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The Board of Commissioners of the County of Schuylkill By and Through v. Melinda Kantner

August 15, 2011

THE BOARD OF COMMISSIONERS OF THE COUNTY OF SCHUYLKILL BY AND THROUGH ITS MEMBERS, MANTURA M. GALLAGHER, FRANCIS V. MCANDREW AND FRANK J. STAUDENMEIER
v.
MELINDA KANTNER, IN HER CAPACITY AS CONTROLLER OF THE COUNTY OF SCHUYLKILL, APPELLANT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: May 10, 2011

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE LEAVITT

Melinda Kantner, Controller of the County of Schuylkill (Controller), appeals an order of the Court of Common Pleas of Schuylkill County (trial court) granting peremptory mandamus to the Commissioners of the County of Schuylkill without an evidentiary hearing. The writ of mandamus directs the Controller to file certain financial reports by October 1, 2010. The Controller argues that peremptory mandamus should not have been granted because there were factual disputes. Specifically, the Controller argues that an evidentiary hearing, if held, would show that the Commissioners' actions made it impossible for the Controller to file timely reports, which made an award of a writ of mandamus improper. Concluding a hearing was needed, we vacate the peremptory mandamus.

On August 23, 2010, the Commissioners filed a two-count mandamus complaint against the Controller. Count I sought to compel the Controller to file certain reports required by Section 1720 of The County Code, 16 P.S. §1720.*fn1

Count II sought to compel the Controller to assist the independent auditor, who had been hired by the Commissioners to do an audit of the County.

Count I of the Complaint alleged that on June 9, 2010, the Controller filed a petition to extend the July 1 deadline for filing with the trial court a report for all receipts and expenditures of the County together with a full statement of the financial conditions of the County. The Controller also requested the Department of Community and Economic Development (DCED) to extend the July 1 deadline for reporting on the County's financial condition. These reports (Annual Reports) are required by Section 1720 of the County Code;*fn2 the Controller requested an extension to November 1, 2010, for filing the Annual Reports. The trial court denied the petition on June 17, 2010, and it denied the Controller's request for reconsideration on July 8, 2010, because the Controller provided no authority for an extension of the statutory time constraints. Likewise, DCED did not grant an extension. When the Controller did not file the Annual Reports on July 1, 2010, the Commissioners filed a complaint in mandamus.

Count II of the Complaint alleged that after considering several proposals, the Commissioners selected L. Samuel Deegan, CPA, in 2009, to audit the County. In order to prepare the 2009 fiscal year audit, Deegan sought financial information from the Controller, who was hostile to Deegan. On August 16, 2010, the Controller cancelled a meeting with Deegan and told him to direct any further communications to her solicitor. By neither filing timely Annual Reports nor providing Deegan with information to complete the 2009 audit, the Controller's actions exposed the County to penalties by the DCED; impeded the next year's budget preparation; jeopardized the County's bond rating; jeopardized federal and state funding; impeded the ability of county taxpayers to review the County's finances; and required the Commissioners to engage the services of additional accountants. The Commissioners requested a writ of mandamus to compel the Controller to provide Deegan the financial information he needed to do the audit.

On August 25, 2010, the Commissioners filed a motion for peremptory mandamus with respect to Count I, and the trial court scheduled oral argument on the motion for September 3, 2010.*fn3 At argument, the Commissioners argued that the Controller did not understand her duties under the County Code. She was confusing the Annual Reports that she was required to do with the Commissioners' separate audit. They argued that their audit, done under Section 1702(b) of the County Code,*fn4 was not a substitute for the Controller's Annual Reports done under Section 1720 of the County Code. Thus, Deegan's audit did not relieve the Controller from filing the Annual Reports. Further, the Commissioners needed the Annual Reports by October 1, 2010, to be able to meet the December 1 deadline for an annual budget. The Commissioners requested that the trial court order the Controller to file the Annual Reports by October 1, 2010.

The Controller countered that peremptory mandamus was not available in light of the factual issues that had to be resolved. First, she noted that she sought the extension of time to file the Annual Reports at the request of the County Administrator and Deegan. The Commissioners were aware of the extension requests and made no objection at the time. Next, the Controller raised past practice. Historically, the County had the Annual Reports prepared by an outside auditor and then, after the Controller's review, filed by the Controller. Given this past practice, the Controller was not able to complete the Annual Reports until Deegan completed his audit. The Controller argued that an evidentiary hearing was needed to establish these facts and whether Deegan's failure to submit a timely audit was due to the Controller's lack of cooperation or Deegan's own shortcomings.

After oral argument, the trial court granted peremptory mandamus on Count I of the Complaint, ordering the Controller to file the Annual Reports on or before October 1, 2010. On September 7, 2010, the trial court then issued its opinion.

In its opinion, the trial court held that Section 1720 of the County Code imposed a mandatory duty upon the Controller to complete the Annual Reports before July 1, 2010, and that the Controller's past practice of using the outside auditor's report could not amend the requirement in Section 1720 of the County Code. Similarly, the Controller's duty was not contingent upon the assistance of an outside auditor. The trial court found that the only fact material to the case, i.e., the need to file Annual Reports by July 1, 2010, was not in dispute. Accordingly, the trial court granted the Commissioners peremptory mandamus with respect to Count I of the Complaint. The Controller appealed.

On appeal, the Controller raises one issue.*fn5 She argues that the trial court abused its discretion in granting peremptory mandamus without first holding a hearing on the factual questions raised by the Controller in her defense. In effect, the Controller argues that impossibility of performance is a defense to a mandamus action.

A writ of mandamus is an extraordinary remedy which seeks to compel official performance of a ministerial act or mandatory duty. Rosario v. Beard, 920 A.2d 931, 934 (Pa. Cmwlth. 2007). A writ of mandamus may be issued only where there is a clear legal right to relief in the plaintiff, a corresponding duty in the defendant and a lack of any other appropriate or adequate remedy. McGill v. ...


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