Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Daniel Laskey, Richard Roach and Patrick Connolly, individually and on behalf of all similarly situated taxpayers in the Borough of Blawnox v. Jake Bruno, George Bubash, John Petronic, Agnes Skanderson, and Fred Thompson, individually and as members of the Council of the Borough of Blawnox; Henry Witas, individually and as Vice-President of the Council of the Borough of Blawnox; and William Ward, individually and as President of the Council of the Borough of Blawnox, No. GD 80-23755.
James R. Mall, with him James Victor Voss, Meyer, Unkovic & Scott, for appellants.
John F. Cambest, Conway, Meyer & Cambest, for appellees.
President Judge Crumlish, Jr., and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 510]
The appellants, three residents and taxpayers of the Borough of Blawnox (Borough), individually and on behalf of all other taxpayers situated similarly appeal an order of the Court of Common Pleas of Allegheny County sustaining the appellees' preliminary objection that the appellants' complaint in equity was premature because a statutory remedy existed under Section 1044 of The Borough Code (Code).*fn1
The appellants' complaint*fn2 in equity below contended that the appellees, nine elected council members of the Borough, violated the competitive bidding requirements set forth in Section 1402(a) of the Code, 53 P.S. § 46402(a) which requires, in pertinent part, that "[a]ll contracts or purchases in excess of two thousand five hundred dollars ($2,500) . . . shall not be made except with and from the lowest responsible bidder after due notice. . . ." The violation the appellants alleged below concerned the awarding by the
[ 64 Pa. Commw. Page 511]
appellees of a $5,500.00 contract for the removal of dirt and debris from a parcel of land leased by the City of Pittsburgh which was located on Borough property. The appellants and appellees agree that such dirt and debris was sitting on top of one of the main water lines of the City of Pittsburgh and that the city threatened suit to have the aforementioned condition corrected. Ultimately, the appellants seek to have the appellees individually surcharged for the amount of the removal-contract in excess of the $2,500.00 amount set forth in Section 1402 of the Code. The appellees, however, maintain in their preliminary objections that the appellants' equity action is premature because an exclusive statutory remedy exists up until the Borough Auditor files his yearly report under Section 1044 of the Code, 53 P.S. § 46044.
Section 1041(c) of the Code, 53 P.S. § 46041(c), which delineates the Borough Auditor's duties, states in pertinent part that
(c) [t]he amount of any balance or shortage, or of any expenditure of a kind, or made in a manner, prohibited or not authorized by statute, which causes a financial loss to the borough, shall be a surcharge [levied by the Borough Auditor] against any officer against whom such balance or shortage shall appear, or who by vote, act, or neglect, has permitted or approved such expenditure. . . .
And Section 1044 of the Code mandates that
[i]t shall be lawful for the borough, or any taxpayer thereof, on its behalf, or any officer whose account is settled or audited, to appeal from the settlement or audit, as shown in the auditors' report, to the court of common pleas of the county, not later than forty days from the date of ...