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HomeMy WebLinkAbout00-06050 LAW OFFlCES SNELBAKER. BRENNEMAN & SPARE , ~,,-,-I' , ;,--: - ~" ,-'.''-''-', '-, '- -,-. -,;; .",:,'-'.-,'> THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL vs. JANE E. BIDDLE, Treasurer of East Pennsboro Township. Defendant CIVIL ACTION - MANDAMUS DEFENDANT'S BRIEF RE TAX CERTIFICATION FEE INTRODUCTION Defendant, Township Treasurer Biddle, submits this brief pursuant to the Court's Order of November 3, 2000, after hearing on the same date, Defendant's principal argument deals with the legal insufficiency of Plaintiffs' contentions as discussed in the section immediately below. The remainder of this brief is devoted to other arguments based upon factual matters and without the definitive position of the Plaintiffs. Defendant will respond more specifically in a reply briefto those arguments which she has not anticipated. LEGAL INSUFFICIENCY OF PLAINTIFFS' CLAIM Defendant's primary position is the absence of legal authority to grant Plaintiffs an order in mandamus. Defendant has maintained this position consistently throughout this litigation. It was first raised in her Trial Brief filed in case No. 99-6295 (see pp. 10-11). More recently it was raised in her Motion filed on November 1, 2000. I CZ:.<,-_ -"-, :_ -:__'-. :_' ___" ,__N __:~-~: ",;,,:_' _',: -,' ,',:-::! Plaintiffs' Complaint specifically requests the Court to enter an order against Defendant: "(3) to cease and desist from charging a tax assessmentl fee unless and until the Township chooses to authorize such a fee by duly enacted ordinance." This clearly is an effort to prohibit an official's action, not to compel action. As stated as early as 1863 in School Directors of Bedford Borough v. Anderson, 45 Pa. 388, mandamus is designed to stimulate and not to restrain official activities. Plaintiffs' entire case is to restrain, not stimulate their Treasurer's activities. As cited in Defendant's earlier Motion, Lower Merion School District v. Montgomerv County Board of Assessment Appeals, 642 A.2d 1142 (1994), the Commonwealth Court has most recently indicated that an action in mandamus may not be used to restrain official duties,2 The factual issues raised in the November 3 hearing are totally irrelevant to the proper disposition ofthis case as a matter oflaw. The Complaint should be I! " LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE ,1 It should be noted that there was no evidence submitted at the hearing that Mrs. Biddle ever i charged a tal{ "assessment" fee, since no such fee exists. Giving the scrivener of the Complaint the I benefit of doubt that he intended to use the word "certification" (as used elsewhere in the pleading), Defendant charges the inartful reference to the haste in throwing together the action in a last. minute effort to avoid the dismissal of the Defendants' "counterclaim" in No. 99-6295 pursuant to Pa. R.C,P. 1096. 2 While the Court treated the action in mandam us as a suit for writ of prohibition, such construction is not warranted here. The Court clearly limited the use of a writ of prohibition to where a superior court enjoins the proceedings in an inferior court/tribunal in a situation of extreme necessity, In the I Lower Merion case, the Court tentatively allowed the transition to a case seeking writ of prohibition i because of the involvement of the Board of Assessment Appeals, an inferior tribunal, but refused to : issue a writ for lack of extreme necessity. In the case at bar, there is no judicial relationship i between the parties, thus preventing even consideration of a writ of prohibition, 2 I, LAW OFFICES SNELBAKER. BRENNEMAN & SPARE '--k..-;--' dismissed with judgment herein rendered in favor of Defendant and against Plaintiffs. SECTION 603 NOT APPLICABLE At the hearing on November 3, 2000, in response to the Court's requirement for legal authority, counsel for Plaintiffs cited Section 603 of the First-Class Township Code: 53 P.S. 9 55603. By its very language, Section 603 applies only to township commissioners: "... in accordance with the provisions of section 703." Section 703 applies only to township commissioners": 53 P.s. 9 55703. It says nothing about township treasurers. Moreover, it is obvious that Section 603 relates to compensation from the township. The tax certification fee is neither charged to nor paid by the township. Therefore, Section 603 is no authority for Plaintiffs' position. FEE NOT ADDITIONAL COMPENSATION Even if section 603 of the First-Class Township Code were deemed controlling the tax certification fee (unlike Mrs. Stine's charges) is not the compensation contemplated in 9 603. It goes without saying that the tax certification process is not a requirement of the township treasurer under the Code. She has no duty to provide such information. The fact that she does so should be welcomed by the Plaintiffs as a 3 -- ~, convenience to their patrons. Therefore, any fee charged is not the additional "salary, compensation or emollients of offices" within the limitation of 9 603. Moreover, the charges are reasonable and appropriate to the service rendered. Mrs. Biddle explained at length how she arrived at the amount by showing the cost of the individual components (N.T. 16). She allocated 87</ to the physical aspects and $2.13 to her personal time/services. It must be emphasized that Plaintiffs did not contradict any of this testimony. Special emphasis is made to the $2.13 component. Mrs. Biddle testified (without challenge) that she computed it with reference to a charge levied by Plaintiffs for research at $16.00 per hour. Plaintiffs cannot dispute the reasonableness ofthis calculation when one of their Commissioners charged $1.00 for each duplicated bill, which would be at least $2.00 for the equivalent of Mrs. Biddle's work (see discussion immediately infra). CLEAN HANDS DOCTRINE At the hearing on November 3, 2000, Plaintiffs produced Alicia Stine, as their only witness. Ms. Stine was the East Pennsboro Township Treasurer for 14 years i immediately preceding Jane Biddle's term and is presently a Township Commissioner (one ofthe Defendants in the consolidated action at No. 99-6295 Civil). While Defendant is not certain as to the purpose of her predecessor's 'LAW OFFICES SNELBAKER. BRENNEMAN & SPARE testimony, its salient points are as follows: (a) She routinely charged $1.00 for each duplicate tax receipt. 4 LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE (b) She retained the $1.00 fees as her separate property/income. (c) No resolution was adopted by the Board of Commissioners authorizing the fee. She admitted on cross-examination that she charged $1.00 per receipt for exactly the same purposes that Mrs. Biddle charges a tax certification fee. While she did not elaborate, she could charge up to $3.00 per year for tax receipts -- $1.00 for County, Township and School District taxes. And, she made these charges without the Commissioners' allowance. Plaintiffs have argued in their pretrial brief that an action in mandamus is subject to equitable principles, including the "clean hands doctrine." One can hardly imagine a more appropriate situation for the application of the clean hands principle. Plaintiffs argue that Mrs. Biddle is "wrong" for charging a fee without the Commissioners' allowance. Yet, one oftheir members, Commissioner Stine as treasurer, charged $1.00 per receipt for 14 years without the Commissioners' authorization. Hit's unlawful for Mrs. Biddle, it's equally unlawful for , Commissioner Stine. Therefore, the relief sought should be denied. It is interesting to observe that Mrs. Stine offered no justification for her charges. She did not even suggest any actual cost of service. Since she cited no expense, it is reasonable to infer that she used township stationary, township duplicating equipment and township postage - none of which are used by Mrs. i Biddle. 5 I '-,'o~ 0, _'. , ' The only hint of justification is Mrs. Stine's testimony at N.T. 19-20 where she cites a statement on the tax bills which says that duplicate bills can be obtained for a fee of $1.00. If she intended this to mean that such a charge is an automatic lawful fee, she is wrong. If she meant that it was a custom or practice of tax collectors, she is probably correct. But, for sure, there is no authority to automatically charge a $1.00 fee under the First-Class Township Code, nor under the Local Tax Collection Law, 72 P.s. 9 5511.1 et seq. In fact, Section 6 of the latter statute sets forth in precise detail what a tax bill must contain; nothing is stated about a fee for a duplicate bill. (72 P.S. 9 5511.6). No fee is authorized under Section 14 which establishes the method of issuing tax receipts (only a "self-addressed and stamped envelope" is required), 72 P.s. 9 5511.14. In short, Ms. Stine established the same sort of charge which she and her colleagues now assert is improper for Mrs. Biddle to charge. Thus, the pot is calling the kettle black, which is the proper scenario for the application of the clean hands doctrine, Conversely, if it was lawful for Commissioner Stine to charge and keep a fee above her salary, it must be equally lawful for Mrs. Biddle. FEE AUTHORIZED BY PRINCIPAL TAXING BODY The evidence is uncontradicted that the East Pennsboro Area School District LAW OFFICES SNELBAKER. BRENNEMAN & SPARE authorized Defendant Biddle to charge the $3.00 tax certification fee to which Plaintiffs' object. (Defendant's Exhibit 1; N.T, 13-15). It is common knowledge that the school district real estate taxes are by far the largest of the 3 taxing bodies. 6 I Since the school district has approved (and not objected), what's the purpose of the Township's objection, other than to harass Mrs. Biddle? As the Court observed at the hearing, the certification fee could be allocated to the school district tax. Mrs. Biddle, in response to Attorney Kelley's question, testified that her charge is for certifying all 3 taxes - county, township and school district (N.T. 11 and 12). Plaintiffs have no right to object to another body's authorization. CONCLUSION Based upon the foregoing, Defendant Biddle requests the Court to dismiss the Plaintiffs' Complaint, enter judgment in favor of Defendant and against Plaintiffs, and order Plaintiffs to pay Defendant's counsel fees as costs pursuant to 42 Pa. C.S. 9 2503. Respectfully submitted, , BRENNEMAN & SPARE, P.C. By Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Defendant LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 7 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true copy of Defendant's Brief re Tax Certification Fee upon the Attorney for Plaintiffs by sending the same by first- class mail postage paid addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 Dated: November /.3, 2000 Ric ard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P,C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 Attorneys for Defendant 8 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ,~<Co- ,<:~.- {, ',: ~ ~- . ' / --. THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL vs. JANE E. BIDDLE, Treasurer of East Pennsboro Township, Defendant CIVIL ACTION - MANDAMUS DEFENDANT'S REPLY BRIEF TO PLAINTIFFS' POST-TRIAL BRIEF A. INTRODUCTION This brief is filed on behalf of the Defendant in response to the Plaintiffs' principal brief. Defendant relies on her principal brieffiled on November 13, 2000. She merely supplements it in reaction to a few new or unique items raised by Plaintiffs. B. ARGUMENT AND DISCUSSION (1) LACK OF AUTHORITY Defendant notes the unsupported statement at page 6 of the Plaintiffs' brief: "This Court has authority to compel her to perform her duties to comply with the Code and Constitution by not charging the fee for her time." While alleging "authority", Plaintiffs cite none. No such authority exists. They attempt to turn their mandamus action into either an action for writ of prohibition or for an injunction. For all the reasons mentioned in Defendant's principal brief, this Court has no basis for granting the relief sought. I I LAW OFFICES SNELBAKER1 BRENNEMAN' & SPARE ,- ,-, ,,';;-", '<,,-,". "-,n,~_".,; ',' <e-"" .. As the Court will recall from the case at No. 99-6295, the present action was belatedly filed in the Plaintiffs' attempt to salvage a defensive tactic when their attempted counterclaim failed because ofPa. RC.P. 1096. (2) DISREGARD OF MATTERS NOT IN ISSUE At page 8 of their brief, Plaintiffs resurrect two issues which this Court had ruled to be outside the scope of the action in mandamus: the bank statement reconciliation and treasurer's report matters. Their reference to these items, while portrayed as hypothetical, are inappropriately injected when coupled with the phrase "(as she had once agreed to do)," This type of advocacy indicates the real motives of Plaintiffs - to oppose Defendant for unrelated obviously non-legal reasons. At the trial, the Court used the example of not charging a fee for the collection oftaxes (N.T. 25) which is clearly relevant. Plaintiffs' effort to reinject the two dismissed issues serves no purpose other than an attempt to misdirect attention from their meritless claim. (3) FRIVOLOUS NATURE OF CLAIM Now that the full content of Plaintiffs' arguments have been revealed, it becomes clear that the counter-action was filed in a vexatious manner simply to force Defendant into a defensive mode and to obfuscate their clear denial of the Treasurer's demand to sign checks in the action at No. 99-6295. At page 2 oftheir brief, Plaintiffs assert: "Nonetheless, Biddle has charged a $3.00 tax certification 2 '^,>.