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FRANCIS ALAN SEVER v. COMMONWEALTH PENNSYLVANIA (09/02/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 2, 1986.

FRANCIS ALAN SEVER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, OFFICE OF ADMINISTRATION, AND CHARLES T. SCIOTTO, RESPONDENTS

Original Jurisdiction in the case of Francis Alan Sever v. Commonwealth of Pennsylvania, Department of Environmental Resources, Office of Administration, and Charles T. Sciotto.

COUNSEL

John R. Bonner, with him, James D. Casale, Casale & Bonner, for petitioner.

Thomas M. Crowley, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 100 Pa. Commw. Page 218]

This action, filed by petitioner Francis Alan Sever and addressed to our original jurisdiction,*fn1 seeks a writ

[ 100 Pa. Commw. Page 219]

    of mandamus compelling the Commonwealth respondents to approve petitioner's applications for supplementary employment or, in the alternative, to allow petitioner to be compensated for the services he performed between January 4, 1985 and January 6, 1986. The Commonwealth respondents include: the Commonwealth of Pennsylvania, Department of Environmental Resources (DER), the Commonwealth of Pennsylvania, Office of Administration (OA), and Charles T. Sciotto, Deputy Secretary for Employe Relations of OA (Sciotto). Respondents filed a preliminary objection in the nature of a demurrer averring that the petition for review failed to state a cause of action upon which relief could be granted, in that petitioner has no enforceable legal rights or expectations to the writ he is seeking.*fn2

Petitioner is employed as a sanitary engineer by DER's Bureau of Water Quality in Williamsport, Pennsylvania. Petitioner desired to start his own side-business for the purpose of conducting feasibility studies, designing and securing federal licensing for hydro-electric generation facilities. Pursuant to Executive Order 1980-18, all employes, appointees, and officials in the Executive Branch of the Commonwealth must obtain prior approval of any supplementary employment from the Head of the Agency. Governor's Code of Conduct For Appointed Officials and State Employes,

[ 100 Pa. Commw. Page 2204]

Pa. Code § 7.156. To establish procedures for implementing Executive Order 1980-18, Murray G. Dickman, Secretary of Administration, issued Management Directive 515.18.

On January 4, 1985, petitioner submitted an application for approval of supplementary employment. Directive 515.18, section 5(b)(1) provides that the employe "shall be provided with agency notification of approval or disapproval within 15 working days of the dates of receipt of their requests." Petitioner's application was disapproved on September 16, 1985, in excess of eight months after the application was filed. On September 25, 1985, petitioner filed a timely request for review with OA*fn3 which, on December 23, 1985, was also denied.

In the interim, on September 12, 1985, petitioner filed a second application for supplementary employment. This application covered the exact same employment but was filed under the employer name of "White Coal Company". On November 26, 1985, this application was also denied. Petitioner requested review by OA on December 10, 1985 and, review was again denied on January 6, 1986.

Subsequently, petitioner filed a petition for review*fn4 in this Court seeking a writ of mandamus ordering the DER to approve petitioner's application for supplementary employment or, in the alternative, entering an order allowing petitioner to be compensated for the services he performed between January 4, 1985 and

[ 100 Pa. Commw. Page 221]

January 6, 1986. In response thereto, the Commonwealth respondents interposed preliminary objections in the nature of a demurrer.

In deciding preliminary objections in the nature of a demurrer, we are constrained to accept all well-pleaded facts as true, even though not admitting the pleader's conclusions of law. O'Peil v. State Civil Service Commission, 13 Pa. Commonwealth Ct. 470, 320 A.2d 461 (1974). See also Kastner v. Pennsylvania Board of Probation and Parole, 78 Pa. Commonwealth Ct. 157, 467 A.2d 89 (1983).

Mandamus is an extraordinary writ which will issue to compel performance of a ministerial act or mandatory duty where there exists (1) a clear legal right in the petitioner, (2) a corresponding duty in the respondent, and (3) want of any other adequate and appropriate remedy. Equitable Gas Company v. City of Pittsburgh, 507 Pa. 53, 57-58, 488 A.2d 270, 272 (1985); Township of Perkiomen v. Mest, 92 Pa. Commonwealth Ct. 307, 499 A.2d 706 (1985). "As stated in Commonwealth ex rel. McLaughlin v. Erie County, 375 Pa. 344, 100 A.2d 601 (1953), 'mandamus will not issue unless the right of the petitioner is clear and specific; it can never be invoked in a doubtful case.' Id. at 351, 100 A.2d at 604." Equitable Gas 507 Pa. at 58, 488 A.2d at 272-273.

Petitioner's petition for review alleges that the failure of respondents to either approve or disapprove his two applications for supplementary employment within fifteen days of submission, as required by Management Directive 515.18, section 5(b)(1), entitles him to approval of these applications. As controlling precedent, petitioner cites us to Shapp v. Butera, 22 Pa. Commonwealth Ct. 229, 348 A.2d 910 (1975). Shapp v. Butera dealt with a request made pursuant to the Right to Know Act*fn5 by Robert J. Butera, the Minority Leader of

[ 100 Pa. Commw. Page 222]

    the House of Representatives, to examine, inspect, and copy financial disclosure statements filed in the Governor's Office by members of the governor's cabinet and members of "certain" agencies, boards and commissions. Id. at 230, 348 A.2d at 911. The financial disclosure statements were filed pursuant to an Executive Order of April 29, 1971.*fn6

In Shapp v. Butera we identified three types of executive orders: (1) formal, ceremonial, or political orders, usually issued as proclamations; (2) orders which communicate to subordinate officials "request[ed] or suggested directions for the execution of the duties of the Executive Branch of Government"; and (3) orders which serve to "implement or supplement the Constitution or statutes." Id. at 234-235, 348 A.2d at 913. Only the third class of orders create legally enforceable rights. Id. The instant Executive order falls clearly within the second class.

