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ALLEGHENY COUNTY CONTROLLER'S AMENDED ANNUAL REPORT 1967-1978. ALLEGHENY COUNTY CONTROLLER'S 1979 ANNUAL REPORT. CYRIL H. WECHT (03/05/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 5, 1985.

IN RE: ALLEGHENY COUNTY CONTROLLER'S AMENDED ANNUAL REPORT 1967-1978. IN RE: ALLEGHENY COUNTY CONTROLLER'S 1979 ANNUAL REPORT. CYRIL H. WECHT, M.D., J.D., FORMER CORONER, APPELLANT

Appeals from the Order of the Court of Common Pleas of Allegheny County in the case of In Re: Allegheny County Controller's Amended Annual Report 1967-1978, No. Misc. 11 April Term, 1979, and In Re: Allegheny County Controller's 1979 Annual Report, No. GD80-2600.

COUNSEL

David J. Armstrong, with him, Richard C. Polley, Dickie, McCamey & Chilcote, P.C., for appellant.

Byrd R. Brown, with him, Doris A. Smith, Solicitor to the Controller, and Louis S. Gold, Assistant Solicitor to Controller, for appellee.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., MacPhail, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., and Judge Craig did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge Colins.

Author: Crumlish

[ 88 Pa. Commw. Page 129]

Cyril H. Wecht, M.D., J.D., appeals an Allegheny County Common Pleas Court order surcharging him for non-county services performed by his office and employees during his tenure as Allegheny County Coroner.

Wecht served as Coroner from January 1970 to January 1980. Without County authorization, he allowed autopsies and tissue slide preparation to be performed for other counties at his office by County employees during their normal working hours, using County equipment and materials. Resulting funds were deposited into private checking accounts maintained by his office, known as the Professional Education Fund, from which Wecht made disbursements. He did not account for or deposit in the County Treasury the funds raised by his services to other counties. Also, without County authorization, tissue specimens accepted by Wecht's private laboratory, Pittsburgh Pathology and Toxicology Laboratory (PP&TL), were delivered to his office for testing. Wecht did not pay the County for this service.

[ 88 Pa. Commw. Page 130]

The common pleas court surcharged Wecht $195,389.00 plus $41,368.93 interest with respect to the "Report Concerning the Allegheny County Coroner's Office 1967-1978" (Lynch Surcharge) and $13,254.81 plus $2,403.29 interest with respect to the supplement to the Controller's 1979 Annual Report entitled "In Re: Allegheny County Controller's 1979 Annual Report" (Lucchino Surcharge).

Wecht's major contentions are that (1) he was improperly surcharged for his services to other counties,*fn1 (2) pursuant to the letter and spirit of Sections 1 and 2 of the Act of May 15, 1945, P.L. 538, formerly 65 P.S. §§ 191, 192 (Act of 1945),*fn2 surcharges against him should not have exceeded the actual financial loss suffered by the County, and (3) interest should not have been assessed against the principal amounts surcharged.*fn3 These legal questions are subject to this Court's review. 2 Pa. C.S. § 704.*fn4

[ 88 Pa. Commw. Page 131]

Wecht argues that, because he was not statutorily obligated to perform his services for other counties,*fn5 they were not part of his "official" duties as Coroner and therefore the constitutional*fn6 and statutory*fn7 requirements that funds be turned over to the County do not apply to the resulting monies. However, when this case was before this Court on preliminary objections, we held that because the services were performed under the auspices of the Coroner's office, using County facilities, they were closely associated with the Coroner's office as an official County office. Lucchino Appeal, 62 Pa. Commonwealth Ct. 58, 62, 434 A.2d 1323, 1325 (1981).*fn8 We agree with the trial court that nothing has occurred to diminish the force of the Lucchino holding and again conclude "that the services

[ 88 Pa. Commw. Page 132]

    were performed in the Coroners' official capacity, that the Coroners were obligated to report receipt of funds to the county through the Controller*fn9 and that the surcharges filed by the Controller are the proper avenue to relief." Id.

Wecht further contends that the Act of 1945*fn10 operates to limit the Lynch Surcharge to the actual financial loss suffered by the County.*fn11 However, a review

[ 88 Pa. Commw. Page 133]

    of the relevant case law reveals that the Act of 1945 has only been held to apply to improper actions of officeholders who are authorized to expend funds. Wecht had no authority to expend funds.*fn12 We hold that Wecht may not use the Act of 1945 as a defense to the Lynch Surcharge in light of his constitutional*fn13 and statutory*fn14 obligation to have reported and turned over to the County the monies involved in this case. We agree with the trial court that to give Wecht a credit under the Act of 1945 would be to approve an avoidance of the controls properly imposed by the County government.

Wecht finally argues that interest may not be awarded upon surcharges because the statutory right to surcharge an official does not specifically provide for interest.*fn15 However, by virtue of Section 1930 of

[ 88 Pa. Commw. Page 134]

    the Code,*fn16 the surcharges became judgments against Wecht's real estate when filed. Lucchino Appeal, 62 Pa. Commonwealth Ct. at 64, 434 A.2d at 1326. Pursuant to Section 8101 of the Judicial Code,*fn17 interest may be awarded from the date of judgment.*fn18

We hold that the trial court committed no error of law by imposing either the Lynch Surcharge or Lucchino Surcharge on Dr. Wecht.

[ 88 Pa. Commw. Page 135]

Order

The order of the Court of Common Pleas of Allegheny County, at No. Misc. 11 April Term 1979, Issue No. 118979 and No. GD80-2600, Issue No. 118979, dated September 8, 1983, is affirmed.

Judge Williams, Jr., and Judge Craig and not participate in the decision in this case.

Disposition

Affirmed.

Concurring and Dissenting Opinion by Judge Colins:

I dissent. The surcharge action initiated by former County Controller Lynch was brought pursuant to the Act of May 15, 1945, P.L. 538, No. 210, formerly 65 P.S. §§ 191, 192. Under the statutory scheme of the Act, absent fraud or collusion, the actual financial loss to the County is all that can be surcharged to the public official in question. Since the appellee has proven no actual "out-of-pocket" losses, the order of the Trial Court should be reversed insofar as it relates to damages accruing under the "Lynch" surcharge.

I concur with the opinion of the majority insofar as it relates to the "Lucchino" surcharge.


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