J. Pilchesky v. Mayor William Courtright ( 2015 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph Pilchesky,                       :
    : No. 38 C.D. 2015
    Appellant      : Submitted: June 19, 2015
    :
    v.                  :
    :
    Mayor William Courtright, David         :
    Bulzoni, Business Administrator,        :
    The City of Scranton and Scranton       :
    City Council                            :
    BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
    HONORABLE MARY HANNAH LEAVITT, Judge
    HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY SENIOR JUDGE FRIEDMAN                                FILED: August 11, 2015
    Joseph Pilchesky appeals, pro se, from the December 9, 2014, order of
    the Court of Common Pleas of Lackawanna County (trial court) sustaining the
    preliminary objections filed by Mayor William Courtright, David Bulzoni, Business
    Administrator, the City of Scranton, and Scranton City Council (together,
    Defendants) and dismissing Pilchesky’s complaint with prejudice. We affirm.
    On July 1, 2014, Pilchesky filed a complaint against Defendants seeking
    a writ of mandamus and injunctive relief. Pilchesky alleged that Defendants violated
    section 6-13(A) of the Administrative Code of the City of Scranton (Scranton Code)
    by entering into a four-year contract with The PFM Group (PFM) for financial
    planning services on May 9, 2014, without first appropriating the funds for such
    services.1     Before entering the contract, Scranton City Council (Council) passed
    Resolution No. 50, which authorized Mayor Courtright to enter into the professional
    service contract with PFM.
    On August 21, 2014, Defendants filed preliminary objections to the
    complaint, which Pilchesky answered on September 5, 2014. After briefing by the
    parties, the trial court heard argument on December 4, 2014. Thereafter, the trial
    court: (1) dismissed Defendants’ objection to Pilchesky’s standing because they
    failed to raise the issue in their preliminary objections;2 (2) sustained Defendants’
    objections in the nature of a demurrer; and (3) dismissed Pilchesky’s complaint with
    prejudice.       The trial court concluded that Pilchesky’s complaint was legally
    insufficient because it challenged Defendants’ performance of a discretionary act and,
    1
    Section 6-13(A) of the Scranton Code provides in relevant part:
    No monies shall be paid out of the City Treasury except upon appropriation
    previously made by Council and upon warrant pursuant thereto, which warrant shall
    explicitly state the purpose for which the money is to be drawn. No work shall be
    hired to be done, no materials purchased, no contracts made and no order issued for
    the payment of any monies in any amount which will cause the sums appropriated to
    specific purposes to be exceeded. Council may make supplemental appropriations
    for any lawful purpose from funds on hand or estimated to be received within the
    fiscal year and not appropriated to any other purpose. Such supplemental
    appropriations shall be considered by Council as an ordinance amending the annual
    budget.
    (Scranton Code, §6-13(A); R.R. at 18-A.)
    2
    Defendants raised the standing issue for the first time in their brief in support of their
    preliminary objections. Defendants do not challenge the trial court’s ruling on that issue on appeal.
    2
    therefore, mandamus relief was inappropriate. Pilchesky now appeals from that
    decision.3
    On appeal, Pilchesky argues that the trial court erred in sustaining the
    demurrer and dismissing his complaint. Pilchesky asserts that Defendants breached
    their ministerial duty as public officials by entering into an illegal contract with PFM
    and, thus, mandamus relief is appropriate. We disagree.
    Mandamus is an extraordinary remedy that compels a public official to
    perform a ministerial act or a mandatory duty. Nickson v. Pennsylvania Board of
    Probation and Parole, 
    880 A.2d 21
    , 23 (Pa. Cmwlth. 2005). A mandamus action will
    not lie to compel the performance of a discretionary act. See Chadwick v. Dauphin
    County Office of the Coroner, 
    905 A.2d 600
    , 603 (Pa. Cmwlth. 2006).4 Mandamus
    will be granted only “where the plaintiff establishes a clear legal right to relief, a
    corresponding duty to act by the defendant, and a lack of any other appropriate and
    adequate remedy.” Bright v. Pennsylvania Board of Probation and Parole, 
    831 A.2d 775
    , 777 (Pa. Cmwlth. 2003). To succeed in a mandamus action, “the plaintiff must
    3
    Our review of an order sustaining preliminary objections in the nature of a demurrer is
    limited to determining whether the trial court committed an error of law or abused its discretion.
