         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Raymond Smith and                       :
Monica Smith, h/w,                      :
                 Appellants             :
                                        :
              v.                        :
                                        :
Scott Township, Scott Township          :
Board of Supervisors; Scott Township :
Planning Commission; Mike Gianetta, :
in his capacity as Chairman of the      :
Board of Supervisors; Steven Russell, :
in his capacity as Vice-Chairman of the :
Board of Supervisors and supervisor in :
charge of planning and zoning; Bob      :   No. 1485 C.D. 2018
Noldy, in his capacity as supervisor    :   Argued: September 10, 2019



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: October 9, 2019

            Raymond Smith and Monica Smith (together, Smiths) appeal from the
order of the Court of Common Pleas of Lackawanna County (trial court) dated
October 10, 2018 dismissing their complaint for issuance of a writ of mandamus
brought against Scott Township, Scott Township Board of Supervisors (Board),
Scott Township Planning Commission (Planning Commission), Mike Gianetta, in
his capacity as Chairman of the Board, Steven Russell, in his capacity in charge of
planning and zoning, and Bob Noldy, in his capacity as supervisor (collectively,
Township Appellees). The Smiths sought the writ to compel Township Appellees
to enforce the Township of Scott, Lackawanna County, Pennsylvania, Subdivision
and Land Development Ordinance (SALDO) and require the construction of a public
road.1 The trial court concluded that Township Appellees had no duty to enforce the
SALDO and, therefore, dismissed the Smiths’ complaint because they failed to
establish a viable claim for mandamus as raised in the preliminary objection filed by
Township Appellees.2 We agree with the trial court that Township Appellees had
no duty to enforce the SALDO and, additionally, that the Smiths had an adequate
and appropriate remedy at law to obtain their requested relief. For these reasons, we
affirm.
               In 1983, Raymond C. Smith and Frances Schack, as executors of the
estate of Bernice A. Smith, conveyed a 43.06-acre parcel of land located in Scott
Township to Raymond C. Smith (Parent Parcel). Complaint for Issuance of Writ of
Mandamus (Complaint) ¶ 12. Over a period of 35 years, the Parent Parcel had been
subdivided several times and now exists as nine separate lots. Id. ¶ 13. Of relevance
here, in November of 1991, Raymond C. Smith conveyed a 2.11-acre lot to the
Smiths located at 1188 Lakeland Drive, Scott Township, Pennsylvania (Smith
Property). Id. ¶¶ 10 & 16. Subsequently, Appellant Raymond Smith obtained a


       1
          Scott Township adopted the SALDO pursuant to the authority provided by the
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended,
53 P.S. §§ 10101-11202. SALDO § 101.
       2
          A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the
complaint and all inferences reasonably deducible therefrom. Clark v. Beard, 918 A.2d 155, 158,
n.4 (Pa. Cmwlth. 2007). The preliminary objection tests the legal sufficiency of the challenged
pleading and will be sustained only in cases where the pleader “has clearly failed to state a claim
for which relief can be granted.” Id. When determining whether such an objection was properly
granted, this Court must accept as true all properly pleaded material facts. Id. We confine our
analysis to the complaint and decide whether sufficient facts have been pleaded to permit recovery
if the facts are ultimately proven. Id.
                                                2
minimum use permit from the Commonwealth of Pennsylvania, Department of
Transportation and constructed an access easement private drive to allow access only
to the Smith property from State Route 247 (Lakeland Drive). Id. ¶ 17. In early
2016, Gamliel Danziger (Danziger) expressed an interest in purchasing the
remaining Parent Parcel “with the intention of subdividing the property and,
eventually, developing the subdivided lots.” Id. ¶ 18. On June 20, 2016, the
Preliminary/Final Plans for the Estate of Raymond C. Smith Minor Subdivision were
submitted to and approved by Township Appellees.3 Id. ¶¶ 19-20.
               On August 15, 2016, Robert Smith, as executor of the estate of
Raymond C. Smith, conveyed 31.83 acres of the Parent Parcel to Danziger
(Subdivision). Complaint ¶ 22. Thereafter, Danziger and his agents extended the
private drive that provides access to the Smith property to the southeast in order to
provide access to the lots “carved out” in the June 20, 2016 Minor Subdivision for
construction and development purposes. Id. ¶ 23. On July 21, 2017, Township
Appellees approved a revision to the Subdivision to increase the number of

