IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean M. Donahue, :

Petitioner :

:

v. : No. 84 M.D. 2020

: SUBMITTED: August 28, 2020

State Civil Service Commission :

(Department of Human Services), :

Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION 

PER CURIAM FILED: October 21, 2020

Before this Court are the Department of Human Services’ (DHS) Preliminary 

Objections to Sean M. Donahue’s Petition for Review/Complaint in Mandamus 

(Petition for Review) filed in this Court’s original jurisdiction. In his pro se Petition

for Review, Mr. Donahue asks this Court to compel DHS to produce the documents

requested in the Subpoena Duces Tecum (Subpoena) that the State Civil Service 

Commission (Commission) issued to DHS on January 15, 2020. In its Preliminary 

Objections, DHS seeks a demurrer, averring that Mr. Donahue’s Petition for Review

fails to state a claim for which relief can be granted. We agree with DHS and, therefore, 

sustain its Preliminary Objections and dismiss Mr. Donahue’s Petition for Review.

Background

This original jurisdiction matter arises from an appeal presently pending before 

the Commission (Appeal No. 30412), in which Mr. Donahue challenges a 

determination by the Governor’s Office of Administration (OA) that Mr. Donahue was 

ineligible for an employment position with DHS.1 In his underlying appeal, Mr. 

Donahue claims that DHS “is engaging in illegal hiring practices” and “discriminating 

1

In 2018, Mr. Donahue had applied for a position as an Income Maintenance Caseworker in 

DHS’s Hazleton Assistance Office. Pet. for Review, ¶ 28.
2

and retaliating against [him] because it does not like [his] political and religious beliefs 

and because [he is] a White non[-]Spanish[-]speaking individual . . . from Hazleton, 

instead of being a non-White Spanish[-]speaking individual from another country.” 

Pet. for Review, Attach. (unnumbered).

On January 8, 2019, Mr. Donahue filed a Request for Subpoena Duces Tecum

with the Commission, which the Commission granted in part as modified. Donahue 

Answer to Prelim. Objs., Attachs. 1 and 5.

2

 On January 15, 2020, the Commission 

issued the Subpoena, directing DHS to produce the following documents:

1. The number of applicants who sought welfare and any other form of 

assistance from the Hazleton County Assistance Office during each 

quarter for the years 2018 through the present who spoke English;

2. The number of applicants who sought welfare and any other form of 

assistance from the Hazleton County Assistance Office during each 

quarter for the years 2018 through the present who only spoke Spanish;

3. The number of applicants who sought welfare and any other form of 

assistance from the Hazleton County Assistance Office during each 

quarter for the years 2018 through the present who spoke English but 

preferred to speak Spanish;

4. The identity of each employee hired to fill an open Spanish language 

Income Maintenance Caseworker position in the Hazleton County 

Assistance Office for the years 2018 through the present;

5. The identity of each employee hired to fill an open English language 

Income Maintenance Caseworker position for the years 2018 through 

the present;

2 The Commission explained its ruling to Mr. Donahue as follows: “The scope of the 

documents sought has been limited to the period 2018 to the present. Items 6 and 9 of your [subpoena] 

request are denied because you have not provided sufficient information explaining how these 

requests are connected to your appeal [before the Commission].” Donahue Answer to Prelim. Objs., 

Attach. 1.
3

6. Please list each Spanish-speaking Income Maintenance Caseworker 

position that was filled from the year 2018 through the present;

7. Please list each English-speaking Income Maintenance Caseworker 

position that was filled from the year 2018 through the present;

8. Any and all job announcements used to fill the Income Maintenance 

Caseworker position in the Hazleton County Assistance Office from 

2018 through the present and identify whether the position is Spanish 

or English speaking.

Donahue Answer to Prelim. Objs., Attach. 1.

3 The cover page of the Subpoena also 

stated:

If the custodian of records served with this subpoena is unable to provide 

the documents within the five (5) workday deadline, contact the party who 

subpoenaed the documents. 

Failure to comply with a lawfully issued and served subpoena could lead 

to enforcement at Commonwealth Court, including contempt proceedings.

Id. Mr. Donahue served the Subpoena on DHS on January 21, 2020. Donahue Answer

to Prelim. Objs., ¶ 4.

