        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Buonarroti Trust                     :
                                         :
             v.                          :   No. 1637 C.D. 2014
                                         :   Argued: June 15, 2015
City of Harrisburg Department of         :
Building and Housing Development,        :
Bureau of Codes Enforcement,             :
                         Appellant       :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: July 31, 2015

             In this mandamus action involving the condemnation of adjoining
row-houses, the City of Harrisburg, Department of Building and Housing
Development, Bureau of Codes Enforcement (the City) appeals from an order of
the Court of Common Pleas of Dauphin County (trial court) granting a writ of
mandamus requested by the Buonarroti Trust (the Trust). In so doing, the trial
court ordered the City to issue a notice of condemnation in order to abate all
violations of the City’s Property Maintenance Code (PMC) which it finds to exist
at 636 Hamilton Street (Neighbor’s Property).


             On appeal, the City contends the trial court erred or abused its
discretion in granting the Trust’s request for a writ of mandamus following entry of
a default judgment where the City’s preliminary objections were filed and served
by mail prior to the filing of Trust’s praecipe for default judgment. For the reasons
that follow, we vacate the trial court’s order and remand for further proceedings
consistent with this opinion.


                                  I. Background
                                   A. Generally
             In December 2009, the Trust purchased an abandoned row-house
located at 634 Hamilton Street (Trust Property) in Harrisburg. In 2010, the City
issued the Trust a condemnation order with regard to the Trust Property. In
October 2010, the Trust, acting through its demolition contractor, applied for a
demolition permit. The demolition contractor engaged an engineer to review the
work. The engineer issued a recommendation advising that no demolition work be
done until the front brick masonry wall of Neighbor’s Property was stabilized.


             County tax records identify Steven Budd (Neighbor) as the owner of
the adjoining property.    In January 2011, the Trust sent a letter to Neighbor
advising him to stabilize the front wall of his property so demolition of the Trust
Property could proceed. However, Neighbor refused to comply with the Trust’s
request.


             In May 2011, the City’s Assistant Codes Administrator, Arden T.
Emerick (Codes Administrator), issued Neighbor a notice to correct violations,
pointing out that the front brick wall was deflected out of plumb, a violation of
PMC §§301.2 and 301.3. Also in May 2011, Codes Administrator issued the Trust
a citation for failing to comply with the condemnation order for the Trust Property.




                                         2
              Several days later, Codes Administrator made an entry into the City’s
Codes Enforcement System regarding the notice to correct violations issued to
Neighbor’s Property. The notation indicated: “PER DIRECTION OF MAYOR
THOMPSON NO FURTHER ACTION WILL BE TAKEN ON THIS
COMPLAINT BY THE BUREAU OF CODE ENFORCEMENT.” See Compl. in
Mandamus, Ex. C; Reproduced Record (R.R.) at 30a.


              In August 2011, the Trust obtained a report from B. David Larson
(Trust Engineer), the Director of Structural Engineering for Raudenbush
Engineering, Inc. Trust Engineer’s report concluded that the demolition of the
Trust Property cannot proceed unless the front wall of Neighbor’s Property is
stabilized.


              Thereafter, the Trust appealed the May 2011 citation and proceeded to
trial before a magisterial district judge. The Trust then sent a letter to the City
asking that it take immediate action with regard to the notice to correct violations
of Neighbor’s Property in order for the demolition of the Trust Property to
proceed.


              In June 2013, Trustee Ralph Vartan and Trust Engineer met with
Codes Administrator at the Trust Property in an attempt to reach an understanding
regarding the Trust’s inability to comply with the City’s condemnation order due
to the instability of the front masonry wall of Neighbor’s Property. Nonetheless, in
October 2013, the City notified the Trust by letter that it intended to proceed with
enforcement of the condemnation order for the Trust Property.           Noting the



                                         3
imminent danger of collapse, the City directed the Trust to provide stabilization for
the adjoining Neighbor’s Property in order to allow for safe demolition of the Trust
Property.


