Mellinger v. Kuhn

• Decision Date: 18 March 1957
• Docket Number: 3487
• Parties: Chester MELLINGER, Appellant. v. James S. KUHN, Burgess of Manheim Borough and Donald Graham, Chief of Police of Manheim Borough, Appellees.
• Court: Pennsylvania Supreme Court

130 A.2d 154

388 Pa. 83

Chester MELLINGER, Appellant. v. James S. KUHN, Burgess of Manheim Borough and Donald Graham, Chief of Police of Manheim Borough, Appellees.

No. 3487

Supreme Court of Pennsylvania

March 18, 1957

Argued January 8, 1957

Appeal, No. 206, Jan. T., 1956, from judgment of Court of Common Pleas of Lancaster County, Sept. T., 1955, No. 63, in case of Chester Mellinger v. James S. Kuhn et al. Judgment affirmed.

Mandamus.

Defendants' preliminary objections sustained and judgment entered dismissing complaint, opinion by WISSLER, P.J. Plaintiff appealed.

Judgment affirmed.

Charles W. Eaby, with him Marshall M. Cohen, for appellant.

Ralph M. Barley, for appellees.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR JUSTICE MUSMANNO

On April 29, 1955, the plaintiff, Chester Mellinger, violated a parking ordinance in Manheim Borough, Lencaster County, by remaining for more than two hours at a parking meter in the Market Square of the town, and as a consequence he was sentenced by a justice of the peace to pay a fine and costs of prosecution. On the following night, April 30, 1955, Mellinger again violated the parking ordinance in the same manner and once more the justice of the peace ordered him to pay a fine and accompanying costs.

While he was violating the parking ordinance and expending his money for fine and costs, another citizen of the town, a Paul B. Shiffer, was parking his vehicle in the same Market Square not for two continuous hours but for thirty-nine hours, but he was not being arrested, prosecuted, and fined as was Chester Mellinger. Incensed over this seeming discrimination Mellinger demanded that the chief of police of the town accord to Shiffer the same fine-and-costs treatment which had been visited on him, Mellinger. The chief of police was not impressed with Mellinger's recommendations and as a consequence Mellinger went into the Court of Common Pleas of Lancaster County seeking a writ of mandamus to compel the burgess and the chief of police of Manheim to prosecute Paul Shiffer and all others who should park their automobiles for a longer period than two hours in the limited parking area in question.

The vehicle which Paul Shiffer operates and interminably parks is a lunch wagon and it occupies a spot across the street from Mellinger's home. Mellinger does not claim that Paul Shiffer conducts his lunch wagon business in a noisy and boisterous manner or that the hungry and thirsty customers who patronize the wagon during the night disturb his rest. He only insists that Shiffer has no more right to remain beyond two hours in Market Square than anyone else.

Whatever may be Mellinger's motive in this lawsuit is entirely irrelevant. Whether he is vexed because he was fined while another apparent violator enjoyed immunity from prosecution is not of importance. The only question before us is whether under the law Mellinger has the right to a writ of mandamus. Mandamus is an extraordinary remedy and the writ will issue only where there is a clear legal right in the plaintiff, a corresponding duty on the part of the defendant, and a want of any other adequate, appropriate, and specific remedy. (Travis v. Teter, 370 Pa. 326, 330; Easton v. Lehigh Eater, 97 Pa. 554, 560.)

Mellinger is not without an adequate, appropriate and specific remedy. If he believes himself particularly injured by the proximity to his home of the Shiffer lunch dispensary and he has personal knowledge of the violation of the parking ordinance in question, he may himself initiate a prosecution under that ordinance before a justice of the peace. In Commonwealth v. Mitchell, 82 Pa. 343, 350, we said: "It is a well-established rule that he who sues for the writ of mandamus, must have some well-defined right to enforce, which is specific, complete and legal, and for which there is no other specific legal remedy, and the right he claims must be independent of that which he holds in common with the public at large." Mellinger does have a specific legal remedy.

There can be no doubt that the Borough of Manheim has authority to enact a parking ordinance. (Sec. 1202 of The Borough Code, 53 P.S.Sec. 13313, and Sec. 1103 of The Vehicle Code...