*1 (Pa. Review, A.2d sedentary tion Board inability work Cmwlth.2004). Service, Downey engaged for the Postal heavy physical at his home. The work Board is the order of the Accordingly, Downey that was evidence demonstrates affirmed. expected that he was informed aware longer tti he was no to return work when ORDER totally referee discredited disabled. The NOW, 19th December day AND Downey’s testimony thought that he his Unemployment order of the applied restrictions his work medical activities, Compensation Board Review but not to his home activities. matter affirmed. above-captioned its burden of es- The Postal Service met prima facie case of willful mis- tablishing Downey accept-

conduct with evidence that disability total remained

ed benefits at a he engag-

out of work time when was with his claim activities inconsistent his physical limitations attributable to law, injury. As con- a matter wé

work Downey’s that actions clude exhibited ENTERPRISES, INC. SOUTH END disregard employer’s interests and of behavior that an disregard standards expect can from its

employer rightfully YORK, Appellant. CITY OF such conduct rises to employees that his Pennsylvania. Court of Commonwealth level of willful misconduct. Argued Sept. 2006. Downey’s argument is that second capriciously disregarded the Board Decided Dec. from discharged employ he was

fact that him to employer permitted

ment after 2005 with work

return work June re Downey The fact

restrictions. Postal light-duty

turned to work with the postal in May

Service while the investigation is

spector completing was he was subse relevant whether discharged for misconduct

quently willful To with his work. the extent

in connection Downey inartfully attempts argue doctrine, the credited evi remoteness delay be adequately explains

dence the Postal surveillance

tween Service’s an

Downey’s discharge. Only unexplained, delay an employee’s between

substantial pre discharge and the date of

misconduct employer opposing grant from

cludes remoteness doctrine. under the benefits Compensa- v. Unemployment

Raimondi *2 York, Hoyt, appellant.

Donald B. for York, Thompson McCullough, ap- J. pellee. SMITH-RIBNER, Judge,

BEFORE: LEAVITT, FLAHERTY, Judge, and and Judge. Senior OPINION BY Judge LEAVITT. appeals of York a writ of man- by to it damus issued the Court of Com- (trial court) mon County Pleas of York upon request Enterprises, of South End first, City, Inc. The directs writ “employ labor and materi- als” to half of stabilize a double and, second, house owned South End reimburse South End for its lost rental per income at the rate of month until $445 City’s Agreeing work is done. with that this writ exceeds the bounds mandamus, compel in that it seeks to City’s partic- exercise of discretion in a way, ular we reverse. prop- End is the owner of rental

South erty in located at 314 East South Street York, home; which is one half of a double half the other has its address at 316 East occupy South Street. The two addresses constructed as one and divided an internal wall. The half at 316 East years South has been vacant for several and not been maintained. Roof tile has lost, leaving plywood places; been bare collapsed sagging; floors have or are basement, bricks have fallen into the leav- wall; large hole the front another wall is bowed. 16, 2005, April

On code en- forcement officer declared the testimony also End offered danger collapse 316 in of imminent Weaver, of both 316 prohibited occupancy further Michael who con- engineer, good though 314 was collapse that 316 firmed was long repair. Accordingly, End’s also was ex- but that 314 sound. Weaver relocate, and term tenants at 314 had to that care to be taken when plained needs *3 monthly End lost its income $445. South damag- to avoid is taken down order all the doors City up The then boarded ing 314. posted and on both and windows sides Buffington, called As- City The Steven build- notice on the outside that the entire Depart- City of the York Fire sistant Chief unsafe.1 was for Building and Code Official the ment engaged the South End services City. proper- He confirmed that the vacant engineer who the code enforce- confirmed problem as a ty at 316 had been identified findings, ment found 314 officer’s but 1990, prompting the since at least City had By July, the otherwise sound. worth of cita- City respond “years with repairs to stabilize the 316 side done notices of issued] tions violations [and the that 314 reoccu- building so could be Reproduced the various owners.” Record pied. Accordingly, July on South (R.R.-). explained Buffington at 60a. against End filed an action mandamus City April the deter- that when pre- filed City. response, City the In the unsafe, property the at 316 was he mined objections, over- liminary they but were vacated, post- property the to be ordered ruled. ed, boarded-up, City and demolished. evidentiary End hearing, At the of unsafe structure” also sent “notice testimony Heidlebaugh, offered the of Glen 316, Nigel to the current owner of letter property

