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JOHN M. SEWELL v. MORTON B. SOLOMON ET AL. (09/15/83)

decided: September 15, 1983.

JOHN M. SEWELL, APPELLANT
v.
MORTON B. SOLOMON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of John M. Sewell v. Morton B. Solomon, Police Commissioner, and V. Wilson Goode, Managing Director, and Honorable William J. Green, Mayor, and the City of Philadelphia, No. 2718 October Term, 1981.

COUNSEL

Alfonso Tumini, with him, Richard Wagner, Alfonso Tumini Law Offices, for appellant.

Mark A. Aronchick, Acting City Solicitor, with him, Jill A. Douthett, Deputy City Solicitor, and Leslie Simkin, Assistant City Solicitor, for appellees.

President Judge Crumlish, Jr. and Judges Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 77 Pa. Commw. Page 200]

John M. Sewell (Appellant), here appeals the decision of the Court of Common Pleas of Philadelphia County which dismissed his action in mandamus against the City of Philadelphia (City) and various officials thereof because of his failure to exhaust all administrative remedies prior to his action in mandamus. We affirm.

Appellant here sought access to several documents regarding evaluation of his duties as a police officer. These documents were the result of field investigations conducted by police officials. Appellant contends that these documents are part of his personnel file and therefore available for his inspection pursuant to the Act of Nov. 26, 1978, P.L. 1212 (Personnel Files Act), 43 P.S. §§ 1321-1324, which provides that an employee shall be permitted reasonable access to his complete personnel records. Appellees refused him access, stating that these documents are not part of his personnel file and that staff investigation reports are expressly excluded from the definition of personnel file under Section 1 of the Personnel Files Act, 43 P.S. § 1321.

After making two requests to his supervisors for the production of these documents, Appellant now seeks to compel such action by a writ of mandamus.

Mandamus is an extraordinary legal remedy which will only issue when the petitioner seeking relief establishes that: (1) there is want of any other adequate and specific legal remedy, (2) there is a clear legal right to which he is entitled and (3) there exists a corresponding duty on the part of the party from whom he seeks relief. Citizens Committee to Recall Rizzo v. Board of Elections of the City and County of Philadelphia, 470 Pa. 1, 367 A.2d 232 (1976).

[ 77 Pa. Commw. Page 201]

The Pennsylvania Rules of Civil Procedure also state that in order for a Complaint in mandamus to be sufficient it must allege, among other things, the want of any other adequate remedy at law.*fn1

Both the original and amended Complaints in the case sub judice fail to state the absence of any remedy at law. Moreover it is clear that Appellant did not avail himself of the statutory remedy available. Section 4 of the Personnel Files Act, 43 P.S. § 1324, states, in pertinent part:

The Bureau of Labor Standards of the Department of Labor and Industry is hereby authorized and directed to enforce the provisions of this act, and upon a petition and hearing by either an employer or employee, to make and enforce such orders as the bureau shall deem appropriate to which order will provide access to said records and the opportunity for an employee to place a counter statement ...


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