Kerr v. Com., Dept. of State

• Decision Date: 10 May 1978
• Citation: 35 Pa.Cmwlth. 330,385 A.2d 1038
• Parties: Carolyn M. KERR, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1038

385 A.2d 1038

35 Pa.Cmwlth. 330

Carolyn M. KERR, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, Respondent.

Commonwealth Court of Pennsylvania.

Argued Feb. 2, 1978.

Decided May 10, 1978.

McNees, Wallace & Nurick, Joseph G. Riper, W. Jeffrey Jamouneau, Harrisburg, for petitioner.

Michael T. McCarthy, Dept. of State, Harrisburg, for respondent.

Before ROGERS, BLATT and DiSALLE, JJ.

OPINION

BLATT, Judge.

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 Fictitious Names Act ¹, 54 P.S. § 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."

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. ² 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.Cmwlth. 606, 342 A.2d 434 (1975).

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.Cmwlth. 637, 334 A.2d 310 (1975); Borough of Baldwin v. Department oF environmentaL resources, 16 pA.cmwlth. 545, 330 A.2d 589 (1974). the petitioner's remedy here, we must therefore note, is specifically provided for under the Administrative Agency Law, ³ 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 ⁴ issued pursuant thereto. The Petitioner here has an administrative remedy which has not been exhausted, therefore this action in mandamus must be dismissed.

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. ⁵ 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.Cmwlth. 317, 332 A.2d 568 (1975); Finkle v. State Real Estate Commission, 17 Pa.Cmwlth. 221, 331 A.2d 593 (1975); See also Department of Health v. Schum, 21 Pa.Cmwlth. 356, 346 A.2d 599 (1975); O'Peil v. State Civil Service Commission, 13 Pa.Cmwlth. 470, 320 A.2d 461 (1974); McKinley v. State Board of Funeral Directors, 5 Pa.Cmwlth. 42, 288 A.2d 840 (1972); Standard Lime and Refractories Co. v. Department of Environmental Resources, 2 Pa.Cmwlth. 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.

The appeal therefore is also dismissed, without prejudice to either party.

ORDER

AND, NOW, this 10th day of May,...