On February 6, 2020, DHS responded to the Subpoena, stating, as to each item,

either “No documents [are] responsive to this request,” or “No documents responsive 

to this request [are] in the custody and control of DHS.” Donahue Answer to Prelim. 

Objs., Attach. 2. In its accompanying cover letter to Mr. Donahue, DHS further 

explained its reasons for denying the Subpoena requests as follows:

As to the request for data on Applicants and/or Recipients of public 

assistance benefits, a Subpoena duces tecum applies only to existing 

documents: it does not require a Custodian of Records to create new 

documents, reports, or compilations. Nor[] does it require a Custodian of 

Records to obtain document[s] from another source.

3 The Commission issued an identical subpoena to the OA. Donahue Answer to Prelim. Objs., 

¶ 3.
4

Nevertheless, if such documents did exist, they would be prohibited from 

disclosure to you under the current Subpoena due to their protective status 

under the Health Insurance P[ortability] and A[ccountability] Act [of 

1996] (HIPAA).

As to the request for documentation of employment-related eligibility and 

selection processes, the creation, use, and maintenance, of such 

documentation is a function of Human Resources personnel employed 

with the [OA], not [DHS], and thus, such documentation, if any, is not in 

the custody or control of DHS.

Id. (emphasis added).

On February 11, 2020, Mr. Donahue filed his Petition for Review with this 

Court, “seeking a writ of mandamus to compel DHS to honestly adhere to the 

requirements of [the Subpoena] that has already been granted, served and 

inappropriately responded to by DHS.” Donahue Answer to Prelim. Objs., ¶ 10 (italics 

in original). In his Petition for Review, Mr. Donahue avers “that [DHS’s] responses to 

the [S]ubpoena are all lies” and that DHS should “have provided an affidavit attesting 

to the validity of [its] claims under penalty of perjury.” Pet. for Review, ¶ 9. On 

February 24, 2010, DHS filed its Preliminary Objections to the Petition for Review, 

seeking a demurrer for failure to state a claim.

4

 Both parties have also filed briefs in 

support of their respective positions with this Court.

4 Our Court has explained:

In ruling on preliminary objections, we must accept as true all well-pleaded material 

allegations in the petition for review, as well as all inferences reasonably deduced 

therefrom. [We] need not accept as true conclusions of law, unwarranted inferences 

from facts, argumentative allegations, or expressions of opinion. In order to sustain 

preliminary objections, it must appear with certainty that the law will not permit 

recovery, and any doubt should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact in 

the complaint and all inferences reasonably deducible therefrom. It tests the legal 

(Footnote continued on next page...)
5

Analysis

“Mandamus is an extraordinary remedy designed to compel the performance of 

a ministerial act or a mandatory duty.” Orange Stones Co. v. City of Reading, Zoning 

Hearing Bd., 32 A.3d 287, 290 (Pa. Cmwlth. 2011). The party seeking this 

extraordinary remedy has the burden of proving his or her legal right to such relief.

Baron v. Dep’t of Human Servs., 169 A.3d 1268, 1272 (Pa. Cmwlth. 2017) (en banc), 

aff’d, 194 A.3d 563 (Pa. 2018). To state a claim for mandamus relief, the petitioner 

must establish: (1) a clear legal right to relief; (2) a corresponding duty in the 

respondent; and (3) the lack of any other adequate and appropriate remedy. Id.

First, DHS asserts that Mr. Donahue does not have a clear legal right to judicial 

enforcement of the Subpoena, as the right of enforcement lies exclusively with the 

Commission. We agree.

The statute commonly known as the Civil Service Reform Act (Act), 71 Pa. C.S.

§§ 2101-3304,

5 expressly authorizes the Commission to seek judicial enforcement of 

its subpoenas. Specifically, Section 3102(c) of the Act states: “A judge of a court of 

record shall, upon proper application of the [C]ommission, compel the attendance of 

witnesses, the production of books and papers and the giving of testimony before the 

[C]ommission by attachment for contempt, or otherwise, in the same manner as 

production of evidence may be compelled before the court.” 71 Pa. C.S. § 3102(c) 

sufficiency of the challenged pleadings and will be sustained only in cases where the 

pleader has clearly failed to state a claim for which relief can be granted. . . .

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted). Further, in ruling on 

preliminary objections, we “may not only consider the facts pled in the complaint, but also any 

documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).

