Is a Commonwealth agency a “person” subject to mandamus damages under 42 Pa. C.S. § 8303?
MFW Wine Co., LLC v. Pa. Liquor Control Bd., 276 A.3d 1225 (Pa. Cmwlth. 2022), direct appeal, appeal docket 75 MAP 2022; Log Cabin Property, LP v. Pa. Liquor Control Bd., 276 A.3d 862 (Pa. Cmwlth. 2022), direct appeal, appeal docket 76 MAP 2022
In these direct appeals, the Supreme Court will consider whether the PLCB is a “person” subject to damages under Section 8303 of the Judicial Code, 42 Pa. C.S. § 8303 (“A person who is adjudged in an action in the nature of mandamus to have failed or refused without lawful justification to perform a duty required by law shall be liable in damages to the person aggrieved by such failure or refusal.”).
MFW Wine Co., LLC, arises from a mandamus petition filed by businesses that are liquor and alcohol customers (Businesses) against the Pennsylvania Liquor Control Board (PLCB) requesting that Commonwealth Court enforce Businesses’ right to direct shipment of special order liquor or alcohol from licensed importers and vendors. In MFW Wine Co., LLC v. Pennsylvania Liquor Control Bd., 231 A.3d 50 (Pa. Cmwlth. 2020) (MFW I) (Brobson, J., single judge op.), aff’d per curiam, 247 A.3d 1008 (Pa. 2021), Commonwealth Court granted Businesses’ petition in part and mandated that PLCB implement a process for licensed vendors and importers to accept and process special orders for direct shipment to customers. Thereafter, Businesses filed an application for relief, seeking damages, costs, interest and attorney’s fees pursuant to Section 8303. The PLCB responded that it is not a “person” subject to damages under Section 8303, which does not define “person,” because PLCB is a Commonwealth agency excluded from the definition of “person” in the Statutory Construction Act (SCA), 1 Pa.C.S. § 1991. In support, the PLCB pointed to Commonwealth v. Runion, 662 A.2d 617 (Pa. 1995), in which the Supreme Court applied the definition of “person” in the Statutory Construction Act to hold that the Department of Public Welfare (DPW) was not a “person” for purposes of the Crimes Code, which did not define “person.”
In MFW II, 276 A.3d 1225 (Pa. Cmwlth. 2022), Commonwealth Court held that PLCB was a “person” for purposes of Section 8303. Noting that Section 1991 of the SCA specifies that the definitions supplied therein apply only where the context does not indicate otherwise, the court reasoned:
Importantly, Section 1991 of the SCA’s definition of person excludes only “the Commonwealth.” 1 Pa.C.S. § 1991. The term Commonwealth, as used therein could have, but does not, expressly include Commonwealth agencies, nor does it use the broader term “Commonwealth party,” as used in Section 8501 of what is commonly known as the Sovereign Immunity Act. 42 Pa.C.S. § 8501. Rather, Section 1991 of the SCA defines Commonwealth merely as “[t]he Commonwealth of Pennsylvania.” Id. Neither the SCA, nor Section 102 of the Judicial Code, define “Commonwealth of Pennsylvania.” Moreover, this Court has stated:
[T]he Commonwealth government and its various agencies and officers are separate entities and [ ] ‘the Commonwealth of Pennsylvania, itself … is clearly not a Commonwealth agency[.] …’ Bonsavage v. Borough of Warrior Run, 676 A.2d 1330, 1331 (Pa. Cmwlth. 1996) (emphasis in original)[;] [s]ee also Tork-Hiis v. Commonwealth, [558 Pa. 170], 735 A.2d 1256 (1999).
Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010) (emphasis added).
The Finn Court reasoned:
The Commonwealth comprises three branches of government, each divided into many independent subparts. The essence of an action in mandamus is that a specific actor has a non-discretionary duty to perform a particular act. A request that the Commonwealth be ordered to do something begs the question which of the many actors comprising state government is to be held accountable. Since merely naming the Commonwealth is insufficient to state a claim against a Commonwealth party, [see] Tork-Hiis, it would seem self-evident that if a specific state party can be identified as having a mandatory or ministerial duty, that party must be the named defendant, both in order to make out a cause of action in mandamus and to effectuate enforcement of any ensuing order.
