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April 24, 1997


Appealed From No. 1994-1091 CP. Common Pleas Court of the County of Susquehanna. Judge SEAMANS, President Judge.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick


FILED: April 24, 1997

The issue presented in this appeal is whether an appeal from the yearly audit report under Section 2451 of the Public School Code of 1949 *fn1 (Code) is the exclusive means of challenging the legality of school district expenditures.

Roger Bennett (Bennett) appeals from an order of the Court of Common Pleas of Susquehanna County (trial court) granting summary judgment in favor of Mountain View School Board, Board President William Beeman, and Superintendent Andrew Chichura (collectively referred to as the Board). We affirm.

In 1990, the Mountain View School District (District) in Susquehanna County formulated a plan that provided for the construction of a track facility and improvements to drainage at its high school baseball fields. As part of this plan, the District also decided to build four dugouts for its baseball fields. At its meeting in June 1990, the Board approved an advertisement inviting bids on the overall project. The part of the project relating to construction of the dugouts was an alternate part of the bid. The Board reviewed the submitted bids at its next meeting in July 1990 and awarded a contract on the overall project to a bidder for $199,983. However, the Board rejected the bids for construction of the dugouts because the bids were too expensive, ranging from a low of $46,000 to a high of $73,440.

Without inviting a second round of bidding, the Board later decided to have school personnel construct the four dugouts, plus two more at the elementary fields, as a "maintenance project" because this would be the most "economical" way to proceed. This decision was made by a consensus of the Board without a formal vote. As part of its 1991-1992 school budget, the Board placed $25,000 into the capital reserve fund budget to finance construction of the dugouts. However, the costs for the "dugouts" project were eventually paid out of the general fund as maintenance costs and not out of the capital reserve fund.

The six dugouts were constructed between September and December of 1991 at a total cost of approximately $36,000 - a cost considerably below the lowest bid submitted on the "dugouts" project. Bennett took his seat as a Board member on December 16, 1991. Bills for materials, supplies and outside labor for the dugouts were approved by votes of the Board at its monthly public meetings from November 1991 through April 1992. Bennett voted to approve some of these bills at the meetings in December 1991 and February 1992. Also, Bennett admitted that he was aware of the project and its potential problems before he became a Board member. At the Board's meeting in January 1992, Bennett voted against the bills for the project because he disagreed with the way the Board was handling the project.

All Board votes and expenditure approvals on the "dugouts" project took place during the fiscal year ending June 30, 1992. The audit report for that fiscal year was filed in the trial court on December 23, 1992. Instead of appealing the auditor's report, however, Bennett waited almost two years and filed a declaratory judgment action on October 25, 1994, requesting that other Board members and the superintendent be surcharged. By order of August 20, 1996, the trial court granted the Board's motion for summary judgment because Bennett failed to file an appeal from the auditor's report within 45 days of its filing as required by Section 2451. This appeal from the order granting summary judgment followed.

Our scope of review of an order granting a motion for summary judgment is limited to a determination of whether the trial court made an error of law or abused its discretion. Salerno v. LaBarr, 159 Pa. Commw. 99, 632 A.2d 1002 (Pa. Commw. 1993), petition for allowance of appeal denied, 537 Pa. 655, 644 A.2d 740 (1994). Summary judgment is only proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035(b). Moreover, we must review the record in the light most favorable to the nonmoving party. Moscatiello Construction Co. v. City of Pittsburgh, 155 Pa. Commw. 361, 625 A.2d 155 (Pa. Commw. 1993).

Section 2451 of the Code, which sets forth the appeal process at issue, provides in pertinent part:

The Commonwealth, the school district of the second, third or fourth class, or any taxpayer thereof on behalf of said Commonwealth, district, or any person or persons against whom any sum has been charged in any report filed by the auditors of such school district, may appeal from any auditors' report. Such appeal shall be taken to the court of common pleas of the proper county ... within forty-five (45) days after said report is filed in the court of common pleas.

24 P.S. ยง 24-2451 (emphasis added). The Board argues that Bennett's declaratory judgment action was improper because the appeal procedure of Section 2451 is the exclusive means of contesting the validity of school district expenditures. However, Bennett asserts that an appeal under Section 2451 is not the exclusive remedy because the auditors failed to recognize "hidden expenses" for the "dugouts" project. Bennett claims these missed ...

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