Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Lou J. D'Iorio v. Frank T. Hazel, Esquire, District Attorney of Delaware County and County of Delaware, No. 79-3581.
Robert A. Graci, Assistant District Attorney, with him Francis P. Connors, County Solicitor, and Harry J. Bradley, Assistant County Solicitor, for appellants.
John M. Gallagher, Jr., Richard, Brian, DiSanti & Hamilton, for appellee.
Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 61 Pa. Commw. Page 127]
Lou J. D'Iorio (D'Iorio) was hired as a detective in the Criminal Investigation Division of the Delaware County District Attorney's Office in March 1970. At no time has D'Iorio had a written contract of employment with either Delaware County or the District Attorney of Delaware County.
On February 27, 1976, D'Iorio was discharged from his position by District Attorney Frank Hazel after being accused that he had been associating with known criminals. On December 13, 1976, he filed a complaint in assumpsit in the Court of Common Pleas of Delaware County in which he alleged that he had not been discharged in accordance with the procedures mandated by the Delaware Home Rule Charter (Charter). D'Iorio discontinued this lawsuit on April 12, 1977.
[ 61 Pa. Commw. Page 128]
On April 7, 1977, D'Iorio filed a civil rights Section 1983 action, 42 U.S.C. § 1983, in federal district court, alleging that his discharge violated his 14th-amendment rights. The district court concluded that D'Iorio's discharge was in violation of the procedures established by the Charter for termination of county employees and ordered D'Iorio reinstated as a detective, with back pay. On appeal, the United States Court of Appeals, Third Circuit, reversed, concluding that federal court abstention is required until relevant state-law issues have been decided by Pennsylvania courts. D'Iorio v. County of Delaware, 592 F.2d 681 (3d Cir. 1978).
Thereafter, on March 6, 1979, D'Iorio filed a complaint in mandamus in the Court of Common Pleas of Delaware County. This complaint was amended, and the District Attorney and the County of Delaware filed preliminary objections which were denied and dismissed. Following the filing of answers with new matter, D'Iorio filed a motion for judgment on the pleadings which was granted by the lower court on December 17, 1979. This appeal followed.
D'Iorio's action in mandamus sought his reinstatement as a county detective, with back pay and associated fringe benefits to February 27, 1976. Mandamus lies where there is a clear legal right in the plaintiff and a corresponding duty in the defendant and the act requested is not discretionary but only ministerial, but mandamus will not lie to control an official's discretion or judgment where that official is vested with a discretionary power. Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973).
We conclude that mandamus relief is improper in this instance. Plaintiff has not shown "a 'clear legal right' with a 'corresponding duty' owed." Skok v. ...