an explanation of the disputed transfer and alleging that the denial of his request for transfer was discriminatory. This grievance was denied and Hunt again appealed directly to the Commissioner. The Commissioner denied the second grievance appeal writing:

Although considerable weight is given to recommendations by administrative staff relative to certain types of transfers, I feel no obligation exists to disclose staff decisions which are ultimately mine. I, therefore, see no reason to expound on Lieutenant Lesch's transfer to the BCI since I was convinced he possessed the necessary requisites for filling such vacancy.

We must decide whether the Commissioner had a purely ministerial duty to appoint Lieutenant Hunt to B.C.I., in which case mandamus would afford relief, or whether the Commissioner had discretion in making ...


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