-,--,-, ' .. fee from February of 1998 through to the current time [November 2000]" This admits the Plaintiffs' knowledge of the alleged irregularity since 2 months into the Treasurer's term. They did nothing to initiate any prohibitive action until November 10, 1999 when they filed their attempted counterclaim in No. 99-6295 - a period of over 21 months. Their present action was commenced on September 1, 2000 - a period of 32 months after they learned of the alleged wrong. If the Plaintiffs truly believed in their claim, as the governing body of the township 1, why not move to prevent the continuing nature of the problem when it arose? In their brief, they argue that the Board of Commissioners has "a direct interest in seeing that its decisions, within the Township are followed." If this was a bona fide concern, why wait for years to seek to enforce the "decision"? Again, it is clear that Plaintiffs have acted out of hostility toward Defendant individually and personally - not on behalf of any legitimate public concern. The Court is requested to consider the foregoing in connection with the argument on the "clean hands" principle contained in Defendants' principal brief. As admitted by Plaintiffs, many tax certification fees would have been charged during the years in question. By delaying the enforcement of their contention for so long is contrary to a bona fide argument to rectify the alleged wrongs. Thus, the LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE 1 At pages 3 and 4 of their brief, Plaintiffs argue the "standing" issue on the basis of being the guardian of the constituency of the township. While Defendant continues her technical legal contention that Plaintiffs have no right to maintain this action, she cannot overlook the Plaintiffs' assertion that they are acting on behalf of the welfare of Township citizens. 3 I LAW OFFICES SNELBAKER. BRENNEMAN & SPARE "s , ' delay itself indicates the lack of good faith in making their arguments and shows the lack of clean hands. CONCLUSION For all the reasons set forth in her principal brief filed on November 13, 2000, and as supplemented herein, Defendant requests your Honorable Court to dismiss Plaintiffs' complaint and action, enter judgment thereon against Plaintiffs and in favor of Defendant, and award to Defendant her counsel fees as costs pursuant to 42 Pa. C.S. 9 2503. Respectfully submitted, SNELBAKER, BRENNEMAN & SPARE, P.C. By Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Defendant 4 LAW OFFICES SNELBAKER. BRENNEMAN & SpARE ,',;0,\, ".""~ ,:"<' , ,.;,', .';:':'<~ ,', S' CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true copy of the Defendant's Reply Brief to Plaintiffs' Post-Trial Brief upon the Attorney for Plaintiffs by sending the same by first-class mail postage paid addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 Dated: November 20, 2000 Richard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 Attorneys for Defendant ,~ " <~= -~~. ~.,~ ~-. -< -- ., , ' 'e". ',,-'_' -J ( ." NOV 1 3 20~ THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant PLAINTIFFS' BRIEF IN SUPPORT OF MANDAMUS COMPLAINT TO REQUIRE COMPLIANCE WITH THE CONSTITUTION AND THE FIRST CLASS TOWNSHIP CODE I. PROCEDURAL mSTORY Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L Gill (the "Township"), initiated this Mandamus Complaint against Jane E. Biddle ("Biddle") on September I, 2000. By Order of Court, this matter was consolidated with an action brought by Biddle versus the Board of Commissioners and Gill and docketed to No. 99-6295. On November 3, 2000, an evidentiary hearing was held before the Honorable Edward E. Guido, limited to the issue of whether the tax certification fee charged by Biddle is an illegal increase in compensation nnder 53 Pa. C.S.A. g55603 of the First Class Township Code (the "Code") and the Pennsylvania Constitution. On that date, the Court set a deadline of November 13, 2000 for the filing of briefs on the tax certification fee issue. This Brief is offered in support of the Township's position that by charging the fee, Biddle is violating the Code and the Constitution by receiving an illegal increase in compensation during her term of office. ~ ~'"' ~"' ~, '~-, =~,~"".",." -~""=-~" ~"",'{-','" ,~--.- -- , f ... II. FACTUAL BACKGROUND Prior to her election in November, 1997, Biddle's salary as Township Treasurer/Tax Collector was set at a maximum of$IO,OOO per year. Biddle has been compensated in the amount of$IO,OOO per year as the Township's Treasurer/Tax Collector. (N.T.5). In addition to her compensation as Tax Collector/Treasurer, Biddle charges a fee to provide tax certifications to certain classes of persons who request information regarding whether the real estate taxes have been paid on a certain parcel. A tax certification is a document which officially verifies whether the taxes have been paid on a parcel, the date when such taxes were paid, and the amount paid. Biddle provides this information by printing the information on to one or two pages from her computer; she then faxes the information to the party requesting the information. Typically, the persons or entities requesting such information are mortgage companies and settlement agents. (N.T. 5-6). Biddle charges a fee for the above service of$3.00 per tax certification. Included in that fee are the costs for paper, the computer, the fax machines and other expenses. Also included in that figure is a fee for labor. In fact, Biddle admits that $2.13 ofthe total fee covers her time involved in locating and sending the tax certification to the requesting party. (Biddle Exhibit 2). Near the beginning of Biddle's term as Treasurer/Tax Collector, she requested that the Board of Commissioners approve her ability to charge the $3.00 tax certification fee. Her request was considered by the Board at a regular meeting and was formally denied. (N.T.9). Nonetheless, Biddle has charged a $3.00 tax certification fee from February of 1998 through to -2- " -'__~, '"~_~ '~M~'~_'_"~ 'Co'"",",",''''', ,,' '" O'-';_"'"';,,-,~ . the current time. (N.T. 10). The fee that is charged includes a certification that the real estate taxes collected by East Pennsboro Township have either been paid or have not been paid. (N.T. 11-12). III. ISSUES A. DO THE BOARD OF COMMISSIONERS AND/OR ROBERT GILL HA VB STANDING TO ASSERT THAT BIDDLE IS VIOLATING THE FIRST CLASS TOWNSHIP CODE AND THE PENNSYLVANIA CONSTITUTION BY CHARGING A FEE FOR HER TIME IN SUPPLYING TAX CERTIFICATIONS? (Suggested Answer: Yes). B. IS A WRIT OF MANDAMUS PROPERLY ISSUED BY A COURT WHERE THE CLEAR MANDATE OF THE LAW IS THAT A PUBLIC OFFICIAl. SHOULD NOT RECEIVE ADDITIONAL COMPENSATION DURING HER TERM, AND A PUBLIC OFFICIAL USES HER OFFICE, AND THE INFORMATION AVAILABLE ONLY TO HER OFFICE, TO RECEIVE ADDITIONAL COMPENSATION? (Suggested Answer: Yes). IV. ARGUMENT A. The Board of Commissioners And Robert Gill Have Standing To Assert That Biddle Has Violated The First Class Township Code. The seminal case for determining standing in a mandamus action is Dombrowski v. City of Phil a., 431 Pa. 199,245 A.2d 238 (1968). The test set forth in that case to determine whether the plaintiff has standing is "whether the private plaintiff possesses an interest which is not shared by the public at large." 245 A.2d at 242. This test has been interpreted broadly to include many different plaintiffs. A group of citizens who formed a "committee of petitioners" to - 3 - -.- '.'~'~~M'"'~ "~__,~'"',"__"_~~""'*=." V'~,. C'" . '-~c-'M'"-, , promote an ordinance which the Board of Supervisors was allegedly not following was found to have standing, Aiken v. Radnor Township Bd. of Supers., 476 A.2d 1383 (pa. Cmwlth. 1984); owners of a property abutting a highway have sufficient special interest to compel officials to keep the road in repair, Lank v. Hughes, 402 Pa. 284, 167 A.2d 268 (1961); and a county bar association has sufficient special interest in hours when county offices shall be open to bring a mandamus action to compel officials to keep offices open longer hours, Bar Association of Mercer County v. Lukacs, 42 D. & C. 616 (1941). The Board of Commissioners and Gill clearly have standing in this matter. Their interest in the enforcement of the First Class Township Code in East Pennsboro Township, as the Board of Commissioners and as the Township Manager, is obviously more direct and substantial than the average citizen. In this case, Biddle requested that the Board adopt a resolution approving the $3.00 tax certification fee. The Board was asked to take formal action and denied that request. Biddle then ignored the authority ofthe Board and requested that the East Pennsboro School Board approve the fee. Biddle has been ignoring the expressed will ofthe elected Board of Commissioners of East Peunsboro. The Board has a direct interest in seeing that its decisions, within the Township, are followed. Under the above authorities, there is no question that the Board of Supervisors and Mr. Gill have standing to assert a mandamus claim against Biddle. -4- . ,- , "-, .. ~~, , . B. The Township Is Entitled To The Relief Requested In The Mandamus Action. The First Class Township Code is clear that "no township shall increase or diminish the salary, compensation or emoluments of any elected officer after his election." 53 Pa. C.S.A. 955603. Biddle has, during her term as Treasurer/Tax Collector, unilaterally increased her compensation, over the direct opposition of the Board of Commissioners, by charging the tax certification fee. There is no issue regarding Biddle charging an amount of money for an certification fee to cover copying and faxing charges. The sole issue is that the fee that she charges includes a fee for her labor in performing the tax certifications. In fact, according to her own testimony and her own exhibit, her labor amounts to over two-thirds of the fee charged. Receiving additional compensation during her term in office is a direct violation of Section 55603 of the First Class Township Code and the Pennsylvania Constitution. The duties and compensation oftownship tax collectors are governed by the Local Tax Collection Law ("LTCL"), 72 P.S. {l55ll.1 et seq. School districts have no authority to collect taxes subject to the LTCL. Section 34 of the LTCL limits compensation for the collection of township taxes to $10,000, plus expenses. Compensation ofthe township treasurer as collector of county and institutional district taxes is to be fixed by the County Commissioners. See 72 P.S.95511.36a. The LTCL provides that: When any taxing district or taxing authorities propose to either raise or reduce the compensation or salary for the office of an elected tax collector, such action shall be by ordinance or resolution, finally past or adopted prior to the fifteenth day of February, of the year of the municipal election. - 5 - ...,--,,'--. ~.~ -. ~~='~',"""',"-""', ",'".,-." '\..)-~"~ . 72 P.S. g55l1.36a. The purpose ofthis provision is to prevent adjustments to the compensation of an elected tax collector "either as a reprisal or reward for his actions." Blaine v. Wallenpaupack Area School District, 339 A.2d 180,182 (pa. Commw. 1975). It is indisputable that the limitation applies to the township treasurer's salary for the collection of school district taxes collected under the authority of the L TCL. In addition, Article III, Section 27 of the Pennsylvania Constitution provides that "no law shall extend the term of an public officer, or increase or diminish his salary or emoluments, after his election or appointment. The township treasurer/tax collector is a public officer within the scope ofthis constitutional provision." See McKinley v. School District ofLuzeme Township, 118 A.2d 137 (pa. 1955). Under the above authorities, Biddle is clearly not entitled to additional compensation in her role as either Tax Collector or Treasurer. By charging a fee which includes compensation for the value of her time, Biddle is receiving more than the compensation fixed by statute and by the Board of Commissioners. She thus is in direct violation of the Code and the Constitution. This Court has the authority to compel her to perform her duties to comply with the Code and Constitution by not charging the fee for her time. A writ of mandamus is an extraordinary remedy. It will not issue unless the right of the petitioner to relief is clear and specific; it can never be invoked in a doubtful case. Equitable Gas Co. v City of Pittsburgh, 507 Pa. 53, 58, 488 A.2d 270,272 (1985). To succeed in an action of mandamus, the plaintiff must show an immediate and complete legal right to the thing demanded and that a corresponding duty of an imperative nature rests upon the person or entity against - 6- , .~ ~"'"",,'~'" . -,"',_'''''''''''0 ',,'~ -". ""~""-_"-'" ,"""''-~~,.-,_""" .,"",,'_ c, '''''''_. _~ . whom issuance of the writ is sought. Equitable Gas, 507 Pa. at 57-58, 488 A.2d at 273; see also Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503, 505 (1965). A complainant in mandamus must show her own compliance with the requirements of a statute at issue. McLaughlin v. Erie Cpunty, 375 Pa. 344, 347-348,100 A2d 601,603 (1953). The action of mandamus is reserved only for those situations where the prayer of the petitioner appeals to the conscience of the court, Francis, 418 Pa. at 429, 211 A2d at 509. Although granted by the law side ofthe court, mandamus is essentially equitable in nature; in exercising its discretion, a court should base its decision in a mandamus action on equitable principles and well-settled rules oflaw. Francis, 418 Pa. at 429, 211 A2d at 509. Specifically, in a mandamus action against a municipality, the court should refuse a writ of mandamus where granting the writ would not "promote the ends of justice", Francis, 418 Pa. at 417,418. "Uthe interests ofthe general public would be injuriously affected, or ifthe object sought to be obtained is inequitable, or oppressive, or excessively burdensome, or is likely to create disorder and confusion in municipal or governmental departments, the courts may, in their discretion, refuse to issue the writ." Water v. Samuel, 367 Pa. 618,620,80 A2d 848, 850 (1951). The right of the Township to relief is clear. Both the Code and the Constitution prohibit mid-term increases in compensation. The Township has demonstrated an "immediate and complete legal right to the thing demanded." Biddle has been accepting increased compensation since soon after her term began and she has steadfastly refused to stop violating the code and the Constitution. Finally, this request for mandamus appeals to the conscience ofthe Court. When - 7 - ,~~,.. '~-' _o_~ .,.