explaining that “mandamus relief will lie only to compel performance of a required act, but does not lie to compel a discretionary act”
How later courts described this case
- explaining that “mandamus relief will lie only to compel performance of a required act, but does not lie to compel a discretionary act”
Written by the judges who cited it.
The opinion
Justice NEWMAN,
concurring and dissenting.
I join the Majority in its determination that the Commonwealth Court was not bound by its August 16, 2000 decision that: (a) the Suptax was not self-assessing and self-paying; (b) the Suptax notices issued by the Department of Revenue (Department) constituted initiation of collection activities requiring the Department to engage in settlements prior to attempting collection; and (c) the utilities were entitled to use their mandatory appeal rights before they had to pay the Suptax. See Safe Harbor Water Power Corp. v. Judge, 758 A.2d 259 (Pa.Cmwlth.2000). However, I believe that the Commonwealth Court erred in deciding that Appellants are not entitled to settlement of the Suptax prior to payment and join the Dissenting Opinion of Mr. Justice Saylor. I agree with the Dissent that the post-deprivation process fails scrutiny pursuant to the Due Process Clause and the principles articulated in McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 89 , 110 S.Ct. 2238 , 110 L.Ed.2d 17 (1990), and that, because the Suptax is not self-assessing and self-paying, Appellants are entitled to meaningful pre-deprivation process.