Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Germantown Business Association v. City of Philadelphia, Henry G. Herling, Commissioner of Licenses and Inspections, No. 4339 January Term, 1986.
Ronald J. Harper, Harper & Paul, for appellant.
Flora Barth Wolf, Deputy City Solicitor, with her, Andrew P. Bralow, Divisional Deputy City Solicitor, and Handsel B. Minyard, City Solicitor, for appellee.
Judges MacPhail and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Palladino.
[ 111 Pa. Commw. Page 504]
Germantown Business Association (Appellant) appeals from a decision of the Court of Common Pleas of Philadelphia County dismissing Appellant's petition for injunction and its complaint for mandamus against the City of Philadelphia and Henry R. Herling, Commissioner of Licensing & Inspection (Appellees).
Appellant is an organization consisting of merchants who claim interests in businesses operating in the Germantown area of Philadelphia. Numerous street vendors also operate in the Germantown area, and such operation competes with Appellant's businesses. In some of the areas where vendors operate, the Philadelphia Code specifically prohibits all street vending. Appellant has sought to resolve the problem of non-enforcement of the prohibition on vending through various meetings with Philadelphia departments and offices which deal with vendors in the city. Appellant has also sought to reach agreements with the vendors themselves, but the vendors apparently have not abided by any such agreements.
Unable to satisfactorily resolve the problem, Appellant sought relief in the courts by filing both a complaint in mandamus and an equitable petition for mandatory
[ 111 Pa. Commw. Page 505]
injunction. Both actions sought to compel Appellees to enforce various provisions of the Philadelphia Code. The trial court dismissed the petition for mandatory injunction on the ground that mandamus provided an adequate remedy at law and, therefore, equitable relief was not available. After addressing the merits of the complaint in mandamus, the trial court determined that mandamus, as pled by Appellant, did not lie.
Appellant presents four issues for our review: 1) did the trial court err in concluding that mandamus provides an adequate remedy at law, thereby precluding an action in equity; 2) did the trial court err in concluding mandamus was not available on the ground Appellant had other adequate remedies at law; 3) did the trial court err in concluding that Appellant did not establish a right to relief different from that of the general public; and 4) did the trial court err in concluding that enforcement of the Philadelphia Code's prohibition on vending in the Germantown area is discretionary and not mandatory.
Our analysis begins with a determination of when the extraordinary writ of mandamus will issue. A writ of mandamus is a command from a court to an inferior entity directing performance of a particular duty which results from the official station of the entity to whom it is directed or from operation of law. Goodman v. Meade, 162 Pa. Superior Ct. 587, 60 A.2d 577 (1948). Mandamus will lie only to compel performance of a ministerial act or mandatory duty. Rizzo v. Schmanek, 63 Pa. Commonwealth Ct. 547, 439 A.2d 1296 (1981). The plaintiff must establish a clear right to relief, FR&S, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, 104 Pa. Commonwealth ...