Opinion
Argued February 2, 1978
May 10, 1978.
Action — Appeal — Mandamus — Fictitious name — Administrative remedy — Act of 1945, May 24, P.L. 967 — Administrative Agency Law, Act 1945, June, 4, P.L. 1388 — Adjudication — Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673.
1. Mandamus lies to compel performance of a ministerial act or mandatory duty where a clear legal right exists in the petitioner, a corresponding duty in the respondent and a lack of any other appropriate and adequate remedy. [332]
2. Mandamus does not lie to compel the granting of a request to conduct business under a fictitious name under the Act of 1945, May 24, P.L. 967, before administrative remedies provided by the Administrative Agency Law, Act 1945, June 4, P.L. 1388, the General Rules of Administrative Practice and Procedure and other regulations, have been exhausted. [332-3]
3. A letter from the Director of the Corporation Bureau of the Department of State merely returning an application to register a fictitious name is not a final adjudication as defined in the Administrative Agency Law, Act 1945, June 4, P.L. 1388, subject to review on the merits by the Commonwealth Court of Pennsylvania under the Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673. [333-4]
Argued February 2, 1978, before Judges ROGERS, BLATT and DiSALLE, sitting as a panel of three.
Original jurisdiction, No. 159 C.D. 1977, in case of Carolyn M. Kerr v. Department of State, Commonwealth of Pennsylvania. Petition for review in the nature of mandamus in the Commonwealth Court of Pennsylvania to compel action granting application to register fictitious name. Held: Appeal dismissed without prejudice.
Joseph G. Riper, with him W. Jeffry Jamouneau, and McNees, Wallace Nurick, for petitioner.
Michael T. McCarthy, Assistant Attorney General, with him Paul J. Carey, Jr., General Counsel, and Robert P. Kane, Attorney General, for respondent.
Petitioner, Carolyn M. Kerr, has filed a "petition for review in the nature of an action for mandamus" seeking judicial review of the rejection by the Corporation Bureau of the Pennsylvania Department of State of her application to register a fictitious name. She submitted her application, requesting to do business under the fictitious name of Forty West Ltd., in accordance with the Fictitous Names Act, 54 Pa.C.S.A. § 28.1, which requires that prior to conducting any business in this Commonwealth under any fictitious names, an individual is required to file an application with the Secretary of the Commonwealth and the relevant county prothonotary. She received a letter from the Director of the Corporation Bureau of the Department of State, stating that her application had been returned because "company is the only designator allowed in a fictitious name. The designator Ltd., Inc., Corp. are not permitted."
Act of May 24, 1945, P.L. 967, as amended, 54 Pa.C.S.A. § 28.1 et seq.
This petition for review is in the form of a complaint in mandamus addressing our original jurisdiction over governmental determinations and alternatively addresses our appellate jurisdiction over adjudications of state administrative agencies. As so viewed, we initially believe that the Petitioner has failed to state a cause of action in mandamus. Mandamus, of course, is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where a clear legal right exists in the petitioner, a corresponding duty in the respondent, and a lack of any other appropriate and adequate remedy. Jones v. Packel, 20 Pa. Commw. 606, 342 A.2d 434 (1975).
See Gorton v. State Civil Service Commission, 35 Pa. Commw. 319, 385 A.2d 1026 (1978).
The doctrine of exhaustion of administrative remedies requires that where an administrative remedy is provided, a party aggrieved by an agency decision must exhaust such administrative remedy before a court will act. Flaharty v. School Directors of Eastern School District, 17 Pa. Commw. 637, 334 A.2d 310 (1975); Borough of Baldwin v. Department of Environmental Resources, 16 Pa. Commw. 545, 330 A.2d 589 (1974). The petitioner's remedy here, we must therefore note, is specifically provided for under the Administrative Agency Law, 71 P. S. § 1710.51(a)(2), the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 31.1 et seq., and other regulations issued pursuant thereto. The Petitioner here has an administrative remedy which has not been exhausted, therefore this action in mandamus must be dismissed.
Act of June 4, 1945. P.L. 1388, as amended, 71 P. S. § 1710.1 et seq. Section 2 provides as follows:
'Adjudication' means any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a court, or which involves the seizure or forfeiture of property, or which involves paroles, pardons or releases from mental institutions.
We note that regulations at 19 Pa. Code § 13.2 specifically provide that information as to these administrative procedures will be furnished to anyone upon request to the Director of the Corporation Bureau, Department of State.
Similarly, we do not believe that this letter can be construed as an "adjudication" as defined in the Administrative Agency Law, a prerequisite to an appeal on the merits to this Court under the Appellate Court Jurisdiction Act of 1970. It is of no particular significance, of course, that the decision to return Appellant's application was communicated in the form of a letter rather than as a formal adjudication, for we have previously held that a letter can constitute an adjudication in instances where it is a final directive of final determination by the agency affecting personal or property rights. See Newport Homes, Inc. v. Kassab, 17 Pa. Commw. 317, 332 A.2d 568 (1975); Finkle v. State Real Estate Commission, 17 Pa. Commw. 221, 331 A.2d 593 (1975); See also Department of Health v. Schum, 21 Pa. Commw. 356, 346 A.2d 599 (1975); O'Peil v. State Civil Service Commission, 13 Pa. Commw. 470, 320 A.2d 461 (1974); McKinley v. State Board of Funeral Directors, 5 Pa. Commw. 42, 288 A.2d 840 (1972); Standard Lime and Refractories Co. v. Department of Environmental Resources, 2 Pa. Commw. 434, 279 A.2d 383 (1971). This letter is not such a final directive. This Court does not have jurisdiction over the instant appeal because the letter sent by the Director of the Corporation Bureau was not a final adjudication ripe for appellate review on the merits.
Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.101 et seq.
The appeal therefore is also dismissed, without prejudice to either party.
ORDER
AND NOW, this 10th day of May, 1978, the Petitioner's appeal is hereby dismissed without prejudice to either party.