*1 STILP, Petitioner Gene
v. Pennsylvania,
COMMONWEALTH of Assembly, Wagner, Au- Jack
ditor General of the Commonwealth Pennsylvania, Department of Audi- Jubelirer, General, Robert C. Mellow, Brightbill,
David Robert John Perzel, Smith, DeWeese,
M. Sam H.W. Assembly,
Leadership of the General Wenger, Legislative Advi-
Noah Commission,
sory P. and Robert Ca-
sey, Jr., Treasurer of the Common- Pennsylvania, Respondents.
wealth of Pennsylvania. Court of
Commonwealth April on Briefs
Submitted April
Decided pro se. Stilp, petitioner,
Gene Counsel, Har- Teplitz, F. Chief Robert respondents, Wagner Jack risburg, Auditor General. Department of Harrisburg, respon- Shorey, Linda J. Jubelirer, dents, Bright- David Robert C. bill, Wenger. and Noah *2 taxpayer of the Dymek, Philadelphia, Stilp, re- a resident and for Thomas W. Commonwealth, Perzel, Mellow, peti- filed an amended spondents, Robert John M. original DeWeese, review in this Court’s Smith, Leader- tion for Sam H.W. alleging jurisdiction against Respondents ship of the General perform- Auditor General was not that the Ulrich, Counsel, Harris- Sally Ann Chief fi- duty auditing of his mandated ing respondent, Casey, P. Jr. burg, for Robert by accounts controlled the General nancial COLINS, Judge, President BEFORE: Assembly. He contends this McGINLEY, PELLEGRINI, Judge, VIII, by 10 of Article Section mandated FRIEDMAN, Judge, Judge, Constitution, Pennsylvania pro- which LEADBETTER, SIMPSON, Judge, and vides:
Judge. funded entity financial affairs of The financially by aided the Common- BY Judge OPINION PELLEGRINI. boards, wealth, departments, and all prelimi- Before Court are amended instrumentalities, commissions, agencies, nary objections filed Auditor General the Com- authorities and institutions of Wagner Department Jack monwealth, subject audits shall be General of the of Auditor Commonwealth generally in ac- made accordance with Pennsylvania (collectively, Auditor Gener- auditing standards. cepted al); Assembly General Com- The ap- officer Any Commonwealth whose Pennsylvania, Legislative monwealth necessary transaction proval Commission, Advisory Speaker Audit John to the financial affairs relative Perzel, Mellow, Rep- M. J. Senator Robert charged Commonwealth Repre- H. resentative Samuel Smith and that trans- the function of DeWeese, Leadership H. sentative William action after its occurrence. Assembly; Robert the General Senator Jubelirer, Section Brightbill, Relying solely C. David on Senator Constitution, Stilp Pennsylvania Noah P. Ca- Wenger; Senator Robert Jr., review sey, petition in his amended Treasurer of the Commonwealth avers section, (collectively, of that constitutional Respon- that because dents), itself response has insulated petition to an amended the General audited, Stilp being independently filed (Stilp) review Gene from alia, such refusal conduct alleges, which he inter that the Audi- Auditor General’s inter- legal is based on an erroneous perform failed to an audit he has pretation of Assembly in violation of his the Constitution duty. that both the Exec- Noting duties which resulted unconstitutional no such expenditures and Judicial Branch’s2 Assembly.1 utive conduct newly respon- Stilp previously named and named October filed a On objec- preliminary original jurisdiction amended in this dents then filed for review Court’s declaratory seeking judgment tions. had to audit the tor General argument that 42 Pa.C.S. Stilp makes the respondents Assembly. The named 3529(b) to audit § the Auditor General objections after allows preliminary filed indicating thereby that one judiciary, petition for review on De- filed an amended govern- may audit another branch seeking but branch the same relief cember illustrating Separation respondents expanding the number of ment alia, preclude act Doctrine does not allegations regarding the Powers adding, inter auditing the General Advisory General from Legislative Auditor Committee. subject are that the alia,5 Auditor Gener- inter al, argues the accounts requirement satisfied the of Article similarly Branch should be au- 10 of the Constitu- dited, “self-serving” Legis- but not tion with the creation of the Commission *3 (Com- Advisory lative Audit Commission3 “[ejxamine requires which that it the stan- mission) perform that to created performed provi- dards of audits under the function of financial accounts. 