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FRYE CONSTRUCTION v. CITY MONONGAHELA ET AL. (02/05/88)

decided: February 5, 1988.

FRYE CONSTRUCTION, INC., APPELLANT
v.
CITY OF MONONGAHELA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Washington County in the case of Frye Construction, Inc. v. City of Monongahela, Robert A. Lohr, City Engineer of the City of Monongahela, Board of Appeals of the City of Monongahela, and John A. Zentek and R. Carole Zentek, his wife, No. 8296 in Equity, Book 47, Page 171.

COUNSEL

Frank A. Conte, for appellant.

Clyde G. Tempest, for appellee, City of Monongahela.

Raymond P. Amatangelo, for John A. and R. Carole Zentek, appellees.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail dissents.

Author: Kalish

[ 113 Pa. Commw. Page 293]

Appellant, Frye Construction Co., Inc. (Frye), appeals an order of the Common Pleas Court of Washington County which sustained a demurrer to a claim for equitable and mandamus relief. We affirm.

The city engineer of the City of Monongahela approved an application for a building permit filed by John and Carole Zentek to erect a "lawn-building storage accessory use to a residence" in their rear yard. The Zenteks instead constructed a carrier pigeon loft, housing numerous carrier pigeons, and added additional buildings to the carrier pigeon loft. Frye is the owner of three lots adjacent to the Zentek property.

Frye filed a complaint against the Zenteks in the equity court alleging that the Zenteks in their application for a building permit to construct a lawn building as an accessory use, made false statements and actually built a carrier pigeon loft, which is not a permissible use. Frye seeks, in relief, an order compelling the Zenteks to remove the pigeon loft; and in addition Frye alleges it suffered a loss in value to its property for which it seeks monetary damages.

[ 113 Pa. Commw. Page 294]

The mandamus count against the municipality and its officers alleged that Frye has requested that the pigeon loft be removed from the Zentek property. Frye requests that the Board of Appeals conduct a zoning hearing and make a decision since the City of Monongahela has failed or refused to enforce the law or conduct a hearing in violation of section 10908 of the Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908.

The Zenteks filed preliminary objections in the nature of a demurrer contending that Frye did not exhaust its statutory remedy since it did not follow the procedure requirements of section 11001 of the Code, 53 P.S. § 11001. The municipality also contends that mandamus does not lie. The trial court dismissed all counts in equity and mandamus.

Mandamus is an extraordinary writ which will issue to compel performance by a governmental agency of a ministerial act, where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other equitable and appropriate ...


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