Unger v. Hampton Tp.
| Decision Date | 20 March 1970 |
| Citation | 263 A.2d 385,437 Pa. 399 |
| Parties | Sarah UNGER and Unger Construction Company, a Pennsylvania Corporation, Appellants, v. TOWNSHIP OF HAMPTON, a Municipal Corporation, Howard E. Shoemaker, and Vincent Chance. |
| Court | Pennsylvania Supreme Court |
Alvin E. Dillman, Jr., McGregor, Dillman, Sheerer & Schuchert, Pittsburgh, for appellees.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
This action in mandamus was brought by appellants, Sarah Unger and the Unger Construction Company to compel appellees, the Township of Hampton, its manager and its zoning officer, to issue a building permit for the erection of a garden apartment complex on land in the Township owned by appellant Sarah Unger. The Township's zoning officer had refused to issue the permit because the land upon which appellants proposed to build their apartment complex was not zoned for commercial use. Without appealing this action of the zoning officer to the Board of Adjustment, appellants commenced this suit, alleging in their complaint that the Township zoning ordinance was invalid because of procedural irregularities which had taken place at the time of its adoption. To this complaint the Township filed preliminary objections in the nature of a demurrer, which the court below sustained. Although the court granted appellants leave to amend their complaint, they brought the instant appeal 1 without making any attempt to do so.
Both parties acknowledge the well settled rule that 'Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a Clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.' Boslover A.A.B. Ass'n. v. Philadelphia Authority, 425 Pa. 535, 538, 229 A.2d 906, 908 (1967); Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952). Both also agree that the preliminary objections in the nature of a demurrer admitted all well-pleaded, material and relevant facts in the complaint. Lynch v. Gates, 433 Pa. 531, 534, 252 A.2d 633 (1969); Goldman v. McShain, 432 Pa. 61, 68, 247 A.2d 455 (1968); Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 448--449, 160 A.2d 539 (1960).
Appellants contend that the facts pleaded in the complaint demonstrate that the Hampton Township Zoning ordinance is invalid and that they are, therefore, entitled to use their property free of its restrictions. 2 The error of the court below, in appellants' view, was its failure to enforce this right by compelling the issuance of a building permit. They analogize this situation to that in Coyne v. Prichard, 272 Pa. 424, 116 A. 315 (1922) where the Court held that a writ of mandamus should have been granted to compel the issuance of a building permit where the city council had not yet promulgated any land use regulations, the proposed building complied with all other building regulations, and the only objection to the building was its proposed location. They also contend that the court below erred in concluding that another appropriate and adequate remedy was available.
Appellees' position, on the other hand, is that where, as here, the right asserted by appellants (i.e. the right to a building permit) depends upon first establishing the invalidity of a township ordinance under which the permit was properly refused, the right to this permit is not sufficiently clear to constitute the basis for a writ of mandamus. They rely upon the holding in Booz v. Reed, 398 Pa. 172, 176--177, 157 A.2d 170, 172 (1960) that, '(m)andamus to compel a governmental ministerial officer to act in disobedience of the requirements of a relevant statute, before there has been a judicial pronouncement of the Act's invalidity, is not the normal procedure for testing the constitutionality of a statute.' 3 Appellees contend that this rule is as applicable to ordinances as to statutes and should be held controlling here, especially in light of the availability, as they assert, of an alternative, statutory procedure whereby the validity of this ordinance may be tested.
The court below, in a careful opinion, upheld the arguments of the appellee Township. We think it was correct in so doing.
The logical inconsistency of appellants' position demonstrates the inappropriateness of an action in mandamus to challenge the validity of the ordinance in question and highlights the correctness of the rule expressed in Booz v. Reed, Supra. The ministerial act here sought to be compelled was the issuance of a building permit. Appellants alleged facts which, in their opinion, establish the invalidity of the zoning ordinance, and further alleged that '(t)here are no (other) restrictions or regulations on the use of the aforementioned land * * *' Assuming the truth of these allegations and the soundness of appellants' legal position as to the ordinance, 4 what need did appellants then have for a building permit which was a requirement of the invalid ordinance? None is set forth in the complaint. On the other hand, if the facts alleged do not establish the legal invalidity of the ordinance, then appellants have no right to the permit. In either situation, therefore, and regardless of its eventual determination regarding the validity of the ordinance, the court could not properly have issued the writ of mandamus.
We do not rest our decision on this ground alone. More importantly, the court below was also correct in holding that appellants had another adequate, statutory remedy available and that mandamus, therefore, would not lie. This remedy was that provided in Section 2007 of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 67007. That statute provided, Inter alia, that any person aggrieved by a zoning officer's decision could appeal to the Board of Adjustment, and, thereafter take a further appeal to the Court of Common Pleas if not satisfied by the Board's action. Although repealed as of January 1, 1969, by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. ---, No. 247, 63 P.S. § 10101 et seq. (the Planning Code), the Second Class Township Code was in effect and available to appellant at the time of the denial of the building permit, and also on December 11, 1968, when the present suit was commenced.
Appellants argue, nevertheless, that the Planning Code provides them the remedy of mandamus even if they did not have it before. They point to certain provisions of Art. IX of the Code as effecting a substitution of mandamus for zoning board review where the validity of a zoning ordinance is in issue.
In the first place, as noted above, the Planning Code did not become effective until January 1, 1969, after the commencement of this proceeding. It could not serve to invest the court with mandamus jurisdiction retrospectively. That point aside, however, appellant misconceives the effect of the Planning Code. While it alters the previously existing procedure, the Planning Code does not eliminate that procedure in favor of mandamus.
Appellant relies upon §§ 909 and 910 of the Planning Code as evidencing a legislative intent to substitute mandamus for any other procedure. Section 909 provides in part that '(n)othing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to Pa.R.C.P. Sections 1091 to 1098 relating to mandamus.' Section 910 stipulates that '* * * the board shall have no power to pass upon the validity of any provision of an ordinance or map adopted by the governing body.'
It must be noted that the mandamus provision of Section 909 is qualified by the phrase 'where appropriate.' This does not indicate an intention to expand the...
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Fassman v. Skrocki
...of this section of the Code is as stated limited to cases where mandamus would otherwise be appropriate. In Unger et al. v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970), the court reaffirmed the well-established principle that 'Mandamus is an extraordinary writ which lies to compel th......