Original jurisdiction in the case of The County of Allegheny and The Prison Board of Allegheny County v. The Commonwealth of Pennsylvania; the Commonwealth of Pennsylvania, Bureau of Correction; Glen R. Jeffes, Commissioner, Bureau of Correction; Erskind DeRamus, Deputy Commissioner, Bureau of Correction; and the Pennsylvania Board of Probation and Parole, Fred W. Jacobs, Chairman.
Dennis Biondo, Assistant County Solicitor, with him, James H. McLean, County Solicitor, for petitioners.
Francis R. Filipi, Deputy Attorney General, with him, Allen C. Warshaw, Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.
President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Palladino. Opinion by Judge MacPhail. Dissenting Opinion by Judge Craig.
Allegheny County (County), along with many other counties in the Commonwealth, is confronted with a prison crisis caused by over-crowding. In response to
a suit by inmates, the United States District Court for the Western District of Pennsylvania, after finding that the Allegheny County Jail (County Jail) was unconstitutionally overcrowded entered an order directing, inter alia, that by January 1, 1984 the County Jail should house no more than 500 male and 30 female prisoners.*fn1 That order was subsequently amended to provide that the County would be required to pay a fine of $5,000 for each inmate released on and after February 15, 1984 to comply with the District Court's order.
The County thereafter petitioned the Deputy Commissioner for the Bureau of Correction to authorize the release of some of its inmates to state correctional facilities. The Deputy Commissioner denied the request, pointing out that its own facilities were being over-burdened by commitments throughout the Commonwealth. The County then instituted the instant action in our original jurisdiction in the nature of a complaint in mandamus and in equity requesting that we direct the appropriate Commonwealth officers and agencies (Respondents)*fn2 to receive County inmates. The Respondents have filed preliminary objections in the nature of a demurrer averring that the County's amended complaint fails to state a claim in either mandamus or equity.
Certain elementary principles of law must guide us. For the purpose of ruling upon the demurrer, the factual allegations in the County's complaint, but not the legal conclusions set forth therein, must be assumed
to be true. Zurenda v. Commonwealth, 46 Pa. Commonwealth Ct. 67, 405 A.2d 1124 (1979). Before the extraordinary writ of mandamus will be issued which compels the performance of a ministerial act or mandatory duty, the person seeking the writ must demonstrate a clear legal right to it, a corresponding duty to be performed by the defendant-respondent and the absence of an adequate remedy at law. Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). Where the action sought to be compelled is discretionary, mandamus will not lie to control that discretionary act, but the Courts will review the exercise of the actor's discretion where it is arbitrarily or fraudulently exercised or is based upon a mistaken view of the law. Garratt v. Philadelphia, 387 Pa. 442, 127 A.2d 738 (1956).
In the case sub judice, the County complains that the Deputy Commissioner refused its request to transfer 76 inmates from the County Jail to state correctional facilities. The County alleges that the Deputy Commissioner has the authority to make such transfers by virtue of the provisions of Section 1 of the Act of June 11, 1923, P.L. 1044, as amended, 61 P.S. § 72. A copy of the response of the Deputy Commissioner to that ...