Thursday, January 21, 2010


Petsinger v. OVR - Cmwlth. Court - January 21, 2010

Petitioner brought mandamus action against the Office of Vocational Rehabilitation concerning his termination from employment following his threats against a fellow employee. The court held that mandamus would not lie.

The Civil Service Act, the federal Rehab Act, and the PA Rehab Act provided petitioner with adequate statutory and administrative remedies to seek redress for OVR’s alleged discriminatory treatment in his employment, his termination from that employment, his request to be reinstated or returned to his former civil service position, as well as OVR’s denial of his repeated requests to reopen his application for vocational rehabilitation services. Therefore, he is barred from raising these issues by petition for mandamus.

A writ of mandamus is an extraordinary remedy which compels the official performance of a ministerial act or a mandatory duty only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other appropriate or adequate remedy. McGill v. Dep’t of Health, Office of Drug & Alcohol Programs, 758 A.2d 268 (Pa. Cmwlth. 2000).

“Thus, in an action involving an administrative agency’s exercise of discretion, the court may only direct the agency to perform the discretionary act and may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken.” Id. at 270. “The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure.” Id.

A party challenging administrative decision-making who has not exhausted available administrative remedies is precluded from obtaining judicial review by mandamus6 or otherwise. Matesic v. Maleski, 624 A.2d 776 (Pa. Cmwlth. 1993). The availability of adequate, meaningful administrative remedies is a bar to a mandamus action. Mueller v. Pa. State Police Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987). In addition, an individual who allows his statutory appeal rights to expire cannot at a later date reclaim those appeal rights under the guise of a petition for mandamus. Lizzi v. Unemployment Comp. Bd. of Review, 466 Pa. 450, 353 A.2d 440 (1976).