10 of sions Section Article of the Stilp argues independent that it is not Pennsylvania, Constitution of and recom- eight because four of the members of the improvement mend measures for the Commission are members of the General finan- pre-auditing post-auditing and Assembly, legisla- and the four are Commonwealth,” cial affairs of the 71 P.S. appointees. Stilp declaratory tive seeks 1189.2,6 requires § and that audit done asking relief us to find that the Auditor by public “a certified accountant to be power, authority General has the by Legislative Advisory retained Audit Assembly and to find § They go Commission.” 71 P.S. 1189.1. that self-serving the creation of the Com- 4, on to note that under Article Section mission, only entity as the allowed Constitution, Pennsylvania Audi- Assembly, un- illegal and/or specifically part tor General is made constitutional. He also asks this Court to compel Branch, empowered by the Auditor General to audit the Executive is not accounts and books the General Assem- the Constitution to audit the General As- bly compel and to the General sembly, power without otherwise leadership and members of the Commis- did, if violate do so because would cooperate comply sion to with that Separation of the doctrine of Powers. order. Having any not set forth basis under the any or statute Constitution response petition
In
that authorizes the Auditor
to au-
review,
Respondents
all of the
have filed
preliminary objections4 arguing,
Assembly, they request
amended
dit the General
sustained,
preliminary objections
Because that issue is not before
to be
it must
us,
appear
certainty
permit
we will not address it.
with
that the law will
recovery,
doubt must be resolved
refusing
non-moving party by
in favor of the
by
3. The Commission was
the Act of
created
amended,
442,
objections.
to sustain the
Id.
June
P.L.
71 P.S.
(Act 151).
§§
Act
1189.1-1189.2
Section 1 of
1189.1,
151,
provides:
§
71 P.S.
prelim-
Respondents
raise several other
inary objections:
petition
the amended
fails to
The financial affairs of the General Assem-
Young report;
copy
a
of the Ernst &
include
bly
legislative
agencies
and its
service
petition
explain with
the amended
fails to
by
public
be audited
a certified
accountant
specificity
reliability why
sufficient
Legislative
to be retained
Audit Advi-
Young report
the audit that
Ernst &
sory
At
one such audit
Commission.
least
report
were incom-
formed the basis of
however,
year;
special
shall be made each
inadequate; Stilp
join
plete
has failed to
they appear
will be made when
nec-
indispensable parties;
is barred
and his claim
essary
judgment
in the
Based
how we have
laches and waiver.
on
Advisory
Commission.
decided the issue of the Auditor General’s
Assembly,
to audit the General
we
ruling
preliminary objections,
In
on
we
preliminary ob-
need not address these other
accept
pled allegations
must
as true all well
jections.
the inferences
material fact as well as all of
reasonably
Marcavage
deduced therefrom.
v.
Rendell,
(Pa.Cmwlth.2005).
Next,
Code,8
legislature is an
By
he
Fiscal
virtue thereof the
referred
independent
the State Govern-
noting
although it
the Auditor
branch of
listed
subject only
ment
to those limitations
duty
to audit ac-
power
General’s
counts,
or
the Constitution
placed upon
no
to audit the
there was
reference
channels;
5)
persons are
preliminarily
no other
Respondents
7. All of
have
objected
Stilp
standing
In
on the basis that
lacks
assert
claim. See also
better
suited
bring
(Pa.
he
action either because
has
Hershey,
A.2d 674
867
Re Milton
allege
failed to
tial,
which is substan-
an interest
Cmwlth.),
appeal
allowance of
direct and immediate or because
has
-
-,
(2005)
granted,
A.2d 1219
Pa.
889
any injury.
not shown that he
suffered
pecuniary
harm
(taxpayer need not suffer
close,
purposes
While
we find for
the issue
court;
standing to sue in state
relaxed
to have
standing under
appeal
of this
application of substantial-direct-immediate
Party
Pennsylvania v.