~=_," _,' ""'C', _,'"' ,"~ -0 -_ -,"''', ''-~'> ',"'.'. . an elected official uses her office to pad her own income, the township hopes, and expects, that such action offends the conscience of the Court. The Township anticipates that Biddle will argue that providing the tax certifications is not part of her job responsibility under the Code and, therefore, does not amount to an increase in compensation in her role as Treasurer or Tax Collector. This argument has no merit. The only reason that Biddle is in a position to provide tax certifications is because she is the elected Treasurer/Tax Collector of East Pennsboro Township, She is a public official certifying that official action has been taken and that taxes have been paid or not. These certifications are used as official public documents by those requesting them. Biddle cannot take this action as a private citizen. Providing the tax certifications is not some private action that Biddle is taking outside the scope of her duties as Treasurer or Tax Collector. The First Class Township Code may not specifically require her to provide the tax certifications, but as long as she provides the certifications, she is doing so as a result of her position as Treasurer/Tax Collector. To put the above argument in further context, assume for a moment that Biddle had chosen (as she had once agreed to do) to perform bank reconciliations and to provide a monthly treasurer's report to the Township. This Court has ruled that those activities are not part of her enumerated duties under the First Class Township Code. But, if she chose to perform those tasks, could Biddle charge a fee for providing a treasurer's report or for performing the bank reconciliations? The resounding answer is of course not. If she had chosen to perform the monthly bank reconciliations and to provide a treasurer's report, such items would be within the fair scope ofthe responsibilities of her office as Treasurer and Tax Collector. To argue that - 8 - "~"'"',=~ H_ ",,' "-1 . - Biddle's performance of these tax certifications is no more an increase in her compensation as Treasurer/Tax Collector than if she was operating a local convenience store stretches all reason. The tax certifications can only be provided by the Treasurer/Tax Collector and therefore she cannot charge for this service without violating the Code and the Constitution. The Township also anticipates that Biddle will argue that the tax certification fee issue is not a proper matter for resolution in a mandamus action. As is set forth at length in the Township's Briefregarding Biddle's mandamus action, a mandamus action is appropriate to compel a public official to perform her clear duties under the law. The Township is requesting that a mandamus order be issued to compel Biddle to comply with the mandates of Section 55603 of the First Class Township Code and Article III, Section 27 of the Pennsylvania Constitution. The order should specifically require her to stop charging a tax certification fee which includes compensation for her time involved in providing the tax certification. -9- H' ",," . " v. CONCLUSION ~ -,' -~,~-,~-=,,"-,_'r""'~ .'" ",'", , -"'. " For the reasons set forth above, Plaintiffs request that this Court issue an order compelling Jane Biddle, Treasurer/Tax Collector of East Pennsboro Township, to perform her clear obligations under the First Class Township Code and the Pennsylvania Constitution, and that she be ordered to cease and desist from charging a fee for tax certifications which includes the value of her time in that fee. McNEES, WALLACE & NURICK By Michael R. Kelley 1.D. No. 58854 Norman 1. White 1.D. No. 7270 Debra P. Fourlas 1.D. No. 62047 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendants - 10- . ," ... CERTIFICATE OF SERVICE .' --,- -> ~ .~' _n~~ ~'~"-' ,b~' -.; 1 The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Dated: November 13 ' 2000 Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, P A 17055 Michael R. Kelley R. ",' ~'~-. , ~ ,--., ~-~' ,.," -., ..--',^' ~'''"_'~''W'''", -,' ... ,i., ..I' " MCNEES, WALLACE & NURICK ATTORNEYS AT LAW 100 PINE STREET P. O. BOX 1166 HARRISBURG, PA 17108-1166 TELEPHONE 17171 232 - 8000 FAX 17171237.5300 http://WWw.mwn.com MICHAEL R. KELLEY DIRECT .DIAL: (717) 237-5322 E-MAILADDRESS:MKELLEY@MWN.COM November 13,2000 VIA HAND DELIVERY Court Administrator Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013-3387 Re: The Board of Commissioners of East Pennsboro Township. et al. v. Jane E. Biddle No. 2000-6050, Civil Action - Mandamus Dear Court Administrator: Enclosed for filing is an original and two copies of Plaintiffs' Brief in Support of Mandamus Complaint to Require Compliance with the Constitution and the First Class Township Code in the above-referenced matter. Please time-stamp the extra copy and return it to the courier. Thank you. Sincerely, By fL, Michael R. Kelley MRKldjp Enclosure cc: Richard Snelbaker (w/enc) Robert L. Gill (w/enc) Henry Coyne (w/enc) . COLUMBUS, OH WASHINGTON, D,C, . " - ~~. ~.. ~ .,,-~- '. MOV 1 3 20~ THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSIDP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant PLAINTIFFS' BRIEF IN SUPPORT OF MANDAMUS COMPLAINT TO REQUIRE COMPLIANCE WITH THE CONSTITUTION AND THE FIRST CLASS TOWNSHIP CODE I. PROCEDURAL HISTORY Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill (the "Township"), initiated this Mandamus Complaint against Jane E. Biddle ("Biddle") on September I, 2000. By Order of Court, this matter was consolidated with an action brought by Biddle versus the Board of Commissioners and Gill and docketed to No. 99-6295. On November 3, 2000, an evidentiary hearing was held before the Honorable Edward E. Guido, limited to the issue of whether the tax certification fee charged by Biddle is an illegal increase in compensation under 53 Pa. C,S.A. 955603 of the First Class Township Code (the "Code") and the Pennsylvania Constitution. On that date, the Court set a deadline of November 13, 2000 for the filing of briefs on the tax certification fee issue. This Brief is offered in support ofthe Township's position that by charging the fee, Biddle is violating the Code and the Constitution by receiving an illegal increase in compensation during her term of office. .~ -, 1il11oi.t,I!;;i:'W~ II. FACTUAL BACKGROUND Prior to her election in November, 1997, Biddle's salary as Township Treasurer/Tax Collector was set at a maximum of$IO,OOO per year. Biddle has been compensated in the amount of $10,000 per year as the Township's Treasurer/Tax Collector. (N.T. 5). In addition to her compensation as Tax Collector/Treasurer, Biddle charges a fee to provide tax certifications to certain classes of persons who request information regarding whether the real estate taxes have been paid on a certain parceL A tax certification is a document which officially verifies whether the taxes have been paid on a parcel, the date when such taxes were paid, and the amount paid. Biddle provides this information by printing the information on to one or two pages from her computer; she then faxes the information to the party requesting the information. Typically, the persons or entities requesting such information are mortgage companies and settlement agents. (N.T. 5-6). Biddle charges a fee for the above service of $3.00 per tax certification. Included in that fee are the costs for paper, the computer, the fax machines and other expenses. Also included in that figure is a fee for labor. In fact, Biddle admits that $2.13 of the total fee covers her time involved in locating and sending the tax certification to the requesting party. (Biddle Exhibit 2). Near the beginning of Biddle's term as Treasurer/Tax Collector, she requested that the Board of Commissioners approve her ability to charge the $3.00 tax certification fee. Her request was considered by the Board at a regular meeting and was formally denied. (N.T.9). Nonetheless, Biddle has charged a $3.00 tax certification fee from February of 1998 through to -2- '1-"'- ,"',~: the current time. (N.T. 10). The fee that is charged includes a certification that the real estate taxes collected by East Pennsboro Township have either been paid or have not been paid. (N.T. 11-12). III. ISSUES A. DO THE BOARD OF COMMISSIONERS AND/OR ROBERT GILL HA VB STANDING TO ASSERT THAT BIDDLE IS VIOLATING THE FIRST CLASS TOWNSIDP CODE AND THE PENNSYLVANIA CONSTITUTION BY CHARGING A FEE FOR HER TIME IN SUPPLYING TAX CERTIFICATIONS? (Suggested Answer: Yes). B. IS A WRIT OF MANDAMUS PROPERLY ISSUED BY A COURT WHERE THE CLEAR MANDATE OF THE LAW IS THAT A PUBLIC OFFICIAL SHOULD NOT RECEIVE ADDITIONAL COMPENSATION DURING HER TERM, AND A PUBLIC OFFICIAL USES HER OFFICE, AND THE INFORMATION AVAILABLE ONLY TO HER OFFICE, TO RECEIVE ADDITIONAL COMPENSATION? (Suggested Answer: Yes). IV. ARGUMENT A. The Board of Commissioners And Robert Gill Have Standing To Assert That Biddle Has Violated The First Class Township Code. The seminal case for determining standing in a mandamus action is Dombrowski v. City oiPhila., 431 Pa. 199,245 A.2d 238 (1968). The test set forth in that case to determine whether the plaintiff has standing is "whether the private plaintiff possesses an interest which is not shared by the public at large." 245 A.2d at 242. This test has been interpreted broadly to include many different plaintiffs. A group of citizens who formed a "committee of petitioners" to - 3 - '", . ~--, .,~>~-.. promote an ordinance which the Board of Supervisors was allegedly not following was found to have standing, Aiken v. Radnor Township Bd. of Supers., 476 A.2d 1383 (pa. Cmwlth. 1984); owners of a property abutting a highway have sufficient special interest to compel officials to keep the road in repair, Lank v. Hu~hes, 402 Pa. 284,167 A.2d 268 (1961); and a county bar association has sufficient special interest in hours when county offices shall be open to bring a mandamus action to compel officials to keep offices open longer hours, Bar Association of Mercer County v. Lukacs, 42 D. & C. 616 (1941). The Board of Commissioners and Gill clearly have standing in this matter. Their interest in the enforcement ofthe First Class Township Code in East Peunsboro Township, as the Board of Commissioners and as the Township Manager, is obviously more direct and substantial than the average citizen. In this case, Biddle requested that the Board adopt a resolution approving the $3.00 tax certification fee. The Board was asked to take formal action and denied that request. Biddle then ignored the authority of the Board and requested that the East Pennsboro School Board approve the fee. Biddle has been ignoring the expressed will of the elected Board of Commissioners of East Pennsboro. The Board has a direct interest in seeing that its decisions, within the Township, are followed. Under the above authorities, there is no question that the Board of Supervisors and Mr. Gill have standing to assert a mandamus claim against Biddle. - 4- .1.. _~Wc , B. The Township Is Entitled To The Relief Requested In The Mandamus Action. The First Class Township Code is clear that "no township shall increase or diminish the salary, compensation or emoluments of any elected officer after his election." 53 Pa. C.S.A. ~55603. Biddle has, during her term as TreasurerlTax Collector, unilaterally increased her compensation, over the direct opposition of the Board of Commissioners, by charging the tax certification fee. There is no issue regarding Biddle charging an amount of money for an certification fee to cover copying and faxing charges. The sole issue is that the fee that she charges includes a fee for her labor in performing the tax certifications. In fact, according to her own testimony and her own exhibit, her labor amounts to over two-thirds of the fee charged. Receiving additional compensation during her term in office is a direct violation of Section 55603 ofthe First Class Township Code and the Pennsylvania Constitution. The duties and compensation oftownship tax collectors are governed by the Local Tax Collection Law ("LTCL"), 72 P.S. ~5S11.1 et seq. School districts have no authority to collect taxes subject to the LTCL. Section 34 of the LTCL limits compensation for the collection of township taxes to $10,000, plus expenses. Compensation of the township treasurer as collector of county and institutional district taxes is to be fixed by the County Commissioners. See 72 P.S. s5511.36a. The LTCL provides that: When any taxing district or taxing authorities propose to either raise or reduce the compensation or salary for the office of an elected tax collector, such action shall be by ordinance or resolution, finally past or adopted prior to the fifteenth day of February, ofthe year of the municipal election. - 5- ~1 ~~ 72 P.S. g55l1.36a. The purpose of this provision is to prevent adjustments to the compensation of an elected tax collector "either as a reprisal or reward for his actions." Blaine v. Wallenpaupack Area School District, 339 A.2d 180, 182 (pa. Commw. 