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 
2

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.
3

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 
4

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.
5

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.
6

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.
7

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 
8

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.
9

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 
10

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.
11

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.
12

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 410a425a. 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. 
13

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 
14

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.
15

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.

 
16

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 
17

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. 
18

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 
19

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 
20

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. 
21

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
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 :

O R D E R

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