who testified that he the owned Searle, Philadelphia, advising who lives in at East and has since 314 South Street obligated that he was to make immedi- him that Heidlebaugh October 1976.2 testified Searle failed to ate remediation. When complained on occasions he had numerous notice, City the respond appeal the the at 316. disrepair the about In against a civil action Searle. initiated him to City responded by advising opinion, Buffington’s the has done the owner and institute a civil locate the ordinance everything under his against Heidlebaugh him.3 established (and 316) securing the at 314 property from decision costs that resulted the entry, posting a notice that build- from for habitation property declare his unfit and, finally, pursuing unsafe ing was income, alia, including, inter lost rental in a civil action. Searle (both engineering fees and fees attorney hearing, At the conclusion ap- for evaluating and End trial). found in favor of South meantime, trial court Hei- pearing directing issued writ mandamus proper- dlebaugh pay has continued to City to: ty taxes. 3.Heidlebaugh that believed 316 Subsequently, located the testified he 1. then of 316 East South Street com- Claim Bureau. He owner was owned the Tax action; now under menced an owner is pursue that he did not owner also stated problem correct at 316. court order to who because not know of 316 he did acknowledged Heidlebaugh that owner was. Heidlebaugh and between The connection of Deeds went to Recorder Office he never Enterprises, corporation "South End identify the owner. was never established. Inc.”

(1) employ plaintiff forthwith the la- where has an alternate available

bor materials to stabilize the legal remedy, purpose and never for the structure at 316 East South Street Additionally, awarding damages. structure, so that lo- [South End’s] court in its asserts the trial erred Street, cated 314 East South is no interpretation of the ordinance. longer deemed uninhabitable due to of the writ respect propriety With of 316’s structural infir- mandamus, contends mities. exercised its discretion to determine the (2)Upon stabilizing the structure at 316 appropriate course of action to deal with City] East South [the condition of East dilapidated provide with [South End] *4 improperly and the trial court sub- written notice that 314 East stituted its discretion for that of the code longer South Street is no unin- official in a issuing bring writ to about a habitable due to 316’s structur- by different course than that chosen al insecurities. City.6 agree The trial court seemed to (3)[The City] pay forthwith to City respect had discretion with to the amount [South End] of deciding whether to enforce its per month for each $445.00 so, code but once it did it was to month [South End] was unable law-abiding stabilize 316 so tax- rent at 314 payer dispossessed. 314 was not East South Street. believes, City however, that the trial court February Order of appeal 2006. This has misconstrued the in reach- ordinance followed. ing this conclusion and observes that its appeal,4 On presents six issues interpretation reasonable of its own ordi- consideration, for our which have been nance is entitled to deference. Winslow- consolidated for purposes opinion.5 of this Quattlebaum Maryland v. Insurance Essentially, contends that the tri 629, 635, Group, 561 Pa. 752 A.2d al court erred in application its (2000). principles of ap mandamus. Because the then,

propriate begin, response by government We with a review of danger posed by ordinance. Section 109 of building about to col discretion, lapse requires Property exercise of Maintenance Code of the of (Code), that response cannot York “Emergency be directed a writ entitled Meas Further, ures,” of mandamus. operative provision. mandamus is not is the Section scope 4. dangerous, Our of review in a mandamus determines that structure is is to determine whether the trial court abused [it] must take certain action to make it its discretion or committed an error of law Sometimes, temporarily safe. this will con- sup- and whether sufficient evidence exists to only posting boarding-up sist of notices and port findings. & Philomeno Salamone case, however, doors. The instant is not Supervisors Upper Board Merion Town- Neighboring prop- scenarios. those (Pa.Cmwlth.2005). ship, 882 A.2d danger, erty [South End] is in is left remedy City] than [the with no other to ask really just separate 5. The "issues” are do, obligated namely, to do what it is arguments support its central issue that the property so that no one—va- stabilize the legal issuing trial court committed error in grants, passersby, neighboring struc- writ of mandamus. injured damaged. or tures —is 3, 2006, Opinion February 6. The trial court stated that once the Trial Court danger” openings, as fol- to render such structure tem- 109.1 addresses “imminent legal or not the porarily whether lows: safe in- procedure herein described been When, offi- stituted; and shall cause such other ac- cial, is imminent there of fail- tion to taken as the collapse ure or or struc- necessary to such emergen- deems meet ture, life, any or endangers which when cy. fall- part structure or of a structure has (empha- YORK,Pa, R.R. 94a endangered

