Appeal from the Order of the Auditor General in case of Commonwealth of Pennsylvania, Auditor General of Pennsylvania v. Borough of East Washington.
Clarence Crumrine, with him James C. McCreight, and McCreight, Marriner & McCreight, for appellant.
Frank A. Woelfling, Deputy Counsel, with him Frank P. Lawley, Jr., Chief Counsel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer. Judge Kramer joins in this dissent.
[ 23 Pa. Commw. Page 384]
This is before us on the Auditor General's Motion to Quash the Exceptions filed by the Borough of East Washington (Borough). Borough's exceptions were directed against a purported adjudication of the Auditor General. Briefly, the facts are as follows: The Auditor General conducted an audit of Borough's Police Pension Fund. The audit disclosed certain alleged improper expenditures by Borough. Based upon those findings, the Auditor General recommended that the Commonwealth withhold future disbursements of casualty insurance premium tax allocations to Borough.
The issue is whether the audit report is an "adjudication" under the Administrative Agency Law*fn1 (Act). "Adjudication" is defined in Section 2*fn2 of the Act, 71 P.S. § 1710.2 (a) as:
"[A]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made. . . ."
Under Section 2 of the Act of June 28, 1895, P.L. 408, as amended, 72 P.S. § 2262, the State Treasurer is required to pay to the treasurers of the municipalities in the Commonwealth the premium tax paid to the Commonwealth by foreign fire insurance companies doing business within the municipalities. The municipalities, in turn, must apply the money to the relief or pension funds of the local fire department. Section 1 of the Act of May 12, 1943, P.L. 259, as amended, 72 P.S. § 2263.1, outlines a similar arrangement whereby the tax on premiums of foreign casualty insurance companies are turned over to municipalities for payment into the police pension funds.
[ 23 Pa. Commw. Page 385]
Section 403 of the Fiscal Code*fn3 provides:
"The Department of the Auditor General shall have the power, and its duty shall be, to audit the accounts and records of every person, association, corporation, and public agency, receiving an appropriation of money, payable out of any fund in the State Treasury, or entitled to receive any portion of any State tax for any purpose whatsoever, as far as may be necessary to satisfy the department that the money received was expended or is being expended for no purpose other than that for which it was paid. Copies of all such audits shall be furnished to the Governor.
"If at any time the department shall find that any money received by any person, association, corporation or public agency, has been expended for any purpose other than that for which it was paid, it shall forthwith notify the Governor, and shall decline to approve any further requisition for the payment of any appropriation, or any further portion of any State tax, to such person, association, corporation or public agency, until an amount equal to that improperly ...