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CONTROLLER'S ANNUAL REPORT (09/19/78)

decided: September 19, 1978.

CONTROLLER'S ANNUAL REPORT, YEAR 1972, OF LACKAWANNA COUNTY. TAXPAYERS OF LACKAWANNA COUNTY, PENNSYLVANIA AND ERV HOHENSEE AND GENE BASALYGA, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of In Re: Controller's Annual Report for year 1972 of Lackanna County, No. 139 September Term, 1973.

COUNSEL

Ervin Hohensee and Gene Basalyga, appellants, for themselves.

James J. Ligi and Brian J. Cali, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge MacPhail.

Author: Macphail

[ 37 Pa. Commw. Page 582]

On September 14, 1973, thirteen (13) persons alleged to be taxpayers of Lackawanna County "on their own behalf and on behalf of all taxpayers of said county" filed an appeal from the Controller's Report of 1972 which had been filed June 13, 1973. Inasmuch as the statute which authorizes such appeals, Section 2805, The County Code, Act of August 9, 1955 (Code), P.L. 323, as amended, 16 P.S. ยง 2805, requires that such appeals be entered within ninety (90) days after the filing of the report, the Commissioners of Lackawanna County moved to dismiss the appeal. The taxpayers then sought leave to file the appeal nunc pro tunc under the authority of Unangst's Appeal, 333 Pa. 489, 5 A.2d 201 (1939). In a preliminary order the Court of Common Pleas of Lackawanna County allowed the appeal "to afford the taxpayers an opportunity to investigate the existence of fraud or its concealment."

After a three day hearing on the issue of fraud and the filing of depositions and stipulations, the court found no fraud or concealment and held that since the appeal was untimely filed, it should be dismissed.*fn1

[ 37 Pa. Commw. Page 583]

On January 23, 1978, Ervin Hohensee and Gene Basalyga (appellants), who were not among the thirteen (13) taxpayers who filed the original appeal in the Lackawanna Court of Common Pleas, filed a notice of appeal in the Commonwealth Court from the "opinion" of the lower court. The Commissioners of Lackawanna County (Commissioners) and the Controller filed a motion to dismiss and a motion to quash the appellants' appeal. On March 10, 1978, this Court entered an order directing that the motion to dismiss be denied and that the motion to quash be submitted on brief. Briefs have been filed and the issues raised therein are ready for disposition.

Commissioners and Controller contend that their motion should be granted because: (1) the appeal was untimely filed in violation of Pa. R.A.P. 903, (2) the appellants lack standing to bring the appeal since they were not parties to the initial proceeding and (3) the appellants lack standing to appeal because they are not aggrieved parties. The appellants answer that their appeal was late because the court house was closed on the last day for filing due to inclement weather, that they are among the taxpayers included in the original suit and that the fact that the county was not reimbursed for $24,935.00 makes them aggrieved parties. The issues are somewhat novel.

Timeliness of the Appeal

In the instant case, Pa. R.A.P. 903, (which was based upon Section 502 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, ...


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