Finn, 990 A.2d a 106. Applying the Finn Court’s logic here, it is reasonable to conclude that the General Assembly intended, by excluding the Commonwealth from the definition of person in Section 1991 of the SCA, that the Commonwealth itself could not be liable for mandamus damages under Section 8303 of the Judicial Code, but individual agencies could be so liable.
MFW II Slip op. at 10-11 (footnotes omitted). Commonwealth Court found Runion inapposite for four reasons:
First, the General Assembly legislatively superseded Runion. See Commonwealth v. Veon, 637 Pa. 442, 150 A.3d 435 (2016). Second, the Runion Court construed a penal statute, which must be strictly construed, see Section 1928(b)(1) of the SCA, 1 Pa.C.S. § 1928(b)(1), whereas Section 8303 of the Judicial Code is to be “liberally construed to effect [its] object[ ] and to promote justice.” Section 1928(c) of the SCA, 1 Pa.C.S. § 1928(c). Third, Runion did not involve the situation where, as here, a Commonwealth agency’s conduct was contrary to and, in fact, defiant of, a statutory mandate. And, fourth, the Runion Court concluded that “[t]he definition of ‘person’ as found in the [SCA] was amended in 1992, in part, to exclude government entities of the Commonwealth,” Runion, 662 A.2d at 621 n.4, when the definition amendment actually added government entit[ies]” as persons, while simultaneously excluding “the Commonwealth” from the definition, as discussed supra. 1 Pa.C.S. § 1991; see also Section 2 of the Act of December 18, 1992, P.L. 1333.
MFW II Slip op. at 11-12 (footnote omitted). Commonwealth Court concluded:
… the context of Section 8303 of the Judicial Code, effective June 27, 1978, clearly intends that mandamus damages may be assessed against a Commonwealth agency, just as the now-repealed Mandamus Act of 1893 (Mandamus Act) did. Section 16 of the Mandamus Act “provide[d,] in pertinent part: ‘If a verdict is found for plaintiff and judgment is entered thereon, or if a judgment is given for him upon a demurrer, … he shall recover his damages and costs.’ The [Mandamus A]ct [wa]s substantially reenacted at 42 Pa.C.S.[ ] § 8303 (1980 pamphlet).” City of Pittsburgh v. Pa. Dep’t of Transp., 490 Pa. 264, 416 A.2d 461, 463 n.3 (1980). This Court has since ruled: “There is no doubt that mandamus damages are available under [Section 8303 of the Judicial Code] whenever a public agency[’s]” “failure to perform legally mandated ministerial duties results from an erroneous interpretation of the law.” Stoner v. Twp. of Lower Merion, 138 Pa.Cmwlth. 257, 587 A.2d 879, 885 (1991) (emphasis added).
Notably, at the time Section 8303 of the Judicial Code was enacted, Section 1991 of the SCA defined person as “a corporation, partnership, and association, as well as a natural person[,]” see Warner-CCC Inc. v. City of Altoona, 30 Pa.Cmwlth. 563, 374 A.2d 987, 988 (1977), thereby exposing the Commonwealth and its agencies to liability under Section 8303 of the Judicial Code, until the General Assembly excluded the Commonwealth in 1992. There is no indication that the General Assembly intended, by amending the SCA’s definition of person in 1992, to immunize Commonwealth agencies from mandamus damages.
Finally, based on the fact that the purpose of Section 8303 of the Judicial Code is to authorize mandamus damages against government actors that fail to perform their statutorily mandated duties, Pennsylvania courts have allowed mandamus damages to be assessed against Commonwealth agencies thereunder. See Richard Allen Preparatory Charter Sch. v. Dep’t of Educ., 161 A.3d 415 (Pa. Cmwlth. 2017) (en banc), aff’d, 646 Pa. 481, 185 A.3d 984 (2018); see also KIPP Phila. Charter Sch. v. Dep’t of Educ., 161 A.3d 430 (Pa. Cmwlth. 2017) (en banc), aff’d sub nom. Richard Allen Preparatory Charter Sch. v. Dep’t of Educ., 646 Pa. 481, 185 A.3d 984 (2018).