      3
          The SALDO defines “subdivision, minor” as:

               The division of a lot or tract of land into five (5) or fewer lots for the
               purpose, whether immediate or future, of transfer of ownership or of
               building development, provided that the proposed lots thereby
               created have frontage on an improved street or streets, and provided
               further that there is not created by the subdivision any new street,
               any required public improvements, or the need therefor. No parcel
               of land held in single or separate ownership at the time of application
               for a minor subdivision may be further subdivided into an aggregate
               of more than 5 lots, tracts or parcels of land at any time subsequent
               to that date except in accordance with the requirements for a major
               subdivision. A lot line adjustment shall be administered in the same
               manner as a minor subdivision.

SALDO § 106(C).



                                                   3
subdivided lots of the Parent Parcel to eight. Complaint ¶¶ 25-26. On December
14, 2017, Township Appellees approved another revision to the Subdivision to
subdivide a 3.614-acre parcel of the Parent Parcel. Id. ¶ 28. The Smiths contend
that Township Appellees violated the SALDO by failing to improve the private drive
that gives access to their property into a public road upon issuing three approvals
relating to the Subdivision on June 20, 2016, July 21, 2017 and December 14, 2017.
Id. ¶¶ 21, 27 & 30.4
               On March 21, 2018, the Smiths filed a complaint seeking the issuance
of a writ of mandamus on Township Appellees to command them to enforce the
SALDO by directing that the private drive be converted to a public road at the cost
of the Township Appellees. Complaint Wherefore Clause. The Smiths further
sought damages to reflect the diminution in their property value and requested any
other legal or equitable relief as deemed appropriate. Id. Township Appellees
responded with preliminary objections seeking dismissal of the complaint, with
prejudice, because the Smiths (1) failed to set forth a viable claim for mandamus;
(2) failed to set forth a viable claim against individual Township Appellees; and (3)
have an adequate and appropriate remedy at law outside of mandamus. Preliminary
Objections to Plaintiffs’ Complaint ¶¶ 5-8.5


       4
         In their complaint, the Smiths also assert that Township Appellees erred by approving the
Subdivision as a minor subdivision because the Subdivision exceeds the allowable five lots for a
minor subdivision and should have been approved as a major subdivision. Complaint ¶ 50.
Further, the Smiths contend that the Subdivision cannot be considered minor as “there is no
frontage on an improved street.” Id. Though the Smiths raised this issue in their complaint, it is
not before this Court for review.
       5
          Township Appellees argue in their brief to this Court that they further objected to the
complaint on the basis that it was barred by the statute of limitations. Township Appellees’ Brief
at 25, n.3. But, upon review of Township Appellees’ preliminary objections, this objection was
not raised before the trial court and, therefore, is waived. Pa.R.A.P. 302 (stating, “[i]ssues not
raised in the lower court are waived and cannot be raised for the first time on appeal”).
                                                4
               After review of Township Appellees’ preliminary objections, the trial
court sustained the objection for failure to set forth a viable claim for mandamus and
denied and dismissed the Smiths’ complaint. Trial Court Order dated 10/10/18. In
its opinion, the trial court explained that though the Planning Commission and Board
have a duty to enforce the SALDO, the authority provided therein is discretionary
and “does not require the municipality to ‘seek out and initiate legal action.’” Trial
Court Opinion at 6. The Smiths brought this appeal.
               It is well established that mandamus is an extraordinary writ designed
to compel an official’s performance of a ministerial act 6 or mandatory duty.
Sinkiewicz v. Susquehanna Cty. Bd., 131 A.3d 541, 546 (Pa. Cmwlth. 2015); Wilson
v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). The burden
of proof falls on the party seeking this remedy to establish his or her legal right to
relief. Sinkiewicz, 131 A.3d at 546. Mandamus requires (1) a clear legal right in the
plaintiff, (2) a corresponding duty in the defendant, and (3) the lack of any other
adequate and appropriate remedy at law. Id. The purpose of mandamus is not to
establish legal rights but only to enforce those rights which are already established.
Id. As a “high prerogative writ, mandamus is rarely issued and never to interfere
with a public official’s exercise of discretion.” Id.
               Before this Court, the Smiths contend that the trial court erred when it
concluded that Township Appellees do not have a mandatory duty to enforce the
provisions of the SALDO that require the construction of a public road. Smiths’
Brief at 13. The Smiths argue that Township Appellees approved the Subdivision