             In January 2014, Codes Administrator again issued the Trust a citation
for failing to comply with the condemnation order for the Trust Property. The
Trust timely appealed the citation. In addition, Trust Engineer issued a second and
more comprehensive structural engineering report regarding the effect of the
condition of Neighbor’s Property with regard to the Trust’s ability to demolish the
Trust Property. Trust Engineer’s report, dated January 28, 2014, concluded:

             Based on these reports [Neighbor’s Property’s] wall
             in its current condition is extremely over-stressed and
             therefore [Neighbor’s Property] is to be considered
             unsafe for occupancy. The property should be
             vacated and remain unoccupied until the floor and
             roof structures are temporarily shored and the front
             wall demolished and reconstructed.
             ….
             [Raudenbush      Engineering     Inc.]   reiterates   our
             professional opinion that the bowing of the front walls of
             both [the Trust Property] and [Neighbor’s Property] is
             due to inadequate original construction and not due to
             lack of maintenance of [the Trust Property].

Compl. in Mandamus at ¶24; R.R. at 12a (bolding and underlining in original).
Nevertheless, the City responded by again directing the Trust to proceed with
demolition of the Trust Property. In addition, the City took no action to enforce
the notice to correct violations pending against Neighbor’s Property.




                                         4
             In February 2014, Codes Administrator informed the Trust that the
notice to correct violations issued to Neighbor’s Property remained active. The
Trust then requested that the City enforce the notice to correct violations. On
March 2014, the Trust again requested that the City enforce the notice. The City,
however, took no action.


                 B. Mandamus Action; Preliminary Objections
             On March 12, 2014, the Trust filed a complaint in mandamus asking
the trial court to compel the City to issue an order of condemnation for Neighbor’s
Property. In the alternative, the Trust asked the trial court to order the appropriate
proceedings to enforce the notice to correct violations issued to Neighbor’s
Property.    The county sheriff’s office personally served the original process
complaint on the City on March 17, 2014.


             The 20-day period to file a responsive pleading expired on April 9,
2014. The City, however, failed to file a response. On that day, the Trust served
the required 10-day notice on the City informing it of its intent to file a default
judgment. On April 22, 2014, the Trust filed a praecipe for a default judgment.
The same day, the trial court’s prothonotary entered a default judgment in favor of
the Trust.


             Meanwhile, on the day before, April 21, 2014, the City filed
preliminary objections to the Trust’s complaint in mandamus. In response, the
Trust filed and served preliminary objections to the City’s preliminary objections.




                                          5
               On July 1, 2014, the Trust filed a motion for entry of a writ of
mandamus. The City filed a timely response opposing the motion. In its initial
response, the City asserted that it filed preliminary objections before the default
judgment was entered; consequently, the default judgment in mandamus was
improperly entered. In addition, the City noted that there are related pending
proceedings concerning the Trust Property and Neighbor’s Property. In particular,
there are two summary appeals by the Trust from the findings of guilt on the
citations issued for failing to demolish the Trust Property. The Trust’s summary
appeals were the subject of a pending status conference. See Commonwealth v.
Vartan, (C.P Dauphin, No. 66-SA-2014) (order scheduling a status conference for
October 7, 2014); R.R. at 377a.


               In the City’s subsequent filings challenging the default judgment, it
asserted that there is a long-pending civil action between Neighbor and the Trust.
See Steven Budd v. Buonarroti Trust, (C.P. Dauphin, No. 2011-CV-7747) (docket
entries); R.R. at 379a-80a. The City contended the Trust filed the mandamus
action in order to avoid any preexisting liabilities arising from the other
proceedings.


               The City further challenged the substantive basis for a condemnation
order against Neighbor’s Property, pointing out that the record contained no
evidence indicating Neighbor’s Property is unfit or unsafe for human occupancy.
Without such evidence, the City could not condemn a property and force a lawful
occupant to leave his home.




                                          6
              As a further procedural challenge to the default judgment, the City
contended that the mandamus proceeding excluded Neighbor, thereby denying him
any opportunity to present evidence or cross-examine the experts who opined
Neighbor’s Property is unfit or unsafe for human occupancy. This failure to
include all proper and necessary parties also rendered the default judgment in
mandamus void.


