20 Pa. Commw. 606 | Pa. Commw. Ct. | 1975
On June 8, 1949, plaintiff, Hayden C. Jones, Jr., was convicted on numerous bills of indictment, and sentenced to a term of fifteen to thirty years. Nineteen years subsequent to his incarceration, plaintiff petitioned for post-conviction relief. The same was granted and plaintiff obtained his release from prison, the Court of Common Pleas of Allegheny County having found that plaintiff’s conviction had resulted, at least in part, from perjured testimony.
On June 18, 1974, plaintiff filed a complaint in this Court, naming therein as defendants, the Attorney General of the Commonwealth, the Auditor General and Treasurer of the Commonwealth, as the “Board of Claims,” and eleven members of the General Assembly. All of the named defendants responded by preliminary objections, essentially in the forms of demurrers, the dispositions of which are the subject of this opinion.
By this action, plaintiff seeks money damages arising from an alleged cause of action in tort, which cause of
In seeking a monetary verdict against defendants, plaintiff recognizes the bar presented by the principle of sovereign immunity.
First, plaintiff requests this Court to strike down sovereign immunity from the body of Pennsylvania law. Even assuming we were so disposed, we have repeatedly held that, as an inferior appellate court, we are bound by pronouncements of our Supreme Court.
Article I, Section 11, of the Pennsylvania Constitution, in part, reads:
“Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” (Emphasis added.)
In his complaint, plaintiff alleges that, on several occasions, the legislature has allocated funds from the State Treasury to compensate individuals who had suffered the
Alternately, plaintiff would have us direct the various defendants to fulfill what plaintiff regards as their respective and clearly mandated duties, the performance of which arose upon defendants’ receipt of notice of the facts supporting plaintiff’s claim.
“ [M] andamus is an extraordinary writ which lies to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.”3
Plaintiff asserts that the conditions precedent to the maintenance of an action in mandamus exist with respect to
The Attorney General, as head of the Department of Justice, is under a statutory duty “(a) [t]o investigate any violations, or alleged violations, of the laws of the Commonwealth which may come to its [the Department’s] notice.”
Applying section 904 to the facts here alleged, we can find no “mandatory duty” upon the Attorney General to act on plaintiff’s behalf. While section 904, on its face, appears to allow the Attorney General no discretion in his decision to “investigate any violations ... of the laws of the Commonwealth,” it imposes no investigative duty whatsoever where injustices are not violative of the Commonwealth’s laws. Under the current status of the law, the Commonwealth’s allegedly wrongful incarceration of plaintiff, though abjectly distasteful, offers plaintiff no cognizable relief.
For a different reason, section 905 also provides plaintiff no solace. The duties set forth in that section are fully discretionary in nature (“as may be deemed advisable”) and are, therefore, not the proper subjects of an action in mandamus. Valley Forge Racing Association, Inc., supra.
Plaintiff’s prayer for relief in mandamus against the Auditor General and the Treasurer as the “Board of Claims,” is equally vulnerable. The establishment of the
Plaintiff’s third prayer in mandamus would have us order the eleven named members of the General Assembly “to pass appropriate legislation to provide compensation for plaintiff’s claim and to establish a board to hear moral claims against the Commonwealth.”
While encroachment by the judicial branch upon legislative power and authority experienced in the recent past has, to a limited extent, eroded the historical concept of separation of powers, we are aware of no decisions in which the judicial branch has mandated a legislative body to act in its purely legislative domain. Here, plaintiff would have this Court direct but a few members of the General Assembly to do that which they themselves cannot do without the approval of the majority of their colleagues and to enact legislation on a given subject, a judicial act which would be a flagrant infringement upon a purely legislative matter and a complete negation of the principle of separation of powers. The judicial branch of the government is without any power or authority to so act.
To summarize, in none of the three instances considered can plaintiff establish the existence of the conditions precedent essential to the maintenance of an action in mandamus.
Plaintiff’s fifth and final prayer for relief, which is couched in terms of mandamus but is properly character
Order
Now, August 1, 1975, the preliminary objections of all the defendants are hereby sustained and the complaint is dismissed.
. See Pa. Const. art. I, §11, and Brown v. Commonwealth, 453 Pa. 566, 305 A.2d 868 (1973), interpreting same.
. Williams v. Commonwealth, 12 Pa. Commonwealth Ct. 384, 316 A.2d 685 (1974); Duquesne Light Co. v. Department of Transportation, 6 Pa. Commonwealth Ct. 364, 295 A.2d 351 (1972); Lovrinoff v. Pennsylvania Turnpike Commission, 3 Pa. Commonwealth Ct. 161, 281 A.2d 176 (1971).
. Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 824-25 (1972).
. Section 904 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. §294.
. Section 7 of the Act of March 30, 1811, P.L. 145, 72 P.S. §4087, and Section 1003 of The Fiscal Code, Act of April 9, 1929, P.L. 343, 72 P.S. §1003.