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CARL W. BURGERHOFF v. COMMONWEALTH PENNSYLVANIA (01/24/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 24, 1980.

CARL W. BURGERHOFF, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA STATE POLICE, RESPONDENT

Original jurisdiction in case of Carl W. Burgerhoff, Petitioner v. Pennsylvania State Police, Respondent.

COUNSEL

P. Richard Wagner, with him Mancke & Lightman, for petitioner.

John L. Heaton, Chief Counsel, with him Andrew B. Kramer, Assistant Attorney General, for respondent.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge DiSalle did not participate in the decision in this case.

Author: Macphail

[ 49 Pa. Commw. Page 50]

Carl W. Burgerhoff (Petitioner) filed a petition for review with this Court seeking reinstatement to the Pennsylvania State Police force. The Pennsylvania State Police (Respondent) filed a motion to quash the petition for review pursuant to Pa. R.A.P. 1972. Pursuant to an order previously entered by President Judge Bowman, we shall regard Respondent's motion to quash as preliminary objections to the petition for review. The basic issue presented by the preliminary objections is whether a letter sent from the Commissioner of the Pennsylvania State Police (Commissioner) to Petitioner was an adjudication from which Petitioner

[ 49 Pa. Commw. Page 51]

    should have appealed, thereby precluding him from bringing this action within our original jurisdiction. We hold that the letter was an adjudication. Accordingly, we sustain Respondent's preliminary objections and dismiss Petitioner's petition for review.

In ruling on Respondent's preliminary objections, we accept as true all well and clearly pleaded facts as well as inferences fairly deducible therefrom, but not conclusions or averments of law. Zurenda v. Commonwealth, 46 Pa. Commonwealth Ct. 67, 69, 405 A.2d 1124, 1125-26 (1979). Petitioner had been a member of the Pennsylvania State Police force since 1971. He also was a member of the Pennsylvania Army National Guard. On or about January 23, 1978, Petitioner was ordered by the Adjutant General of the Department of Military Affairs to report to the United States Army Aviation Center at Fort Rucker, Alabama for helicopter pilot training duty. He requested a leave of absence without pay from his position with Respondent. His request was denied orally and he was informed that if he left his employment with Respondent to comply with the military orders he would be subject to a court martial proceeding. On April 10, 1978, he retired from the force. On April 17, 1979, Petitioner wrote to the Commissioner requesting reinstatement to the force. The Commissioner denied Petitioner's request by letter dated May 2, 1979. On June 20, 1979, Petitioner filed a petition for review with this Court pursuant to our original jurisdiction as set forth in Section 761 of the Judicial Code, 42 Pa. C.S. § 761.

As the term is used in the Administrative Agency Law, "adjudication" is defined, in pertinent part, as "Any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made." 2 Pa. C.S. § 101.

[ 49 Pa. Commw. Page 52]

This Court has repeatedly held that "[a] letter can constitute an adjudication in instances where it is a final directive of final determination by the agency affecting personal or property rights." (Emphasis added.) Kerr v. Department of State, 35 Pa. Commonwealth Ct. 330, 333-34, 385 A.2d 1038, 1039 (1978). See also Andrukaitis v. Pennsylvania State Police, 46 Pa. Commonwealth Ct. 182, 184, 405 A.2d 1153, 1154 (1979); Callahan v. Pennsylvania State Police, 39 Pa. Commonwealth Ct. 609, 612, 396 A.2d 81, 83 (1979). A discussion in the letter of the merits of the issues raised is a further indication that it constitutes an adjudication. See Roberts v. Office of Administration, 30 Pa. Commonwealth Ct. 19, 23-24, 372 A.2d 1233, 1235 (1977).

In applying the relevant case law*fn1 to the facts of this case, we can reach no conclusion except that the Commissioner's May 2, 1979 letter constituted an adjudication. Not only did the Commissioner in his letter discuss the merits of Petitioner's request for reinstatement,*fn2

[ 49 Pa. Commw. Page 53]

    but also he made clear that the decision was a final one.*fn3

Because the Commissioner's letter was an adjudication, Petitioner's appropriate remedy was an appeal to this Court pursuant to Section 702 of the Administrative Agency Law, 2 Pa. C.S. § 702, and Section 763 of the Judicial Code, 42 Pa. C.S. § 763. Petitioner did not appeal from the Commissioner's adjudication. His failure to do so precludes him from now attempting to relitigate the issue of his reinstatement within our original jurisdiction. Spencer v. Hemlock Township, 43 Pa. Commonwealth Ct. 36, 39, 402 A.2d 1087, 1089 (1979); Callahan v. Pennsylvania State Police, at 612, 396 A.2d at 83.

Respondent's preliminary objections are sustained and Petitioner's petition for review is dismissed.*fn4

Order

And Now, this 24th day of January, 1980, the preliminary objections filed by Respondent Commonwealth of Pennsylvania, Pennsylvania State Police are

[ 49 Pa. Commw. Page 54]

    sustained and the petition for review filed by Petitioner Carl W. Burgerhoff is dismissed.

Judge DiSalle did not participate in the decision in this case.

Disposition

Preliminary objections sustained.


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