1975). It is indisputable that the limitation applies to the township treasurer's salary for the collection of school district taxes collected under the authority of the L TCL. In addition, Article III, Section 27 ofthe Pennsylvania Constitution provides that "no law shall extend the term of an public officer, or increase or diminish his salary or emoluments, after his election or appointment. The township treasurer/tax collector is a public officer within the scope ofthis constitutional provision." See McKinley v. School District ofLuzeme Township, 118 A.2d 137 (Pa. 1955). Under the above authorities, Biddle is clearly not entitled to additional compensation in her role as either Tax Collector or Treasurer. By charging a fee which includes compensation for the value of her time, Biddle is receiving more than the compensation fixed by statute and by the Board of Commissioners. She thus is in direct violation of the Code and the Constitution. This Court has the authority to compel her to perform her duties to comply with the Code and Constitution by not charging the fee for her time. A writ of mandamus is an extraordinary remedy. It will not issue unless the right of the petitioner to relief is clear and specific; it can never be invoked in a doubtful case. Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 58, 488 A.2d 270, 272 (1985). To succeed in an action of mandamus, the plaintiff must show an inunediate and complete legal right to the thing demanded and that a corresponding duty of an imperative nature rests upon the person or entity against -6- , '-~ "=' whom issuance of the writ is sought. Equitable Gas, 507 Pa. at 57-58, 488 A.2d at 273; see also Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503,505 (1965). A complainant in mandamus must show her own compliance with the requirements of a statute at issue. McLau~hlin v. Erie County. 375 Pa. 344, 347-348,100 A.2d 601, 603 (1953). The action of mandamus is reserved only for those situations where the prayer of the petitioner appeals to the conscience of the court. Francis, 418 Pa. at 429, 211 A.2d at 509. Although granted by the law side of the court, mandamus is essentially equitable in nature; in exercising its discretion, a court should base its decision in a mandamus action on equitable principles and well-settled rules oflaw. Francis, 418 Pa. at 429,211 A.2d at 509. Specifically, in a mandamus action against a muuicipality, the court should refuse a writ of mandamus where granting the writ would not "promote the ends of justice" , Francis, 418 Pa. at 417,418. "If the interests of the general public would be injuriously affected, or if the object sought to be obtained is inequitable, or oppressive, or excessively burdensome, or is likely to create disorder and confusion in muuicipal or governmental departments, the courts may, in their discretion, refuse to issue the writ." Water v. Samuel, 367 Pa. 618, 620, 80 A.2d 848, 850 (1951). The right of the Township to relief is clear. Both the Code and the Constitution prohibit mid-term increases in compensation. The Township has demonstrated an "immediate and complete legal right to the thing demanded." Biddle has been accepting increased compensation since soon after her term began and she has steadfastly refused to stop violating the code and the Constitution. Finally, this request for mandamus appeals to the conscience of the Court. When - 7- . '-'i):M.' an elected official uses her office to pad her own income, the township hopes, and expects, that such action offends the conscience of the Court. The Township anticipates that Biddle will argue that providing the tax certifications is not part of her job responsibility under the Code and, therefore, does not amount to an increase in compensation in her role as Treasurer or Tax Collector. This argument has no merit. The only reason that Biddle is in a position to provide tax certifications is because she is the elected Treasurer/Tax Collector of East Pennsboro Township. She is a public official certifying that official action has been taken and that taxes have been paid or not. These certifications are used as official public documents by those requesting them. Biddle cannot take this action as a private citizen. Providing the tax certifications is not some private action that Biddle is taking outside the scope of her duties as Treasurer or Tax Collector. The First Class Township Code may not specifically require her to provide the tax certifications, but as long as she provides the certifications, she is doing so as a result of her position as Treasurer/Tax Collector. To put the above argument in further context, assume for a moment that Biddle had chosen (as she had once agreed to do) to perform bank reconciliations and to provide a monthly treasurer's report to the Township. This Court has ruled that those activities are not part of her enumerated duties under the First Class Township Code. But, if she chose to perform those tasks, could Biddle charge a fee for providing a treasurer's report or for performing the bank reconciliations? The resounding answer is of course not. If she had chosen to perform the monthly bank reconciliations and to provide a treasurer's report, such items would be within the fair scope ofthe responsibilities of her office as Treasurer and Tax Collector. To argue that - 8 - . , ~.... ,!!!:j",,,,, Biddle's performance of these tax certifications is no more an increase in her compensation as Treasurer/Tax Collector than if she was operating a local convenience store stretches all reason. The tax certifications can only be provided by the Treasurer/Tax Collector and therefore she cannot charge for this service without violating the Code and the Constitution. The Township also anticipates that Biddle will argue that the tax certification fee issue is not a proper matter for resolution in a mandamus action. As is set forth at length in the Township's Brief regarding Biddle's mandamus action, a mandamus action is appropriate to compel a public official to perform her clear duties under the law. The Township is requesting that a mandamus order be issued to compel Biddle to comply with the mandates of Section 55603 of the First Class Township Code and Article III, Section 27 ofthe Pennsylvania Constitution. The order should specifically require her to stop charging a tax certification fee which includes compensation for her time involved in providing the tax certification. -9- ~.~~ ." V. CONCLUSION . ~"liii.m_,- For the reasons set forth above, Plaintiffs request that this Court issue an order compelling Jane Biddle, Treasurer/Tax Collector of East Pennsboro Township, to perform her clear obligations under the First Class Township Code and the Pennsylvania Constitution, and that she be ordered to cease and desist from charging a fee for tax certifications which includes the value of her time in that fee. McNEES, WALLACE & NURlCK By Michael R. Kelley LD. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas I.D. No. 62047 100 Pine Street P. O. Box 1166 Harrisburg, P A 17108-1166 (717) 232-8000 Attomeys for Defendants -10 - d CERTIFICATE OF SERVICE "." ;,.-- ~. '0 The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Dated: November I) , 2000 Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, PA 17055 Michael R. Kelley R. ;-'" ,. '''., ""~:"W . NOV 1 3 2~ . THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant PLAINTIFFS' BRIEF IN SUPPORT OF MANDAMUS COMPLAINT TO REQUIRE COMPLIANCE WITH THE CONSTITUTION AND THE FIRST CLASS TOWNSHIP CODE I. PROCEDURAL HISTORY Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill (the "Township"), initiated this Mandamus Complaint against Jane E. Biddle ("Biddle") on September 1, 2000. By Order of Court, this matter was consolidated with an action brought by Biddle versus the Board of Commissioners and Gill and docketed to No. 99-6295. On November 3, 2000, an evidentiary hearing was held before the Honorable Edward E. Guido, limited to the issue of whether the tax certification fee charged by Biddle is an illegal increase in compensation under 53 Pa. C.S.A. g55603 of the First Class Township Code (the "Code") and the Pennsylvania Constitution. On that date, the Court set a deadline of November 13, 2000 for the filing of briefs on the tax certification fee issue. This Brief is offered in support ofthe Township's position that by charging the fee, Biddle is violating the Code and the Constitution by receiving an illegal increase in compensation during her term of office. . ~"" -~ ": ' .. . . . II. FACTUAL BACKGROUND Prior to her election in November, 1997, Biddle's salary as Township Treasurer/Tax Collector was set at a maximum of$lO,OOO per year. Biddle has been compensated in the amount of $10,000 per year as the Township's Treasurer/Tax Collector. (N.T.5). In addition to her compensation as Tax Collector/Treasurer, Biddle charges a fee to provide tax certifications to certain classes of persons who request information regarding whether the real estate taxes have been paid on a certain parceL A tax certification is a document which officially verifies whether the taxes have been paid on a parcel, the date when such taxes were paid, and the amount paid. Biddle provides this information by printing the information on to one or two pages from her computer; she then faxes the information to the party requesting the information. Typically, the persons or entities requesting such information are mortgage companies and settlement agents. (N.T. 5-6). Biddle charges a fee for the above service of $3 .00 per tax certification. Included in that fee are the costs for paper, the computer, the fax machines and other expenses. Also included in that figure is a fee for labor. In fact, Biddle admits that $2.13 ofthe total fee covers her time involved in locating and sending the tax certification to the requesting party. (Biddle Exhibit 2). Near the beginning of Biddle's term as Treasurer/Tax Collector, she requested that the Board of Cornmissioners approve her ability to charge the $3.00 tax certification fee. Her request was considered by the Board at a regular meeting and was formally denied. (N.T.9). Nonetheless, Biddle has charged a $3.00 tax certification fee from February of 1998 through to - 2- , ~~tl:il'L . the current time. (N.T. 10). The fee that is charged includes a certification that the real estate taxes collected by East Pennsboro Township have either been paid or have not been paid. (N.T. 11-12). III. ISSUES A. DO THE BOARD OF COMMISSIONERS AND/OR ROBERT GILL HAVE STANDING TO ASSERT THAT BIDDLE IS VIOLATING THE FIRST CLASS TOWNSHIP CODE AND THE PENNSYLVANIA CONSTITUTION BY CHARGING A FEE FOR HER TIME IN SUPPLYING TAX CERTIFICATIONS? (Suggested Answer: Yes). B. IS A WRIT OF MANDAMUS PROPERLY ISSUED BY A COURT WHERE THE CLEAR MANDATE OF THE LAW IS THAT A PUBLIC OFFICIAL SHOULD NOT RECEIVE ADDITIONAL COMPENSATION DURING HER TERM, AND A PUBLIC OFFICIAL USES HER OFFICE, AND THE INFORMATION AVAILABLE ONLY TO HER OFFICE, TO RECEIVE ADDITIONAL COMPENSATION? (Suggested Answer: Yes). IV. ARGUMENT A. The Board of Commissioners And Robert Gill Have Standing To Assert That Biddle Has Violated The First Class Township Code. The seminal case for determining standing in a mandamus action is Dombrowski v. City of Phil a., 431 Pa. 199,245 A.2d 238 (1968). The test set forth in that case to determine whether the plaintiff has standing is "whether the private plaintiff possesses an interest which is not shared by the public at large." 245 A.2d at 242. This test has been interpreted broadly to include many different plaintiffs. A group of citizens who formed a "committee of petitioners" to - 3 - - " 1".-,. . promote an ordinance which the Board of Supervisors was allegedly not following was found to have standing, Aiken v. Radnor Township Bd. of Supers., 476 A.2d 1383 (pa. Cmwlth. 1984); owners of a property abutting a highway have sufficient special interest to compel officials to keep the road in repair, Lank v. Hughes, 402 Pa. 284,167 A.2d 268 (1961); and a county bar association has sufficient special interest in hours when county offices shall be open to bring a mandamus action to compel officials to keep offices open longer hours, Bar Association of Mercer County v. Lukacs, 42 D. & C. 616 (1941). The Board of Commissioners and Gill clearly have standing in this matter. Their interest in the enforcement of the First Class Township Code in East Pennsboro Township, as the Board of Commissioners and as the Township Manager, is obviously more direct and substantial than the average citizen. In this case, Biddle requested that the Board adopt a resolution approving the $3.00 tax certification fee. The Board was asked to take formal action and denied that request. Biddle then ignored the authority of the Board and requested that the East Pennsboro School Board approve the fee. Biddle has been ignoring the expressed will of the elected Board of Commissioners of East Pennsboro. The Board has a direct interest in seeing that its decisions, within the Township, are followed. Under the above authorities, there is no question that the Board of Supervisors and Mr. Gill have standing to assert a mandamus claim against Biddle. -4- ,. '-, ,~" ~ \' , B. The Township Is Entitled To The Relief Requested In The Mandamus Action. The First Class Township Code is clear that "no township shall increase or diminish the salary, compensation or emoluments of any elected officer after his election." 53 Pa. C.S.A. g55603. Biddle has, during her term as Treasurer/Tax Collector, uuilaterally increased her compensation, over the direct opposition ofthe Board of Commissioners, by charging the tax certification fee. There is no issue regarding Biddle charging an amount of money for an certification fee to cover copying and faxing charges. The sole issue is that the fee that she charges includes a fee for her labor in performing the tax certifications. In fact, according to her own testimony and her own exhibit, her labor amounts to over two-thirds of the fee charged. Receiving additional compensation during her term in office is a direct violation of Section 55603 of the First Class Township Code and the Pennsylvania Constitution. The duties and compensation of township tax collectors are governed by the Local Tax Collection Law ("LTCL"), 72 P.S. g55ll.1 et seq. School districts have no authority to collect taxes subject to the L TCL. Section 34 of the L TCL limits compensation for the collection of township taxes to $10,000, plus expenses. Compensation of the township treasurer as collector of county and institutional district taxes is to be fixed by the County Commissioners. See 72 P.S. g55l1.36a. The L TCL provides that: When any taxing district or taxing authorities propose to either raise or reduce the compensation or salary for the office of an elected tax collector, such action shall be by ordinance or resolution, finally past or adopted prior to the fifteenth day of February, of the year ofthe muuicipal election. - 5 - ,- ~, .. ,~' '" .l. ~' r 72 P .S. g551l.36a. The purpose ofthis provision is to prevent adjustments to the compensation of an elected tax collector "either as a reprisal or reward for his actions." Blaine v. Wallenpanpack Area School District, 339 A2d 180, 182 (pa. Commw. 