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COMMONWEALTH PENNSYLVANIA v. BOROUGH EAST WASHINGTON (10/07/77)

SUPREME COURT OF PENNSYLVANIA


decided: October 7, 1977.

COMMONWEALTH OF PENNSYLVANIA, AUDITOR GENERAL OF PENNSYLVANIA, APPELLANT,
v.
BOROUGH OF EAST WASHINGTON

COUNSEL

Frank A. Woelfling, Deputy Counsel, Frank P. Lawley, Jr., Chief Counsel, Dept. of Auditor Gen., Ronald M. Chesin, Harrisburg, for appellant.

James C. McCreight, Clarence A. Crumrine, McCreight, Marriner & McCreight, Washington, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Roberts

[ 474 Pa. Page 227]

OPINION OF THE COURT

In this interlocutory appeal, the Auditor General of Pennsylvania challenges the jurisdiction of the Commonwealth Court to hear an action brought by the Borough of East Washington. The Borough sought review in the Commonwealth Court of the Auditor General's determination that certain future Commonwealth allocations should be withheld from the Borough. We hold that the Commonwealth Court has jurisdiction to hear this case.

[ 474 Pa. Page 228]

I

Section 403 of the Fiscal Code of 1929*fn1 requires the Auditor General to audit the accounts and records of every recipient of money payable from the State Treasury to ensure that the money is expended for proper purposes. If the money is not expended properly, the Auditor General is empowered to decline to approve any further requisitions for payment to the recipient until the amount improperly expended "shall have been expended for the purpose for which the money improperly expended was received from the State Treasury."*fn2

Pursuant to section 403, the Auditor General examined the books of account and records of the Police Pension Fund of the Borough of East Washington, and determined that certain improper expenditures had been made from the Police Pension Fund.*fn3 Therefore, on June 5, 1975, the

[ 474 Pa. Page 229]

Auditor General recommended the withholding of further state allocations*fn4 until the Police Pension Fund is reimbursed for the improper expenditures.

The Borough alleged that the Auditor General's action was an adjudication within the meaning of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, §§ 1 et seq., as amended, 71 P.S. §§ 1710.1 et seq. (1962), and was therefore appealable to the Commonwealth Court. The Borough filedd its appeal on June 30, 1975. The Auditor General filed a motion to quash, and on February 18, 1976, the Commonwealth Court denied the motion to quash. This appeal followed.*fn5

II

In this interlocutory appeal taken pursuant to the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672 (1953), this Court is limited to a determination whether the Commonwealth

[ 474 Pa. Page 230]

Court has jurisdiction to hear this case. We only decide whether the Commonwealth Court has power to review the Auditor General's action. As this Court stated in Drummond v. Drummond, 402 Pa. 534, 167 A.2d 287 (1961):

"The test of jurisdiction is the competency of the court to determine controversies of the general class involved, and whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case."

Drummond v. Drummond, 402 Pa. 534, 538, 167 A.2d 287, 290 (1961); accord, Studio Theaters, Inc. v. City of Washington, 418 Pa. 73, 209 A.2d 802 (1965).

We hold that the Commonwealth Court has power to review the Auditor General's action. In Volunteer Firemen's Retirement Association v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964), this Court held that a determination by the Auditor General that improper expenditures had been made from a firemen's relief fund, and that further allocations of state funds should therefore be withheld, was subject to review by the courts in a mandamus action.*fn6 For jurisdictional purposes, it is immaterial that the Borough designated this action as an "appeal" from an "adjudication" of the Auditor General, instead of as an action in mandamus. Whether this action should be brought as an appeal or an action in mandamus relates only to the form of the action, not to the court's power to review the Auditor General's determination. Cf. School District v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970) (choice of "form of action" between law and equity does not raise a question of jurisdiction reviewable in interlocutory appeal). Whatever may be the proper form of an action brought to review the Auditor General's determination, the

[ 474 Pa. Page 231]

Commonwealth Court has jurisdiction to review that determination. See 17 P.S. §§ 211.401(a), 211.403 (Supp.1977).*fn7

The Pennsylvania Rules of Appellate Procedure make clear that the form of a suit which seeks review of an agency action does not involve a question of jurisdiction. See Pa.R.A.P. 1501-61; Pa.R.A.P. 1502 Note. The Rules provide that appeals and actions in equity, replevin, mandamus, quo warrantor, and declaratory judgments, as well as petitions for writs of certiorari and prohibition, have been replaced by a single form of action to review governmental determination. Pa.R.A.P. 1502. Actions brought in the wrong form should not be dismissed, but should be regarded as having been filed in the proper form, although amendment may be required if necessary for clarification. Pa.R.A.P. 1503, 1504. See generally L. Jaffe, Judicial Control of Administrative Action 152 (1965) ("when we do create diverse means of review, there should be no risk involved in choosing the wrong form"). Once it is determined that the court has power to review administrative action, the form of review, as between appeal and mandamus, for example, does not affect the court's jurisdiction.*fn8

Order affirmed.


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