                   C. Opinion and Order Granting Mandamus
                     1. General Prerequisites for Mandamus
              Nonetheless, in August 2014, the trial court issued an order granting
the writ in mandamus and directing the City to issue a notice of condemnation to
abate all PMC violations the City finds at Neighbor’s Property.                In an
accompanying opinion, the trial court noted that mandamus is an extraordinary
writ that should only be entered to compel official performance of a ministerial act
or a mandatory duty, or to compel action in a matter involving judgment or
discretion.   Chanceford Aviation Props., L.L.P., v. Chanceford Twp. Bd. of
Supervisors, 923 A.2d 1099 (Pa. 2007). The trial court noted that such a writ
should only be issued if there is a legal right in the plaintiff, a corresponding duty
in the defendant, and the want of any other appropriate or adequate remedy. Id.


              However, mandamus may not be used to control the exercise or
discretion of an agency in any particular way, or to force an agency to reverse or
rescind an action already taken, even if that action was wrong. Pa. Dental Ass’n v.
Ins. Dep’t, 516 A.2d 647 (Pa. 1986).          Further, the writ may not be used to
influence or coerce a particular determination of the issue involved; or to perform



                                          7
the function of an appeal ….” Id. at 562. Rather, “[m]andamus is a device that is
available in our system to compel a tribunal or administrative agency to act when
the tribunal or agency has been ‘sitting on its hands.’” Id. (citation omitted).


                      2. Legal Right to Request Mandamus
             The trial court first determined the Trust had a legal right to request
mandamus against the City, which is statutorily charged with administering and
enforcing the PMC. PMC at §§8-107.3, 103.1. The intent and purpose of the
PMC is to adopt a modern property maintenance code that will prescribe effective
standards and minimum requirements for the safeguarding of buildings and
persons in the City, and to protect the public against the hazards of inadequate,
defective or unsafe housing. The purpose of the City’s Codes Enforcement Bureau
is to provide and guarantee this protection. PMC at §8-107.1. Unsafe structures
are defined as those dangerous to the safety of the public or occupants because of
faulty construction or foundation, dilapidation, or compromised structural integrity.
PMC at §§8-107.3, 108.1.


             In this case, the City issued a notice to correct violations at
Neighbor’s Property based on violations arising out of the deflected front exterior
masonry wall, which is essentially detached from the rest of the building.
Neighbor never abated these violations. The City, however, never enforced the
notice to correct violations or prosecuted Neighbor for failure to comply with the
notice.




                                          8
              The trial court also noted the Trust provided three structural
engineering reports stating that Neighbor’s Property is unsafe and poses a threat to
its occupants and the public. Despite the observations of the Codes Administrator
and the opinions of Trust Engineer, Neighbor took no action to correct the
violations.


              Thus, the trial court reasoned, the existence of an inadequate,
defective and unsafe structure on the Neighbor’s Property gives the Trust a clear
right to seek the protection provided in the PMC. As such, the trial court found the
Trust legally entitled to request a writ of mandamus directing the City to provide
such protection, thereby allowing the demolition of the Trust Property.


                      3. Corresponding Administrative Duty
              The trial court further found the City is legally obligated to administer
and enforce the PMC. To that end, Codes Administrator has the duty to issue all
necessary notices to ensure compliance with the PMC. However, following Mayor
Thompson’s intervention, the City took no further action to enforce the notice to
correct the violations issued to Neighbor’s Property. Thus, the trial court reasoned,
the City breached its administrative duty to institute the appropriate proceedings to
abate such violations and ensure compliance with the PMC. See PMC §§8-107.3,
103.1, 106.3.


              In addition, the trial court noted the Trust provided the City with
multiple engineering reports indicating Neighbor’s Property is unsafe for
occupancy and should be vacated until the front wall is stabilized. Copies of these



                                           9
reports were also provided to Neighbor. Nonetheless, the City failed to inspect
Neighbor’s Property to verify the findings of the engineering reports, a violation of
PMC §§8107.3, 108.1. Ultimately, the trial court reasoned, even though the City
enjoys the discretion to accept or reject the engineering reports, the City is required
to enforce a notice to correct violations after it is issued. To that end, the trial court
stated:

             Whether [the City] will enforce the PMC or allow
             violations to exist without enforcement or penalty, is not
             a choice left to [the City’s] discretion. Instead [the City]
             is required to take action when necessary to protect the
             people of Harrisburg from hazardous and unsafe
             buildings. Additionally, [the City] does not have the
             discretionary power to determine which property owners
             they [sic] enforce the PMC against. It has a duty to
             enforce the regulations and requirements of the PMC
             uniformly against every building in Harrisburg,
             regardless of the owner.

