Stilp v. Commonwealth, 042406 PACCA, 513 MD 2005

Docket Nº:513 MD 2005
Party Name:Stilp v. Commonwealth
Case Date:April 24, 2006
Court:Court of Appeals of Pennsylvania
 
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Gene Stilp, Petitioner,

v.

Commonwealth of Pennsylvania, General Assembly, Jack Wagner, Auditor General of the Commonwealth of Pennsylvania, Department of Auditor General, Robert C. Jubelirer, David Brightbill, Robert Mellow, John M. Perzel, Sam Smith, H.W. DeWeese, Leadership of the General Assembly, Noah Wenger, Legislative Audit Advisory Commission, and Robert P. Casey, Jr., Treasurer of the Commonwealth of Pennsylvania, Respondents

No. 513 M.D. 2005

Court of Appeals of Pennsylvania

April 24, 2006

BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge

OPINION

DAN PELLEGRINI, JUDGE

Before this Court are amended preliminary objections filed by Auditor General Jack Wagner and the Department of the Auditor General of the Commonwealth of Pennsylvania (collectively, Auditor General); The General Assembly of the Commonwealth of Pennsylvania, Legislative Audit Advisory Commission, Speaker John M. Perzel, Senator Robert J. Mellow, Representative Samuel H. Smith and Representative H. William DeWeese, Leadership of the General Assembly; Senator Robert C. Jubelirer, Senator David Brightbill, Senator Noah Wenger; and Robert P. Casey, Jr., Treasurer of the Commonwealth of Pennsylvania (collectively, Respondents), in response to an amended petition for review filed by Gene Stilp (Stilp) in which he alleges, inter alia, that the Auditor General failed to perform an audit of the General Assembly in violation of his duties which resulted in unconstitutional conduct by the General Assembly.1

Stilp, a resident and taxpayer of the Commonwealth, has filed an amended petition for review in this Court's original jurisdiction against Respondents alleging that the Auditor General was not performing his mandated duty of auditing the financial accounts controlled by the General Assembly. He contends that this duty is mandated by Article VIII, Section 10 of the Pennsylvania Constitution, which provides:

The financial affairs of any entity funded or financially aided by the Commonwealth, and all departments, boards, commissions, agencies, instrumentalities, authorities and institutions of the Commonwealth, shall be subject to audits made in accordance with generally accepted auditing standards.

Any Commonwealth officer whose approval is necessary for any transaction relative to the financial affairs of the Commonwealth shall not be charged with the function of auditing that transaction after its occurrence.

Relying solely on Article VIII, Section 10 of the Pennsylvania Constitution, Stilp avers in his amended petition for review that because of that constitutional section, the General Assembly has insulated itself from being independently audited, and the Auditor General's refusal to conduct such audits is based on an erroneous legal interpretation of the Constitution that he has no such duty. Noting that both the Executive and Judicial Branch's2 expenditures are subject to audit by the Auditor General, he argues that the accounts of the Legislative Branch should be similarly audited, but not by the "self-serving" Legislative Audit Advisory Commission3 (Commission) that it created to perform the function of auditing its financial accounts. Stilp argues that it is not independent because four of the eight members of the Commission are members of the General Assembly, and the other four are legislative appointees. Stilp seeks declaratory relief asking us to find that the Auditor General has the power, authority and duty to audit the General Assembly and to find that the creation of the self-serving Commission, as the only entity allowed to audit the General Assembly, is illegal and/or unconstitutional. He also asks this Court to compel the Auditor General to audit the accounts and books of the General Assembly and to compel the General Assembly leadership and members of the Commission to cooperate and comply with that order.

In response to the petition for review, all of the Respondents have filed amended preliminary objections4 arguing, inter alia,5 that the General Assembly has satisfied the requirement of Article VIII, Section 10 of the Pennsylvania Constitution with the creation of the Commission which requires that it "[e]xamine the standards of audits performed under the provisions of Section 10 of Article VIII, of the Constitution of Pennsylvania, and recommend measures for the improvement of pre-auditing and post-auditing of the financial affairs of the Commonwealth," 71 P.S. §1189.2,6 and requires that audit be done by "a certified public accountant to be retained by the Legislative Audit Advisory Commission." 71 P.S. §1189.1. They go on to note that under Article 4, Section 1 of the Pennsylvania Constitution, the Auditor General is specifically made part of the Executive Branch, is not empowered by the Constitution to audit the General Assembly, and is otherwise without power to do so because if he did, that would violate the doctrine of Separation of Powers. Having not set forth any basis under the Pennsylvania Constitution or any statute that authorizes the Auditor General to audit the General Assembly, they request that we dismiss Stilp's amended petition for review with prejudice.7

In support of their preliminary objections, even though Article VIII, Section 10 of the Pennsylvania Constitution was enacted after it was issued, all of the Respondents have referred us to a formal Opinion issued by the acting Attorney General in 1966, Edward Friedman, which addressed a question posed to him at that time by the Auditor General Grace M. Sloan whether the Department of Auditor General had the power and the duty to make and conduct an audit of appropriations for officers, members and employees of the Legislative departments suggesting that it was reasoned and should serve as a template for us to decide whether the Auditor General...

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