en and life is the occu- added). implementing authority structure, sis or there pation of when 109.2, code official is under Section potential danger is actual or specifically authorized to close streets and those building occupants prox- or buildings up “when board imity explo- structure because of PA, Yore, Code, safety.” sives, vapors explosive fumes or or Code, § 109.3.7 109.4 of the enti- fumes, mate- presence gases of toxic repairs,” fol- “Emergency provides tled rials, operation of defective or dan- lows: gerous equipment, the code official [109],

hereby For the of this section empowered purposes authorized and *5 employ shall neces- the official the require occupants order and the to va- sary perform labor materials premises cate the The code forthwith. required expeditiously possi- as as work posted official shall cause to be at each ble. entrance to such structure a notice

reading as “This Structure is Pa, follows: 109.4; § York, R.R. 94a. Code Occupancy , Unsafe and Its Has Been meaning is of the Dispositive here It Prohibited the Code Official.” 109 that the code statement in Section any to en- person shall be unlawful for necessary “shall order the work to official except pur- ter such structure for the temporarily [a] render structure safe” structure, pose securing making necessary labor and mate- employing “the repairs, removing the haz- required rials to work....” demolishing ardous condition or of 109.2, 109.4; §§ YORK,Pa, 94a. R.R. Code same. is in far used statutes more often “Shall” 109.1; § YORK,Pa, (empha- R.R. 94a speech everyday be- writing, than Code added). sis Section 109.2 authorizes “legal” cachet as a word. 1A cause its Statutory dan- code official to address the imminent Singer, J. Norman Sutherland (6th 2002) an structure as fol- ger posed by § unsafe ed. 32A:11 CONSTRUCTION lows: is Because the word “shall” (Sutherland). overused, critically it is not examined be- this

Notwithstanding provisions and, thus, can placed a statute fore whenever, code, meanings. convey diversity These imminent there is meanings those that follow: diverse include condition, an the code due to unsafe directory, imperative, “shall” is means necessary official order the work mandate, done, “may,” per- either including boarding-up expresses places adjacent public ways and to unsafe 7. Section 109.3 states: structures, prohibit same be- from public safety, the for When temporarily struc- utilized. code official shall close Pa, close, authority § tures or order the hav- R.R. 94a York, close, sidewalks, streets, ing jurisdiction to missive or peremptory, applies “shall.”8 Sutherland notes “shall” future, past, present. may convey “permissive per- and to the either a emptory” mandate. 32A:11 SutherlaND legislative Id. Unless and until turn bodies (6th ed.2002). appearance of “shall” draftsmanship to more careful and more statute, sentencing example, in a “shall,” sparing judiciary’s use of task convey any construed to a lack of been choosing precise meaning of “shall” sentencing discretion in the court. Com- in a given easy context is not an Id. one. Menezes, monwealth v. 871 A.2d Code, Turning to Section 109 of the However, (Pa.Super.2005). impossible it is replaced by sees that “shall” can be “will” to read “shall” the context of Section affecting without meaning. sug- its This conveying peremptory mandate gests that the York Council intended intending to divest the code official of simply signify future tense “to contrary, City discretion. To the Council choosing be” in the verb “shall.” The invested the code official with a broad purpose central of Section 109.1 is to in- grant protect of discretion to decide how to authority vest the code official with act dangerous building. from a In danger. where there is an imminent end, is this discretion provisions grant follow the of authori- mandate, not of a its creation that makes ty given in provide Section 109.1 the code the exercise of the code official’s duties official with directions on how to exercise beyond the reach of a mandamus action. authority. sum, good there is a case to be made that the York Council extraordinary Mandamus is used the word “shall” in directory, remedy that compels performance mandatory, sense. Gardner v. Workers’ mandatory duty. of a act or ministerial (Genesis Compensation Appeal Board *6 Pennsylvania Dental In Association v. Ventures), 376, 366, Health 585 Pa. 888 217, 227, Department, surance 512 Pa. 516 (2005) 758, A.2d 764-765 (explaining that (1986).9 647, A A.2d 652 ministerial act “shall” is an ambiguous word that can be has been defined as interpreted directory as as to opposed one which a officer is to is, course, mandatory). It of the intention perform upon given a state of facts a of the York Council that govern must prescribed manner in obedience to the meaning of “shall.” Commonwealth v. legal authority mandate of and without Baker, 214, 221, 164, 547 Pa. 690 A.2d 167 regard judgment to his own or (1997). concerning propriety impropriety or performed. of the act be to