Tr. Ct., Slip. Op., 8/15/14, at 9 (emphasis added).


               4. Lack of Other Appropriate or Adequate Remedy
             The trial court further determined the Trust had no other adequate
remedy to address the notice to correct violations issued to Neighbor’s Property.
Based on the pleadings, the trial court determined the Trust did everything within
its power to comply with the City’s order to demolish the Trust Property. The trial
court noted the Trust’s failure to comply with the condemnation order directly
resulted from the City’s refusal to enforce the notice to correct violations issued to
Neighbor’s Property. Notably, Neighbor refused to cooperate with the Trust in
attempting to reach an agreement regarding the stabilization of the front wall of his
property.

                                           10
             The City advised the Trust that it was responsible for stabilizing the
front wall of Neighbor’s Property and that it must proceed with demolition.
Generally, the trial court acknowledged, the party demolishing the structure is
responsible for any damages that may occur to a neighboring party. PMC §§8-
107.3, 110.6.3. Nonetheless, the trial court observed that additional rules apply
where, as here, the parties share a common wall. In particular, the trial court noted
the PMC provides:

             Where it is determined in the judgment of the code
             official that the property abutting the property to be
             demolished is not of sufficient structural integrity to
             withstand the erection of a party wall in accordance with
             this §110.6.5, the requirements of this §110.6.5 will be
             waived until such time as the owner of said abutting
             property can make the property structurally sound.

PMC, §§8-107.3, 106.5(j).

             Ultimately, the trial court determined the notice to correct violations
issued to Neighbor’s Property, combined with the engineering reports submitted by
the Trust, provided the City with adequate notice that Neighbor’s Property is
structurally insufficient to withstand demolition and erection of a party wall.
Therefore, given the City’s one-sided enforcement of the PMC against the Trust,
and the City’s essential pardon of Neighbor’s noncompliance with the notice to
correct violations, the trial concluded the Trust had no other adequate remedy.
Thus, the trial court reasoned, the Trust had no other option but to seek mandamus
relief to compel the City to bring Neighbor’s Property into compliance with the
City’s notice to correct violations in order to demolish the Trust Property.




                                         11
                       5. Notice of Appeal; Statement of Errors
               The City timely appealed the trial court’s order granting the writ of
mandamus.1 R.R. at 390. In response, the trial court, pursuant to Pa. R.A.P.
1925(b), ordered the City to file a Concise Statement of Errors Complained of on
Appeal. Thereafter, the City filed the following Statement of Errors:

               1. The Honorable Court erred in issuance of a
               Memorandum Opinion and Order that misstated the
               procedural record that the City had filed only one (1)
               document in this case, in the form of [P]reliminary
               Objections.

               2. The Honorable Court erred in issuance of a
               Memorandum Opinion and Order that overlooked timely
               filings of the City, which included a Brief in Opposition
               to the Trust’s preliminary objections to the City’s
               preliminary objections and a Response to the Motion for
               Entry of order of Mandamus.

               3. The Honorable Court erred in granting ultimate relief
               against a municipal body without an evidentiary hearing.

               4. The Honorable Court erred in granting the Trust’s
               requested ultimate relief of mandamus prior to the
               pleadings in the action being closed.

               5. The Honorable Court erred in issuance off [sic] a
               Memorandum Opinion and Order that granted the Trust
               the ultimate relief it requested -- Mandamus -- that
               included the collective errors of (1) erroneous citation of
               the procedural history; (2) an apparent misapplication of
               legal term (“service”); and (3) a facial misstatement of
               the record, indicating the City filed only a single

       1
         The City also filed a motion to stay, reconsider, and vacate the mandamus order. See
R.R. at 326a-335a. The Trust filed a motion in response to the City’s motion. R.R. at 410a-
425a. In November 2014, the trial court issued an order stating it lacked jurisdiction to entertain
the City’s motion to stay as a result of the City’s appeal. R.R. at 458a.



