Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of City of Clairton v. John P. Marflak, No. GD 84-22275.
Lloyd H. Fuge, for appellant.
Robert V. Campedel, Zemprelli, Clipper and Campedel, for appellee.
President Judge Crumlish, Jr. and Judges Rogers and Colins, sitting as a panel of three. Opinion by Judge Rogers. Judge Colins dissents. Concurring Opinion by President Judge Crumlish, Jr.
[ 97 Pa. Commw. Page 645]
The controller of the City of Clairton (city), a city of the third class, has appealed an order of the Court of Common Pleas of Allegheny County refusing to open two peremptory judgments in mandamus by which the court directed the appellant to countersign city payroll and employee benefit checks.
The controller's reason for refusing to sign the checks was his belief that it was improper for him to authorize the expenditure of revenues raised for special purposes, in this case to pay interest and principal on the city's indebtedness, for general purposes, especially with the result that the city's expenditures for general purposes would exceed the statutory limitation of thirty mills times the assessed value of land and buildings. The city had during 1983 and 1984, the years in question, levied the limit of thirty mills taxes on land and buildings, and in addition a special levy for, in the main, debt service.
The facts, which we gather from a sparse record, consisting in the main of correspondence, the copy of minutes, and colloquy among court and counsel,*fn1 seem to have been as follows.
In 1983, the city anticipated borrowing $675,000 to pay the prior year's unfunded debt. The actual amount borrowed was $640,000, which after costs netted the city $606,120. Service on the debt was to be provided by a special tax. We do not know the 1983 millage but we learn from correspondence in the record that the levy raised $32,678 per mill of tax. It became apparent that $240,743 of the tax revenues would not be needed to service the debt in 1983. The controller informed the mayor and council in writing that that amount should be transferred to the sinking fund and used for debt service
[ 97 Pa. Commw. Page 646]
in 1984. At a November 1983 meeting of the council, a motion was made and passed to transfer $240,531 from the general fund to a sinking fund. The controller says, without contradiction, that the $240,000 was not transferred to the sinking fund and that approximately $200,000 of these special tax revenues was spent for general purposes. It also appears that the 1983 special tax revenues were commingled with other city monies.
In 1984, the city levied a special tax of 14.6 mills for "debt service, recreation, library, and shade trees." We are told that the city anticipated borrowing an additional $450,000 that year but that the loan could not be placed. The revenues received from special taxes levied for debt service of the proposed borrowing in 1984, but not needed for that purpose, were $168,000. None of the special tax revenues were transferred to the sinking fund; they were commingled with general tax revenues. The controller, in writing to the mayor and council, expressed his belief that the $168,000 should be transferred to the sinking fund and there encumbered for debt service. When the balance in the city's accounts reached $168,000, the controller refused to countersign checks. The city filed its complaint in mandamus, resulting in the final order here appealed.
The controller of a city of the third class is required to countersign warrants for the payment of monies out of the city treasury "when satisfied of the legality of such payment." Section 1706 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 36706. However, mandamus will lie to require the controller to perform his countersigning duty function under Section 1706 if the controller refuses to perform his duties on the ground of a mistaken view of the law. Duncan Meter Corp. v. ...