880 A.2d 711

Richard E. FILIPPI, Mayor, City of Erie, Appellant v. Casimir KWITOWSKI, Controller, City of Erie.

Commonwealth Court of Pennsylvania.

Argued June 10, 2005.

Decided July 19, 2005.

Reargument En Banc Denied Sept. 9, 2005.

*712Wallace J. Knox, Erie, for appellant.

Gregory A. Karle, Erie, for appellee.

BEFORE: FRIEDMAN, Judge, COHN JUBELIRER, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge

COHN JUBELIRER.

Appellant, Richard E. Filippi, elected Mayor of the City of Erie (Mayor) appeals from an Order of the Court of Common Pleas of Erie County (common pleas) that granted the Preliminary Objections of Ap-pellee, Casimir Kwitowski, elected Controller of the City of Erie (Controller). In his complaint in mandamus, Mayor requested that common pleas order Controller to authorize a salary payment, even though the line item in the budget passed by City Council and signed by Mayor did not contain an appropriation for that salary. Controller, in his Preliminary Objections, argued, inter alia, that Mayor failed to plead a duty, clearly established by law, compelling him to authorize salary payments upon demand, regardless of their legality.

The facts giving rise to this dispute are as follows. On January 14, 2004, Mayor appointed Erby Conley as acting Public Safety Director (Director) and, on September 8, 2004, City Council confirmed his appointment. However, when City Council passed the fiscal year 2005 budget on December 22, 2004, it set the salary of Director at zero. Mayor did not exercise his veto power, but signed the budget into law on December 22, 2004. Thus, the 2005 budget did not fund Director’s position. Notwithstanding, Mayor asked Director to continue to report to his job, which he did. Controller refused to sign Director’s salary check, believing that, because the payment had not been authorized in the budget, it would be contrary to the law.

Mayor initiated this action by complaint, on February 2, 2005, containing counts in mandamus and declaratory judgment. In response, Controller filed Preliminary Objections, which demurred and requested more specific pleadings. Mayor then filed a two-count amended complaint (Mandamus and Declaratory Judgment) on March 4, 2005, requesting common pleas to: 1) order Controller to sign Director’s checks, and 2) determine and declare that Controller’s duty to sign checks is ministerial and, therefore, obligatory. Controller filed Preliminary Objections to Mayor’s amended complaint on March 7, 2005, asserting, inter alia, that Mayor failed to plead the *713duty that Controller is compelled to perform, and requested a more precise statement as to the conflict that Mayor anticipates in the future.

In its April 4, 2005 Opinion and Order, common pleas sustained Controller’s Preliminary Objections, finding that: 1) Controller’s functions are discretionary when authorizing payments; 2) Mayor did not have the ability to transfer funds from one budget to another; and, 3) city council was not required to rescind the position of Director of Public Safety before deciding not to fund it. Mayor appeals that decision to our Court.

On appeal, Mayor argues that: 1) the Optional Third Class City Charter Law, Option A (Charter Law),1 which City has adopted, superseded the Third Class City Code (City Code);2 2) pursuant to the Charter Law, Controller functions in a ministerial capacity, which warrants the granting of a writ of mandamus to compel his action to issue payment, regardless of the legality of the desired action; 3) common pleas erred in finding that funds were not available to pay the Director; and, 4) Controller does not have the right to question the legal propriety of matters before him.

A demurrer is properly sustained only when, accepting as true all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences from it, and resolving all doubt in favor of overruling the demurrer, the law states with certainty that no recovery is possible. Hawks by Hawks v. Livermore, 157 Pa.Cmwlth. 243, 629 A.2d 270, 271 n. 3 (1993).3 Furthermore, “[a] writ of mandamus is an extraordinary remedy which compels the performance of a ministerial act or mandatory duty.” Deputy Sheriff’s Ass’n v. County of Allegheny, 730 A.2d 1065, 1067 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 560 Pa. 711, 743 A.2d 923 (1999) (citations omitted). An act is ministerial if it is “one which a public officer is required to perform upon a given state of facts and in a prescribed manner in obedience to the mandate of legal authority.” Id. (quoting Rose Tree Media Sch. Dist. v. Dept. of Pub. Instruction, 431 Pa. 233, 236, 244 A.2d 754, 755 (1968)). A writ of mandamus is properly issued “only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” Deputy Sheriffs Assn., 730 A.2d at 1067.

