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FR&S v. COMMONWEALTH PENNSYLVANIA (03/23/87)

decided: March 23, 1987.

FR&S, INC., A PENNSYLVANIA CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Original Jurisdiction in the case of FR&S, Inc., a Pennsylvania Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

William F. Fox, Jr., Fox, Differ, Callahan, Ulrich & O'Hara, for petitioner.

Andrew H. Cline, Associate Deputy General Counsel, with him, Barry M. Hartman, Administrative Deputy General Counsel, and Henry G. Barr, General Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 104 Pa. Commw. Page 648]

In 1983, the Department of Environmental Resources issued an order denying the present petitioner, FR&S, Inc., a solid waste permit and directed that the petitioner cease all operations at its solid waste disposal site.

On May 10, 1983, FR&S timely filed a Notice of Appeal with the Environmental Hearing Board, requesting that the board review that order. An examiner held a hearing which was completed on August 15, 1984. However, the board has issued no decision.

FR&S next filed a petition for review addressed to our original jurisdiction. That petition, which is here at issue, requests that this court direct the Environmental Hearing Board to issue an adjudication on the appeal.

We treat the petition as an action in mandamus because it requests this court to direct a governmental agency to perform a statutorily-required duty. 1 G. Darlington, K. McKeon, D. Schuckers & K. Brown, Pennsylvania Appellate Practice § 1502:5 (1986). Such treatment raises no question of jurisdiction. Auditor General v. Borough of East Washington, 474 Pa. 226, 378 A.2d 301 (1977).

Of course, where a public official has an absolute duty to exercise his discretion, mandamus will lie to compel the exercise of that discretion in some manner, even though it cannot compel the exercise of discretion in a particular manner. Larson v. Pierce Junior College, 11 Pa. Commonwealth Ct. 271, 314 A.2d 572 (1973).

As the board acknowledges, FR&S is not here requesting that we compel the board to reach a specific

[ 104 Pa. Commw. Page 649]

    result, but merely that we require the board to make a decision. In Larson, this court held that mandamus will lie to compel an administrative board to reach a decision, noting that such a board cannot ...


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