Annual Audit of Borough of Turtle Creek, In re

• Decision Date: 27 September 1960
• Parties: In re ANNUAL AUDIT OF THE BOROUGH OF TURTLE CREEK. Appeal of John A. MATEY, Walter Doyle and Alfred S. Gates, Auditors of the Borough of Turtle Creek, Allegheny County, Pennsylvania, for the year 1958.
• Court: Pennsylvania Supreme Court

Page 876

163 A.2d 876

401 Pa. 201

In re ANNUAL AUDIT OF THE BOROUGH OF TURTLE CREEK.

Appeal of John A. MATEY, Walter Doyle and Alfred S. Gates,

Auditors of the Borough of Turtle Creek, Allegheny

County, Pennsylvania, for the year 1958.

Supreme Court of Pennsylvania.

Sept. 27, 1960.

John A. Metz, Jr., Milton Fine, Joseph B. Mitinger, Metz, Cook, Hanna & Kelly, Pittsburgh, for appellants.

Bresci R. P. Leonard, Royston, Robb & Leonard, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

This matter is here on certification by the Superior Court in an exercise of the procedure prescribed by Section 10 of the Act of June 24, 1895, P.L. 212, 17 P.S. § 197.

The substantive legal question involved is whether a court of quarter sessions has jurisdiction to entertain a motion to quash a report of borough auditors, one copy of which, pursuant to statute, is filed in the office of the clerk of the court of quarter sessions of the county, one copy retained by the borough secretary and a third copy filed in the Department of Internal Affairs. It is evident from the opinion for the Superior Court (sub nom. Matey Appeal, 191 Pa.Super. 391, 156 A.2d 870) that this question presented no appreciable difficulty and that the certification was availed of to question whether, in the light of this court's decision in Bell Appeal, 396 Pa. 592, 152 A.2d 731, the appeal was within the jurisdiction of the Superior Court apart from our remission of it. We shall first consider and decide the legal question posed by the appeal, as the certification contemplates.

Section 1035 of the Borough Code of May 4, 1927, P.L. 519, as amended, 53 P.S. § 46035(e), provides that 'After such [borough auditors'] report has been prepared and executed by the auditors, it shall be the duty of the secretary of the borough to retain a copy and to file a copy of the report with the clerk of the court of quarter sessions of the county and the Department of Internal Affairs.' The Borough Code further provides that appeals from borough auditors' reports shall be taken to the court of common pleas. Act of May 4, 1927, P.L. 519, Section 1038, 53 P.S. § 46038.

In this instance, the councilmen of the borough of Turtle Creek, whom the auditors' report surcharged on several alleged grounds, petitioned the court of quarter sessions of the county to quash the report (a copy whereof was then on file in the office of the clerk of the court) for reasons which their brief in this court summarizes as follows: (1.) surcharges are stated en masse and in generalities; they are not documented, particularized, individualized and self-sustained; (2.) the report is not limited to fiscal matters only (R. 17a-18a); (3.) the report in stating surcharges covers fiscal matters not included in those 'which causes a financial loss to the borough' (section 1035 of the Borough Code, 1927, P.L. 519; 53 P.S. § 46035); and (4.) the document is a reckless, inaccurate, deceiving political indictment in the guise of an auditor's report.

At the time of filing their petition to quash in the court of quarter sessions, the petitioners appealed the auditors' report to the court of common pleas of the county, as authorized by Section 1038 of the Borough Code. The appeal has not since been pursued and remains undisposed of.

The court of quarter sessions entered a rule on the petition to quash, calling upon the respondent auditors to show cause why the report on file with the clerk of the court of quarter sessions should not be quashed. After a hearing, the court made the rule absolute, holding that the court of quarter sessions had jurisdiction of the subject matter and that the statutorily authorized appeal to the court of common pleas was not an exclusive remedy. From that order the auditors brought this appeal.

