Draper Appeal

192 A.2d 727, 412 Pa. 26, 1963 Pa. LEXIS 377

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1963
• Docket: Appeal, 56
• Status: Published

Opinions

Opinion by

Mr. Justice Cohen,

In accordance with the audit provisions of The Second Class Township Code,¹ on February 23, 1962 the auditors of Canton Township, Washington County, filed their report and settlement in the court of quarter sessions. From that report Vlasta Draper, appellant-taxpayer, filed an appeal in the court below on March 30, 1962, alleging, inter alia, that the township supervisors had made various improper expenditures; that the auditors were informed of these improprieties but failed to surcharge the supervisors as required by law; and that the court should grant a rule to show cause ivhy the auditors should not be surcharged. The auditors filed a demurrer which was sustained by the court below on the ground that the auditors were not subject to surcharge. Appellant then sought to amend her pleadings by filing a rule to show cause why the supervisors should not be surcharged. The lower court refused the rule on the ground that the period of limitations had run. An appeal to this Court followed.

The issues confronting us are: (1) whether the auditors may be surcharged for failure to surcharge the supervisors, and (2) whether the amendment bringing in the supervisors should have been granted.

As to the first question, we hold that the auditors are not subject to surcharge. Although The Second Class Township Code imposes a duty upon the auditors to surcharge township officers for losses caused by their misconduct,² it does not provide for the surcharge of auditors. Sanctions against auditors for neglect of duty are specifically prescribed by section 549 of the Code: “Any auditor neglecting or refusing to comply with the preceding provisions of this article shall upon conviction thereof in a summary proceeding, pay a fine of not more than one hundred dollars, and in default of the payment of such fine and costs, shall be sentenced to imprisonment of not more than ten days.” Act of May 1, 1933, P. L. 103, §549; amended by Act of July 10, 1947, P. L. 1481, §7, 53 P.S. §65549.

Since the auditors are not entrusted with the handling or expenditure of funds — the typical activity for the imposition of surcharges — it was the legislative intendment that the threat of criminal sanctions was sufficient to deter auditors from neglecting their duty.

With respect to the second question, we hold that the court below should have granted the amendment. Under the Act of May 1, 1933, P. L. 103, §553, as amended, 53 P.S. §65553,³ it is only necessary to file an appeal from the auditors’ report in the court of quarter sessions. This section does not require that the appeal be taken against specific persons, nor does it require that exceptions or specifications of error be filed. See Walker’s Appeal, 44 Pa. Superior Ct. 145 (1910); Horning’s Case, 26 Pa. Superior Ct. 282 (1904). On appeal to the common pleas court, that court will review de novo the report of the auditors and will “consider all the accounts as if they had been presented to it in the first instance.” Scranton School District Audit (No. 2), 354 Pa. 232, 234, 47 A. 2d 292, 293 (1946). Consequently, it was not necessary for appellant to move to amend since the alleged improprieties of the supervisors were already before the court by the appeal that had been taken. But since appellant did follow this unnecessary procedure, the court below should have granted the amendment.

In addition, assuming arguendo that an amendment were necessary, the lower court was mistaken in its belief that the 45-day appeal period contained in The Second Class Township Code had run with respect to claims for surcharge against the township supervisors. As we have stated above, the appeal need not be brought against specific persons. Furthermore, a reading of the Act discloses that it only requires that an “appeal” be taken “from any settlement or audit” within 45 days. An appeal having been originally filed within the statutory time period, it should be heard by the court below after notice of the proceedings is given to the township supervisors in accordance with our holding in Dunmore Borough v. Dempsey, 280 Pa. 190, 124 Atl. 347 (1924).

Order affirmed in part and reversed in part.

Mr. Chief Justice Bell concurs in the result.

1 Act of May 1, 1933, P. L. 103, §547, as amended, 53 P.S. §65547.

2 Act of May 1, 1933, P. L. 103, §545, as amended, 53 P.S. §65545.

3 “The township, or any registered elector or taxpayer thereof on its behalf, or any officer whose account is settled or audited by the township auditors, may appeal from any settlement or audit of the township auditors to the court of common pleas within forty-five days after the settlement has been filed in the court of quarter sessions.”