stating there “is no doubt that mandamus damages are available under [Section 8303] whenever a public agency fails to perform a nondiscretionary duty to take action on a matter”
How later courts described this case
- stating there “is no doubt that mandamus damages are available under [Section 8303] whenever a public agency fails to perform a nondiscretionary duty to take action on a matter”
- stating “[t]here is no doubt that mandamus damages are available under [Section 8303] whenever a public agency fails to perform a nondiscretionary duty”
- holding that under the MPC, mandamus continues to be available to landowner as remedy even where land use appeal is available
- permitting an action for damages in mandamus to go forward without first completing a land use appeal where the plaintiff did not seek to challenge of the validity of the land use ordinance
Written by the judges who cited it.
The opinion
CRUMLISH, Jr., Senior Judge,
concurring.
I concur in the majority’s decision and order, including its reversal of the trial court's order dismissing the Stoners’ mandamus actions.
However, I write separately to emphasize what the majority recognizes, majority, pp. 268-270, as the township’s reasonable position. That is, mandamus should not expose *275 township officials to damages when those officials incorrectly interpret a zoning order and deny a subdivision application.
Mandamus lies to compel the performance of ministerial acts, which admit of no judgment or discretion. Lhormer v. Bowen, 410 Pa. 508 , 188 A.2d 747 (1963). It is appropriate to compel the issuance of a permit where “the issuance thereof is no more than a ministerial act.” Id., 410 Pa. at 514 , 188 A.2d at 749-750 .
The township’s deliberations on the merits of the subdivision application exceed the scope of mere ministerial acts. Those deliberations require the exercise of some judgment, no matter how misguided or erroneous.
Mandamus should issue to compel action when a municipal officer or body fails to act, “not to direct the exercise of judgment or discretion in a particular way.” Pennsylvania Dental Association v. Pennsylvania Insurance Department, 512 Pa. 217, 228 , 516 A.2d 647, 652 (1987) (emphasis added).
Having pled mandamus, the Stoners should be permitted to prove their averments, and thus establish their right to that remedy, since it is no doubt available under Lindy Homes. Thus, the township’s preliminary objections as to the mandamus counts should not have been granted.
However, it is for the trial court, not this Court, to inquire into whether the application clearly complies with the ordinance and to pass on the merits of the Township’s reasons for rejecting the Stoners’ application.
Accordingly, I would, in reversing the trial court’s ruling on the preliminary objections, simply reinstate the mandamus counts.