The court of quarter sessions was in error in both of its conclusions. It is too plain for argument that judicial review of a report of borough auditors can be had only by appeal to the court of common pleas of the county pursuant to the provision of Section 1038 of the Borough Code of 1927. The statutory remedy so provided must be strictly pursued (Section 13 of the Act of March 21, 1806, P.L. 558, 4 Sm.L. 326, 46 P.S. § 156) and constitutes the exclusive remedy. Riehl v. Miller, 319 Pa. 201, 207, 178 A. 495, and Skelton v. Lower Merion Township, 318 Pa. 356, 362, 178 A. 387. Consequently, the reports of auditors of municipal or other governmental subdivisions can be challenged only in the manner provided by statute. See Riehl v. Miller, supra; Skelton v. Lower Merion Township, supra; Senor v. Dunbar Township School District, 307 Pa. 190, 192, 160 A. 701; and Neville Township Auditors' Report, 166 Pa.Super. 122, 128, 70 A.2d 379, 382, where it was said that 'The reports of such auditors must be challenged in the manner provided by the Act; the statutory remedies provided by this Act and similar acts are exclusive. [Citing cases.]' The statute there involved was the First Class Township Code.

Counsel for the petitioners argues that, since the court of quarter sessions has jurisdiction over its clerk, it therefore has jurisdiction of the auditors' report on file in the office of the clerk. The contention is a non sequitur. True enough, the court of quarter sessions has jurisdiction of the person of its clerk, but it has never been given jurisdiction of municipal auditors' reports which are in the clerk's keeping only as one of the statutorily designated repositories. As the Superior Court pointed out, 'The fact that one of the three places at which the report must be filed is the office of the clerk of the court of quarter sessions does not give that court jurisdiction of a contest over the report's contents any more than the requirement that the report be filed with the Secretary of Internal Affairs gives that Secretary jurisdiction of such contest.' Matey Appeal, supra, 191 Pa.Super. at page 401, 156 A.2d at page 875. There is no legal justification whatsoever for ascribing to the court of quarter sessions jurisdiction to pass upon either the form or substance of a report by municipal auditors on file in the office of the clerk of the court.

In this case, the matters which the petitioners aver in support of their motion to quash the auditors' report, and which we have hereinabove quoted, constitute the very character of subjects that the court of common pleas would inquire into in pursuance of its jurisdiction once duly invoked and diligently pursued by counsel.

The petitioners' allegations that the report was motivated by political considerations and was unnecessarily scandalous and defamatory could not and, of course did not clothe the court of quarter sessions with jurisdiction to pass upon either the form or substance of the auditors' report. If expeditious and effective action looking to the judicial suppression of a legally improper report was indicated in the circumstances, the court of common pleas, which has unquestioned jurisdiction of the subject matter, was the competent tribunal to afford appropriate and prompt relief. Nor is it material that the auditors on two occasions, prior to filing their report, had sought and obtained from the court of quarter sessions an extension of the time prescribed by statute for such filing. Obviously, no jurisdiction of the subject matter was conferred by the auditors' request for an enlargement of the filing time. If judicial power to grant such an extension actually does exist (and we do not mean to imply that it does), it could be nowhere else than in the court of common pleas as ancillary to that court's jurisdiction under Section 1038 of the Borough Code of 1927.

It follows, therefore, that the proceeding in the court of quarter sessions to quash the auditors' report was coram non judice and must be vacated.

The Superior Court expressed the further view that, in the light of our decision in Bell Appeal, 396 Pa. 592, 152 A.2d 731, it was not clear how jurisdiction of this appeal could be in that court except for our order of remission. The reason is not far to seek. The appeal was originally taken to this court and was remitted by us to the Superior Court on the strength of the ruling in Manor Township School District Audit, 1924, 281 Pa. 116, 117-118, 126 A. 251. None the less, the remission of this appeal to the Superior Court was an inadvertence. Our attention had not been called at the time to the fact that no appeal to the Superior Court from the action of the court of quarter sessions had been conferred by statute. Hence, the action of the court of quarter sessions was reviewable only on common law certiorari in an exercise of the King's Bench powers under the Act of May 22, 1722, 1...