However, even if we read convey Council’s use of “shall” to a Philadelphia man Council v. (Pa.Cmwlth.2004) (cita- date, 893, mandatory there are variations to a A.2d 896 856 cases, however, plaintiff compel performance In most the word "shall” of a min See, conveys suggestion. a mandate not a mandatory duty, correspond act a isterial e.g., Cranberry Park Associates ex rel. Viola v. defendant, ing duty in the and lack of Board, Cranberry Township Zoning Hearing remedy appropriate adequate at other and 456, 460, 165, (2000) 561 Pa. 751 A.2d 167 Authority law. Delaware River Port v. Thorn ("Here, mandatory, a the word 'shall' denotes 11, 20, 1351, burgh, 493 A.2d 1355 508 Pa. instruction.”). permissive clear, (1985). right be Because the must might argue that a mandamus action is not 9. The basic test for issuance of a writ of appropriate proceeding interpreting may mandamus is well established. It issue ambiguous an statute. only legal right where there is a clear 360 omitted). See, fire, e.g., ongoing neglect v. a of the Murphy building

tions Town- 491, or a leak. As a conse- ship Abington, building gas 88 Pa.Cmwlth. 490 owner (1985) 483, (township’s quence, judgment A.2d issuance must exercise 488 firefighter develop a that a the appropriate of certification had died discretion act); may response. response require a Tree That was ministerial Rose Media boarding up more Department posting v. than notices School District Public Instruction, 233, 234, 754, building; and doors on a on the Pa. 244 windows 431 A.2d hand, (1968) (school may it more require significant payment 755 district’s a street closing action such expenses by application statutory of a for- block, act). an entire as in the vacating the gov- mula is ministerial Where gas event of a leak. 109.3.11 sought ernmental action involves exer- emergency circum- variety potential discretion, may cise of the court direct the official to exer- requires stances the code agency may the act never do but direct discretion; so, in doing cise the code offi- particular in a exercise of discretion performs cial more than a mere ministerial Maleski, way. Matesic Pa.Cmwlth. act. (1993). 776, Moreover, A.2d compel will not lie mandamus revision Here, upon finding building of the from such resulting decision exer- East Street in imminent discretion, fact, though cise of deci- collapse, perceived official dan- may wrong. sion v. City be Anderson of ger anyone gain who could to 316 access Philadelphia, 348 Pa. 36 A.2d or to End’s 814. The (1944). 442, 444 determined, in his opinion, official vacated, had to provides Section 109.2 the entire opinion, posted, tempo- to make it up where the code be- and boarded rarily present lieves a This course of action met the imminent safe. danger, in his The trial court necessary emergency, he “shall order view. temporarily inadequate work to such structure these actions because render deemed they cause not render to make structure safe such to be did habitable, only to “temporarily taken as make the code deems *7 necessary to York, Pa, emergency.” to meet such safe the code official deems Code added). 109.2; York, Pa, § (emphasis emergency.” R.R. 94a The meet such Code Here, § the say ordinance not the code offi- R.R. 94a. code official does how his discretion to meet the emer- temporarily cial is make the structure exercised Rather, danger- gency by eliminating safe to it access emergency.10 meet City exercised its emergency building. is the of the ous Once the nature itself particular way, to act in will determine how to make structure discretion this emergen- or to trial court could not revisit that decision temporarily safe meet mandamus, if the code offi- cy. emergency sitting The could be the result of duty to act is was sufficient to render the structure 10. The dissent asserts that the However, is non-discretionaiy. temporarily safe. An action mandamus this conclusion reviewing whether the the vehicle for squared language cannot be with correctly. judgment exercised his official requires to do ordinance that official Anderson, 587, Pa. 36 A.2d at 444. emergency. "necessary” to acts meet the necessary. code official decides what is case, closing entry supra, of 11. See note for text Section 109.3. this he decided that to the wrong judgment. ture at 316 East South Street so that cial was Anderson, Pa. at End Enter- belonging 36 A.2d at 444.12 structure South (South End) at East prises, Inc. From at least 1990 to 2005 the longer uninhabitable due to Street is York watched 316 East South Street de- at 316 East South structural insecurities point cline to the to the danger public. property declared the Street. owner, property It issued citations to the pub- danger 316 to be an imminent nothing but did to enforce these citations lic, neces- but the failed to make the property repair or to force the owner to sary repairs so that South End could occu- result, End, 316. As a which main- property. its rental py tained their in accordance with Property Maintenance Ordinance and agree judge I the trial with taxes, paid ejected has been from its language City Property of the York Main- share trial property. We court’s frus- tenance is clear as to the Code tration. That City beyond we find the official duties once a code enforcement reach of a writ mandamus does not occupancy prohibited property. York mean that we condone its failure to suc- 109.2, § provides: Code function, i.e., municipal ceed at a core safeguards. Temporary Notwith- enforcement of its own code.13 code, standing provisions of this reasons, For these we reverse. whenever, of the code there is imminent due to condition,

