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10/21/97 1995 AUDIT MIDDLE SMITHFIELD TOWNSHIP

October 21, 1997

IN RE: 1995 AUDIT OF MIDDLE SMITHFIELD TOWNSHIP; MIDDLE SMITHFIELD TOWNSHIP BOARD OF AUDITORS, APPELLANT


Appealed From No. 2464 Civil 1996. State Agency, Common Pleas Court of the County of Monroe. Judge VICAN, President Judge.

Before: Honorable James R. Kelley, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Kelley.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: Ocotber 21, 1997

The Middle Smithfield Board of Auditors (Auditors) appeal from two separate orders of the Court of Common Pleas of Monroe County (common pleas court) dated December 12, 1996. The orders granted the Middle Smithfield Township Board of Supervisors' (Supervisors) petition to strike the appeal of the 1995 audit of Middle Smithfield Township and denied the auditor's motion for recusal. We affirm.

Pursuant to its order dated November 30, 1995, the common pleas court appointed the certified public accounting firm of Weseloh & Co. to perform an audit of the accounts of Middle Smithfield Township (township) for the year 1995. The accounting firm filed the 1995 audit report with the prothonotary's office of Monroe County on March 11, 1996. Subsequently, the Auditors filed an appeal from the 1995 audit report to the common pleas court on April 25, 1996. The appeal alleged that two township supervisors should have been surcharged jointly and severally for certain acts, omissions or errors which lead to financial loss for the township. The Supervisors then filed a petition for rule to show cause why appeal from the 1995 Audit should not be stricken for lack of standing. The Auditors responded to the petition and filed a motion for recusal and consolidation alleging that the Judge's relationship with certain people created the appearance of partiality and a conflict of interest. The common pleas court ultimately determined that the Auditors lacked standing in the assertion of their appeal and denied their request that the Judge recuse himself. An appeal to this court followed.

The issues before this court are: (1) whether the Auditors' appeal from the independent audit of the townships' accounts for 1995 should have been stricken for lack of standing; and (2) whether the common pleas court Judge utilized proper discretion when he denied the Auditors' motion to recuse himself from matters related to the appeal.

The Auditors filed their appeal with the common pleas court pursuant to section 553 of the Second Class Township Code (Code), *fn1 entitled "Appeals from report", which provides as follows:

The township, or any registered elector or taxpayer thereof on its behalf, or any officer whose account is settled or audited by the township auditors, may appeal from any settlement or audit of the township auditors to the court of common pleas within forty-five days after the settlement has been filed in the court of quarter sessions.

Though this section refers only to audits performed by township auditors, section 745 of the Code *fn2 entitled "Appointment of accountant", provides that when an independent accountant or accounting firm is hired to perform an audit of township accounts, the audit report is subject to appeal in the same manner as reports prepared by a board of auditors under section 553 of the Code.

Since the appeal of the audit is specified by statute, the only plaintiffs eligible to bring a cause of action are those person or persons so designated in the statute. See Maxson v. McElhinney, 370 Pa. 622, 624, 88 A.2d 747, 749 (1952). Moreover, the Pennsylvania courts have long held that any challenges to township audit reports must be exclusively made in accordance with the statute. Festa v. Derry Township, 49 Pa. Commw. 297, 411 A.2d 904, (Pa. Commw. 1980) (emphasis added). Applying this reasoning to the statutes currently in question, we conclude that only the township, registered electors or taxpayers or officers whose accounts are audited, have standing to file an appeal challenging the audit report.

The Auditors assert that, even though the above-stated statute does not specifically grant them a right to appeal, they can appeal the audit report because they are acting as a representative body of the "township." In attempting to justify their right to appeal in this matter, the Auditors set forth a public policy argument essentially contending that as elected officials it is their duty to monitor the financial affairs of the township.

We agree that the Auditors owe a duty to monitor the financial affairs of the township and would go so far as to say they owe a duty to warn the township's taxpayers of any misappropriation of their funds. The pending issue, however, relates to the Auditors' inability to appeal from an audit report due to a lack of standing. We again note that the legislature has particularly defined those parties with a right to appeal an audit report to be the township, any registered elector or taxpayer or any officer whose account is audited. The Auditors, acting as a representative body, are not specifically included in the statute and this court is unwilling to grant a right to appeal in the face of a clear legislative directive. *fn3

Continuing with their public policy argument, the Auditors contend that section 1922(5) of the Statutory Construction Act of 1972 (Act), *fn4 1 Pa.C.S. ยง 1922(5), forces this court to find standing for their appeal because the General Assembly intends to favor the public ...


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