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APPEAL FROM REPORT AUDIT SOUTH UNION TOWNSHIP FOR 1975. APPEAL AUDITORS SOUTH UNION TOWNSHIP v. NICHOLAS KOMANECKY AND JAMES CONWAY. AUDITORS SOUTH UNION TOWNSHIP (10/26/79)

decided: October 26, 1979.

IN RE: APPEAL FROM REPORT OF AUDIT OF SOUTH UNION TOWNSHIP FOR 1975. APPEAL OF AUDITORS OF SOUTH UNION TOWNSHIP
v.
NICHOLAS KOMANECKY AND JAMES CONWAY. AUDITORS OF SOUTH UNION TOWNSHIP, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Fayette County in case of South Union Township Board of Auditors, John Gaddis, Chairman, Richard Vernon, Auditor, Walter Coddington, Secretary v. South Union Township Board of Supervisors, Nicholas Komanecky, James Conway and Charles Schiffbauer, Supervisors, No. 333 Civil 1976.

COUNSEL

Simon B. John, with him John & John, for appellants.

Anthony J. Kovach, for appellees.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 47 Pa. Commw. Page 3]

This is an appeal by the South Union Township Board of Auditors (Board) from an order of the Court of Common Pleas of Fayette County dismissing and denying the Board's surcharges filed against South Union Township Supervisors, Nicholas Komanecky and James Conway for the year 1975. We affirm.

The Board filed 162 surcharges, pursuant to Section 545 of the Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65545, which provides:

Any elected or appointed officer, whose act, error or omission has contributed to the financial loss of any township, shall be surcharged by the auditors with the amount of such loss, and the surcharge of any such officer shall take into consideration as its basis, the results of such act, error or omission and the results had the procedure been strictly according to law. The provisions hereof limiting the amount of any surcharge shall not apply to cases involving fraud or collusion on the part of such officers, nor to any penalty ensuing to the benefit of or payable to the Commonwealth.

The issue before us is simply whether the court below erred in dismissing the surcharges.

Surcharges 1 through 12 pertain to amounts paid to the Supervisors, in their capacity as roadmasters, as compensation for the use of their private automobiles for township business. Section 515 of the Code, 53 P.S. § 65515, permits such compensation in accordance

[ 47 Pa. Commw. Page 4]

    with rates established by the auditors. Unfortunately, the auditors, believing that sufficient township vehicles existed for such use, refused to set a rate of compensation. The payment of compensation without auditor approval in accordance with Section 515 is the basis for the surcharge. Supervisors may be liable for surcharge for their failure to act in strict conformance with the law. See Cotlar v. Warminster Township, 8 Pa. Commonwealth Ct. 163, 302 A.2d 859 (1973). In this case, however, we are unable to conclude that the township suffered a financial loss on which to base a surcharge. The Supervisors authorized compensation which it is agreed was reasonable, and, therefore, the actual compensation did not differ from that which would have been paid had it been set by the auditors in accordance with the law. Where as here, the actual result does not differ from the result which would have been reached had the act been carried out in strict conformance with the law, there is no loss and the surcharge is properly dismissed. See Section 545 of the Code; cf. Audit Report of Township of Bristol 1967, 57 Pa. D. & C. 2d 18 (Bucks Co. 1972) (without actual loss, surcharge may not be imposed on account of official's act, error, or omission under Section 1003 of The First Class Township Code,*fn1 53 P.S. § 56003, and Section 1 of the Act of May 15, 1945, P.L. 538, formerly found ...


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