       6
          A ministerial act is an act that a public officer is required to perform upon a given state
of facts in a prescribed manner in obedience to the mandate of legal authority. Rose Tree Media
Sch. Dist. v. Dep’t of Public Instruction, 244 A.2d 754, 755 (Pa. 1968).



                                                 5
to allow for the creation of multiple lots and, once they gave their approvals,
Township Appellees had a mandatory duty to abide by the lot and street standards
of the SALDO and to “cause a public road to be constructed.”7 Id. at 19. Township



       7
         The Smiths rely on several provisions of the SALDO to support their assertion that once
multiple lots are created a public road must be constructed. The SALDO defines “lot or zone lot,”
“driveway” and “street” as follows:

              LOT OR ZONE LOT – A piece or parcel of land occupied or
              intended to be occupied by a principal building or group of such
              buildings and accessory buildings, or utilized for a principal use and
              uses accessory or incidental to the operation thereof, together with
              such open spaces as required by this [o]rdinance, and having
              frontage on a public street.

              DRIVEWAY – A private vehicular service road providing access to
              a single lot, building, dwelling or garage.

              STREET – A public or private thoroughfare with a right-of-way not
              less than thirty (30) feet in width if in existence prior to the passage
              of this ordinance or a right-of-way of not less than fifty (50) feet in
              width if established subsequent to the passage of this ordinance
              which affords the principal means of access to abutting property,
              including avenue, place, way, drive, land boulevard, highway, road
              and any other thoroughfares except an alley.

SALDO § 106(C) (emphasis added). According to the Smiths’ expert, “[t]hese three definitions,
in combination, indicate a driveway is not permitted to serve more than a single lot or dwelling,
except under Section 525.E(5) . . . and anything more than a single lot or dwelling would
necessarily be required to meet the street standards of [SALDO].” Smiths’ Brief at 10. Section
525.E(5) of the SALDO addresses “private drives” and explains that they can service more than
two single-family dwellings in certain circumstances not present here. SALDO § 525.E(5);
Smiths’ Brief at 10-11. Further, the Smiths rely on the following:

              If there is a potential for resubdivision of either of the lots to be
              serviced by a private drive such that eventually more than two lots
              might result, the subdivider shall provide additional right-of-way as
              necessary to serve the maximum potential number of lots. All
              drainage plans shall be subject to approval of the Township
              engineer.



                                                 6
Appellees failed to require the construction of a public street and, therefore, the
Smiths ask this Court to require them to perform their mandatory duty and enforce
the SALDO. Id. at 23.
               The Smiths rely on Section 202D of the SALDO to support their
argument. Section 202D provides that “it is specifically designated that it shall be
the duty of the governing body to enforce this Ordinance.” SALDO § 202D. The
governing body is defined as the Board. Id. § 106(C). The Smiths assert that because
the SALDO requires the Board to enforce its provisions by use of the term “shall,”
then it must “do something” to abate the ongoing violations of lot and street
standards resulting in harm to their property. Smiths’ Brief at 18 & 23. We agree
that the SALDO requires the Board to enforce it but this provision simply identifies
who is responsible to enforce the SALDO and to ensure that the entity identified, the
Board, is going to perform the task assigned, enforcement. Section 202D does not
explain how or when the Board is to enforce the SALDO. Rather, other provisions
address the enforcement powers granted to the Board, specifically Section 202F.
               Section 202F of the SALDO provides that:

