Summary
In Burlington Homes, supra, we held that an administrative regulation, which banned the primary movement of fourteen-foot wide mobile homes on State highways after February 28, 1974, was invalid because it had not been promulgated pursuant to the requirements of the Commonwealth Documents Law, and that, therefore, the Pennsylvania Department of Transportation had no grounds upon which to base its rejection of applications for special hauling permits.
Summary of this case from Pa. Prevailing Wage A. Bd. v. S. Black, Inc.Opinion
Argued November 7, 1974
February 6, 1975.
Motor vehicles — Special hauling permit — Fourteen feet wide mobile homes — Administrative regulations — Commonwealth Documents Law, Act 1968, July 31, P.L. 769 — Adjudication — Appealable order — Administrative Agency Law, Act 1945, June 4, P.L. 1388 — Mandamus — Clear legal right — Exercise of discretion — Adequate remedy at law.
1. A final directive of the Secretary of Transportation, barring fourteen feet wide mobile homes from Commonwealth highways, which was not properly promulgated under the Commonwealth Document Law, Act 1968, July 31, P.L. 769, is a nullity and cannot serve as the basis for rejecting applications for special hauling permits. [332]
2. A denial of a special hauling permit by the Secretary of Transportation is an adjudication from which an appeal lies under the Administrative Agency Law, Act 1945, June 4, P.L. 1388. [332]
3. Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a want of any other adequate and appropriate remedy. [332]
4. Mandamus ordinarily lies to compel an official to exercise discretion which he is required to exercise, but such relief is not available where there exists an appropriate and adequate remedy at law. [332-3]
Argued November 7, 1974, before President Judge BOWMAN and Judges CRUMLISH, JR., MENCER, ROGERS and BLATT. Judges KRAMER and WILKINSON, JR. did not participate.
Original jurisdiction, Nos. 596, 598, 502, 806, 854, 913 and 914 C.D. 1974, in cases of Burlington Homes, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Standard Coach Company, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Redman Mobile Homes, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Astro Manufacturing Co., Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Newport Homes, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Herrli Industries, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania; Poloron Homes of Pennsylvania, Inc. v. Jacob Kassab, Secretary, Department of Transportation, Commonwealth of Pennsylvania. Complaint in mandamus in the Commonwealth Court of Pennsylvania seeking to compel consideration of applications for special hauling permits. Preliminary objections filed. Held: Objections sustained. Complaints dismissed.
Arthur R. Littleton, with him R. Bruce Whitney and Morgan, Lewis Brockius, for plaintiffs.
Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendant.
Before us are the preliminary objections by defendant, Jacob Kassab, then Secretary of the Pennsylvania Department of Transportation, to complaints in mandamus filed by plaintiffs, Pennsylvania-based manufacturers of mobile homes, in which they seek to compel defendant to exercise the discretion vested in him by Section 905(a) of The Vehicle Code and the departmental regulations promulgated thereunder in considering their applications for special hauling permits to transport fourteen feet wide mobile homes on State highways. The preliminary objections are in the nature of a demurrer and a motion to strike off, alleging a valid exercise of discretion by rejecting the applications following the terms of a "final directive" issued by Penndot on January 3, 1974. Accordingly, he contends mandamus does not lie to dictate a different result. In the companion case of Newport Homes, Inc. v. Kassab, ___ Pa. Commonwealth Ct. ___, 332 A.2d 575 (No. 776 C.D. 1974, filed February 6, 1975), we held that this "final directive", which banned the primary movement of fourteen feet wide mobile homes on State highways after February 28, 1974, was a nullity because it had not been promulgated pursuant to the requirements of the Commonwealth Documents Law, and, therefore, it had no substance upon which to base the rejection of the applications there involved. In addition, we held that the denial of special hauling permits were "adjudications" from which an appeal would lie under the Administrative Agency Law.
Act of April 29, 1959, P.L. 58, as amended, 75 Pa.C.S.A. § 905(a).
Act of July 31, 1968, P.L. 769, 45 P. S. § 1101 et seq. (Supp. 1974-1975).
Act of June 4, 1945, P.L. 1388, as amended, 71 P. S. § 1710.1 et seq.
"It is axiomatic that mandamus 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 . . . . Mandamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of the law." Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 824, 825 (1972). See also, South Whitehall Township v. Commonwealth, 11 Pa. Commw. 558, 316 A.2d 104 (1974). Plaintiffs allege that defendant has not exercised his discretion with respect to the oversized mobile home movements proposed by plaintiffs, and thus mandamus is appropriate, not to control the exercise of discretion, but to compel defendant to exercise his discretion to reach some decision. See Kremer v. Shoyer, 453 Pa. 22, 311 A.2d 600 (1973); Larson v. Peirce Junior College, 11 Pa. Commw. 271, 314 A.2d 572 (1973). Mandamus ordinarily would lie to compel the exercise of discretion in some instances such as the case before us. However, our decision in Newport Homes, Inc. v. Kassab, supra, established an appropriate and adequate remedy at law, when we held that plaintiffs' relief is available in appeal under the aegis of the Administrative Agency Law from the rejection of their applications for special hauling permits. The availability and utilization of this remedy by plaintiffs negates their right to relief in mandamus. Valley Forge, supra; Hutnik v. Duquesne School District, 8 Pa. Commw. 387, 302 A.2d 873 (1973).
Consistent with the foregoing, we enter the following
ORDER
AND NOW, this 6th day of February, 1975, the preliminary objections in the nature of a demurrer are hereby sustained and plaintiffs' complaints in mandamus are dismissed.