                                               12
             document when in fact they timely made separate
             responsive filing [sic] to two (2) filings by the Trust.

             6. The Memorandum Opinion and Order (the “Decision”)
             granting relief in the form of mandamus was fatally
             flawed as a matter of law, authorizing a noncompliant
             landowner to effectively evict a neighbor living in an
             adjoining property.

             7. The Honorable Court substituted its own judgment for
             a trained public official as to when, where and under
             what circumstance to condemn private property and
             remove a homeowner, all in the absence of an evidentiary
             hearing.

             8. The Honorable Court erred in relying upon the Trust’s
             proffered hearsay evidence without providing the City an
             opportunity to cross-examine the report’s writer.

             9. The Honorable Court erred as the City had a vested
             inherent right to have the entirety of the record
             considered by a Court.

             10. The Honorable Court erred in its application of the
             provisions of the [PMC].

             11. There is no admissible or admitted evidence in the
             record that the building is unfit for human occupancy.

             12. The Honorable Court erred as the requisite elements
             for condemnation and removal of a property owner or
             resident [sic].

Tr. Ct., Slip Op., 11/13/14, at 3-4.


             In its Rule 1925(a) opinion, the trial court addressed and dismissed
these issues. In particular, the trial court noted it did not hold an evidentiary
hearing because the City never requested one. The trial court also determined the
City, by issuing the notice to correct violations to Neighbor’s Property, found

                                       13
Neighbor’s Property to be unsafe or unfit for human occupancy. See Tr. Ct., Slip
Op., 11/13/14, at 5-6. Therefore, the trial court determined it did not substitute its
judgment for that of the City. Id. The City’s appeal followed.2


                                        II. Discussion
                                         A. Argument
               The City contends the trial court erred or abused its discretion in
granting the Trust’s request for a writ of mandamus following entry of a default
judgment where the City’s preliminary objections were filed and served prior to
the Trust’s praecipe for entry of default judgment. To that end, the City asserts the
Trust filed a praecipe for entry of a default judgment after the City served
preliminary objections challenging the Trust’s right to proceed in mandamus.
Therefore, the City argues, the trial court erred in directing the City to condemn the
owner-occupied Neighbor’s Property adjoining the long-condemned Trust
Property.


               In particular, the City asserts, the trial court disregarded a timely
pleading by the City filed on the last day of the 10-day period to respond to the
notice of default judgment (R.R. at 88a). On April 21, the City filed preliminary
objections to the Trust’s complaint for writ of mandamus (R.R. at 78a).
Importantly, service of legal papers other than original process is complete by


       2
          Our review in a mandamus action is limited to determining whether sufficient evidence
supports the trial court’s findings, and whether the trial court erred as a matter of law or abused
its discretion. Phila. Firefighters’ Union, Local 22, Int’l Ass’n of Firefighters, AFL-CIO ex rel.
Gault v. City of Phila., 78 A.3d 16 (Pa. Cmwlth. 2013). As to questions of law, our review is
plenary. Id. Our review of a trial court’s grant of mandamus is de novo. Id.



                                                14
mailing. Pa. R.C.P. No. 440(b). Thus, the City contends the trial court erred in
determining the default judgment, entered April 22, 2014, preceded the filing and
service of the City’s preliminary objections on the Trust.


             The City also argues the trial court abused its discretion by failing to
weigh or consider the injustice to the City and its taxpayers in allowing the Trust, a
private party, to dictate how and when City officials should exercise their
discretion in citing property owners or condemning an owner-occupied home.


             Also, Neighbor was not made a party to proceedings. As the owner of
the property condemned by the writ of mandamus, Neighbor must be considered an
indispensable party to the mandamus action concerning his Property.


             Further, the City asserts it should be allowed to defend itself in this
overly convoluted matter.       It should be allowed to challenge the Trust’s
engineering reports and assess the numerous uncontested citations issued against
the Trust over several years following the condemnation of the Trust Property.


             In addition, contrary to the public interest, the trial court permitted a
property owner, engaged in five-year old litigation with the neighboring property
owner, to maneuver to win a secondary action against a local government and
obtain what it could not obtain in the primary litigation. Again, the City asserts it
should have been permitted to make this argument below.