1975). It is indisputable that the linlitation applies to the township treasurer's salary for the collection of school district taxes collected under the authority of the L TCL. In addition, Article III, Section 27 of the Pennsylvania Constitution provides that "no law shall extend the term of an public officer, or increase or diminish his salary or emoluments, after his election or appointment. The township treasurer/tax collector is a public officer within the scope ofthis constitutional provision." See McKinlev v. School District ofLuzeme Township, 118 A.2d 137 (Pa. 1955). Under the above authorities, Biddle is clearly not entitled to additional compensation in her role as either Tax Collector or Treasurer. By charging a fee which includes compensation for the value of her time, Biddle is receiving more than the compensation fixed by statute and by the Board of Commissioners. She thus is in direct violation of the Code and the Constitution. This Court has the authority to compel her to perform her duties to comply with the Code and Constitution by not charging the fee for her time. A writ of mandamus is an extraordinary remedy. It will not issue unless the right of the petitioner to relief is clear and specific; it can never be invoked in a doubtful case. Eq.uitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 58,488 A.2d 270,272 (1985). To succeed in an action of mandamus, the plaintiff must show an immediate and complete legal right to the thing demanded and that a corresponding duty of an imperative nature rests upon the person or entity against -6- ,-',-, ki'til, r whom issuance of the writ is sought. Equitable Gas, 507 Pa. at 57-58, 488 A.2d at 273; see also Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503,505 (1965). A complainant in mandamus must show her own compliance with the requirements of a statute at issue. McLaughlin v. Erie County, 375 Pa. 344, 347-348,100 A.2d 601, 603 (1953). The action of mandamus is reserved only for those situations where the prayer ofthe petitioner appeals to the conscience of the court. Francis, 418 Pa. at 429, 211 A.2d at's09. Although granted by the law side of the court, mandamus is essentially equitable in nature; in exercising its discretion, a court should base its decision in a mandamus action on eqnitable principles and well-settled rules oflaw. Francis, 418 Pa. at 429, 211 A.2d at 509. Specifically, in a mandamus action against a municipality, the court should refuse a writ of mandamus where granting the writ would not "promote the ends of justice", Francis, 418 Pa. at 417,418. "If the interests of the general public would be injuriously affected, or if the object sought to be obtained is inequitable, or oppressive, or excessively burdensome, or is likely to create disorder and confusion in muuicipal or governmental departments, the courts may, in their discretion, refuse to issue the writ. " Water v. Samuel, 367 Pa. 618, 620, 80 A.2d 848, 850 (1951). The right of the Township to reliefis clear. Both the Code and the Constitution prohibit mid-term increases in compensation. The Township has demonstrated an "immediate and complete legal right to the thing demanded." Biddle has been accepting increased compensation since soon after her term began and she has steadfastly refused to stop violating the code and the Constitution. Finally, this request for mandamus appeals to the conscience of the Court. When - 7- ,. <., ' ,.,,,,",,', - h- ~ ". , Ii\lr, , an elected official uses her office to pad her own income, the township hopes, and expects, that such action offends the conscience ofthe Court. The Township anticipates that Biddle will argue that providing the tax certifications is not part of her job responsibility under the Code and, therefore, does not amount to an increase in compensation in her role as Treasurer or Tax Collector. This argument has no merit. The only reason that Biddle is in a position to provide tax certifications is because she is the elected Treasurer/Tax Collector of East Pennsboro Township. She is a public official certitying that official action has been taken and that taxes have been paid or not. These certifications are used as official public documents by those requesting them. Biddle cannot take this action as a private citizen. Providing the tax certifications is not some private action that Biddle is taking outside the scope of her duties as Treasurer or Tax Collector. The First Class Township Code may Ilot specifically require her to provide the tax certifications, but as long as she provides the certifications, she is doing so as a result of her position as Treasurer/Tax Collector. To put the above argument in further context, assume for a moment that Biddle had chosen (as she had once agreed to do) to perform bank reconciliations and to provide a monthly treasurer's report to the Township. This Court has ruled that those activities are not part of her enumerated duties under the First Class Township Code. But, if she chose to perform those tasks, could Biddle charge a fee for providing a treasurer's report or for performing the bank reconciliations? The resounding answer is of course not. If she had chosen to perform the monthly bank reconciliations and to provide a treasurer's report, such items would be within the fair scope of the responsibilities of her office as Treasurer and Tax Collector. To argue that - 8 - , - .. ..,." ~~ ,'"-, '"". , Biddle's performance of these tax certifications is no more an increase in her compensation as Treasurer/Tax Collector than if she was operating a local convenience store stretches all reason. The tax certifications can only be provided by the Treasurer/Tax Collector and therefore she cannot charge for this service without violating the Code and the Constitution. The Township also anticipates that Biddle will argue that the tax certification fee issue is not a proper matter for resolution in a mandamus action. As is set forth at length in the Township's Brief regarding Biddle's mandamus action, a mandamus action is appropriate to compel a public official to perform her clear duties under the law. The Township is requesting that a mandamus order be issued to compel Biddle to comply with the mandates of Section 55603 of the First Class Township Code and Article III, Section 27 ofthe Pennsylvania Constitution. The order should specifically require her to stop charging a tax certification fee which includes compensation for her time involved in providing the tax certification. - 9- . , -.', V. CONCLUSION .- "'~. For the reasons set forth above, Plaintiffs request that this Court issue an order compelling Jane Biddle, Treasurer/Tax Collector of East Pennsboro Township, to perform her clear obligations under the First Class Township Code and the Pennsylvania Constitution, and that she be ordered to cease and desist from charging a fee for tax certifications which includes the value of her time in that fee. McNEES, WALLACE & NURlCK By Michael R. Kelley I.D. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas I.D. No. 62047 100 Pine Street P. O. Box 1166 Harrisburg,PA 17108-1166 (717) 232-8000 Attomeys for Defendants -10 - - , CERTIFICATE OF SERVICE ,"- -' ,~ -- -; The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Dated: November I) ,2000 Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, PA 17055 Michael R. Kelley R. -,?-"" 'e:.l~~ 'C';",L '~-- --,,"'c;" <,,::-:4, .r c ., ... .;4:.... 'J .1./ i '.,..).,'0 I,,, r ! 1"'. . ......1.. . f:; 11~ (I) t:-0f'2ylx;.-. .... ..... ,;,~, ;;:-,,,, '.i\.'-:;;'--::";"""iC;O--~,;,,, ,_~"".,,,.. -'~--;"'-~; - , --'~ -ot_"".,",U._ '-N;';'~ :'~, ",~,'.;' ;l1!;5i~~_ I '-J..... u I.,."" .. I .t ., '1J ~1f>~. ___.i - ,,~~ - ,..".";-,,,., --'0,' '-11:& PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2000~06050 EAST PENNSBORO TOWNSHIP B OF C (vs) BIDDLE JANE E Page 1 Filed........: Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info Reference No..: Case Type.....: COMPLAINT ,Judgment. . . . . . : .00 Judge Assigned: Disposed Desc.: n____~_______ Case Comments ---------____ 9101/2000 1: 11 0/0010000 0/0010000 EAST PENNSBORO TOWNSHIP BOARD OF COMMISSIONERS PLAINTIFF FOURLAS DEBRA P KELLEY MICHAEL R WHITE NORMAN I FOURLAS DEBRA P KELLEY MICHAEL R WHITE NORMAN I GILL ROBERT L MANAGER EAST PENNSBORO TOWNSHIP BIDDLE JANE E TREASURER EAST PENNSBORO TOWNSHIP 12 WOBURN ABBEY AVENUE CAMP HJLL PA 17011 PLAINTIFF DEFENDANT ~~*'k**************************************************************************** · Date Entries * ******************************************************************************** 9/01/200~C~~~~~~~~_=_~~~~~_~~~~~~==_;~~~~~~~~:~__=_=_=_=_=_=_=_=_=_=_=~=_=_= 9/06/2000~OTION FOR CONSOLIDATION - ATTY KELLEY FOR PLFF 9/12 12 ooQj ORDER-OF - COURT-=- DATED - 9/ 12 /OO-=-IN- RE- MOTION -FOR-CONSOLIDATION-=-- RULE IS ISSUED TO SijOW CAUSE WHY ACTION SHOULD NOT BE CONSOLIDATED WITH 99-6295 - RULEiRETURNABLE 10 DAYS AFTER SERVICE - BY THE COURT EDWARD E GUIDO J COpIES MAILED 9/12/00 9 114 I 2 OOO/SHERIFF ~S-RETURN - FILEDn-n - n ____~nnn_n__n_ - - ---- - - - _n___ --- Litiqant.: BIDDLE JANE E TREASURER EAST PENNSBORO TOWNSHIP SERVED : 9/13/00 ENOLA PA COMPL Costs....: $37.30 Pd By: MCNEES, WALLACE & NURICK 09/14/2000 10102/2000.,0NSWER-TO-COMPLAINT-=-BY-RICHARD-C-SNELBAKER-ESQ-ATTY-FOR-DEFT----- 10/02/200rVDEFENDANT~S-RESPONSE-TO-RULE-TO-SHOW-CAUSE-RE-PLAINTIFFS-MOTION-FOR CONSOLIDATION - BY RICHARD C SNELBAKER ESQ ATTY FOR DEFT ~/05/20~ ~@~~O~~~O~~~~~EL-PRODUCTION-OF-DOCUMENTS-=-BY-RUTH-C-SNELBAKER-ESQ- 10105/200~ ANSWER-OF-PLAINTIFF-TO-DEFENDANT~S-MOTION-TO-COMPEL-PRODUCTION----- tJ. ~F_D~CI!M~N~S_ - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * * Fees & Debits Beo Ba1 Pvmts/Adi End Ba1 * ******************************************************************************** COMPLAINT TAX ON CMPLT SETTLEMENT .Tel' FEE 35.00 35.00 .50 .50 5.00 5.00 5.00 5.00 -------------------~---- 45.50 45.50 .00 .00 .00 .00 ------------ .00 ******************************************************************************** * End of Case Information * ******************************************************************************** . , ~ . ,.' ." --'-.< - ',. ;;'.'. , -,," .... /" TO: EAST PENNSBORO TOWNSHIP BOARD OF COMMISSIONERS FROM: JANE E. BIDDLE, TREASURER 1r-tH .. 'Qw<,r.~ZO\J1 '. tJ.<,Uj llA' fJII""":-// 1. I WOULD LIKE A RESOLUTION FOR THE TREASURER TO CHARGE A $3.00 FEE FOR TAX CERTIFICATIONS TO REALTORS, LENDERS, ABSTRACT CO., ETC. (NO CHARGE TO TAXPAYERS WITHIN THE TOWNSHIP FOR PICKING UP A COpy IN MY OFFICE.) THIS FEE IS CONSISTENT WITH THOSE CHARGED BY OTHER NEAR-BY TAX COLLECTORS. * NOTE-ONCE THE TAX PROGRAM IS INSTALLED, TAX CERTIFICATIONS WILL BE SENT DIRECTLY FROM THE TAX OFFICE VIA MODEM. THE TWP FAX MACHINE WILL NOT BE USED FOR THIS. 2. PROPOSAL FOR THE TOWNSHIP TO PAY PART OF THE COST OF THE COMPUTERIZED TAX PROGRAM TO BE INSTALLED ON FEBRUARY 3RD BY PENN CREDIT CORP. ACTUAL COST WILL BE DETERMINED AT THAT TIME. THE TOTAL WILL BE APPROXIMATELY $1500-2000, DEPENDING ON WHETHER THE SCHOOL DISTRICT PLANS TO SHARE THE OCCUPATIONAL TAX PORTION OF THE TAX PROGRAM AND WHAT ARRANGEMENTS CAN BE WORKED OUT WITH PENN CREDIT. 3. JOB DESCRIPTION OF TOWNSHIP TREASURER - I INTERPRET THE FIRST CLASS TOWNSHIP CODE TREASURER'S DUTIES TO INCLUDE REPONSIBILITY FOR PAYABLES - SEE ATTACHED COPIES OF CODE. ALL OTHER FIRST CLASS TOWNSHIPS IN CUMBERLAND COUNDY INCLUDE THIS DUTY FOR THEIR TREASURER. ~ . rt' d/4~)APPROVAL TO USE HARRIS SAVINGS BANK AS THE DEPOSITORY FOR \JJ..,;\ 'THE TOWNSHIP REAL ESTATE AND PER CAPITA TAXES. Y/ 5. APPROVAL OF MICHELLE BIDDLE AS DEPUTY TAX COLLECTOR. . '.' ...."" ...:.""."...,b."...."....,...-.. I;iAFJit.I';'~' ;~.~j 2. U '..p-.i.. ., ;' J _, .l---' >'''~ e-'-~-:-o. .--: - . ' ,..c .~ '::.c,,";;:::~~,c0~r:~:::l~F~~~~r?\:~€f'~~~(",-, -"~,_-,,..":'(i.. ,~"'.. .' "'<'~"~"" ~ _~ 'h "-'-,;. ~..:... ....~_ .....;... ,- n ~ ~ ~~ ,..i!. ,. .....-. .~-....---~ . "._--.~ ~ -~--,--.--;;.t ..-.-----.. --~._.~~-.- "~- -!l- - 30 " ~ ;i'.. g- \if $ :!, ~ ~ ~ So g :;; g ~ g l=' f ;j ~ S If 0: i!1 13 g.::1 .", 3' i$"" a' J " " R> -.'-t::J .-:::: ~ .- _ ",... Er. 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'-<: g- :? r:: ';i ;;! .; :::.. t;.. - '" ~ 8 ~~ "" '" ~~ O'c:; ~ '-' ~ o So ~ " " ~ " ~ " - :;: g '" . =0 """ ~ " 0'<:. ~ ;; " ~ " ., 0.. ._ ",. 