          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Pilchesky,                      :
                         Appellant     :
                                       :
                    v.                 :   No. 1997 C.D. 2014
                                       :   SUBMITTED: May 8, 2015
The Lackawanna County                  :
Commissioners, Corey O’Brien,          :
James Wansacz and Patrick O’Malley     :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                           FILED: November 18, 2015


            Appellant, Joseph Pilchesky, appeals from the order of the Court of
Common Pleas of Lackawanna County (trial court) dismissing his second amended
complaint with prejudice. We affirm.
            On May 5, 2014, Appellant filed a complaint in mandamus and a
request for injunctive relief against Appellees, Corey O’Brien, James Wansacz,
and Patrick O’Malley (the “Commissioners”), who are all Lackawanna County
Commissioners. The Commissioners filed preliminary objections. Appellant then
filed an amended complaint in mandamus and a request for injunctive relief. The
Commissioners again filed preliminary objections and Pilchesky filed a second
amended complaint in mandamus and a request for injunctive relief. The
Commissioners filed a third set of preliminary objections. Thereafter, Appellant
filed an answer and brief in opposition to preliminary objections and the
Commissioners filed a brief in support of preliminary objections.
             The trial court scheduled a hearing at which both parties presented
oral arguments regarding the preliminary objections. Subsequently, the trial court
denied the Commissioners’ preliminary objections as to improper service, but
sustained the preliminary objections as to lack of standing, sufficiency of the claim
for mandamus relief, and sufficiency of the claim for injunctive relief. The trial
court dismissed the case with prejudice. Appellant filed a notice of appeal with
this Court and the trial court filed an opinion in compliance with Rule 1925(a) of
the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(a).
             The gravamen of Appellant’s action is that the Lackawanna County
Board of Assessment appeals has been operating for a numbers of years with eight
board members in violation of Section 8851 of the Consolidated County
Assessment Law (Assessment Law), 53 Pa. C.S. § 8851, which provides for three
board members. Appellant requested that the trial court order the Commissioners
to cease appointment of additional board members. Appellant asserts that the trial
court erred in concluding that he had not demonstrated that he possessed taxpayer
standing, and in concluding that he had failed to state a cause of action upon which
relief may be granted.
             Appellant asserts that he has taxpayer standing to challenge the
Commissioners’ alleged violation of Section 8851 of the Assessment Law.
Taxpayers, even ones not personally aggrieved, may challenge a governmental
action if they satisfy the following requirements: (1) the governmental action
would otherwise go unchallenged, (2) those directly and immediately affected by



                                         2
the complained of expenditures are beneficially affected and not inclined to
challenge the action, (3) judicial relief is appropriate, (4) redress through other
channels is unavailable, and (5) no other persons are better situated to assert the
claim. Keith v. Commonwealth, 116 A.3d 756, 758 (Pa. Cmwlth. 2015).
             The trial court concluded that Appellant had failed to demonstrate that
no other persons are better situated to assert the claim. Trial Court’s Opinion at 7.
We agree. Appellant wrote letters to the City of Scranton Office of District
Attorney and the Pennsylvania Attorney General notifying them of the alleged
statutory violation. Appellant’s letters were dated May 1, 2014, and informed the
district attorney and the attorney general that he wanted an answer by end of
business May 8, 2014, or he would proceed on his own. Reproduced Record at
57a, 59a. As noted above, Appellant initiated this action on May 5. A lack of
immediate response to a citizen’s letter is not sufficient evidence to demonstrate
that either office has declined to address the issue. Accordingly, we agree with the
trial court that Appellant lacked standing because he failed to demonstrate that no
other persons are better situated to assert the claim.
             Appellant also argues that the trial court improperly dismissed his
claim in mandamus and request for injunctive relief when it found that he failed to
demonstrate a clear legal right to relief. Pennsylvania Rule of Civil Procedure
1028(a)(4), Pa. R.C.P. No. 1028(a)(4).
             Mandamus relief is available only where there exists a clear legal
right in the petitioner, a corresponding duty in the respondent, and want of any
other adequate and appropriate remedy. Kelly v. Pa. Bd. of Prob. & Parole, 686
A.2d 883, 884 (Pa. Cmwlth. 1996). A party requesting injunctive relief must
prove, inter alia, that the activity the petitioner seeks to restrain is actionable, the



                                           3
right to relief is clear, and success on the merits is likely. Lee Publ’ns, Inc. v.
Dickinson Sch. of Law, 848 A.2d 178, 189 (Pa. Cmwlth. 2004).
              Appellant asserts that the Assessment Law authorizes the appointment
of only three members of the board of assessment appeals. Section 8851(a) of the
Assessment Law provides:

              Counties of the … third class shall … establish a board to
              be known as the board of assessment appeals, which shall
              be composed of three members. The members of the
              board shall be appointed by the county commissioners to
              serve for terms of four years each. Vacancies on the
              board shall be filled by appointment by the county
              commissioners for the unexpired terms. The salary of the
              members of the board shall be fixed by the salary board
              of the county.

However, Section 8853(a) of the Assessment Law, 53 Pa. C.S. § 8853(a),1 provides
that in conjunction with certain events, including the hearing and determination of

    1
      Section 8853(a) states:
             In conjunction with a countywide revision of assessments
             involving either a change in the established predetermined ratio, or
             revaluing the properties and applying the predetermined ratio, or in
             conjunction with hearing and determining appeals by a person
             aggrieved by an assessment, or in conjunction with the homestead
             exclusion pursuant to Subchapter F of Chapter 85 (relating to
             homestead property exclusion) or Ch. 3 Subch. E of the act of June
             27, 2006 (1st Sp.Sess., P.L. 1873, No. 1), known as the Taxpayer
             Relief Act, the county commissioners may establish up to four
             temporary auxiliary appeal boards, each to be known as an
             auxiliary appeal board. The term of existence for an auxiliary
             appeal board shall be the period of time required by the auxiliary
             appeal board to hear and determine appeals from new assessment
             values in accordance with this chapter and appeals taken from
             assessments in the next succeeding year or the period of time
             required to hear and determine appeals by any person aggrieved by
             an assessment in accordance with section 8844(e) (relating to
             notices, appeals and certification of values) or the period of time
(Footnote continued on next page…)


                                               4
assessment appeals, the Commissioners may establish up to four temporary
auxiliary appeal boards.      Section 8853(b) of the Assessment Law states that
auxiliary appeal boards shall be composed of three members and Section 8853(c)
of the Assessment Law permits the Commissioners to also appoint no more than
eight alternate members who may serve on any auxiliary board. We conclude that
the appointment of five additional members is consistent with the law and the trial
court did not err in denying mandamus or injunctive relief.
              For all of the foregoing reasons, we affirm.




                                          _____________________________________
                                          BONNIE BRIGANCE LEADBETTER,
                                          Judge




_____________________________
(continued…)
             required to hear and determine appeals arising from applications
             for the homestead exclusion. The authority of an auxiliary appeal
             board shall be limited to hearing and determining appeals from
             assessments in accordance with the provisions of this chapter and
             the regulations of the board established pursuant to section 8852
             (relating to regulations of board). [Emphasis added.]



                                             5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Pilchesky,                       :
                         Appellant      :
                                        :
                    v.                  :     No. 1997 C.D. 2014
                                        :
The Lackawanna County                   :
Commissioners, Corey O’Brien,           :
James Wansacz and Patrick O’Malley      :


                                     ORDER


            AND NOW, this 18th day of November, 2015, the order of the Court
of Common Pleas of Lackawanna County is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