Consumer
Common-
Penn). Consequently,
pre
test William
wealth,
(1986),
Pa.
al opined Friedman that the Auditor Gen- eral had no to audit the General Your statement that the Auditor Gen- issued, After this opinion is conferred with adopted
invested Section 10 was with the 1968 as a make such result of the Constitutional may audits which Convention of necessary in con- Respondents 1968. The nection contend that noth- with the administration of the *5 ing provision in that any or in affairs, subsequent Commonwealth’s financial amendment in the Constitution to audit authorizes the accounts and records of the Auditor General to audit the every person receiving an appropriation Assembly, making reasoning the money of from the Treasury State Attorney General cogent today as it was without constitutional statutory or sup- years 40 ago. They point out that Article port and is not the law of this Com- VIII, Section nothing enlarge 10 did the monwealth. statutory Neither nor con- powers of the Auditor General even stitutional authority is presumed. ever though, presumably, the authors were It must be specifically Only defined. aware that the Attorney General had is- those areas which designated by are an opinion sued that the Auditor General the constitution by legislature or the had no to audit the General Assem- proper are areas for by audits the Au- bly. ditor General. As has been deter-
mined, this area is exclusively confined All that Article Section 10 does is to the executive govern- branch of the require of audits the “financial of affairs ment. Since legislature has not any entity financially funded or aided provide seen fit to by statute that Commonwealth, and all departments, accounts, or the accounts its officers boards, commissions, agencies, instrumen- subject should be talities, authorities, and institutions of the it presumed, cannot be or subject Commonwealth shall be to audits.” inferred, even that the Auditor General Assuming that fell power. such inherent provisions, somewhere within those it does specify audits,
not who is to conduct the leaving particulars legislation. to the who, Leaving the details of how and when We are opinion you therefore of the was not an acci- accordingly are advised that neither the dent, but a conscious choice of the dele- Constitution nor the statutes gates to the Constitution. Commonwealth of confer any power or upon Depart- The initial version of now what is (Section ment of the Auditor General to audit the Section 10 1 of Proposal No. 4) legislature this that the will quite regu- point It isfied at was detailed.9 mandated (not just implement lar the affairs financial sec- expeditiously audits of move affairs) every entity part or each it becomes tion of the Constitution when government DEBATES, local or Commonwealth Vol. II at 639. adopted.” fully partially was or funded the Com- explained that Delegate Leonard further monwealth, designated who would do “powers had designation of who pre-and post-audits, and the Gen- directed be- preaudit postaudit” was removed Assembly to “which legislation enact creating have a tre- “may been cause (i) function, describe the audit stan- again at He problem.” Id. mendous dards, regularity purposes have explained the revised Section 1: ‘We (ii) Commonwealth, designate the I paragraph, in the guidelines first per- department responsible officer there been quite feel certain performed form or have the other legislature, said on this that the enough See purposes functions and described.” reconvenes, appropri- when it will consider DEBATES, I 425. After Vol. at the first this prob- ate to take care of legislation 4, Delegate Leon- Proposal debate on No. being lem.” Id. at 640-41. Prior ard, responsible co-chair of Committee to, agreed Leonard amendment to Sec- Proposal proposed No. his second tion 1 was modified an amendment (unlike amendment, which the first correc- Fineman, proposed Delegate but amendment) tive included a substantive de- amendment did return because, change among DEBATES, II tail. Vol. at See reasons, who “there were some felt there on Shortly agreement final before the DEBATES, legislation” it. See Vol. February Del- Proposal No. on *6 II at 638-39. (a Committee of egate member the Wilcox Delegate proposed Leonard’s amend- 4), in Proposal responsible drafting No. 1 ment to Section removed the of detail attempt to opposition to a failed amend to of perform type who was what audit and 1, the section “does explained Section that all to As- removed direction the General any particular to assign not various tasks DEBATES, I sembly. Compare Vol. at Legislature the to up It will be to officers. (2nd II 555 with at 638 Leonard Vol. clear, It is implement this.” Id. at 1299. Amendment). de- Delegate Leonard then, 10 not that Article Section does pared-down provision: the scribed the Auditor give any power inherent to “What we have is have an now this: We Assembly.10 General to audit the General provision require or make that will Attorney audited, Similarly, since the General’s all fiscal to be government affairs not the Code does require opinion, in 1966 Fiscal and it will these audits to be any authority for Auditor Gen- provide I am sat- the high accordance with standards. and, impli- auditing executive branch of Con- of The Debates the 1968 Constitutional as can in vention as well other