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1980 AUDITORS' REPORT FOR NEW CASTLE TOWNSHIP. MICHAEL TOBIN (09/28/84)

decided: September 28, 1984.

IN RE: 1980 AUDITORS' REPORT FOR NEW CASTLE TOWNSHIP. MICHAEL TOBIN, APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of In Re: 1980 Auditors' Report for New Castle Township, No. Judges Rogers, Blatt and Doyle, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Doyle. Judge Rogers concurs in the result.

Author: Doyle

[ 85 Pa. Commw. Page 340]

Michael Tobin appeals an order of the Court of Common Pleas of Schuylkill County which, in disposition of exceptions to an audit of the 1980 accounts of New Castle Township, imposed a surcharge of $660.00

[ 85 Pa. Commw. Page 341]

    upon three township officials*fn1 and directed them to pay attorney's fees in the amount of $837.50.

The stipulated facts indicate that the Board of Supervisors of New Castle Township (Board of Supervisors), at its regular meeting on May 1, 1980, adopted an ordinance creating the office of township manager. At the same meeting, Tobin was named manager and his compensation was set at $25.00 per meeting. At a subsequent meeting of the Board of Supervisors on June 5, 1980, Tobin was appointed township clerk at a salary of $40.00 per month.*fn2 On July 3, 1980, Tobin was named secretary-treasurer of the township and his salary was fixed at $100.00 per meeting.

Also at the meeting on July 3, 1980, the Board of Supervisors adopted an ordinance providing for the issuance of building permits for new construction in the township. At the meeting of the Board of Supervisors on August 7, 1980, Tobin was appointed township building inspector and his compensation fixed at 10% of the sum collected as fees for building permits. Between the July 3 and August 7, 1980 meetings, Tobin collected $5,846.06 in building permit fees and at the August 7 meeting he was paid $585.00, representing 10% of the fees collected. At subsequent monthly meetings up to and including November 6, 1980 Tobin was paid 10% of the total collected in building permit fees during the previous month.

At the regular monthly meeting of the Board of Supervisors on December 4, 1980, it was decided to

[ 85 Pa. Commw. Page 342]

    pay Tobin $200.00 per week plus expenses, retroactive from November 1, 1980 as compensation for all of his duties as building inspector, municipal building officer, secretary-treasurer and manager.

On March 20, 1981, the township record books of New Castle Township were audited for the year 1980. The report of the auditors filed with the Schuylkill County Clerk of Courts found no improprieties and recommended no surcharges. On May 4, 1981, exceptions to the audit were timely filed by two resident taxpayers (Taxpayers),*fn3 and the matter was set for hearing. The exceptions alleged, inter alia, that payment of a commission on building permit fees collected between July 3 and August 7, 1980, before Tobin's formal appointment as building inspector, was improper. The parties stipulated to the facts pertinent to the case and filed a written stipulation with the court of common pleas. On January 18, 1982, the court of common pleas issued the order surcharging Tobin and two supervisors. It is that order which Tobin appeals here.

Section 545 of the Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. ยง 65545, provides, in pertinent part:

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 ...


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