6'- s- " "1 ;; fJl .., C"l ~ 00 fJl .., o ~ -? .. .;,' .4.,;;'i, < '\ A RESOLUTION AUTHORIZING THE SCHOOL DISTRICT'S TAX COLLECTOR TO CHARGE AND RETAIN FEES FOR ISSUING TAX CERTIFICATIONS AND DUPLICATE TAX BILLS FOR THE EAST PENNSBORO AREA SCHOOL DISTRICT REAL ESTATE TAXES . WHEREAS, it has become a common practi~e in real estate transactions to require a written certification by the appropriate tax collector for confirmation of payment status of School District Real Estate taxes and to provide duplicate copies of tax bills to mortgage companies, tax service companies, and other third party business entities; and WHEREAS, there is no legal requirement to issue certifications and duplicate bills, but that in doing so it is recognized that ~~e tax collector incurs expense and renders services not provided for by established fees; and WHEREAS, the East Pennsboro Area School District Board of School Directors ("Board") recognizes the importance and significance' of issuance of real estate tax certifications and duplicl:ite billings for the smooth and effective flow of commerce within the local real estate market, and that the tax collector should be additionally reimbursed therefor by persons requesting services; NOW, THEREFORE, BE AND IT IS HEREBY RESOLVED: 1. The board hereby authorizes its tax collector to provide tax certifications for East Pennsboro Area School District real estate taxes upon request by the mortgage companies, tax service companies, and other third party business entities) and hereby authorizes said tax collector to assess and collect from the requesting party, and retain as a fee for providing such additional service, a fee not to exceed Three Dollars ($3.00) per written certification. 2. The tax collector is further authorized to provide duplicate copies of tax bills for East Pennsboro Area School District real estate taxes upon request by mortgage companies, tax service companies, and other third party business entities and hereby authorizes said tax collector to asses~ Page 1 of 2 DEFENDANT'S EXHIBIT 1I13lc<:o f /frIa-e. -i .~~ t ~ , _ "~- 0 -"r.firt. "l and collect from the requesting party, and retain as a fee for providing such additional service, a fee not to exceed One Dollar ($1.00) per bill. 3. This Resolution is and shall be applied prospectively and retroactively to '. the beginning date of the tax collector's collection of this School District's real estate taxes, to wit: July 1,1998, and all fees charged and retained by the tax collector prior to the date of this resolution are ratified and approved. 4. Upon request, a year-end summary ofthese fulfilled requests and collected fees will be provided to the district. DULY ADOPTED this 4th day of February ,1999, by the Board of School Directors of the East Pennsboro Area School District in public session duly assembled. EAST PENNSBORO AREA SCHOOL DISTRICT By QcLrr:;..ryt~~ . Jpresident, Board of School Directors ATTEST: /' ) ( '. . lib i"'.j//;:..i Secretary,/ (/7 it. _ {-"F1."'( :I I . ~ Page 2 of 2 LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE ",'.--<\>' '>-'.,0l THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL CIVIL ACTION - MANDAMUS JANE E. BIDDLE, Treasurer of East Pennsboro Township, AND NOW, this Defendant ORDER OF COURT day of , 2000, upon consideration of Defendant's Motion to Strike Plaintiffs' Tax Certification Fee Issue and for Summary Judgment, a rule is hereby issued on Plaintiffs to show cause why the relief sought in said Motion should be granted. Rule returnable days after service of a certified copy of this Order (with copy of Motion attached) upon the Attorneys for Plaintiffs. I II By the Court, J. THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL vs. JANE E. BIDDLE, Treasurer of East Pennsboro Township, Defendant CIVIL ACTION - MANDAMUS MOTION TO STRIKE PLAINTIFFS' TAX CERTIFICATION FEE ISSUE AND FOR SUMMARY JUDGMENT AND NOW, comes the Defendant, Jane E. Biddle, Treasurer, by her attorneys, Snelbaker, Brenneman & Spare, P.C., and respectfully moves the Court in accordance with the following matters: 1. Plaintiffs' Complaint seeks, inter alia, the following relief: (a) To require Defendant to be available on all traditional work days; (b) To make deposits of Township funds on certain conditions; (c) To provide a monthly treasurer's report; and (d) To perform bank reconciliations. 2. Based upon decisions made at the first session of hearing in this case on October 18, 2000, and in the absence offurther authorities allowed to Plaintiffs LA.W OFFICES SNELBAKER. BRENNEMAN Be SPARE by this Court's Order of the same date, Defendant understands that the issues identified in Paragraph 1 above were resolved as follows: II .. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE , ,--,"'~.': '.. . -,-,.,,-,,,..,, <",j-,'!.i~' - ',: ,..,',,,-,,<". (a) Withdrawn by Plaintiffs. (b) Withdrawn by Plaintiffs. (c) Decided adversely to Plaintiffs. (d) Decided adversely to Plaintiffs. 3. The only remaining issue is based upon Plaintiffs' attempt to enjoin Defendant from charging tax certification fees to certain non-resident owned real estate in her role as tax collector for county, school district and township real estate taxes: ~ 14-16; paragraph (3) of demand for relief; for which the following arguments are submitted: A. Plaintiffs are not charged such fees and pay none. Therefore, Plaintiffs have no standing to advocate the relief sought in their complaint. B. Mandamus is not the proper form of action to restrain an official's action: 18 Standard Pa. Prac. 2d, 9 99.2; Board of Commissioners of Potter Countv v. Turner, 33 Pa. Cmwlth. 639, 382 A.2d 1248 (1978); Lower Merion Township v. Monttwmerv Countv Board of Assessment Appeals; 164 Pa. Cmwlth. 15, 642 A.2d 1142 (1994). 4. Defendant's counsel has provided a copy ofthis Motion to Plaintiffs' counsel via facsimile prior to its filing in an attempt to comply with C.C.R.P. 206- 2(c). Plaintiffs' counsel, Michael R. Kelley, Esquire, does not concur. 2 I LAW OFFICES SNELBAKER. BRENNEMAN & SpARE '. -,-, -,,~;.- ~ ,,'~,- --~, -'.. .1 , ' WHEREFORE, Defendant respectfully requests your Honorable Court to strike the tax certification fee issue from this action and enter summary judgment on all issues in favor of Defendant and against Plaintiffs. By 'I Ii BRENNEMAN & SPARE, P.C. Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (71 7) 697-8528 Attorneys for Defendant 3 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE . ' CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true copy of the within Motion to Strike Plaintiffs' Tax Certification Fee Issue and for Summary Judgment upon the Attorney for Plaintiffs by sending the same by first-class mail postage paid addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, P Dated: November 1, 2000 Ii i! Ii i Richard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 ~~, '--'f,"~ '",', - THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff, v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, Defendant ""~.., _'J ,""-""",', - --~,..{.,.,~~"t. ,'.',,~/,; ~. ,',' >.d "~_" ,~. '_'- ':-:'-""~-:"-:--'- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-6050 Civil CIVIL ACTION - MANDAMUS Judge Guido ORDER OF COURT AND NOW, this day of October, 2000, upon consideration of Defendant's Motion to Compel Production of Documents filed on October 4, 2000, the Motion is hereby DENIED. BY THE COURT: J. ",; -- .,'.,- -,...".,\;::: . ,.~~ d ,'. -',~ ',.- . "'" ~:~ <- --, _'<"""_"" 0<,,",' '_,c'"-,.'':;','"",-".,,,,__ '.',_.. THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant ANSWER OF PLAINTIFF TO DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS 1. Admitted. 2. Admitted. 3. Denied that the timeliness of bank deposits is either irrelevant or moot or otherwise not a proper subj ect in this case. 4. Admitted that a Request for Production of Documents was served on or about September 15, 2000. The attachment to the Motion labeled as Exhibit "A" speaks for itself. 5. No response is required. However, it is acknowledged that the quoted Request No.1 for production was made. 6. Admitted that the response to Request No.1 was as quoted. 7. Denied that the response to Request No.1 was either inaccurate or exaggerated. More importantly, it is denied that the actual number of pieces of paper at issue is determinative of whether production may be compelled. ." - _' _~ _'n _ , _~' ~k,.--', 'eJ ,. ~ ~ . ~ - -, " h'" -, <,n~, ,:,:,- _,~-. -_",-,.'.');''-d'. _.~_"'__'_~'" - ,,-,-'. '"-"';:' Biddle is "[a]ssuming one deposit per day" and using that figure to calculate how many records she expects to be within the possession of the Township relating to bank deposits. This assumption ignores the reality that a number of documents exist relating to each deposit, and further, that several separate deposits were often made on any given day. As indicated in the Township's response to Request No.1, there are indeed many thousands of documents which are potentially responsive to Biddle's document request. More importantly, it is clear from the language of the applicable discovery rule that Biddle is not entitled to compel production of documents which the Township has already offered to make available to her. Rule 4009.12 provides, in pertinent part: (a) The party upon whom the request is served shall within thirty days after the service of the request *** (2) produce or make available to the party submitting the request those documents and things described in the request to which there is no objection. (i) Where the documents may be identified only after review of a larger group of documents, and the burden of identifying the documents would be substantially the same for the party serving the request as for the party served, the party served may afford the party serving the request reasonable opportunity to identify the documents, to examine or inspect them and to obtain copies. (b) The answer shall be in the form of a paragraph-by-paragraph response which shall *** (3) specify a larger group of documents or things from which the documents or things to be produced or made available may be identified as provided by sub-division (a)(2)(i).... - 2- .'; -"d,'" ,. - ~-'=~ ,'V;'-,"-"_ ",~,_, d _,,~ ,''',-- ..., '0 ""'i Pa. R.C.P. 4009.12(a) (emphasis added). There is nothing in the Rule which mandates that a party served with document requests must respond by supplying the documents. To the contrary, Rule 4009 .12( a)(2) gives the responding party two choices: either produce the documents or make them available. The Township, as Biddle's own Motion acknowledges, has made the requested documents available to her and has expressly offered to have copies made, at her expense, of any such documents she selects. The Township has plainly and fully complied with the requirements of Rule 4009.12. Moreover, Rule 4009.12(a)(2)(i) & (b)(3) specifically permit the Township to designate the group of documents containing those requested, after which it is Biddle's responsibility to identity which documents from the group she wishes to have copied. The Township has expressly offered to make available the group of documents containing the records requested and to have copies made of any documents identified by Biddle from the group. The Township has fully complied with Rule 4009.12. 8. Denied; Biddle's belief as to the number of deposits which have occurred since January 1998 is known only to her. Moreover, it is not relevant to her Motion. 9. Denied. Whether the Township has periodic bank statements "which can be used to research other necessary records" is utterly irrelevant. As set forth in paragraph 7 above, Rule 4009.12 does not require the Township to perform such "research" on Biddle's behalf, but rather, only to make available to her for inspection and copying the group of documents containing those which have been requested. The Township has unconditionally offered to make all such - 3 - .~ :0,,-'_ ,,~:_,,~_,"__ ,. _.'", ~"'..",_ _,. _, ,_~,,_ . .,-,""'-'"'_r :,_~;,,,,o;,,,,_, - --;..~,,:ii' records available and to make arrangements to have copies made, at Biddle's expense, of any records she wants. Biddle's instant motion to compel production seeks to shift to the Township, contrary to the express provisions of Rule 4009.12, the burden of providing the time and labor required to sort through the various records of the Township to find the specific financial records she wants. There is no reason to conclude that the burden of identifying the documents Biddle wants would be any greater for her than for the Township. Indeed, Biddle has not even suggested in her Motion that identifying the documents she seeks from among the files of the Township will be in any way more burdensome for her than for the Township. She is plainly not entitled to use the discovery rules to compel the Township to do "research" that she ought to be doing on her own behalf. 10. Denied that the Township's pleading concerning bank deposits makes the requested discovery not burdensome. See responses to paragraphs 7 and 9 above. 11. Denied; to the contrary, Biddle's refusal to undertake the acts required of her by the Rules of Civil Procedure, in the face of an express and reasonable acknowledgment from the Township that it will make available to her all the records she has requested, is consistent with her own unreasonable and uncooperative attitude. 12. No response is required. It is denied, however, that Biddle is entitled to compel production of documents the Township has already agreed to make available to her. 13. The Township does not concur in Biddle's Motion. Moreover, Biddle is manifestly not entitled to an award of counsel fees. The sanctions for discovery violations set -4- _c" -- ~ 'c';"CE,\L"b~,~ ., I"," ,.:,,_:.-' ,- , w_" . _~" "',C .-,'" , ::':> :;.^-,;,~~:,:::t,:; ~:<_~,~;;~j~~",--;";-,::_,""',-. -- ~ -",,,,;"_'<i,,,, forth under Rule 4019 permit a sanction relating to a request for production of documents only if "a party, in response to a request for production or inspection under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested..." Pa. R.C.P.40l9(a)(1)(vii). Biddle's own Motion acknowledges that the Township has responded that it will permit inspection and copying of the requested documents. There is nothing to sanction in this situation. Moreover, no attomey fee award can be imposed relating to a failure to comply with a request for production of documents unless there has been a prior Order of Court compelling the discovery at issue, followed by a continued failure to provide the discovery sought. See Pa. R.C.P. 40l9(g)(1) and Explanatory Note. It is Biddle, not the Township, who has acted in bad faith in presenting the instant Motion seeking to compel production of documents the Township has already agreed to make available for inspection and copying by Biddle in compliance with Rule 4009.12. All requested relief in the Motion should be denied. - 5 - ___-~ ev "',,~ ." ,,,,,' ".. . '''~, ,- " <~" - ~-.,:,"_",_"'d _--'--J!',-"__,,, "."