               [i]n addition to other remedies, the municipality may
               institute and maintain appropriate actions by law or in
               equity to restrain, correct or abate violations, to prevent
               unlawful construction, to recover damages and to prevent
               illegal occupancy of a building, structure or premises . . . .
SALDO § 202F (emphasis added). By use of the term “may” the SALDO provides
that Scott Township, the Board, has the option or discretion to institute and maintain



SALDO § 525.E(5) (emphasis added); Smiths’ Brief at 11. The Smiths also cite to Section 503L
of the SALDO which provides that “[n]o street required to provide access shall be a private street,
except as otherwise provided herein.” SALDO § 503L; Smiths’ Brief at 10.

                                                7
actions in law or in equity to correct or abate violations of the SALDO.8 We agree
with the trial court that the SALDO does not impose a mandatory duty upon the
Board to institute an enforcement action or to do something to “abate the damages
incurred” by the Smiths resulting from the lack of a public street. Rather, this
language gives the Board the ability to exercise its prosecutorial discretion, which is
a matter beyond judicial review.
              In Sinkiewicz, this Court examined language almost identical to the
language at issue in the present case, codified in the Susquehanna County
Subdivision and Land Development Ordinance, to conclude that Susquehanna
County had no mandatory duty to enforce the SALDO. Sinkiewicz, 131 A.3d at 542.
In Sinkiewicz, High Cadence owned property consisting of two lots. Id. at 543. Over
several years, portions of the lots had been used by a variety of business enterprises,
including truck repair, equipment storage, pipeline fabrication and fracking water
supply, with High Cadence’s permission.             Id.   Homeowners owning property
adjacent to the two lots complained to the county that High Cadence had not obtained
approval to subdivide the lots. Id. The planning commission informed homeowners
that no action would be taken because it did not agree that any subdivision had
occurred. Id.
              In response, homeowners in Sinkiewicz brought a complaint in
mandamus seeking to, in part, compel the county to require High Cadence to file a
subdivision plan for the lots. Id. at 544. The county filed preliminary objections in
the nature of a demurrer asserting that the homeowners’ mandamus action was
       8
         Our interpretation is further supported by our observation that the SALDO does not use
the term “shall” in this provision. See SALDO § 106A(5) (explaining that when interpreting the
SALDO “[t]he term shall is mandatory”); see also SALDO § 106B (providing that “[a]ny word or
term not defined herein shall be used within a meaning of standard usage”); accord Merriam-
Webster, available at https://www.merriam-webster.com/dictionary/may (last visited October 7,
2019) (defining the term “may” as “have the ability to” or “be free to”).
                                              8
improper because it sought to compel the county’s exercise of discretion. Id. at 544,
n.4. The trial court overruled the preliminary objection, held a hearing and issued an
order denying homeowners’ complaint on the merits. Id. at 544, n.5 & 545.
Homeowners appealed to this Court. Id. at 545.
             In affirming the trial court, this Court in Sinkiewicz held, in pertinent
part, that homeowners could not, through mandamus, compel the exercise of the
county’s discretion to enforce the SALDO. Id. at 548. In so concluding, this Court
reviewed the following portion of the SALDO, which provided:

             [i]n addition to other remedies, the County may institute
             and maintain appropriate actions by law or in equity to
             restrain, correct or abate violations to prevent unlawful
             construction, to recover damages and to prevent illegal
             occupancy of a building, structure or premises.


Id. at 547. This Court explained that, with emphasis on the word “may,” this
provision “does not require the [c]ounty to seek out and initiate legal actions against
wayward property owners.” Id. at 548. Rather, this language gives the county
prosecutorial discretion to enforce the SALDO provisions and such discretion is “a
matter beyond judicial review regardless of the form of action.” Id. This Court
noted that, “[t]he exercise of an agency’s prosecutorial discretion is not subject to
judicial review, any more than the discretion of a criminal prosecutor not to
prosecute a criminal case can be review[ed] by courts.” Id.
             Relying on In re: Frawley, 364 A.2d 748,749 (Pa. Cmwlth. 1976), this
Court further explained that in exercising discretion not to prosecute, such action is
not “adjudicatory in nature” as:

             Executive officers of government who are impressed with
             discretionary powers of prosecution often choose not to
                                          9
                exercise those powers upon policy considerations wholly
                apart from the possibility that sufficient cause might exist
                to support a prosecutorial action. Incident, however, to
                the constitutional separation of powers between the
                executive and judicial branches of government, courts
                cannot interfere with the executive’s free exercise of such
                discretionary determinations.