    Braun v. Borough of Millersburg, 
    44 A.3d 1213
    , 1215 n.3 (Pa. Cmwlth. 2012). In ruling on
    preliminary objections in the nature of a demurrer, the court must accept as true all well-pled
    allegations of material fact and all reasonable inferences therefrom. Nickson v. Pennsylvania Board
    of Probation and Parole, 
    880 A.2d 21
    , 23 (Pa. Cmwlth. 2005). The court “need not accept as true
    conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion.
    The test is whether the facts ple[d] are legally insufficient to establish a clear right to relief.” 
    Id.
    4
    A writ of mandamus can be used to compel a public official to exercise discretion where he
    or she has a mandatory duty to perform a discretionary act but refuses to do so. Seeton v. Adams, 
    50 A.3d 268
    , 274 (Pa. Cmwlth. 2012) (en banc). Pilchesky, however, does not allege that Defendants
    failed to exercise their discretion here.
    3
    show an immediate, specific, well[-]defined and complete legal right to the thing
    demanded.” Equitable Gas Company v. City of Pittsburgh, 
    488 A.2d 270
    , 273 (Pa.
    1985). If any doubt exists as to the plaintiff’s right to relief or the defendant’s duty,
    mandamus is inappropriate. 
    Id.
    In his complaint, Pilchesky seeks an order compelling Defendants to
    rescind their professional service contract with PFM. However, it is well settled that
    “[m]andamus may not be used to direct [the] retraction or reversal of an action
    already taken in good faith and in the exercise of legitimate jurisdiction.” Walker v.
    Lawrence Township, 
    791 A.2d 458
    , 460 (Pa. Cmwlth. 2002); see also Pennsylvania
    Dental Association v. Pennsylvania Insurance Department, 
    516 A.2d 647
    , 652 (Pa.
    1986) (stating that mandamus cannot be used to compel the undoing of a public
    official’s action taken in good faith, even if the decision is wrong). Here, Defendants
    assert that they entered into the PFM contract for the purpose of assisting the City of
    Scranton in managing its fiscal affairs. Pilchesky does not allege that Defendants
    acted in bad faith. Therefore, Pilchesky has failed to demonstrate a clear legal right
    to relief.
    Moreover, a writ of mandamus “is rarely issued and never where the
    plaintiff seeks to interfere with a public official’s exercise of discretion.” Seeton v.
    Adams, 
    50 A.3d 268
    , 274 (Pa. Cmwlth. 2012) (en banc).              The Scranton Code
    authorizes Council to enter into professional service contracts and permits Council to
    make supplemental budget appropriations as needed “for any lawful purpose.”
    (Scranton Code, §§6-13, 6-14; R.R. at 18-A, 18-B.) As the trial court correctly
    determined, Defendants acted within their discretion in passing Resolution No. 50
    and entering into a professional service contract with PFM. Because Pilchesky’s
    4
    complaint challenges the manner in which Defendants exercised their discretion,
    mandamus relief is improper. See Seeton, 
    50 A.3d at 274
    ; Chadwick, 
    905 A.2d at 603
    .
    Pilchesky’s complaint also fails to state a claim for injunctive relief. A
    plaintiff seeking injunctive relief must establish that the right to relief is clear, an
    injunction is urgently necessary to avoid an injury that cannot be compensated by
    damages, and greater injury will result if injunctive relief is denied.                 P.J.S. v.
    Pennsylvania State Ethics Commission, 
    669 A.2d 1105
    , 1112-13 (Pa. Cmwlth. 1996).
    Here, Pilchesky merely avers that he will suffer “irreparable harm” and “more harm
    than good” if injunctive relief is denied. (Compl., ¶¶ 33-34.) We agree with the trial
    court that Pilchesky’s vague allegation of “irreparable harm” fails to state a claim for
    injunctive relief.5
    Accordingly, we affirm.
    ___________________________________
    ROCHELLE S. FRIEDMAN, Senior Judge
    5
    We note that Pilchesky’s answer to Defendants’ preliminary objections contains little more
    than “irrelevant and colorful averments sounding in opinion and political commentary,” (Trial Ct.
    Op. at 5-6), which we cannot consider. See Nickson, 
    880 A.2d at 23
    .
    5
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph Pilchesky,                     :
    : No. 38 C.D. 2015
    Appellant    :
    :
    v.                :
    :
    Mayor William Courtright, David       :
    Bulzoni, Business Administrator,      :
    The City of Scranton and Scranton     :
    City Council                          :
    ORDER
    AND NOW, this 11th day of August, 2015, we hereby affirm the
    December 9, 2014, order of the Court of Common Pleas of Lackawanna County.
    ___________________________________
    ROCHELLE S. FRIEDMAN, Senior Judge