\' ,,_",";'~,~C,," _~"_. "",.;>~.-~"--,.-,,",';'.~';"-"~-~:'~~-'"";'.;'''-',.,^,,,,:, "'__A>' WHEREFORE, it is requested that all relief requested in the Motion to Compel Production of Documents be DENIED. McNEES, WALLACE & NURlCK By /Lt_ /.Y;:;L Michael R. Kelley I.D. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas J.D. No. 62047 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attomeys for East Pennsboro Dated: October 5, 2000 - 6 - CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by facsimile transmission and by fIrst -class mail, postage prepaid, upon the following: Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, P A 17055 ~V> / ;;:~ Debfa P. Fourlas Dated: October 5, 2000 .~. -<,-;. -';'- 'H,,' _ ,- . -~," - .-;~ >.' ;"':'":_;'>;;"~~<'~;"~"'~";:;;;'-':<"~ __4 :::.C-_J:;j',i,,,,:,.,-. ',,_ THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant BRIEF ON BEHALF OF PLAINTIFF IN SUPPORT OF MOTION FOR CONSOLIDATION I. STATEMENT OF FACTS Plaintiffs are the Board of Commissioners of East Pennsboro Township and Robert L. Gill, Manager of East Pennsboro Township (collectively, "East Pennsboro"). East Pennsboro Township is a First-Class Township. Complaint, ~ I. Defendant, Jane E. Biddle ("Biddle"), was elected Treasurer-Tax Collector of East Pennsboro Township, Cumberland County, Pennsylvania, in November, 1997 and assumed that office in January, 1998. C.P. Cumberland, Civil Action No. 99-6295, Deposition of Jane Biddle, August 29, 2000 ("Biddle Deposition") at 9.1 In Civil Action No. 99-6295, Biddle sued East Pennsboro in mandamus. Biddle asserted, in her Complaint, that the Board of Commissioners and/or Robert Gill "have signed Township checks in violation of the Code and interfered with Plaintiffs performance of the check signing and disbursement duties," C.P. Cumberland, Civil Action No. 99-6295, Complaint, ~ 14; and that 1 A copy of the Biddle Deposition transcript is attached to East Pennsboro's Trial Brief in Civil Action No. 99-6295. f] ",~,'~'~ '-". -""-'''''''r.'i ~" --:" - ""',,","-,.' -,' ,'",.'."'-' -~,,' ,,;-> ~ ,~ -- ,,','~ ~.-- '-,p, ,-':" ~",-,. ,;" _,A,_,',"";"L'- --,-;'-"J>- ~', ';, _c".__, ~':,..:; "[ dJespite a continuing demand by Plaintiffto provide check signing authority for accounts payable checks, these items are still being performed by unauthorized and other Township personnel in violation of the First-Class Township Code," id., ~ 15. Biddle's mandamus action demanded access to Township records; only her signature on bank signature cards; access to other financial infomlation to enable her to perform her statutorily required duties; and damages, costs and attomeys' fees for her action. Biddle has never provided a single financial report to the Township since assuming the office of Treasurer. Biddle Deposition at 54-55. She has testified that she needed accounts receivable, accounts payable, and disbursement records. ld. at 58. She has admitted, however, that she receives disbursement records, in the form of check registers. ld. She also acknowledged that she has received, upon request, copies of the yearly budget and copies of audit records; she also receives a monthly financial report containing the Township's revenues and expenses. ld. at 58-59. While she stated that she does not receive bank statements, she did not know whether those statements might be available to her upon request. /d. at 59. There are no other Township records she wants. ld. Biddle has testified that she agreed to perform reconciliations of bank statements. Subsequently, however, she has refused to perform that function based on her conclusion that it is an unacceptable accounting function for the same person to sigu checks and also perform reconciliations. ld. at 46-48. Biddle has performed some bookkeeping work, but does not have an accounting degree. ld. at 5-7. -2- '<,0.'. -,,' ~ - .j k'" ~ -d',,:_' , ,',-,,----,' _"-T"'",",'" ,. <,'>~,., "'0'-, " "_c, ,"-.-,~'- __,' ,-;::~L-~~,~';-~;:;~:-r.",," ,.,', _~" ;'o,j . Additionally, Biddle has testified that East Pennsboro offered at least as early as March 1999 to allow her to make all deposits of Township funds. Id. at 42-43. She refused, however, to commit to make bank deposits of Township funds every week day or to make deposits by 3:00 p.m. Id. at 43. Indeed, she has no office hours at all on Fridays. Id. at 22. She acknowledged her awareness of the Township's expressed concem that if deposits are not made by 3:00 p.m. each day that the Township will lose a day of interest on each deposit. Id. at 36-37. She also admitted that bank representatives have confirmed to her that deposits must be made by 3:00 p.m. each day to be credited with interest for that day. /d. at 38-39. She testified that she did not believe the Township would really lose money by reason of each day's deposits being made after 3:00 p.m., but when asked how she reached that conclusion, she replied, "1 don't have an answer to that." Id. at 37-38. She stated that there was no reason for her refusal to make daily deposits, other than her dispute with East Pennsboro over the timeliness of the deposits. Id. at 43. In her status as Treasurer of a First Class Township, Biddle is also, by law, the tax collector for the Township. See 53 P.S. g 55805; Commonwealth v. Kline, 294 Pa. 562,144 A. 750 (1929). In that capacity, she testified that she charges a $3.00 fee to perform tax certifications for realtors, lending institutions, etc. Biddle Deposition at 29. She set the amount of the fee because it was "...the fee that a lot ofthe other tax collectors charge in the area." Id. at 29-30. This fee, however, is not authorized by any resolution or ordinance of East Pennsboro Township. Indeed, the Township's Board expressly refused to adopt an ordinance which would - 3 - ~ "'~".~ o',d'"-,.',_,'_, '-._ -'~ _',,' ,-.-,~:", ,c,'-::;; __-,,_;';'_ ,', -": ",,'-", ,,; "",:. '.,;", i"" "",-';"".,'"c-, ,:",',"" - "o"";'h~-_,,'~ ",,( . allow Biddle to collect tax certification fees.2 See Minutes of East Pennsboro Township Regular Meeting of Board of Commissioners, December 16, 1998 (attached as Exhibit "B" to East Pennsboro's Answer with New Matter and Counterclaim in Civil Action No. 99-6295). Biddle contended that she performed a cost analysis upon which she concluded that her "actual expenses" in producing a tax certification were $3.16. Biddle Deposition at 30. She has admitted, however, that a portion of the fee (which she could not specifY at her deposition) was merely a charge for her time in providing the tax certification. Id. at 30-31. In its response to Biddle's Complaint in Civil Action No. 99-6295, East Pennsboro asserted new matter which was also a counterclaim in the form of a request for mandamus relief against Biddle. Biddle has contended that the counterclaim was improper because no counterclaim is permitted in a mandamus action. While East Pennsboro disputes the applicability of this rule in this instance, in order to correct any potential procedural defect, East Pennsboro has filed a separate mandamus Complaint against Biddle, together with a motion to consolidate the instant action with Civil Action No. 99-6295. The relief sought by East Pennsboro includes requiring Biddle to make herself available on all traditional work days, to make timely bank deposits on each work day, to stop charging a tax certification fee unless and until authorized by the Township to do so, to provide monthly fmancial reports, and to perform bank reconciliations. Id. 2 Upon information and belief, however, East Pennsboro School District has authorized Biddle, in her capacity as the District's tax collector, to impose a fee for tax certifications. -4- -"'",,,--' .,,' <~,'," - <'-""', ^,'-- ,CO'_" - '(; ~,""~;,,- "',: ~ ~', :--'. __, ,--"_".;- "', ~_'" -,,"',c, ~ ,<_;~:.-,,'_ _' - "~ _' "'.~'_' " , II. DISCUSSION WHERE TWO MANDAMUS ACTIONS ARE PENDING IN THE SAME COUNTY AND INVOLVE THE SAME PARTIES AND THE SAME QUESTIONS OF LAW AND FACT, AND WHERE CONSOLIDATION WILL PREJUDICE NEITHER PARTY AND WILL AVOID UNNECESSARY COST AND DELAY, THE ACTIONS SHOULD BE CONSOLIDATED. In actions pending in a county which involve a common question oflaw or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. Pa. R.C.P. No. 213(a). The two mandamus actions at issue here involve common questions of law concerning the application of the First Class Township Code provisions goveming township treasurers and tax collectors. Both actions have common questions of fact, in that the same events and interactions of the parties led to both claims. Moreover, because East Pennsboro' s claim was originally presented as new matter and a counterclaim in Biddle's action, she has been aware of East Pennsboro's claim and has already had the opportuuity to pursue discovery on that claim; thus, she will not be prejudiced in any way by the consolidation ofthe two actions. Consolidation will also avoid unnecessary cost and delay which would otherwise result if the two actions were to be heard separately. In Biddle's action against East Pennsboro, Civil Action No. 99-6295, she contended that East Pennsboro's counterclaim was precluded by Pa. R.C.P. No. 1096, which provides generally that no counterclaim is permitted in a mandamus action. Rule 1096, however, does not preclude the consolidation of a mandamus action with another related action. Indeed, Pennsylvania courts - 5 - '"-' ,,,,--~":_,, o " _'":_--':~''''' .c-~ "'''_'' -',' ""'';; _"';'~'.' ", c,-'h'" .;."''..'__ ,~,'_""''_,,~;,:''';:;:),;:,,' ,;"~;l,:< ",+"" , , have ordered consolidation of mandamus actions with related actions by opposing parties. See, e.g., In re Stout, 521 Pa. 571, 573-74, 559 A.2d 489, 490-91 (1989) (Pennsylvania Supreme Court ordered consolidation of Attomey General's quo warranto and mandamus action against Supreme Court Justice with Court Administrator and Supreme Court Justice's related action for declaratory judgment); Borough ofTrumbauersville v. Thomas, 740 A.2d 315, 316 (pa. Cmwlth 1999) (trial court consolidated borough's equity action against mayor with mayor's related mandamus action against borough). Accord Board of Supervisors ofE. Norrito Twp. v. Gill Quarries, Inc., 53 Pa. Cmwlth. 194, 196,417 A.2d 277,277-78 (1980) (noting consolidation of appeal in declaratory judgment action by Board against quarry with appeal in mandamus action by quarry against Board). In the instant actions between Biddle and East Pennsboro, the parties' claims involve the same parties and the same events. The two actions are inseparably intertwined and should not be considered by the Court in disconnected proceedings. In the event that the Court declines to consider East Pennsboro's counterclaim in civil Action No. 99-6295, the Court should order consolidation of the two actions. - 6 - _ ,,^,,',o_ ----"'-'i.' .'.c".F-- ~ " III. CONCLUSION Based on the foregoing discussion, and in the event that this Court declines to consider East Pennsboro's counterclaim in Civil Action No. 99-6295, East Pennsboro requests that this Court order the consolidation of the instant action with Civil Action No. 99-6295. McNEES, WALLACE & NURICK By A~/~~ Y Michael R. Kelley J.D. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas J.D. No. 62047 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attomeys for East Pennsboro Dated: September /1, 2000 - 7 - '~.,,"', /"'", " , ' f CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, P A 17055 /ii,/? ~J.- Debra P. Fourlas Dated: September / ,/, 2000 "'"~ , -",.,- ~ 'd" "0', , --,~,--^ "~" " "" -, , , '~;""'-'" ".';"-,~,:,,',,, " . , .. . ~ . MCNEES, WALLACE & NURICK ATTORNEYS AT LAW 100 PINE STREET P. O. BOX 1166 HARRISBURG, PA 17108-1166 TELEPHONE (7171232- 8000 FAX 17171237-5300 http://www.mwn.com CHARMAINE y, O'HARA Paralegal DIRECT DIAL: (717) 237-5272 E-MAILADDRESS:COHARA@MWN.COM September 14, 2000 Richard J. Pierce, Court Administrator Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 FED EX Re: The Board of Co missioners of East Pennsboro Township v. Biddle No. 2000-6050 Dear Mr. Pierce: &0 z60 Enclosed are the original and one copy of the Plaintiff's BriefIn Support of Motion for Consolidation in the above-referenced suit. Very truly yours, I. . / f.h~~~ Channaine Y. O'Hara Paralegal enclosures cc: Richard C. Snelbaker, Esquire . COLUMBUS, OH WASHINGTON, D,C, . ~~~~,,{~-'~';"';;"" "'ili~~)-;';~,.: .'~" -<" , , ~ -" "- :Ji:: THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant " BRIEF ON BEHALF OF PLAINTIFF IN SUPPORT OF MOTION FOR CONSOLIDATION I. STATEMENT OF FACTS Plaintiffs are the Board of Commissioners of East Pennsboro Township and Robert L. Gill, Manager of East Pennsboro Township (collectively, "East Pennsboro"). East Pennsboro Township is a First-Class Township. Complaint, ~ 1. Defendant, Jane E. Biddle ("Biddle"), was elected Treasurer-Tax Collector of East Pennsboro Township, Cumberland County, Pennsylvania, in November, 1997 and assumed that office in January, 1998. C.P. Cumberland, Civil Action No. 99-6295, Deposition of Jane Biddle, August 29, 2000 ("Biddle Deposition") at 9.1 In Civil Action No. 99-6295, Biddle sued East Pennsboro in mandamus. Biddle asserted, in her Complaint, that the Board of Commissioners and/or Robert Gill "have sigued Township checks in violation of the Code and interfered with Plaintiffs performance of the check signing and disbursement duties," C.P. Cumberland, Civil Action No. 99-6295, Complaint, ~ 14; and that 1 A copy of the Biddle Deposition transcript is attached to East Pennsboro's Trial Brief in Civil Action No. 99-6295. . . ~ '."