source material General. Nowhere edly, to the Auditor http://www.paconstitu- 4, at found Pennsylvania 2 the Con- Article of tion.duq.edu/conventionl967/ACLLindex.htm. explicitly imply that it state stitution does is to audit the General the Auditor General Stilp argument Ar- the that because makes Assembly just the Auditor General because IV, 2 Consti- ticle Section of the govern- of executive branch a member of the power gover- in the tution vests the executive 4, does take Section 2 What Article ment. nor, department and the executive includes creating away power from the Governor Penn- it follows the the Auditor independently-elected Auditor General. an delegated the function sylvania Constitution Assembly, Assembly. to audit the General audit the General Prior the Section 10 adoption summarized as follows: there and it can be Constitution, the provision authorizing is no Constitutional the charged responsi- tor General was audit; with such an there is no statute authoriz- bility of the departments the audit; Separation an ing such and the exception his Commonwealth with the prohibits such audit. Powers doctrine an department, to Section 402 pursuant own foregoing reasoning Based on Code,11 Attorney Fiscal absolutely support provided there is no power gave General found anywhere authorizing Auditor General the Auditor the accounts General to audit an audit of General Assem- conduct If of the General there was otherwise, has not bly proven provision doubt as to whether objections Respon- preliminary authorized the Auditor to audit Stilp’s sustained petition dents13 are was Assembly, removed is dismissed. review when the General enacted Act 151, §§ 1189.2 P.S. 1189.112and detail- Judge JUBELIRER Judge COHN ing how the audits of affairs participate LEAVITT did Assembly were to be conducted. Under decision this case. Act given was Com- ORDER who, turn, mission hired Ernst and Young which NOW, audited the financial accounts day April, AND this 2Uh of the General in accordance objections filed Re- preliminary generally accepted auditing stan- are spondents sustained and the Petition- dards. er’s review is dismissed. Although Opinion the Attor and DISSENTING CONCURRING ney years ago, issued 40 noth BY Judge OPINION SIMPSON. changed invalidate ing that would thoughtful I in the con- cogent reasoning opinion majority in the concur contained Petitioner, Gene fails why Stilp, Auditor has no clusion that *7 provides, § sory 402. At one such audit P.S. That section in Commission. least 11. however, part: year; special pertinent made each shall be may they appear be made when nec- audits provided Except may as be otherwise essary judgment Legislative Department duty law be it shall of the Advisory Audit Commission. all Auditor General to make audits of occurrence, after which transactions their Casey, 13.State Treasurer Robert P. Jr. has may necessary, be with the connection requested party that we as a dismiss him affairs of the administration the financial because this action has asserted Commonwealth, government of this with and, there- against him as claim Treasurer Department exception of those of the fore, against failed to state a him claim- be the Auditor General. It shall upon may granted. relief be Senators the Governor to audits to be cause such Jubelirer, Brightbill Wenger request also Department made of the affairs of the of the pursu- them from action that we dismiss Auditor General. Speech ant or Debate Clause allege they Constitution which provides: § P.S. 1189.1 12. immunity. provides them with Because this favorably been decided all Re- General Assem- matter for financial affairs of the agencies participation bly legislative spondents, continued and its service Casey is a public be a accountant State Treasurer and the senators audited certified Audit Legislative to be retained Advi- non-issue. for Auditor Gen- legal a basis to state STATE TROOPERS PENNSYLVANIA audit R. and Thomas ASSOCIATION separately to address another I write Scales, Petitioners petition for aspect of Petitioner’s amended v. pleads Petitioner
review. POLICE, STATE PENNSYLVANIA Advi- Legislative for the Audit performed AND PROPERTY DAMAGED LOST auditing an sory Committee outside APPEAL, Respondent. BOARD OF in accordance with performed firm accepted auditing standards. generally Pennsylvania. Court of Commonwealth (because report on a newspaper Based March 2006. Briefs Submitted on currently possess copy does not April Decided audit), believes the auditors Petitioner through all of permitted “were not look for to allow them
the books or information provide an audit accordance accepted
generally auditing standards.” ¶ Review, 61; see
Amended Petition ¶¶ 52, 58, 59, Although
also Petitioner involving an au-
primarily seeks remedies prays the Auditor he also
dit “any equitable such further
declaratory necessary by relief as deemed
the Court....” Pennsyl- Section 10 requires
vania Constitution accept- generally
made in accordance with implausible
ed standards. As sounds, pur- accept present must we for the
poses that Advisory per- was not Commission according
formed to these standards. Claims, 881
Dep’t Gen. Servs. v. Bd. (Pa.Cmwlth.2005). Therefore, I A.2d 14 against a claim
believe Petitioner states *8 representative
that Commission
member, require Wenger. Noah I would Respondents only.
an answer those