Monday, August 15, 2011

mandamus - peremptory mandamus

Board of Commissioners v. Kantner - Cmwlth. Court - August 15, 2011

A writ of mandamus is an extraordinary remedy which seeks to compel official performance of a ministerial act or mandatory duty. Rosario v. Beard, 920 A.2d 931, 934 (Pa. Cmwlth. 2007). A writ of mandamus may be issued only where there is a clear legal right to relief in the plaintiff, a corresponding duty in the defendant and a lack of any other appropriate or adequate remedy. McGill v. Pennsylvania Department of Health, 758 A.2d 268, 270 (Pa. Cmwlth. 2000).

The Pennsylvania Rules of Civil Procedure permit the entry of peremptory mandamus [i.e., without a hearing] as follows:

At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear. Judgment shall not be entered without prior notice to all parties unless the exigency of the case is such as to require action before notice, in which event notice shall be given as soon as possible.

PA. R.C.P. No. 1098. When considering whether or not to grant peremptory mandamus, the Court is to "use the same standard which governs the disposition of summary judgment motions." Salem Township Municipal Authority, 820 A.2d at 892. Thus, judgment as a matter of law is appropriate if "there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report…." Pa. R.C.P. No. 1035.2(1). "A fact is material if it directly affects the disposition of a case." Mann v. City of Philadelphia, 563 A.2d 1284, 1286 (Pa. Cmwlth. 1989).