5 The General Assembly repealed the former Civil Service Act by the Act of June 28, 2018, 

P.L. 460, effective March 28, 2019. The provisions of the former Civil Service Act are now found in 

Title 71, Part III, of the Pennsylvania Consolidated Statutes, commonly known as the Civil Service 

Reform Act, as enacted by the Act of June 28, 2018, P.L. 460.
6

(emphasis added); see also 4 Pa. Code § 105.14a (outlining the procedure for a litigant 

before the Commission to request and obtain subpoenas).

Thus, under the plain language of the Act, the Commission – not Mr. Donahue 

– has the legal right to seek judicial enforcement of the Subpoena. See also Pa. Human 

Relations Comm’n v. Lansdowne Swim Club, 526 A.2d 758, 760 (Pa. 1987) (“In a 

subpoena enforcement proceeding, the action is brought by an agency of the 

Commonwealth . . . .”) (emphasis added); In re Subpoena of Pa. Crime Comm’n, 309 

A.2d 401, 404 (Pa. 1973) (noting that private individuals “cannot contest the validity 

of the subpoena until the [Crime] Commission invokes enforcement procedures in 

either the Courts of Common Pleas or the Commonwealth Court,” as there is a “specific 

statutory remedy” for the Crime Commission to seek enforcement of its subpoenas)

(emphasis added).

In his Answer to the Preliminary Objections, Mr. Donahue contends that “[the 

Commission] has no right to enforce a subpoena,” citing Mondevergine v. Civil Service 

Commission, 529 A.2d 1180 (Pa. Cmwlth. 1987). Donahue Answer to Prelim. Objs., 

¶ 12. However, Mondevergine involved a subpoena issued by the Civil Service 

Commission of the City of Philadelphia (City), not the State Civil Service Commission. 

Unlike the State Civil Service Commission, whose authority to seek enforcement of its 

subpoenas is expressly governed by the Act, the authority of the City’s Civil Service 

Commission to enforce subpoenas is not governed by statute, but by the City’s Home

Rule Charter. We explained in Mondevergine that, under the City’s “Home Rule 

Charter, a party wishing to enforce a subpoena [issued by the City’s Civil Service 

Commission] for the production of documents must seek such enforcement through the 

Court of Common Pleas of Philadelphia County.” Id. at 1185. As such, Mondevergine

is factually distinguishable from this case. Mr. Donahue cites no other statute or 

precedent that authorizes him to seek judicial enforcement of the Commission’s 
7

Subpoena in this Court. Therefore, we conclude that Mr. Donahue has not established 

a clear legal right to relief.6

Next, DHS asserts that because it has already performed its duty owed to Mr. 

Donahue by timely and appropriately responding to the Subpoena, mandamus relief is 

improper. We agree.

As explained above, “[m]andamus is an extraordinary writ, reserved for those 

instances where an agency has failed or refused to perform a ministerial act or a 

mandatory duty.” MFW Wine Co., LLC v. Pa. Liquor Control Bd., 231 A.3d 50, 56

(Pa. Cmwlth. 2020) (single-judge opinion) (emphasis added). Moreover, “mandamus 

will not lie to control an official’s discretion or judgment where that official is vested 

with a discretionary power.” Crawford v. Dep’t of Heath, 338 A.2d 727, 729 (Pa. 

Cmwlth. 1975) (citation omitted) (emphasis removed). Rather, mandamus may be 

used to compel an agency to act only when the agency has been “sitting on its hands.” 

Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa. 1986); see Crawford, 338 A.2d 

at 729 (stating that while mandamus relief may be granted “to compel action upon the 

particular matters over which [public officials] may have jurisdiction, it will in no 

manner interfere with the exercise of that discretion nor control or dictate the 

judgment[] or decision which shall be reached”) (citation omitted) (emphasis added).

6 Throughout his brief, Mr. Donahue maintains that the Commission “refused” to file a 

subpoena enforcement proceeding, thereby necessitating his filing of the instant Petition for Review. 

See Donahue Br. in Opp. to Prelim. Objs. at 20, 25-26, 32, 35. However, there is no indication in the 

record that Mr. Donahue asked the Commission to pursue an enforcement proceeding, or even 

inquired with the Commission about judicial enforcement, before he filed this mandamus action. 