                                         15
               Finally, the City argues the Trust has not been prejudiced, and justice
does not lean toward its cause. Therefore, the City urges, we should reverse the
trial court, vacate the order granting mandamus, and remand for further
proceedings.


                                      B. Analysis
                           1. Validity of Default Judgment
               The City’s chief argument is that it timely served its preliminary
objections to the Trust’s complaint for mandamus on April 21, 2014, the last day
of the Trust’s 10-day notice of intent to enter a default judgment. As such, this
rendered the prothonotary’s entry of default judgment on the next day, April 22,
void ab initio (invalid from the beginning). In support of its position, the City cites
State Farm Insurance Co. v. Barton, 905 A.2d 993 (Pa. Super. 2006). There, the
Superior Court, on review, observed the “rules of civil procedure authorize the
prothonotary to enter a judgment of default upon receipt of the plaintiff’s praecipe
when the defendant has failed to file a pleading to the complaint within the
required time. Pa. R.C.P. [No.] 1037(b).” Barton, 905 A.2d at 994. However,
“[o]nce a responsive pleading is filed, even if untimely, a default judgment cannot
thereafter be entered because the responding party is no longer in default.” Id. at
995.


               Preliminary objections constitute a pleading. Pa. R.C.P. No. 1017(a);
Barton. “Accordingly, a defendant’s filing of preliminary objections would inhibit
the subsequent entry of a valid default judgment.” Barton, 905 A.2d at 995 (citing




                                          16
Vision Serv. Plan v. Pa. AFSCME Health & Welfare Fund, 474 A.2d 339 (Pa.
Super. 1984)).


             Therefore, because its preliminary objections preceded the Trust’s
praecipe for entry of default judgment, the City asserts the prothonotary had no
legal authority to enter a default judgment. See Gotwalt v. Dellinger, 577 A.2d
623 (Pa. Super. 1990) (where it is established that the prothonotary entered
judgment beyond his authority, said judgment entered is a nullity).


             In McKelvey v. Colonial School District, 385 A.2d 1040 (Pa.
Cmwlth. 1978), this Court affirmed a trial court’s order opening a default judgment
against a defendant school district in a mandamus suit directing that the district
reinstate the plaintiff, a temporary employee, after it discharged her without
reasonable notice of a hearing and an opportunity to be heard. Weighing the
circumstances, we determined the balance tipped in favor of opening the judgment
and remanding for further proceedings based on the peculiar actions of the parties’
respective counsel and our disagreement with the trial court’s treatment of the
merits of the case.


             We reach a similar conclusion here, albeit for different reasons. First,
given the circumstances, we agree with the City that the trial court erred in
upholding the entry of default judgment where the City filed preliminary
objections prior to the entry of default judgment. As discussed above, the City
filed preliminary objections to the Trust’s mandamus complaint on April 21, 2014.
The City’s preliminary objections clearly show a date stamp of April 21, 2014.



                                         17
R.R. at 77a-78a. Moreover, the attached certificate of service is also dated April
21, 2014, and it states that service was made by first-class mail. R.R. at 83a.


             Pursuant to Pa. R.C.P. No. 440(b), service by mail of legal papers
other than original process is complete upon mailing. Nevertheless, the trial court
erroneously determined that the City served the Trust with its preliminary
objections on April 23, 2014, apparently the date the pleading was received. See
Tr. Ct., Slip. Op., 8/15/14, at 4.


             In Barton, the Superior Court reversed a trial court’s order permitting
the entry of a default judgment where preliminary objections, although filed late,
were not stricken before the default judgment was entered. As noted above, the
Court reasoned:

                    Once a responsive pleading is filed, even if
             untimely, a default judgment cannot thereafter be entered
             because the responding party is no longer in default.
             Preliminary objections constitute a pleading See Pa.
             R.C.P. [No.] 1017(a). Accordingly, a defendant’s filing
             of preliminary objections would inhibit the subsequent
             entry of a valid default judgment.

Barton, 905 A.2d at 995 (citations omitted).