MFW II Slip op. at 12-13 (footnotes omitted).
In dissent, Judge Wojcik, joined by Judge Cohn Jubelirer, disagreed with the majority that the PLCB is a “person” subject to damages under Section 8303. Judge Wojcik opined:
…there is another fundamental tenet of statutory construction that must be applied here. Namely, “statutes in derogation of sovereignty should be construed strictly in favor of the sovereign.” Clipper Pipe & Service, Inc. v. Ohio Casualty Insurance Co., 631 Pa. 682, 115 A.3d 1278, 1282 (2015); see Brimmeier, 147 A.3d at 961 (“Because immunity is the rule, we must narrowly construe any exceptions thereto.”). Because the definition of a “person” within Section 8303 implicates the Commonwealth’s liability to monetary damages, it must be strictly construed in favor of the sovereign. See Clipper Pipe & Service, Inc., 115 A.3d at 1282; Brimmeier, 147 A.3d at 961.
Although mandamus actions are permitted against the Commonwealth and its parties, the General Assembly has not “specifically waived” sovereign immunity with regard to monetary damages in connection thereto as it has done elsewhere. See, e.g., 42 Pa. C.S. § 8522. Rather, it has merely excluded “the Commonwealth” from the definition of “person.” As illustrated above in Runion, Section 1991 of the SCA’s definition of “person” is a default definition available for use in a wide variety of statutory contexts in which the term “person” is not defined and has no particular connection to immunity statutes. Within the context of Section 8303, and absent an express waiver of immunity, it is far more logical that the General Assembly intended to shield the Commonwealth generally, including the actual Commonwealth parties defending the mandamus actions from liability from monetary damages, not just the Commonwealth itself.
While I join in the Majority’s admonition of PLCB’s conduct and recognize the inequity of Petitioners’ position, the monetary relief that Petitioners seek is simply not available against the Commonwealth. As our Supreme Court has opined:
Understandably, some immunity applications may be distasteful to those who may discern government wrongdoing, or at least unremediated collateral injury to private concerns resulting from governmental policy changes. In light of the constitutional basis for the General Assembly’s allocation of immunity, however, the area implicates the separation of powers among the branches of government also crafted by the framers. Thus, in absence of constitutional infirmity, courts are not free to circumvent the Legislature’s statutory immunity directives pertaining to the sovereign.
Scientific Games International, Inc. v. Department of Revenue, 620 Pa. 175, 66 A.3d 740, 755 (2013) (footnote omitted).
MFW II slip op. at MHW-10 – MHW-12.
Log Cabin Property LLC involves the same issue as MFW II, arising from similar facts raised in a different petition filed in Commonwealth Court. In that case, a liquor and wine customer filed a petition for review in the nature of a class action complaint, seeking mandamus damages from the PLCB for the PLCB’s failure to comply with the court’s order in MFW I. The PLCB filed preliminary objections. Commonwealth Court overruled the PLCB’s objections, concluding that the PLCB was a “person” under Section 8303 for the same reasons set forth in MFW II. Judge Wojcik, joined by Judge Cohn Jubelirer, likewise dissented on the same basis and for the same reasons set forth in the dissent in MFW II.
The PLCB appealed Commonwealth Court’s decision in MFW II Log Cabin Property LLC to the Supreme Court. Following the PLCB’s request, the Supreme Court granted oral argument on the following issue:
Whether Section 8303 of the Judicial Code, 42 Pa.C.S. § 8303, creates an exception to sovereign immunity in actions seeking damages, costs, interest, and attorneys’ fees against Commonwealth agencies?
For more information, contact Kevin McKeon or Dennis Whitaker.