In his brief at page 7, petitioner states:

4 Pa. Code Section 7.156 sets forth an executive order concerning supplementary employment . . . Directive 515.18 specifically implements and supplements the . . . statutory provision. Obviously, 4 Pa. Code Section 7.156 is a statute and has the force of law. Therefore, Directive 515.18 falls within 'orders which serve to implement or supplement the Constitution or statutes.' Plaintiff [sic] has a legally enforceable right due to this Directive under the Shapp analysis.

[ 100 Pa. Commw. Page 223]

Petitioner's argument contains two flaws which make it untenable as a matter of law. First, 4 Pa. Code § 7.156 is not a statute ; it is an executive order codified in the Pennsylvania Code. As we stated in Shapp v. Butera, "The Governor's power is to execute the laws and not to create or interpret them. The Legislative Branch of government creates laws, and the Judicial Branch interprets them." Id. at 235-236, 348 A.2d at 914.

The Pennsylvania Code codifies agency regulations, proclamations and executive orders of the Governor, and other such documents. 45 Pa. C.S. § 702. Statutes are enacted by the legislature, not the Governor.

Second, Management Directive 515.18 is not an Executive Order. It is plain from its face that it is a Directive from the Secretary of Administration "to identify responsibilities and establish procedures for implementing the supplementary employment provisions of . . . Executive Order 1980-18."

Therefore, the " Shapp analysis" is inapplicable to petitioner's case. Management Directive 515.18, section 5(b)(1) is merely a directive by the Secretary of Administration and does not confer a legally enforceable right on petitioner.*fn7

Further, implicit in petitioner's claim is the erroneous assumption that the failure by respondents to approve his application operates as a "deemed approval". Thus, petitioner contends, that at the expiration of fifteen days without approval or disapproval of his application,

[ 100 Pa. Commw. Page 224]

    he had the right to assume that the application was approved, to commence supplementary employment, and to have this Court order the Commonwealth respondents to approve his application. This assumption is without precedent or merit.

Deemed approval will lie only where there is an express declaration of deemed approval. See Crossley Appeal, 60 Pa. Commonwealth Ct. 351, 432 A.2d 263 (1981); Beekhuis v. Zoning Hearing Board of Middleton Township, 59 Pa. Commonwealth Ct. 307, 429 A.2d 1231 (1981); Hopewell Township v. Wilson, 46 Pa. Commonwealth Ct. 425, 406 A.2d 610 (1979). There being no provision in the Directive as to what shall happen if there is no action on the application within fifteen days, "this Court can no more declare that the application is deemed approved than it could declare that it is deemed disapproved." Id. at 428, 406 A.2d at 611. We do not condone the DER's inaction in this instance and our holding does not make the fifteen-day requirement meaningless. The purpose of the fifteen-day requirement is to form the basis of an action in mandamus to compel DER to take action where it has failed to do so after the expiration of fifteen days. See Id.

Thus, taking all the factual averments in petitioner's petition for review as true, it is clear that the DER did not approve petitioner's application for supplementary employment within fifteen days, as required by Management Directive 515.18, section 5(b)(1). It is equally true that petitioner cannot establish a clear legal right to an order by this Court directing the Commonwealth to approve his application.

Approval or disapproval of petitioner's application is a discretionary act, accomplished pursuant to Executive Order 1980-18 and Management Directive 515.18. "[I]n the context of a discretionary act, a court can issue such a writ to mandate the exercise of that discretion in

[ 100 Pa. Commw. Page 225]

    some fashion, but not to require that it be exercised in a particular manner." United States Steel Corp. v. Papadakos, 63 Pa. Commonwealth Ct. 213, 215-216, 437 A.2d 1044, 1046 (1981), citing Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978).

In the instant case, the DER has already denied petitioner's application and the OA has affirmed that decision.

Once the official or agency has exercised its discretion, a party who is dissatisfied with the result may not seek to compel a different result through mandamus; for mandamus does not lie to review a discretionary act, nor to compel a particular result in a process involving the exercise of discretion.

Daset Mining Corp. v. Ercole, 51 Pa. Commonwealth Ct. 23, 25, 413 A.2d 780, 781 (1980), quoting Styers v. Wade, 30 Pa. Commonwealth Ct. 38, 42, 372 A.2d 1236, 1238 (1977) aff'd 478 Pa. 631, 387 A.2d 666 (1978). Accordingly, we will sustain the preliminary objection of the Commonwealth respondents.

Petitioner also seeks an order allowing him to receive compensation for the services he performed between the date of the original application, January 4, 1985, and the date of the OA's affirmance of the denial by DER of his second application, January 6, 1986.

The Governor's Code of Conduct, Executive Order 1980-18, § 7.156 specifically states that "[n]o employe, appointee, or official in the Executive Branch of the Commonwealth shall engage in or accept private employment or render services for a private interest unless such employment or service is approved in advance by the Head of the Agency to which the affected person is assigned." Thus, petitioner had no affirmative right, at any time, to commence such employment. Nor could

[ 100 Pa. Commw. Page 226]

    the inaction of the DER be deemed an approval of his application for supplementary employment. Therefore, this Court declines to issue an order allowing compensation for work which the petitioner had no right to undertake.

Order

And Now, September 2, 1986, the preliminary objection of the respondents: Commonwealth of Pennsylvania, Department of Environmental Resources, Commonwealth of Pennsylvania, Office of Administration and Charles T. Sciotto, Deputy Secretary for Employe Relations of the Office of Administration, is sustained and the petition for review is dismissed for failure to state a cause of action upon which relief could be granted.

Disposition

Preliminary objections sustained. Complaint dismissed.


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