Flinn v. Pittenger

• Decision Date: 13 May 1975
• Citation: 338 A.2d 735,19 Pa.Cmwlth. 54
• Parties: Mildred FLINN et al., Plaintiffs, v. John C. PITTENGER, Secretary of Education, Defendant, and Max H. Homer, Intervening Defendant.
• Court: Pennsylvania Commonwealth Court

Page 735

338 A.2d 735

19 Pa.Cmwlth. 54

Mildred FLINN et al., Plaintiffs, v. John C. PITTENGER, Secretary of Education, Defendant and Max H. Homer, Intervening Defendant.

Commonwealth Court of Pennsylvania.

Argued March 4, 1975.

Decided May 13, 1975.

[19 Pa.Cmwlth. 55] Larry P. Gaitens, Pittsburgh, for plaintiffs.

Norman J. Watkins, L. Silver, Deputy Attys. Gen., Dept. of Justice, Harrisburg, for defendant.

Jerome H. Gerber, James L. Cowden, John D. Killian, Harrisburg, for intervening defendant.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

ROBERS, Judge.

On September 27, 1973, the defendant, Secretary of Education, John C. Pittenger (Secretary), issued a letter certifying the intervening defendant Max H. Homer to be qualified to hold the office of district superintendent in the public schools of the Commonwealth. Homer applied for the position of District Superintendent of the Sto-Rox School District in Allegheny County and was elected to that office. On September 11, 1974, the plaintiffs, Mildred Flinn, Marjorie A. Handlow, Audrey J. Yanke and Elizabeth J. Bencho, residents and taxpayers of the Sto-Rox School District, filed a complaint in equity against the Secretary challenging the lawfulness of his action of certifying Homer's eligibility. The defendant and the intervening defendant have filed preliminary objections now before us for disposition.

The suit is founded on Section 1003 of the Public School Code, as amended, Act of March 10, 1949, P.L. 30, 24 P.S. § 10--1003 (Supp.1974--1975) which provides in pertinent part:

'No person shall be eligible for election or appointment as a district . . . superintendent, unless--

(1) He holds a diploma from a college or other institution approved by the Department of Public Instruction;

(2) He has had six (6) years' successful teaching experience, not less than three of which shall have been in a supervisory or administrative capacity;

(3) He has completed in a college or university a graduate course in education approved by the Department of Public Instruction.

. . .'

The plaintiffs allege that Homer was not possessed of the three years' supervisory or administrative experience required by the statute and that either Homer misrepresented his qualifications or the Secretary accepted other experience in lieu of that which was prescribed by the statute. They contend that the Secretary's action violated the statute and seek our order directing the Secretary to revoke the certificate. The plaintiffs' theory is that the issuance of the certificate to those possessing the qualifications prescribed by the statute is a purely ministerial, not a discretionary, duty.

The defendants' preliminary objections are principally: (1) that the Secretary's action in granting the certificate was an adjudication subject to attack by appeal under The Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, § 2(a), 71 P.S. § 1710.2(a) (Supp.1974--1975), and § 41, 71 P.S. § 1710.41, an available and adequate remedy not pursued, and (2) that the plaintiffs have an adequate remedy at law foreclosing their pursuit of their cause in equity.

It seems clear to us that the Secretary's duty with respect to the issuance or refusal to issue the certificate evidencing eligibility to persons meeting the qualifications set out in Section 1003 of the Public School Code is purely ministerial, that is, an act the Secretary is required to perform on a given state of facts in obedience to the mandate of the Act. Rose Tree Media School District v. Department of Public Instruction 431 Pa. 233, 244 A.2d 754 (1968). Being ministerial, it was nonadjudicative and not subject to judicial review. See, e.g., Fricchione v. Department of Education, 4 Pa.Cmwlth. 288, 287 A.2d 442 (1972); Manheim Township School District v. State Board of Education, 1 Pa.cmwlth. 627, 276 A.2d 561 (1971). Therefore, the remedy of appeal from the Secretary's action was not available.

In support of the preliminary objection that the plaintiffs have an adequate remedy at law, the defendants contend that the purpose of the suit is to test Homer's title to his office as superintendent of the Sto-Rox School District and that the proper, available and adequate remedy is quo warranto. While the ouster of Homer from office may be the plaintiffs' ultimate objective, their complaint is solely directed to the Secretary's allegedly improper certification and does not seek Homer's ouster. Quo warranto would not, we believe, afford an adequate remedy for the injury claimed. However, a challenge to the Secretary's certification, being, as we have held, a ministerial, nonadjudicatory act, could properly be raised, at law, in mandamus. See, e.g., Valley Forge Racing...