Frank P. Lawley Jr., Chief Counsel and Deputy Auditor Gen., Robert P. Meehan, Deputy Counsel, Harrisburg, for appellant.
Delbert J. McQuaide, State College, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., took no part in the consideration or decision of this case. Nix, J., concurs in the result.
The Auditor General of the Commonwealth of Pennsylvania filed a complaint in assumpsit in the Commonwealth Court against the Pennsylvania State University [University] seeking to recover an alleged indebtedness owed the Commonwealth.
The complaint alleged, in substance, that: (1) pursuant to Act 61-A of August 31, 1971, as amended by Act No. 5-A of March 23, 1972, the Commonwealth of Pennsylvania appropriated funds to the University in the amount of $3,710,000 for continuing education programs for fiscal year July 1, 1971 to June 30, 1972; (2) that said funds were appropriated on a "net cost" basis, i. e., they were to be utilized to the extent necessary to pay for the difference between the cost of such programs and the revenue generated thereby; (3) that the audit report of the Auditor General disclosed that the University received $271,055 in excess of the "net cost" of the continuing education program; and (4) that a formal demand for repayment of this sum to the State Treasury made by the Auditor General was refused by the University.
The University filed preliminary objections to the complaint in the nature of: (1) a petition raising the defense of lack of capacity to sue, or, in the alternative; (2) a demurrer for failure to state a claim upon which relief can be granted.
The Commonwealth Court sustained the University's preliminary objections in the form of a demurrer for failure of the Auditor General to state a claim upon
which relief can be granted*fn1 and dismissed the complaint.
The Auditor General then appealed the dismissal of the complaint to this Court.
The sole issue presented is whether the Auditor General has the legal authority to bring suit to collect monies allegedly owed to the Commonwealth. Because we are in basic agreement with the Commonwealth Court's interpretation of the relevant statutory provisions governing disposition of the issue, we affirm the order of the Commonwealth Court.
It is clear to us that the Auditor General would have lacked the authority to institute this suit, if it had been commenced between 1915 and 1970. Section 23 of the Act of April 28, 1840, P.L. 467, conferred upon the Auditor General specific authority to collect debts owed the Commonwealth, but this act was repealed by the Act of June 7, 1915, P.L. 876.*fn2
The enactment of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177 (Administrative Code), 71 P.S. § 51 et seq., and the Fiscal Code, Act of April 9, 1929, P.L. 343, 72 P.S. § 1 et seq., did nothing to alter the existing situation with respect to authorizing the Auditor General to bring the present suit. The Administrative Code placed the authority to institute suit to collect sums due the Commonwealth with the Attorney General and the Department of Justice.*fn3 The fiscal Code*fn4 enumerates
the auditing powers and duties of the Auditor General. Additionally, in this context we observe that under Section 706 of the Administrative Code, 71 P.S. § 246, the Auditor General retains such powers as were vested in him at the time of the enactment of the Administrative Code. However, at that time, the Auditor General had no power to institute suit, since, as we have previously noted, the power to do so had been removed from him by the Act of June 7, 1915.
In 1970 the legislature amended the Administrative Code to authorize separate legal counsel for the Auditor General. See the Act of December 17, 1970, P.L. 935. It is upon the basis of those amendments that the Auditor General contends he now has the authority to sue to recover an indebtedness owed the Commonwealth. Specially, Section 512, 71 P.S. Section 192; Section 902, 71 P.S. Section 292; Section 903(b), 71 P.S. Section 293(b); and Section 906, 71 P.S. Section 296, were amended to read as follows (language added by the amendments is underscored).
"Section 512. Legal advice and services. -- Whenever any department, other than the Department of the Auditor General, board, commission, or officer of the State Government, shall require legal advice concerning its conduct or operation, or when any legal difficulty or dispute arises, or litigation is commenced or to be commenced in which any department, other than the Department of the Auditor General, board, Commission, or officer, is concerned, or whenever any taxes or other accounts of any kind whatever due the Commonwealth remain overdue and unpaid for a period of ninety days, it shall be the duty of such department, board, commission, or officer, to refer the same to the Department of Justice.
" It shall be the duty of any department, other than the Department of the Auditor General, board, commission, or officer, ...