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decided: March 6, 1986.


Original Jurisdiction in case of James L. Lutz v. Commonwealth of Pennsylvania, State Attorney General LeRoy S. Zimmerman.


James L. Lutz, petitioner, for himself.

Ellis M. Saull, Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

President Judge Crumlish, Jr., Judge Rogers, and Senior Judge Kalish, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 95 Pa. Commw. Page 440]

Attorney General LeRoy S. Zimmerman has filed preliminary objections in the nature of a demurrer to James L. Lutz's complaint in mandamus.*fn1 We sustain the preliminary objections.

The pertinent facts are as follows: Lutz avers that he had been employed as a special investigator by the District Attorney of Schuylkill County and that the County refused to pay him $3,200 for his services. The District Attorney denied employment.

Lutz informed the Attorney General that the District Attorney had made fraudulent representations to the common pleas court, the County Commissioners and the public, all in violation of the Pennsylvania Crimes Code,*fn2 and he requested the Attorney General to issue and serve an arrest warrant to the District Attorney. The Attorney General declined, contending that he had no jurisdiction.*fn3 Lutz in this action alleges that the Attorney General refused to perform the sworn, mandatory duty of his office to investigate

[ 95 Pa. Commw. Page 441]

    and/or prosecute criminal acts of an elected law enforcement official.

By these preliminary objections, the Attorney General contends that mandamus will not lie because (1) Lutz's request for an investigation and/or prosecution of the District Attorney is purely discretionary and (2) an adequate remedy at law exists.

"Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty only where there exists a clear legal right in the plaintiff and a corresponding duty in the defendant and a lack of another appropriate and adequate remedy." Edwards Engineering Corp. v. Davies, 80 Pa. Commonwealth Ct. 47, 50, 471 A.2d 119, 121 (1984) (emphasis in original). Mandamus, therefore, seeks to compel public officials to perform acts which are required or obliged to be performed and which do not involve an exercise of discretion or judgment. Id. "Finally, mandamus will not lie to compel the performance of discretionary acts except where the failure to exercise discretion is arbitrary, fraudulent or based on an erroneous view of the Law." Carino v. Board of Commissioners, County of Armstrong, 79 Pa. Commonwealth Ct. 242, 244, 468 A.2d 1201, 1203 (1983).

In support of his contention, the Attorney General argues that the investigation of a state official is discretionary and that mandamus does not lie to compel an investigation of the District Attorney. He cites Section 205(a)(1) of the Commonwealth Attorneys Act (Act),*fn4 which provides that "[t]he Attorney General shall have the power to prosecute . . . in the following cases: (1) [c]riminal charges against State officials or employees affecting the performance of their . . . public trust . . ." (emphasis added), and Section

[ 95 Pa. Commw. Page 442206]

(a) of the Act,*fn5 which provides that "[t]he Attorney General shall have the power to investigate any criminal offense which he has the power to prosecute under section 205. . . ." (Footnote omitted; emphasis added.) These statutory provisions indicate that the Attorney General possesses the authority to prosecute or investigate and that it is within the Attorney General's discretion to exercise this power.

Additionally, we find persuasive Supreme Court decisions prior to the promulgation of the Commonwealth Attorneys Act, which define the Attorney General's powers.*fn6 Margotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951), and Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A.2d 524 (1936), provide that the Attorney General has the authority to investigate, inter alia, any criminal violations of the laws of the Commonwealth.*fn7

Because we hold that the exercise of the Attorney General's duty to investigate this District Attorney is discretionary and not subject to mandamus, and Lutz's complaint must of necessity fail, we shall not address the remaining contentions.

[ 95 Pa. Commw. Page 443]

We sustain the Attorney General's preliminary objections and dismiss Lutz's complaint in mandamus.


The preliminary objections filed by Attorney General LeRoy S. Zimmerman are sustained, and the complaint of James L. Lutz is dismissed.


Preliminary objections sustained. Complaint dismissed.

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