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SCHOOL DISTRICT PITTSBURGH v. COMMONWEALTH PENNSYLVANIA (12/02/81)

decided: December 2, 1981.

SCHOOL DISTRICT OF PITTSBURGH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT



Original jurisdiction in the case of School District of Pittsburgh v. Commonwealth of Pennsylvania, Department of Education.

COUNSEL

Persifor S. Oliver, Jr., Assistant Solicitor, with him Robert J. Stefanko, Solicitor, for petitioner.

Elisabeth S. Shuster, Deputy Attorney General, with her Allen C. Warshaw, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 40]

The Department of Education (Department) has filed preliminary objections to a suit in mandamus by the School District of Pittsburgh (District) which seeks to compel the Department to process the District's application for two million dollars in reimbursement which the District claims is due it under the provisions of Sections 2574 and 2575.1 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 25-2574 and 25-2575.1 for the construction of a permanent addition to one of its schools. The Department contends that we have no jurisdiction and that the District's petition fails to state a cause of action.

From the well pleaded facts in the petition for review we learn that on February 21, 1974 the District filed an application with the Department for reimbursement for construction of an addition to Herron Hill Junior High School. In response thereto, the Department sent two letters to the District, the first of which notified the District that clearance could not be given until justification was provided that the construction would alleviate racial isolation in the District.

[ 63 Pa. Commw. Page 41]

The second letter dated June 26, 1975 advised the District that the application would be processed as soon as the "equal education opportunities" information had been submitted. Nothing further transpired until the District sent a letter to the Department dated December 17, 1980 stating that it had submitted the Equal Education Opportunities information and now wished to have the application processed. On January 31, 1981 the Department informed the District that it could not process the application because (a) the District had "continued with and completed the project" without the Department's approval, (b) no appraisal was conducted under Section 2574(c)(2) of the Code immediately prior to the new construction and (c) other required approvals were not processed or issued. The District then commenced this action in mandamus alleging that by reason of the Department's failure to process the District's application the District had not received two million dollars in reimbursement that it anticipated to partially off-set the six million dollars of construction costs it had incurred.

It is well settled that for the District to succeed in mandamus it must appear that it has a clear legal right to the performance of a ministerial action by the Department and that the Department had a corresponding mandatory duty to perform that action. Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). Moreover there must be no other appropriate and adequate remedy. Id.

In its first preliminary objection the Department contends that the District had the right to an administrative appeal from the Department's letter dated January 31, 1981 which refused to process the District's application. Inasmuch as the complete contents of that letter are not available to us from the petition,

[ 63 Pa. Commw. Page 42]

    we are unable to say as a matter of law that the letter constituted an adjudication within the language of Callahan v. Pennsylvania State Police, Pa. , 431 A.2d 946 (1981). Accordingly, we must ...


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