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ANDREAS ZAFIROPOULOS AND FAYETTA ZAFIROPOULOS v. COMMONWEALTH PENNSYLVANIA (04/16/79)

decided: April 16, 1979.

ANDREAS ZAFIROPOULOS AND FAYETTA ZAFIROPOULOS, HIS WIFE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Original jurisdiction in case of Andreas Zafiropoulos and Fayetta Zafiropoulos, his wife v. Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

Eugene J. Brew, Jr., with him Dale and Brew, for petitioners.

Maxine Woelfling, Assistant Attorney General, for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 42 Pa. Commw. Page 19]

We are asked, in this case, to rule on preliminary objections filed by defendant, Department of Environmental Resources (Department) to plaintiffs' complaint in mandamus*fn1 seeking an order directing the

[ 42 Pa. Commw. Page 20]

Department to issue a sewer extension permit to plaintiffs. After consideration of the pleadings and memoranda of law*fn2 we must sustain the Department's preliminary objections.

Since this Court finds that an action in mandamus will not lie for purposes of compelling the issuance of a sewer extension permit, further discussion of the underlying facts is unnecessary.

It is axiomatic that mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or a mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy. . . . Mandamus does not lie to compel the performance of discretionary acts except where the exercise or non-exercise of discretion is arbitrary, fraudulent, or based upon a mistaken view of the law. (Citations omitted.)

Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 295, 297 A.2d 823, 824-25 (1972). See also Wyoming Sand & Stone Co. v. Department of Revenue, 477 Pa. 488, 384 A.2d 1193 (1978); Kaplan v. Smith, 40 Pa. Commonwealth Ct. 95, 396 A.2d 493 (1979).

In Section 5 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, added by Section 4 of the Act of July 31, 1970, P.L. 653, 35 P.S. ยง 691.5, the Legislature has indicated clearly an intention that the Department be vested with significant discretion in ...


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