Sinkiewicz, 131 A.3d at 548 (bracket omitted) (emphasis in original and added). This
Court in Sinkiewicz concluded that the SALDO “does not impose a mandate upon
the [c]ounty to enforce the SALDO.” Id. at 549. Likewise, here, Section 202F of
the SALDO does not impose a mandate on the Board to initiate an action or “do
something” to abate an ongoing violation of the SALDO, as this is a matter within
the Board’s discretion. Because the SALDO does not impose a mandatory duty on
the Board to exercise its enforcement power, a writ of mandamus does not lie.
                Nevertheless, the Smiths contend that the analysis of this Court in
Sinkiewicz does not apply here because they are not requesting that Township
Appellees approve or disapprove subdivision plans. Smiths’ Brief at 22. We agree
that the Smiths are not seeking an order to compel Township Appellees to approve
or disapprove subdivision plans, nor are they seeking an order to require the filing
of subdivision plans, as was the case in Sinkiewicz. Instead, the Smiths assert that
the subdivision plans already approved by Township Appellees violate the SALDO.
But, the Smiths could have challenged the Township Appellees’ approvals when
they were rendered.9

        9
         The Smiths alleged the lack of adequate remedy at law as required by Pennsylvania Rule
of Civil Procedure No. 1095(6). Complaint ¶ 62. But this assertion is a conclusion of law, rather
than an allegation of fact, and we are not required to accept it as true at this stage in the proceeding.
See Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 549 (Pa. Cmwlth. 2016) (explaining that this
Court need not accept as true conclusions of law when reviewing preliminary objections to a
complaint), aff’d, 177 A.3d 182 (Pa. 2018) (Mem.).

                                                  10
              Specifically, the Smiths allege that Township Appellees approved the
June 20, 2016 Subdivision proposal and the July 21, 2017 and December 14, 2017
revisions to the Subdivision. Complaint ¶¶ 20, 26 & 35. Township Appellees
rendered these approvals pursuant to Section 909.1 of the Pennsylvania
Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended,
added by the Act of December 21, 1988, P.L. 1329, which provides that:

              [t]he governing body or . . . the planning agency, if
              designated, shall have exclusive jurisdiction to hear and
              render final adjudications in the following matters . . .
              [a]ll applications pursuant to section 508[10] for approval
              of subdivisions or land developments under Article V. . . .


53 P.S. § 10909.1(b)(2). The SALDO provides that “[i]t is the intention of the
[Board] to exercise, through the adoption of this Ordinance, the maximum lawful
jurisdiction over subdivision and land development permitted by the [MPC],”
including any subdivision, land development or resubdivision. SALDO § 200.
              The Smiths allege that Township Appellees failed to comply with the
SALDO when exercising its approval authority because Township Appellees failed
to follow the lot and street requirements to convert the private drive accessing their
property into a public street. Complaint ¶¶ 21, 27 & 30. Due to this failure, the
Smiths allege that “[s]ince July 2017 and prior to actual approval of the July 21,
2017” Subdivision revision, several construction vehicles enter and exit the
Subdivision daily using the private drive as the “only means of ingress and egress.”
Id. ¶ 53 (emphasis added). The Smiths contend that, as a result, construction trucks

       10
          Section 508 of the MPC addresses approval of plats. 53 P.S. § 10508. Plats are defined
as “the map or plan of a subdivision or land development, whether preliminary or final.” Section
107 of the MPC, 53 P.S. § 10107.

