47 Pa. Commw. 1 | Pa. Commw. Ct. | 1979
Opinion by
This is an appeal by the South Union Township Board of Auditors (Board) from an order of the Court of Common Pleas of Fayette County dismissing and denying the Board’s surcharges filed against South Union Township Supervisors, Nicholas Komanecky and James Conway for the year 1975. We affirm.
The Board filed 162 surcharges, pursuant to Section 545 of the Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §65545, which provides:
Any elected or appointed officer, whose act, error or omission has contributed to the financial loss of any township, shall be surcharged by the auditors with the amount of such loss, and the surcharge of any such officer shall take into consideration as its basis, the results of such act, error or omission and the results had the procedure been strictly according to law. The provisions hereof limiting the amount of any surcharge shall not apply to cases involving fraud or collusion on the part of such officers, nor to any penalty ensuing to the benefit of or payable to the Commonwealth.
The issue before us is simply whether the court below erred in dismissing the surcharges.
Surcharges 1 through 12 pertain to amounts paid to the Supervisors, in their capacity as roadmasters, as compensation for the use of their private automobiles for township business. Section 515 of the Code, 53 P.S. §65515, permits such compensation in accordance
Surcharges 82, 83, 85,126,128 through 158, and 160 pertain to amounts expended to purchase equipment to produce and apply asphalt for road maintenance.
Surcharges 88 through 102 pertain to back wages paid to certain township employees pursuant to an arbitration award for a period of approximately one month when the employees were not working due to a labor dispute. The lower court appears to dismiss the surcharges on the basis that the arbitration award is binding on the township under the labor contract, and matters resolved in the arbitration process are not proper grounds for issuance of a surcharge. The auditors on appeal, however, allege that the labor dispute and subsequent award of back pay were the result of Supervisor Komanecky’s imprudent and abusive conduct as roadmaster, thereby justifying the surcharge. We agree with the auditors that, if it were shown that the Supervisor violated the contract or law or engaged in misconduct which constituted an abuse of discretion, the surcharge would be proper. In this case, however, there was no evidence that Supervisor Komanecky violated the contract or the law; and the evidence regarding his alleged imprudent conduct is simply insufficient, under the peculiar uncontradicted evidence in this case,
Surcharge 117 pertains to the cost of relocating a water line which was necessitated by the Supervisors ’ decision to construct a building on township property on which an easement for the water line existed. It is
Surcharge 118 pertains to the cost of removal of a privately owned building which constituted a hazard when the Supervisors, prior to removal, failed to enter judgment against the property allegedly in violation of an ordinance. Section 702, clause XII, of the Code, 53 P.S. §05712, permits removal of dangerous structures on private ground and permits the collection of the costs from the owner. There was evidence that the removal was necessary and that a subsequent Board of Supervisors refused to authorize the township to seek an entry of judgment against the owner. Since there was no evidence that judgment against the owner could not be entered subsequent to removal, if authorized, which action would place the township in the same position had it been done prior to the removal, the lower court correctly concluded that there was a failure to show a financial loss and properly dismissed the surcharge.
Surcharge 119 was imposed against Supervisor Komanecky alone, because of an apparent conflict of interest between his duties as Supervisor and as agent for an insurance company providing some hospitalization insurance for township employees. There was no allegation that he acted in bad faith or fraudulently or that his action violated the law. Further, it was not shown that the township suffered a financial loss as a result. Therefore, the surcharge was properly dismissed.
Surcharges 84 and 162 pertain to expenditures for police equipment and materials allegedly for the build
The remaining surcharges were not before us on appeal.
Finally, the auditors contend that the lower court committed reversible error in refusing to allow Supervisor Conway to be called to testify as on cross-examination by the auditors. In a civil proceeding, a party to the record or a person whose interest is adverse to the party calling him as a witness may be compelled to testify as if he were under cross-examination. 42 Pa. C.S. §5935. The court below did not allow Supervisor Conway to be called as on cross-examination because of its determination that the proceeding was quasi-criminal and that he therefore had a right to refuse to testify to protect his right against self-incrimination. The action of imposing surcharges in conjunction with the auditors ’ report, however, is civil in nature rather than quasi-criminal, since the function of the surcharge is remedial and not punitive, i.e., it is designed to reimburse the government for losses resulting from some misconduct of its officials. See Audit Report of Township of Bristol 1967, supra; cf. City of Philadelphia v. Kenny, 28 Commonwealth Ct. 531, 369 A.2d 1343 (1977) (proceeding to collect unpaid wage taxes plus a penalty based upon a percentage of unpaid taxes is a civil proceeding for purposes of asserting Fifth Amendment privileges). Therefore, the court erred in not permitting Supervisor Conway to be called to testify. The error, however, was harmless in this particular case since, even had he been called as on cross-examination, the auditors would
Order affirmed.
Order
And Now, this 26th day of October, 1979, the order of the Court of Common Pleas of Fayette County dated December 30,1977 and docketed at No. 333 Civil 1976, is affirmed.
Act of June 24, 1931, P.L. 1206, as amended.
Repealed by Section 802 of tbe Act of November 26, 1978, P.L. 1399, 53 P.S. §5311.802.
See South Union Township Board of Auditors v. South Union Township Board of Supervisors, 75 Pa. D. & C. 2d 324 (Fayette Co. 1976).
The auditors’ argument that Supervisor Komaneeky’s endorsement on the reverse side of some of the cheeks issued for hospitalization insurance constitutes bad faith is without merit since the record contains no evidence of any impropriety in this regard.
Equipment included an amiesite plant, paver, roller, trucks, asphalt oil, storage tanks, and stone.
See Goodman Appeal, 425 Pa. 23, 227 A.2d 816 (1967).
Supervisor Komanecky carried a gun because of his role as police officer and because of alleged threats against his life.