Nos. 140 and 141 Eastern District Appeal Docket 1983, Appeal of Order of Commonwealth Court at No. 1237 C.D. 1982 Denying the Commission's Motion to Dismiss and vacating the Commission's May 6, 1982 determination of no probable cause with respect to Commission Docket No. E-8036. 75 Pa. Commonwealth Ct. 296,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a dissenting opinion in which Zappala and Papadakos, JJ., join.
The Pennsylvania Human Relations Commission (Commission) and Pennsylvania Department of Public Welfare (Department), as intervenor, appeal by allowance an order of Commonwealth Court requiring the Commission to hold a hearing, if requested by appellee, on the question of whether there is probable cause to credit appellee's claim of employment discrimination against the Department. Without a hearing the Commission had reversed its determination that probable cause for enforcement existed and closed its case file after conciliation had failed. The Commission asserts Commonwealth Court erred in holding that its determination of no probable cause is an "adjudication" and as
such generally appealable. The Department asserts that requiring it to defend against appellee's claim both before the Commission as well as in a de novo action brought in Common Pleas exposes it to dual proceedings contrary to the statute. We hold that the Commission's decision not to pursue appellee's discrimination claim is the subject of a limited review in the nature of mandamus under Commonwealth Court's original jurisdiction,*fn1 on the peculiar facts of this case.*fn2 However, insofar as Commonwealth Court's order directs the Commission to hold a full evidentiary hearing on the issue of probable cause, it is disapproved as an order compelling the exercise of discretion in a particular way and is, to that extent, inappropriate in actions in the nature of mandamus. Hotel Casey Co. v. Ross, 343 Pa. 573, 583, 23 A.2d 737, 742 (1942) ("[Mandamus] will be used to compel but not to control the exercise of discretion"). Instead, we modify Commonwealth Court's remand order by limiting it to a direction that the Commission proceed to exercise its statutory discretion on whether to institute full administrative action to enforce this particular complaint, in accordance with the statute and its own rules and regulations. As so modified and limited we affirm Commonwealth Court.
The history of this case was adequately summarized by Commonwealth Court:
On October 21, 1974, DPW promoted Mr. Willie Johnson, a black individual, to Regional Commissioner for Youth Services, Southeastern Region. Dr. Baker [appellee in this case] responded by filing a complaint with the PHRC on October 24, 1974, alleging that DPW denied him, and others similarly situated, the regional position because of race,*fn3 in violation of section 5(a) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a).
Dr. Baker amended his complaint on April 6, 1976, alleging that he had requested an interview for the position, that DPW ignored his request, that DPW failed to post the position, and that Mr. Johnson's appointment was part of DPW's continuing effort to create a predominantly black work force within the Youth Services Division of the Southeastern Region.
The PHRC staff investigated Dr. Baker's allegations and, after three and one-half years, dismissed his complaint on a finding of no probable cause. The PHRC informed Dr. Baker of its decision by letter dated April 28, 1978. Dr. Baker filed a timely Petition for Reconsideration on May 5, 1979; the PHRC approved that petition on February 25, 1980.
The PHRC staff again investigated Dr. Baker's allegations of racial discrimination and, by letter of July 15, 1981, Compliance Supervisor Stuart M. Gross informed DPW that probable cause existed to credit the allegations of the complaint. A five-page summary of the charge and findings of cause accompanied that preliminary recommendation. According to Mr. Gross' letter and his case-closing recommendation, the PHRC scheduled a conciliation meeting in the Philadelphia regional office; apparently, that meeting was not successful.
By letter of January 22, 1982, Dr. Baker received notice from Mr. Gross that he would rescind the staff finding of probable cause and submit a closing recommendation of no probable ...