             The Superior Court’s rationale in Barton is equally applicable here.
Although the City did not file its preliminary objections within 20 days of the
Trust’s filing of service of the complaint in mandamus, the City did file and serve
by mail, its preliminary objections one day prior to the Trust’s filing of its praecipe
for entry of default judgment on April 22, 2014. Consequently, the City’s April


                                          18
21, 2014 filing of its preliminary objections to the mandamus complaint renders
the default judgment invalid. Barton.


                         2. Merits of Mandamus Action
             Further, as in McKelvey, we disagree with the trial court’s treatment
of the merits. First, we recognize that “[m]andamus is a high prerogative writ that
is rarely used 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) (emphasis added). However, mandamus is appropriate to compel a
public official to perform acts which are required or obliged to be performed and
which do not involve an exercise of discretion or judgment. Id. In Seeton, we
explained:

             It is well settled that in a mandamus proceeding a court
             can compel a public official who is vested with
             discretionary power to exercise that discretion; but … it
             cannot interfere with or control the official’s discretion
             or judgment. Expressed another way, it is the discretion
             and judgment of the official … which prevails and not
             that of a court or a jury or a person aggrieved; and a
             Court cannot compel such official to exercise his
             discretion in a manner which will produce a result which
             the Court may deem wise or desirable. (Emphasis by
             italics in original; emphasis by underline added.)

Id. (quoting Maxwell v. Bd. of Sch. Dirs. of Sch. Dist. of Farrell, 112 A.2d 192
195 (Pa. 1955)).


             The trial court here granted a writ of mandamus directing the City to
condemn the building on Neighbor’s Property despite the lack of any
determination by the City that the building is an inadequate, defective and unsafe

                                          19
structure. To that end, the notice to correct violations did not state that Neighbor’s
Property was unsafe for habitation. See R.R. at 26a, 32a.


             Rather, the trial court based this determination on engineering reports
cited in the Trust’s mandamus complaint, but the reports never introduced into
evidence and were not tested by cross-examination. Given these circumstances,
the trial court erred by encroaching on the City’s authority and ordering the
condemnation of Neighbor’s Property. Seeton. In short, the purpose of mandamus
is to enforce rights already clearly established, not to establish rights that did not
exist. Tindell v. Dep’t of Corr., 87 A.3d 1029 (Pa. Cmwlth. 2014). Therefore,
mandamus is unavailable to condemn Neighbor’s Property. Id.


             In addition, the Trust failed to join Neighbor, whose residential
building the trial court ordered condemned or repaired, as a party to the mandamus
suit. In condemnation proceedings, the owner of the condemned property is an
indispensable party. Nicoletti v. Allegheny Cnty. Airport Auth., 841 A.2d 156 (Pa.
Cmwlth. 2004); Biernacki v. Redevelopment Auth. of the City of Wilkes Barre,
379 A.2d 1366 (Pa. Cmwlth. 1977). No court may grant relief in the absence of an
indispensable party. Nicoletti. An indispensable party is one whose rights are so
connected with the claims of the litigants that no relief can be granted without
infringing on those rights. Id. Neighbor, as the lawful owner and occupant of the
building on the adjoining property, must be considered an indispensable party to a
mandamus action seeking the condemnation of his home. Nicoletti; Biernacki. As
such, the trial court lacked jurisdiction to award mandamus relief affecting
Neighbor’s Property. Id.



                                         20
                                  III. Conclusion
             Having determined the City’s filing and service by mail of its
preliminary objections to the Trust’s complaint on April 21, 2014 rendered the
Trust’s default judgment invalid, we vacate the trial court’s order granting a writ of
mandamus; and, we remand this case for further proceedings on the parties’
respective preliminary objections consistent with this opinion.




                                       ROBERT SIMPSON, Judge




                                         21
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Buonarroti Trust                  :
                                      :
            v.                        :   No. 1637 C.D. 2014
                                      :
City of Harrisburg Department of      :
Building and Housing Development,     :
Bureau of Codes Enforcement,          :
                         Appellant    :


                                 ORDER

            AND NOW, this 31st day of July, 2015, the order of the Court of
Common Pleas of Dauphin County is VACATED and this case is REMANDED
for further proceedings consistent with the foregoing opinion.   Jurisdiction is
relinquished.




                                     ROBERT SIMPSON, Judge
