# Petition of Dwyer > Supreme Court of Pennsylvania · October 19, 1979 · 486 Pa. 585 URL: https://www.frixlaw.com/law-library/cases/9761407 ## Case - **Full name:** In Re Petition of John F. DWYER, Charles Sludden, Jr., Thomas A. Oravecz, Peter P. Petresky, Linda Zerbe, Howard Grabert and Louis Guzzi - **Court:** Supreme Court of Pennsylvania - **Decided:** October 19, 1979 - **Citations:** 486 Pa. 585; 406 A.2d 1355; 1979 Pa. LEXIS 719 - **Precedential status:** Published - **Opinion:** Concurrence by Roberts - **Judges:** Eagen, Flaherty, Larsen, Manderino, Nix, O'Brien, Roberts - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761407 ## How later opinions describe it (automated extraction) - finding “that the petitioners are quasi-judicial and/or quasi-prosecutorial officers . . . [and] in the absence of allegations of bad faith or corruption, the petitioners, in granting the extensions and variance, are insulated from criminal prosecution for the consequences of … - finding “that the petitioners are quasi-judicial and/or quasi-prosecutorial officers . .. [and] in the absence of allegations of bad faith or corruption, the petitioners, in granting the extensions and variance, are insulated from criminal prosecution for the consequences of t… - recognizing the same in a state lawsuit ## Opinion text ROBERTS, Justice, concurring. Shocking, indeed, are the allegations of incompetency and negligence of the Industrial Board of the Department of Labor and Industry, and the Board’s Building Advisory Committee. Astonishing are the repeated instances of flagrant abuse of discretion alleged in this record. Neverthe *598 less, the record clearly establishes that these agencies were performing a quasi-judicial function, and therefore there is no basis for criminal prosecution of their members. Moreover, the claimed abuses could have and should have been challenged by resort to existing administrative procedures and judicial review. 1 Failure to pursue these remedies offers no justification for resort to criminal sanctions. More than twenty-five years ago, Justice Jackson wrote that the “rise of administrative bodies probably has been the most significant legal trend of the last century . . . .” F.T.C. v. Rubberoid, 343 U.S. 470, 487 , 72 S.Ct. 800, 810 , 96 L.Ed. 1081, 1094 (1952) (dissenting opinion). This trend has continued and accelerated. State and federal administrative agencies adjudicate, in constantly increasing numbers, controversies formerly decided by the judicial branch of government. The exercise of discretion is a prime function of administrative agencies’ adjudicative role. As Professor Davis has recently written: “Discretionary power is indispensable whenever individualizing is needed. Rules without discretion cannot satisfy the néed for tailoring results to unique facts and circumstances of particular cases.” 2 Agencies’ fair and expert tailoring of legislative mandates to individual circumstances, and their potential for expeditious disposition, is responsible for the growth and ever increasing importance of administrative tribunals in the resolution of disputes. Of course, fundamental as discretion is to proper administrative adjudication, so too is judicial review of agency *599 conduct. See James 0. Freedman, Crisis and Legitimacy 243-55 (1978). Courts, in the proper exercise of judicial review, however, must be wary of undue intrusion into the administrative process which could discourage or chill the exercise of discretion by administrative agencies. Excessive judicial interference will result in administrative agencies reluctant to exercise discretion, and thus will defeat a fundamental objective of administrative agencies. It is the proper function of the judiciary, then, when reviewing agency conduct, to correct administrative abuse, and yet not discourage agencies from acting effectively. It must be apparent that correction of administrative abuse by use of criminal prosecution would so chill agencies’ exercise of discretion, that agencies would be deterred from the vigorous and effective performance of independent and just decisionmaking. As Dean Freedman has observed: “[T]he quality of administrative justice — the fairness of an agency’s procedures, its interest in the protection of individual rights, its commitment to just results — is an essential source of administrative legitimacy.” 3 Permitting criminal prosecution in these circumstances would frustrate the Legislature’s objectives in establishing administrative agencies. Failure to pursue established administrative and judicial review procedures for challenging claimed adjudicative deficiencies provides no basis for resort to criminal sanctions. The criminal law is not a permissible substitute for established administrative and judicial review procedures. In light of all of these considerations, this Court properly exercises extraordinary jurisdiction and discharges the petitioners. . 1 Pa.Code §§ 35.1 et seq. provides for review of administrative agency action. See especially § 35.231 (reopening matters); § 35.28 (intervention); see also 34 Pa.Code §§ 37.701-710 (enforcement of the Fire and Panic Act); Administrative Agency Law, Act of June 4, 1945, P.L. 1388, §§ 1 et seq., 71 P.S. §§ 1710.1 et seq. (repealed by Act of April 28, 1978, P.L. 202, § 2(a), effective June 27, 1978) (in effect at the time of most of the events which form the basis of this case). . Kenneth C. Davis, Administrative Law Treatise § 8.3 (1979). . James O. Freedman, Crisis and Legitimacy 11 (1978). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761407. Public record. Not legal advice.