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GEORGE FEIGLEY v. GLEN JEFFES (03/12/87)

decided: March 12, 1987.

GEORGE FEIGLEY, PETITIONER
v.
GLEN JEFFES, COMMISSIONER OF CORRECTIONS AND THOMAS A. FULCOMER, SUPERINTENDENT OF STATE CORRECTIONAL INSTITUTION AT HUNTINGDON, RESPONDENTS



Original Jurisdiction in the case of George Feigley v. Glen Jeffes, Commissioner of Corrections and Thomas A. Fulcomer, Superintendent of State Correctional Institution at Huntingdon.

COUNSEL

George Feigley, petitioner, for himself.

LeRoy S. Zimmerman, Attorney General, with him, Calvin R. Koons, Deputy Attorney General, and Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, for respondents.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three.

Author: Per Curiam

[ 104 Pa. Commw. Page 542]

George Feigley (petitioner) petitions for review in our original jurisdiction for a writ of mandamus*fn1 against Glen Jeffes, the Commissioner of the Bureau of Corrections*fn2 (Bureau), and Thomas A. Fulcomer, the Superintendent of the State Correctional Institution at Huntingdon (Huntingdon), where the petitioner is an inmate.*fn3 Jeffes and Fulcomer (respondents) have interposed preliminary objections to the petition for review and those preliminary objections are now before this Court.

Count I

In the first count of his petition for review, the petitioner seeks a mandamus order to require the respondents to provide for medical screening of all food handlers at Huntingdon for the presence of Acquired Immune Deficiency Syndrome (AIDS) antibodies, and to require the respondents to enforce a Bureau of Corrections administrative directive, BC-ADM 610, relating to existing standards for medical screening of prison food handlers.

[ 104 Pa. Commw. Page 543]

Mandamus, of course, "is an extraordinary writ which is available only to compel the performance of a ministerial act or a mandatory duty where there exists a clear legal right in the [petitioner], a corresponding duty in the [respondents], and the want of any other adequate and appropriate remedy." Jamieson v. Pennsylvania Board of Probation and Parole, 90 Pa. Commonwealth Ct. 318, 322, 495 A.2d 623, 625 (1985). Moreover, the "purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established." Id. at 322, 495 A.2d at 625.

The respondents demur that BC-ADM 610 does not provide for AIDS screening and aver that the dictates of that administrative directive are being met.

In determining preliminary objections in the form of a demurrer, we must accept as true all well-pleaded facts and inferences that may reasonably be deduced therefrom, but not conclusions of law. . . . Nor may we sustain a demurrer unless the law will not permit recovery, and in ruling upon a demurrer, any doubts should be resolved against sustaining the demurrer. . . .

Bahian by Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 649-50, 493 A.2d 803, 806-7 (1985) (citations omitted).

The provisions of BC-ADM 610 upon which the petitioner relies to support his request for AIDS testing of Huntingdon's food handlers are as follows:

X. PHYSICAL EXAMINATION -- FOOD HANDLERS

A. It is the responsibility of the medical department at each institution to:

1. Require each food handler candidate to have the following tests: Serology, urinalysis and a recent (within one year) PPD screening for

[ 104 Pa. Commw. Page 544]

    tuberculosis. After all clinical tests have been made, the inmate will be given a screening physical examination in accordance with standard medical procedures.

2. The Food Service Manager will then conduct a class on personal and Food Service hygiene for ...


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