South End Enterprises, Inc. v. City of York

DISSENTING OPINION BY

Judge SMITH-RIBNER.

I respectfully dissent from the majority’s decision to reverse the order of the Court of Common Pleas of York County, which issued a writ of mandamus directing the City of York to employ the necessary labor and materials to stabilize the structure at 316 East South Street so that the structure belonging to South End Enterprises, Inc. (South End) at 314 East South Street is no longer uninhabitable due to structural insecurities at 316 East South Street. The City declared the property at 316 to be an imminent danger to the public, but the City failed to make the necessary repairs so that South End could occupy its rental property.

I agree with the trial judge that the language of the York City Property Maintenance Code is clear as to the City’s duties once a code enforcement official has prohibited occupancy of a property. York Code § 109.2, provides:

Temporary safeguards. Notwithstanding other provisions of this code, whenever, in the opinion of the code official, there is imminent danger due to an unsafe condition, the code official shall order the necesswry work to be done, including the boarding-up of openings, to render such structure temporarily safe whether or not the legal procedure herein described has been instituted; and shall cause such other action to be taken as the code official deems necessary to meet such emergency-

York Code § 109.4 provides:

Emergency repairs. For the purposes of this section, the code official shall employ the necessary labor and materials to perform the required work as *362expeditiously as possible. (Emphasis added.)[1]

• The City is not relieved of its non-discretionary responsibility under the Code merely because the owner of 316 East South Street ultimately is liable for the repairs. The City may enforce the owner’s liability under Section 109.5.

The evidence accepted by the trial court supports its decision, and its order therefore should be affirmed. The requirements for a writ of mandamus clearly were met here: a clear legal right existed in South End for the City’s performance of a ministerial act or a mandatory duty; a corresponding duty existed in the City to perform the ministerial act or mandatory duty; and other appropriate or adequate remedy is absent from this case. See Council of Philadelphia v. Street, 856 A.2d 893 (Pa.Cmwlth.2004); Pennsylvania Dental Ass’n v. Insurance Department, 512 Pa. 217, 516 A.2d 647 (1986).

Nothing in the York Code provisions indicates that the code official has the discretion to withhold ordering the necessary work to be done and the labor and materials to make emergency repairs when there is imminent danger, i.e., the code official shall act as directed to meet the emergency. The code official’s failure to act required the trial court to issue the writ of mandamus. Therefore, I would affirm the trial court’s order.

. The word "shall'' is defined in relevant part as follows:

As used in statutes, contracts, or the like, this word is generally imperative or mandatory. ...
In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears ....
But it may be construed as merely permissive or directory, (as equivalent to "may,”) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense.

Black’s Law Dictionary 1541-1542 (Rev. 4th ed.1968).