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, 20 15

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 a lleged that Defendants violated

s ection 6

- 13 ( A ) of the Administrative Code of the City of Scranton ( Scranton Code)

by entering into a four

- year contract with T he PFM Group (PFM) for f inancial2

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 professio nal

service contract with PFM.

On August 21, 2014, Defendants filed prelim inary objections to the

complaint , which Pilchesky answered on September 5, 20 14. 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 c omplaint with

prejudice

. The trial court concluded that Pilchesky’s complaint was le gally

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 do ne, 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 f rom 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. a t 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 th at issue on appeal.3

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 B oard of

Probation and Parole , 880 A.2d 21, 23 (Pa. Cmwlth. 2005). A mandamus action will

not lie to compel the p erformance of a discretionary act. See C hadwick 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 t he defendant, and a lack of any other appropriate and

adequate remedy. ” Bright v. Pe nnsylvania 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 a n order sustaining preliminary objections in the nature of a demurrer is

limited to determin ing 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 ruli ng on preliminary objections in the nature of a demurrer, the court must accept as true all well

- pl e d allegations of material fact and all reasonable inferences therefrom

. Nickson v. Pennsylvania B oard 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 wr it 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, do es not allege that Defendants

failed to exercise their discretion here.4

show an immed iate, specific, well[

- ]d efined 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 the ir 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 fait h 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, 6 52 (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 th at they e n tered into the PFM contract for the purpose of assisting the City of

Scranto n in managing its fiscal affa irs. 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 publ ic 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. B ecause Pilchesky ’s5

complaint challenge s the manner in which Defendants exercised their discretion

,
mandamus relief is i mproper

. See Seeton , 50 A.3d at 274; Chadwick , 905 A.2d at

603.

Pilchesky’s c o mplaint also fails to state a claim for injunctive relief. A

p laintiff 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 injunctiv e relief is denied

. P.J.S . v.
Pennsylvania State Ethics Commission , 669 A.2d 1105, 111 2

- 1 3 (Pa. Cmwlth. 1996)

. Here, Pilchesky merely avers that he will suffer “irreparable harm” and “more harm

than good” i f injunctive relief is denied. (Compl.

, ¶¶ 33

- 3 4.) 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.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 :

O R D E R

AND NOW, this 1 1 th day of August , 201 5

, we hereby affirm the

December 9, 2014, order of the Court of Common Pleas of Lackawanna County.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge