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DAVIS v. CARBON COUNTY (01/07/52)

January 7, 1952

DAVIS, APPELLANT,
v.
CARBON COUNTY



Appeal, No. 156, Jan. T., 1951, from judgment of Court of Common Pleas of Carbon County, April T., 1949, No. 24, in case of John P. Davis, Stephen Pancoe and John Deutsch, Admr., Estate of Homer R. Kern, deceased, v. County of Carbon. Judgment reversed; reargument refused February 6, 1952.

COUNSEL

Ben R. Jones, Jr., with him Donald L. McCay and J. Thirwall Grifffith, for appellants.

Everett Kent, Special Counsel, with him George Kerestes, County Solicitor of Carbon County, for appellee.

Before Drew, C.j., Stern, Stearne, Lander and Chidsey, JJ.

Author: Stern

[ 369 Pa. Page 325]

OPINION BY MR. JUSTICE HORACE STERN

John P. Davis, Stephen Pancoe and Homer R. Kern were, in 1946 and for several years prior thereto, the commissioners of Carbon County and the executive and administrative officers of the Carbon County Institution District which operated a hospital and almshouse for the poor and aged at Laurytown. In 1946 they decided to erect a building of the institution district to be used for warehouse and general utility purposes. In connection with its construction they expended during the year 1947 funds of the institution district to the amount of $21,231.58. Their term of office expired in January, 1948, and they did not stand for re-election. The controller of the county filed an audit of their receipts and expenditures both as commissioners of the county and as officers of the institution district for the fiscal year 1947. This audit imposed no surcharge upon them but the county appealed from the audit, listing 19 items on the basis of which it contended that they should be surcharged. The court framed an issue in which they were made plaintiffs and the county defendant. Pleadings having been filed, a jury trial was had at which all but part of one of the items attacked by the county were either withdrawn, ruled out by the court, or found for plaintiffs by the jury. As to the $21,231.58, however, expended for the construction of

[ 369 Pa. Page 326]

    the warehouse building, the court directed the jury to find a verdict for the county. From the judgment entered on that directed verdict plaintiffs now appeal.*fn1

The first question raised by appellants is in regard to the county's right to appeal from the controller's report. They argue that the provision of the General County Law of May 2, 1929, P.L. 1278, § 379, that an appeal may be taken from the controller's report to the court of common pleas either by the Commonwealth, the county, the officer affected, or ten or more taxpayers in behalf of the county, is here inapplicable because institution districts were not created until the enactment of the County Institution District Law of June 24, 1937, P.L. 2017, and therefore the right of appeal given to the county under the Act of 1929 should not be construed as conferring a similar right under the Act of 1937 in which there was no express provision for such an appeal. We interpret the matter differently, however, than as thus contended. The 1937 Act, § 302, provided that the commissioners of each county should be the executive and administrative officers of the institution district of that county. The amendatory Act of July 3, 1941, P.L. 256, provided that the commissioners of the county should keep accurate accounts of the moneys of the institution district, such accounts to be audited by the county controller, that the commissioners, as officers of the institution district, should be subject to the same fiscal supervision and control as provided by law with respect to county funds, and that the controller should keep a full and regular set of books of all the fiscal operations of the institution district and each year make a report to the court of common pleas of the county of all receipts and expenditures

[ 369 Pa. Page 327]

    of the institution district for the preceding year, such report to be published "in conjunction with, and as a part of, the similar report of the fiscal affairs of counties." Thus the controller's report of the fiscal affairs of the institution district was assimilated to his report of the fiscal affairs of the county, whereby it became subject to the same regulations and provisions. We hold, therefore, that the county had the right to appeal from the controller's report, and, further, that the court properly directed the form in which the issues were to be entered, as provided by section 380 of the General County Law.

In 1946 the physical properties of the Carbon County Institution District consisted of a main hospital building, a smaller hospital or dormitory building, an administration building, and several minor structures. There being apparent need not greater facilities for the storage of food, dry goods and medical supplies, appellants decided that another building was necessary for those purposes as well as for a central office for the receipt and disbursement of materials and supplies, a milk cooling and preparation plant in close proximity to the cattle barn, and a recreation room for the use of the personnel and the ambulatory inmates. Accordingly they employed an architect and had plans and specifications prepared by him for the proposed structure. The plans provided for a building about 50 feet in width and 68 feet in length; on the first floor there was provision for an office, some fairly large rooms for storage of provisions, a recreation room, and a room for the cooling and preparation of milk; the second floor plan provided for a number of rooms ...


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