                                              11
have been using their property and have blocked the entrance and exit to their
property. Id. ¶¶ 54-55. The Smiths aver that the private drive in its current condition
“poses a serious risk to the health, safety, comfort, convenience, security and
welfare” to them and their property.11 Id. ¶ 56.
               Accepting these allegations as true, the Smiths had notice that
Township Appellees’ failure to comply with the SALDO caused the Smiths harm as
of July 2017.       The Smiths, therefore, could have challenged the Township
Appellees’ July 21, 2017 and December 14, 2017 revisions to the Subdivision by
filing an appeal with the court of common pleas to assert that their approvals did not
comply with the SALDO. As noted above, the Township Appellees had exclusive
jurisdiction to approve the Subdivision application and its subsequent revisions,
which are final adjudications subject to appeal. See 53 P.S. § 10909.1(b)(2). To
secure review of any decision made under the MPC, objectors, such as the Smiths,
must follow the procedures provided in Article X-A pertaining to court appeals. See
Section 1001-A, added by Section 101 of the Act of December 21, 1998, P.L. 1329,
53 P.S. § 11001-A (providing that the procedures set forth in this article “shall
constitute the exclusive mode for securing review of any decision” deemed to have
been made under the MPC) (emphasis added). Section 11002-A(a), contained in
Article X-A, provides that:


               All appeals from all land use decisions rendered pursuant
               to Article IX [including subdivision approvals as provided
               in Section 909.1] shall be taken to the court of common
       11
           In their complaint’s wherefore clause, the Smiths requested damages to reflect the
diminution of property value and any other legal or equitable relief as deemed appropriate.
Arguably, the Smiths do not allege specific facts to support their claim for damages. Further,
before this Court, the Smiths offer no arguments relating to their request for damages nor do they
allege error by the trial court for failing to address damages.

                                               12
             pleas of the judicial district wherein the land is located
             and shall be filed within 30 days after entry of the decision
             ....
53 P.S. § 11002-A(a); see Hallett’s Wood Homeowners’ Ass’n v. Upper Mt. Bethel
Twp. Planning Comm’n, 688 A.2d 748, 750 (Pa. Cmwlth. 1997) (holding that
objectors must file a timely appeal with the trial court to contest township’s deemed
approval of a subdivision plan as they were on notice that a decision was
forthcoming); see also Christman v. Twp. of Douglass, 602 A.2d 457, 458 (Pa.
Cmwlth. 1992) (holding that the proper procedure to challenge denial of a proposed
subdivision of land is properly brought in the court of common pleas in the county
where the affected land is located upon receiving notice of the decision).
             Though Township Appellees have discretion to grant waivers from the
SALDO requirements if a developer cannot meet the requirements, Hallett’s, 688
A.2d at 751, the Smiths could have appealed to the court of common pleas to obtain
a determination as to whether Township Appellees erred or abused their discretion
by rendering their subdivision approvals, certainly the July 21, 2017 and December
14, 2017 revisions, without requiring the construction of a public road. Because the
Smiths had an adequate and appropriate remedy at law to obtain the relief they seek,
the Smiths’ request for a writ of mandamus cannot lie for this reason as well.
             Because Township Appellees do not have a mandatory duty to enforce
the SALDO and the Smiths had an adequate remedy at law to obtain relief on their
complaint, they failed to establish a viable claim for mandamus. Accordingly, we
affirm the trial court’s order granting the preliminary objection of Township
Appellees.


                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge

                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Raymond Smith and                       :
Monica Smith, h/w,                      :
                 Appellants             :
                                        :
              v.                        :
                                        :
Scott Township, Scott Township          :
Board of Supervisors; Scott Township :
Planning Commission; Mike Gianetta, :
in his capacity as Chairman of the      :
Board of Supervisors; Steven Russell, :
in his capacity as Vice-Chairman of the :
Board of Supervisors and supervisor in :
charge of planning and zoning; Bob      :   No. 1485 C.D. 2018
Noldy, in his capacity as supervisor    :


                                   ORDER


            AND NOW, this 9th day of October, 2019, the order of the Court of
Common Pleas of Lackawanna County dated October 10, 2018 is AFFIRMED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