The City of Erie is a city of the third class, which adopted the Optional Third Class City Charter — Mayor-Council Plan A.4 There are provisions in both the Charter Law and the City Code that set forth a controllers duties and responsibilities.5 *714Mayor relies on Section 420 of the Charter Law, 53 P.S. § 41420, to support his position that Controller is vested only with ministerial duties. Section 420 provides:

The control function shall include provision for an encumbrance system of budget operation, for expenditures only upon written requisition, for the pre-audit by the city controller of all claims and demands against the city prior to payment, and for the control of all payments out of any public funds by individual warrants for each payment to the official having custody thereof.

Controller, however, asserts that Section 1706 of the City Code, 53 P.S. § 36706, which explicitly states that the Controller signs “when satisfied of the legality of such payment,” continues to be applicable. Section 1706 provides:

The city controller shall have the power to administer oaths or affirmations in relation to any matter touching the authentication of any account, claim, or demand of or against the city, but shall not receive any fee therefor, and shall countersign all warrants for the payment of monies out of the city treasury when satisfied of the legality of such payment.

He believes that, under Section 301 of the Charter Law, 53 P.S. 41301, the Charter Law supplements the City Code, and supersedes it only where the two provisions conflict.6 However, we do not need to decide whether Section 420 of the Charter *715Law supersedes Section 1706 of the City Code because we are to look to the City Code only when the provisions in the Charter Law do not resolve the issue. Section 301 of the Charter Law. Here, under Section 420 of the Charter Law, Controller may not be compelled to sign a salary check when there is no appropriation of money with which to pay that check.

Section 420 of the Charter Law, in relevant part, provides for “the pre-audit of the city controller of all claims and demands against the city prior to payment, and for the control of all payments out of any public funds by individual warrants for each payment to the official having custody thereof.” (Emphasis added). Controller’s “pre-audit” duty7 necessitates a review of the budget for actual authorization of expenditure by ordinance — exactly what Controller did here. For example, in In re 1983 Audit Report of Beharry, 116 Pa.Cmwlth. 613, 544 A.2d 514, 519-20 (1988), affirmed, 528 Pa. 29, 595 A.2d 15 (1991), we held that where the controller, by virtue of his pre-audit duties, pursuant to Section 1752 of the County Code, 16 P.S. 1752, has actual or implied notice of the dubiousness of a claim, he must refuse to pay. The term “pre-audit” is synonymous with “pre-approve.” See Section 404 of The Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. 404. In addition, Section 420 of the Charter Law empowers Controller with the “control of all payments” and, included in the definitions for “control” is the “power or authority to guide or manage.” MeeRIAm-WebsteR’s Collegiate Dictionaey 252 (10th ed.2001). Controller, thus, has the power and authority to manage the payments, which is not consistent with Mayor’s argument that Controller must sign every check placed before him if Mayor directs him to do so. There is, moreover, no directory language in Section 420, and such language is necessary for the construction of a ministerial function. See Stork v. Sommers, 158 Pa.Cmwlth. 65, 630 A.2d 984, 986-87 (1993)(finding that the directory.language “[t]he city treasurer ... shall pay all warrants duly countersigned” imbued the city treasurer, in a city organized pursuant to the Charter Law, with a ministerial duty)(emphasis added)).8

Because we conclude that there is no clear mandatory duty to require Controller to authorize a payment that is not funded in the budget, Mayor is not entitled to mandamus relief.9 Accordingly, we affirm common pleas.

ORDER

NOW, July 19, 2005, we hereby AFFIRM the order of the Court of Common *716Pleas of Erie County in the above-captioned matter.

Filippi v. Kwitowski
880 A.2d 711

Case Details

Name
Filippi v. Kwitowski
Decision Date
Jul 19, 2005
Citations

880 A.2d 711

Jurisdiction
Pennsylvania

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