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ANTHONY J. CARINO AND DOLORES CARINO v. BOARD COMMISSIONERS COUNTY ARMSTRONG ET AL. (12/29/83)

decided: December 29, 1983.

ANTHONY J. CARINO AND DOLORES CARINO, HIS WIFE ET AL., APPELLANTS
v.
THE BOARD OF COMMISSIONERS OF THE COUNTY OF ARMSTRONG ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Armstrong County in the case of Anthony J. Carino and Dolores Carino, his wife; James G. Callas and Jean M. Callas, his wife; W. R. Davis, R. G. Nolte, and George B. Stubbs and Ruth S. Stubbs, his wife v. The Board of Commissioners of the County of Armstrong and the Commonwealth of Pennsylvania and Harry M. Fox, William H. Kerr and Grover H. Myers, constituting the members of said Board, No. 1981 -- 0442-Civil.

COUNSEL

James G. Callas, Callas and Graff, for appellants.

Edward J. Steiner, Steiner and Steiner, for appellees.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle and Barry. Opinion by Judge MacPhail. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 79 Pa. Commw. Page 243]

Appellants*fn1 have brought this appeal from an order of the Court of Common Pleas of Armstrong County which dismissed a mandamus action filed by Appellants who sought to compel the County Board of Assessment Appeals*fn2 (Board) to conduct a county-wide reassessment of real property. We affirm.

Appellants, who are taxpayers and property owners in Armstrong County, filed the instant mandamus action*fn3 on March 13, 1981, alleging therein that the Board has failed to conduct a county-wide revision of

[ 79 Pa. Commw. Page 244]

    real property assessments since 1956. Specifically, Appellants contend that the Board is required to complete a county-wide revised assessment on an annual basis pursuant to The Fourth to Eighth Class County Assessment Law (Law).*fn4 The Board argues, and the common pleas court found, that the Law does not impose a mandatory duty on the Board to conduct such annual county-wide reassessments.

Our scope of review is limited to a determination of whether the common pleas court abused its discretion or committed an error of law when it denied mandamus relief. Rizzo v. Schmanek, 63 Pa. Commonwealth Ct. 547, 439 A.2d 1296 (1981). Mandamus, of course, is an extraordinary writ "which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other adequate remedy". Wyoming Sand and Stone Co. v. Department of Revenue, 24 Pa. Commonwealth Ct. 366, 369, 355 A.2d 860, 862 (1976), aff'd, 477 Pa. 488, 384 A.2d 1193 (1978). One who sues in mandamus must demonstrate an immediate and complete legal right to the demanded action. Moreover, mandamus should never be invoked in a doubtful case. Board of Supervisors of North Coventry Township v. Silver Fox Corp., 10 Pa. Commonwealth Ct. 646, 312 A.2d 833 (1973). Finally, mandamus will not lie to compel the performance of discretionary acts except where the failure to exercise discretion is arbitrary, fraudulent or based on an erroneous view of the Law. South Whitehall Township v. Department of Transportation, 11 Pa. Commonwealth Ct. 558, 316 A.2d 104 (1974).

Appellants admit that they can find no case law which would compel the Board to perform the precise

[ 79 Pa. Commw. Page 245]

    duty at issue here, to wit, annual, county-wide, parcel-by-parcel assessments. Our independent research affirms that conclusion. Neither are Appellants able to point to any statutory law which categorically states that the Board ...


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