ORDER an unsafe the code official necesswry shall order the work to NOW, December, AND day this 19th done, including the boarding-up 2006 the order of the Court of Common structure openings, render such tem- County February Pleas of York dated porarily legal safe whether or not the 2006, in the above captioned matter procedure herein described has been in- hereby reversed. stituted; and shall cause such other ac- tion to be taken as the code DISSENTING BY Judge OPINION necessary emergen- deems to meet such SMITH-RIBNER. cy- I respectfully majori- dissent from the provides: York 109.4 ty’s decision reverse the order of the Court of Common County, Emergency repairs. purposes Pleas of York For the section, directing which issued writ of mandamus the code official employ of York to employ necessary labor and materi labor and materials to stabilize the struc- als to work as *8 Inc., (Pa. Company, 12. Because we conclude the trial court erred 893 A.2d 196 struction substituting Cmwlth.2006). in its discretion for that of the The could have followed City’s code we need not address the example, performed repairs or neces this City’sremaining issues. sary structurally to make 316 safe and then recovered costs from the owner of 316. its contrast, By vigorous Township Up that the Section 109.5 of the Code states per Merion enforced its initi appropriate against “shall institute ating equity against developer a suit in a owner the ... unsafe structure ... for the retaining danger where walls were in col York, Pa, recovery of such costs.” causing lapse, nearby a risk of Wayne R.R. 94a. homeowners. The Woods at Home owners Association v. Gambone Brothers Con Department, Insurance expeditiously possible. (Emphasis as tal Ass’n v. (1986). Pa. 516 A.2d 647 added.)[1] (cid:127) provisions Nothing in the York Code is not of its non-dis- relieved has the indicates that the dis- cretionary responsibility under the Code ordering cretion to withhold merely because the owner 316 East materi- work done and the labor and to be ultimately South Street is liable for the emergency repairs als to make when there repairs. may enforce the own- i.e., danger, is imminent the code official liability er’s under 109.5. emergen- act as directed meet the cy. official’s failure to act re- The code accepted by The evidence trial court quired the trial court to issue the writ of decision, its and its order there- supports Therefore, I would affirm the mandamus. The require- should be affirmed. fore trial court’s order. a writ of clearly ments mandamus were legal right here: a clear met existed the City’s performance

South End for of a mandatory or duty;

ministerial act a a in the

corresponding duty existed mandatory act or ministerial

duty; and other or appropriate adequate

remedy is absent from this case. See A.2d Philadelphia

Council (Pa.Cmwlth.2004); Pennsylvania Den- meaning, part addressed 1. The word "shall'' favor of this or when is defined relevant officials, public public as follows: or where a interest is involved, persons public or or where the statutes, contracts, like, or As used in rights ought have which to be exercised or generally imperative word is or manda- enforced, contrary ap- intent unless tory. ... pears .... ordinary parlance, In common or and in may merely permis- But be construed as ordinary signification, the term its “shall” (as "may,”) directory, equivalent sive or command, a word of and one which has is legislative carry out the intention always given compulso- which or must be right benefit to cases where obligation. ry meaning; denoting It depends being impera- its in the on taken generally peremptory meaning, and it is sense, public private tive and where no mandatory. imperative or It has the invari- right interpretation impaired is excluding significance able idea of discretion, other sense. significance oper- has the (Rev. Dictionary Law 1541-1542 4th impose duty may Black’s ating to which be en- forced, ed.1968). policy particularly if