Rather, the record shows that after he filed his Petition for Review with this Court, Mr. Donahue sent 

an email to the Commission, stating: “Attached is the Petition [for Review] that I filed regarding 

DHS’s response to the [S]ubpoena at [Appeal No.] 30412. I could not find case law stating that [the 

Commission] has the power to enforce a subpoena. . . . So[] I decided that going to the court was the 

best option and the proper path.” Donahue Br. in Opp. to Prelim. Objs., Bates Stamp 42. The 

Commission responded that, at that time, it could not “offer legal advice regarding the enforcement 

of a subpoena” and “any issues you wish to raise pertaining to Appeal No. 30412 may be raised at 

the hearing [before the Commission].” Id. 
8

Here, the Commission issued the Subpoena to DHS, directing DHS to make the 

requested documents available to Mr. Donahue “no later than five (5) work days 

following service of the subpoena at or prior to the hearing scheduled for” March 12, 

2020. Donahue Answer to Prelim. Objs., Attach. 1. The Subpoena also directed that 

if DHS could not “provide the [requested] documents within the five (5) work[]day 

deadline,” it must “contact the party who subpoenaed the documents.” Id. The record 

shows that DHS timely responded to the Subpoena, explaining that it was unable to

produce the requested documents because either: (1) documents containing the 

requested information did not exist; or (2) the requested documents were not in DHS’s 

possession or control. Id. DHS also notified Mr. Donahue in writing of the reasons 

why it could not produce the requested documents. Id. This is not a situation where 

DHS merely “sat on its hands” and refused to comply with the Subpoena’s directive, 

thereby warranting mandamus relief.

7

 Instead, DHS reviewed the Subpoena requests,

determined that the requested documents could not be produced, and timely notified 

Mr. Donahue of the reasons why. Simply because Mr. Donahue was dissatisfied with 

DHS’s exercise of its judgment in responding to the Subpoena does not entitle him to 

mandamus relief. See Daset Mining Corp. v. Ercole, 413 A.2d 780, 781 (Pa. Cmwlth. 

1980) (“Once an official or agency has exercised its discretion, a party who is 

dissatisfied with the result may not seek to compel a different result through 

mandamus[] . . . .” ) (citation omitted) (emphasis added).

7 As our Supreme Court explained in Pennsylvania Dental Association, “mandamus is chiefly 

employed to compel the performance (when refused) of a ministerial duty, or to compel action (when 

refused) in matters involving judgment and discretion.” 516 A.2d at 652 (emphasis added).
9

Therefore, because the record shows that DHS complied with the Commission’s 

directive in responding to the Subpoena, DHS owes Mr. Donahue no further duty that 

could be compelled through mandamus.8

Conclusion

In sum, we conclude that Mr. Donahue failed to prove that he has a clear legal 

right to relief or that DHS owes him a corresponding duty.

9

 Accordingly, because he 

failed to satisfy the requirements for mandamus relief, we sustain DHS’s Preliminary 

Objections and dismiss Mr. Donahue’s Petition for Review.

8

In his Petition for Review, Mr. Donahue also repeatedly avers that DHS “lied” in its 

responses to the Subpoena requests because the responses purportedly contradicted statements made 

by DHS officials in two prior appeals before the Commission. Pet. for Review, ¶¶ 9-11; see also 

Donahue Answer to Prelim. Objs., ¶¶ 13, 20. While we must accept as true all well-pled material 

facts in ruling on preliminary objections in the nature of a demurrer, we need not – and will not –

accept as true argumentative allegations or expressions of opinion in a petition for review. See Torres, 

997 A.2d at 1245. In any event, contrary to Mr. Donahue’s contention that DHS was required to 

produce an affidavit attesting to the veracity of its responses, see Pet. for Review, ¶ 9, neither the 

Commission’s regulations nor the General Rules of Administrative Practice and Procedure require

such an affidavit. See generally 4 Pa. Code § 105.14a; 1 Pa. Code § 35.142.

9 Because Mr. Donahue failed to satisfy the first two requirements for mandamus relief, we 

need not address whether he has an adequate alternative remedy.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean M. Donahue, :

Petitioner :

:

v. : No. 84 M.D. 2020

:

State Civil Service Commission :

(Department of Human Services), :

Respondent :

PER CURIAM

O R D E R

AND NOW, this 21st day of October, 2020, we hereby SUSTAIN the 

Preliminary Objections filed by the Department of Human Services and DISMISS 

the Petition for Review/Complaint in Mandamus filed by Sean M. Donahue.