3 Pa. Commw. 311 | Pa. Commw. Ct. | 1971
Opinion by
Plaintiff has filed a Complaint in Mandamus against the defendants to compel Defendant Kane, Secretary
Mandamus is an extraordinary remedy and will not be granted where there is another remedy available. The Supreme Court of Pennsylvania has succinctly and emphatically set forth the minimum requirements: “Our decisions have made it clear that mandamus is an extraordinary writ which is appropriate to compel performance only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and a want of any other appropriate and adequate remedy.” Garchinsky v. Clifton Heights Borough et al., 437 Pa. 312, 316, 263 A. 2d 467, 469 (1970).
The plaintiff, while admitting that the remedy provided by Section 504(a) (4) of the Fiscal Code, supra, is available, asserts it is not adequate in that the Board
Defendant argues that he has a right to proceed in Mandamus to enforce the right to refund under Section 353 of the Tax Reform Code of 1971, supra, entitled “Refund or credit of overpayment”. We do not need to decide the doubtful question of whether Section 353 survived the entire Article III being declared unconstitutional in Amidon inasmuch as the plaintiff has not seen fit to file a return under this section or otherwise make a demand for a return of his funds.
Plaintiff argues that a tax credit is of no value to a person who since paying the tax is no longer employed in the State or no longer lives in the State or may be deceased. Therefore, the argument goes, all taxpayers should have checks mailed to them in order to accommodate these few. What value this argument may have had is lost when he requests that the checks be mailed to what, in a substantial number of instances, must necessarily no longer be a correct address. The number of persons no longer subject to tax in relation to the number of all taxpayers is unknown to everyone
Preliminary Objections sustained.