Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Michael A. Brennan v. Lewis S. Taylor, Director of Personnel Department, No. 3446 June Term, 1978.
John Wendell Beavers, Casper & Beavers, P.C., for appellant.
Alan J. Davis, City Solicitor, with him Judith N. Dean, Deputy City Solicitor, and Gayle R. Smith, Assistant City Solicitor, for appellee.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
This is an appeal from an order of the Court of Common Pleas of Philadelphia which sustained a preliminary objection in the nature of a petition raising the question of jurisdiction in a mandamus action. The court's order also remanded the case to the Civil Service Commission of the City of Philadelphia (Civil Service Commission).
The underlying facts as determined from the Appellant's*fn1 complaint are that Appellant, who was employed by the City of Philadelphia as a fireman, took a written examination for Fire Lieutenant. He was notified that he had failed the examination whereupon he requested to see his corrected examination. The examination paper was made available to him and Appellant alleges that he discovered four answers that were incorrectly marked. He called this matter to the attention of the Director of the Personnel Department, Appellee herein, who sent a communication
dated April 19, 1978 to Appellant which stated that the test review had been conducted and that the conclusion reached was that Appellant had "surreptitiously altered" his test answer sheet. The Appellant was advised by the same communication that as a consequence of his misconduct he was barred from taking the next Fire Lieutenant examination and that his name would remain on the failure list.
Shortly thereafter, Appellant filed his complaint in equity for mandamus.*fn2 The bases for Appellee's preliminary objections were that Appellant had failed to exhaust his administrative remedy and had an adequate remedy at law.
In his memorandum opinion in support of his order sustaining Appellee's preliminary objection, the trial judge held that it was implicit in the applicable City Charter provisions that Appellant had a right of appeal from the determination of the Director of Personnel to the Civil Service Commission. The trial court apparently concluded that since Appellant had that administrative remedy, his action in mandamus was inappropriate. Notwithstanding the trial court's finding that it had no jurisdiction in the matter, the court ordered the case remanded to the Civil Service Commission because it was "cognizant of the need to provide plaintiff with an appropriate remedy in this case."
This Court has held that:
Mandamus is an extraordinary writ which lies to compel the performance of a mandatory duty or a ministerial act only where there is (1) a clear legal right in the plaintiff, (2) a ...