Opinion
Argued April 7, 1978
May 22, 1978.
Mandamus — Adequate remedy at law — Adjudication — Appeal — Local Agency Law, Act 1968, December 2, P.L. 1133.
1. Mandamus does not lie to compel the Philadelphia Board of License and Inspection Review to grant a hearing following the rejection of an appeal by the Board for the reason that it was untimely filed, when an adequate remedy at law is provided by the Local Agency Law, Act 1968, December 2, P.L. 1133, under which an appeal can be taken to the Court of Common Pleas of Philadelphia County from the adjudication of the Board. [442]
2. Mandamus is an extraordinary writ which lies only 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 adequate remedy. [442]
Argued April 7, 1978, before Judges WILKINSON, JR., BLATT and DiSALLE, sitting as a panel of three.
Appeal, No. 33 C.D. 1977, from the Order of the Court of Common Pleas of Philadelphia County in case of George Wagonhoffer, et al. v. Philadelphia Board of License and Inspection Review and Louis J. Gagliardi, No. 3663 February Term, 1976.
Complaint in mandamus in the Court of Common Pleas of Philadelphia County seeking a hearing before the Philadelphia Board of License and Inspection Review. Defendants filed preliminary objections. Preliminary objections sustained. Complaint dismissed. ROSENBERG, J. Plaintiff appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
William McDowell, with him Stephen P. Ulan, for appellant.
Agostino Cammisa, Assistant City Solicitor, with him James M. Penny, Jr., Deputy City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.
This is an appeal from a decision of the Court of Common Pleas of Philadelphia County dismissing the complaint in mandamus brought by George Wagonhoffer (Appellant) against the Philadelphia Board of License and Inspection Review (Board). The lower court sustained the preliminary objections filed by the Board to Appellant's complaint, holding that mandamus did not lie where statutory remedies were available to Appellant.
On October 17, 1974, the Philadelphia Department of Licenses and Inspections (Department) inspected the premises leased by Appellant and designated them as "Unfit for Human Habitation." On October 9, 1975, the Department lifted the "Unfit for Human Habitation" designation. The Appellant, contending that the Department erred in its determination, appealed to the Board on December 8, 1975. The Board notified Appellant by letter on January 6, 1976, that his appeal had been rejected because it had not been perfected within 30 days from the date of the Department's decision on October 9, 1975.
Appellant thereupon filed this mandamus action requesting that the Court of Common Pleas order the Board to conduct a hearing. He argued there as he does here that the 30 day period should have run from November 6, 1975, which was the date the notice of the Department's decision was mailed to him.
We need not reach the merits of his argument. The letter from the Board to Appellant was a final adjudication. McKinley v. State Board of Funeral Directors, 5 Pa. Commw. 42, 288 A.2d 840 (1972). Therefore, he had the right to take a direct appeal to the Court of Common Pleas of Philadelphia County as provided by the Local Agency Law (Act), Act of December 2, 1968, P.L. 1133, as amended, 53 P. S. § 11301 et seq. Rather than appealing the Board's denial of his appeal as provided by that Act, Appellant brought this complaint in mandamus asking that the Board be directed to grant him a hearing.
It is well settled that mandamus is an extraordinary writ which lies only to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other adequate remedy. Wyoming Sand and Stone Co. v. Department of Revenue, 24 Pa. Commw. 366, 355 A.2d 860 (1976). Where the Local Agency Law provides an adequate remedy at law, an action in mandamus is precluded. Hutnik v. Duquesne School District, 8 Pa. Commw. 387, 302 A.2d 873 (1973). The Appellant failed to pursue his statutory remedy and the lower court was correct in granting the Board's preliminary objections to Appellant's complaint. We affirm.
ORDER
AND NOW, this 22nd day of May, 1978, the order of the Court of Common Pleas of Philadelphia County is hereby affirmed.