~ '."'W1S!,,,' "[ d]espite a continuing demand by Plaintiffto provide check signing authority for accounts payable checks, these items are still being performed by unauthorized and other Township personnel in violation of the First-Class Township Code," id., ~ 15. Biddle's mandamus action demanded access to Township records; only her signature on bank signature cards; access to other financial information to enable her to perform her statutorily required duties; and damages, costs and attomeys' fees for her action. Biddle has never provided a single financial report to the Township since assuming the office of Treasurer. Biddle Deposition at 54-55. She has testified that she needed accounts receivable, accounts payable, and disbursement records. /d. at 58. She has admitted, however, that she receives disbursement records, in the form of check registers. Id. She also '" -' acknowledged that she has received, upon request, copies of the yearly budget and copies of audit records; she also receives a monthly financial report containing the Township's revenues and expenses. Id. at 58-59. While she stated that she does not receive bank statements, she did not know whether those statements might be available to her upon request. Id. at 59. There are no other Township records she wants. Id. Biddle has testified that she agreed to perform reconciliations of bank statements. Subsequently, however, she has refused to perform that function based on her conclusion that it is an unacceptable accounting function for the same person to sign checks and also perform reconciliations. Id. at 46-48. Biddle has performed some bookkeeping work, but does not have an accounting degree. Id. at 5-7. -2- .IBI.r&;;;: Additionally, Biddle has testified that East Pennsboro offered at least as early as March 1999 to allow her to make all deposits of Township funds. ld. at 42-43. She refused, however, to commit to make bank deposits of Township funds every week day or to make deposits by 3:00 p.m. ld. at 43. Indeed, she has no office hours at all on Fridays. ld. at22. She acknowledged her awareness of the Township's expressed c;.oncem that if deposits are not made by 3:00 p.m. each day that the Township will lose a day of interest on each deposit. Id. at 36-37. She also admitted that bank representatives have confirmed to her that deposits must be made by 3:00 p.m. each day to be credited with interest for that day. ld. at 38-39. She testified that she did not believe the Township would really lose money by reason of each day's deposits being made after 3:00 p.m., but when asked how she reached that conclusion, she replied, "I don't have an answer to that." ld. at 37-38. She stated that there was no reason for her refusal to make daily deposits, other than her dispute with East Pennsboro over the timeliness of the deposits. ld. at 43. In her status as Treasurer of a First Class Township, Biddle is also, by law, the tax collector for the Township. See 53 P.S. ~ 55805; Commonwealth v. Kline, 294 Pa. 562, 144 A. 750 (1929). In that capacity, she testified that she charges a $3.00 fee to perform tax certifications for realtors, lending institutions, etc. Biddle Deposition at 29. She set the amount of the fee because it was "...the fee that a lot of the other tax collectors charge in the area." ld. at 29-30. This fee, however, is not authorized by any resolution or ordinance of East Pennsboro Township. Indeed, the Township's Board expressly refused to adopt an ordinance which would - 3 - d"~ ~~ ~ ~~ '" ^ ,'~ ~ llOl.4il>.''''''''~ allow Biddle to collect tax certification fees.2 See Minutes of East Pennsboro Township Regular Meeting of Board of Commissioners, December 16, 1998 (attached as Exhibit "B" to East Pennsboro's Answer with New Matter and Counterclaim in Civil Action No. 99-6295). Biddle contended that she performed a cost analysis upon which she concluded that her "actual expenses" in producing a tax certification we,re $3.16. Biddle Deposition at 30. She has admitted, however, that a portion of the fee (which she could not specifY at her deposition) was merely a charge for her time in providing the tax certification. Id. at 30-31. In its response to Biddle's Complaint in Civil Action No. 99-6295, East Pennsboro asserted new matter which was also a counterclaim in the form of a request for mandamus relief against Biddle. Biddle has contended that the counterclaim was improper because no counterclaim is permitted in a mandamus action. While East Pennsboro disputes the applicability of this rule in this instance, in order to correct any potential procedural defect, East Pennsboro has filed a separate mandamus Complaint against Biddle, together with a motion to consolidate the instant action with Civil Action No. 99-6295. The relief sought by East Pennsboro includes requiring Biddle to make herself available on all traditional work days, to make timely bank deposits on each work day, to stop charging a tax certification fee unless and until authorized by the Township to do so, to provide monthly financial reports, and to perform bank reconciliations. Id. 2 Upon information and belief, however, East Pennsboro School District has authorized Biddle, in her capacity as the District's tax collector, to impose a fee for tax certifications. -4- - " 1.-' " II. DISCUSSION WHERE TWO MANDAMUS ACTIONS ARE PENDING IN THE SAME COUNTY AND INVOLVE THE SAME PARTIES AND THE SAME QUESTIONS OF LAW AND FACT, AND WHERE CONSOLIDATION WILL PREJUDICE NEITHER PARTY AND WILL AVOID UNNECESSARY COST AND DELAY, THE ACTIONS SHOULD BE CONSOLIDATED. In actions pending in a county which involve a common question oflaw or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay. Pa. R.C.P. No. 213(a). The two mandamus actions at issue here involve common questions of law concerning the application of the First Class Township Code provisions governing township treasurers and tax collectors. Both actions have common questions of fact, in that the same " .' events and interactions of the parties led to both claims. Moreover, because East Pennsboro's claim was originally presented as new matter and a counterclaim in Biddle's action, she has been aware of East Pennsboro's claim and has already had the opportuuity to pursue discovery on that claim; thus, she will not be prejudiced in any way by the consolidation of the two actions. Consolidation will also avoid unnecessary cost and delay which would otherwise result if the two actions were to be heard separately. In Biddle's action against East Pennsboro, Civil Action No. 99-6295, she contended that East Pennsboro's counterclaim was precluded by Pa. R.C.P. No. 1096, which provides generally that no counterclaim is permitted in a mandamus action. Rule 1096, however, does not preclude the consolidation of a mandamus action with another related action. Indeed, Pennsylvania courts - 5 - have ordered consolidation of mandamus actions with related actions by opposing parties. See, e.g., In re Stout, 521 Pa. 571, 573-74, 559 A.2d 489, 490-91 (1989) (pennsylvania Supreme Court ordered consolidation of Attomey General's quo warranto and mandamus action against Supreme Court Justice with Court Administrator and Supreme Court Justice's related action for declaratory judgment); Borough ofTrumbau,.ersville v. Thomas, 740 A.2d 315, 316 (pa. Cmwlth 1999) (trial court consolidated borough's equity action against mayor with mayor's related mandamus action against borough). Accord Board of Supervisors of E. Norrito Twp. v. Gill Quarries, Inc., 53 Pa. Cmwlth. 194, 196,417 A.2d 277, 277-78 (1980) (noting consolidation of appeal in declaratory judgment action by Board against quarry with appeal in mandamus action by quarry against Board). In the instant actions between Biddle and East Pennsboro, the parties' claims involve the same parties and the same events. The two actions are inseparably intertwined and should not be considered by the Court in disconnected proceedings. In the event that the Court declines to consider East Pennsboro's counterclaim in civil Action No. 99-6295, the Court should order consolidation of the two actions. - 6- ~ - " . }1h1!'< , . III. CONCLUSION Based on the foregoing discussion, and in the event that this Court declines to consider East Pennsboro's counterclaim in Civil Action No. 99-6295, East Pennsboro requests that this Court order the consolidation ofthe instant action with Civil Action No. 99-6295. > McNEES, WALLACE & NURICK By 4Ii,~ :/ ~L " Michael R. Kelley I.D. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas I.D. No. 62047 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108-1166 Attomeys for East Pennsboro Dated: September /;;< 2000 -7 - ,,'- "-,;; -'"'"1' . , , . CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: r Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, P A 17055 j). p,/" / Ai,,;. )r/hl/~ Debra P. F ourlas Dated: September / ,/, 2000 ':.. -- . THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff v. JANE E. BIDDLE, Treasurer of East Pennsboro Township : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA : NO. 2000-6050 CIVIL TERM : CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 12TH day of SEPTEMBER, 2000, a Rule is issued upon Defendant Jane E. Biddle to Show Cause why this action should not be consolidated with Civil Action 99-6295. Rule retumable ten (10) days after service. Michael R. Kelley, Esquire Norman I. White, Esquire Debra P. Fourlas, Esquire Richard C. Snelbaker, Esquire :sld By the Court, ~ Edward E. Guido, J. /~~ 9 - /,).di) "f^" :] "" r - . .""" .. ~~ ". -'~',,~,"'T>""~!' ' '"P....~.'.nb.'''.'.. ,F--", f"'--" l,~> ~ "1' !;~: Lt ! L~J Sl".:! I c. ." l~r;IUi\JTY ".'''- , '-,,1. j\!.:::-'\ll\/'\~\li,L\ r'Ci\JJ \\Jl .It,, ,.,-, ~,,,,,,"^,_,,~~I~l!flIIo ~"W!l! .. ,,~= ",~ - ""~ , -'~--"- ;; " . '~ ,-,,-. ,"'-' :~,_, .'".' "0-' ~-,~.,...~~~,; ':', ~~. ' ,,,,",,, ~;~;';<;d ,'~ ',:~ , ~;', " , ~. -. '. - '--,,''', THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant ORDER AND NOW, this day of , 2000, upon consideration of the within Motion for Consolidation, said motion is hereby GRANTED and this case is consolidated with Civil Action No. 99-6295 BY THE COURT: 1. ~ " , ' THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, No. 2000-6050 Civil v. JANE E. BIDDLE, Treasurer of East Pennsboro Township, CIVIL ACTION - MANDAMUS Judge Guido Defendant MOTION FOR CONSOLIDATION Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill, by their undersigned attomeys, move this Court for the entry of an Order consolidating this action with Civil Action No. 99-6295, also pending in this Court, and in support of this Motion avers as follows: I. Plaintiffs in this action are the Board of Commissioners of East Pennsboro Township, Cumberland County, Pennsylvania (the "Township"), a First-Class Township, having attained such status beginning November 4, 1952, and Robert L. Gill, a citizen of East Pennsboro Township and its Township Manager. 2. Defendant in this action, Jane E. Biddle ("Biddle"), has been the duly elected Treasurer of East Pennsboro Township since November, 1997, and has occupied the position of Treasurer since January 5, 1998. 3. By virtue of her election to the office of Treasurer in a First-Class Township, Biddle is also the Township's Tax Collector under applicable law. . . ~-- ----" ,'.-, '0 Ch(';'7_C'_"C .(-~ '~. '", .'">,,, ".'".-;.,-'.,7=';,':,,', ',;, ",' " ~~ ';"'><_1 "., C.,,, ~,~_ ~d':iJ , . 4. Commencing around the time Biddle took office as Treasurer and Tax Collector, the parties have disputed the duties and authority imposed and conveyed upon Biddle in her official capacity, under applicable statutes and Township ordinances and policies. 5. In summary, Biddle sought sole control and authority over all Township funds; the Township was concerned that such control would result in inordinate delays in issuance of checks and in daily deposits since Biddle insisted on working only four days per week and would not make daily deposits in time to avoid loss of interest for the day. The Township was also concemed by Biddle's ongoing failure and refusal to provide monthly Treasurer's Reports and to perform periodic reconciliations to assure that the Township's financial records coincided with the corresponding records of its banking institutions. 6. In addition, the parties dispute Biddle's authority to impose and collect fees for providing tax certifications to property owners, title insurance companies, banks, and mortgage companies, in the absence of any Township ordinance granting authority for such fees. 7. On or about October 12, 1999, Biddle filed a mandamus action against the Township, the individual members of the Board of Commissioners, and Robert L. GilL 8. In her mandamus complaint, Biddle sought, inter alia, to compel the Township to require only Biddle's siguature on all bank signature cards for Township bank accounts and to permit her to sign all checks from the Township. 9. Contemporaneously with the filing of this Motion, the Plaintiffs have also filed a mandamus complaint against Biddle, under the above caption seeking to compel her to make -2- ~ --', "",'.- ',-'- '~'- ~," ," ,;,,-,",', _-T~", "~"'';;,;I.'' ,''''_'J-c.,:tT)':_ -,-',"-'---,---,,' -, <,;--~,' " , ' herself available each work day, to make timely daily deposits, to refrain from collecting the unauthorized tax certification fees, to provide monthly Treasurer's Reports, and to perform bank reconciliations. 10. The two mandamus actions involve common questions oflaw and fact and arise from the same transactions and occurrences, and involve the same parties. 11. Consolidation of the action will avoid unnecessary expense and delay avoiding the need for two separate trials relating to essentially the same subj ect matter. 12. Consolidation will not prejudice Biddle or delay the trial of her action; inasmuch as the Township originally asserted its claim as a counterclaim to Biddle's complaint, she has been aware of and defending that claim throughout the pendency of her action. Rather, the Township's separate complaint and request for consolidation are filed because Biddle has asserted, in Civil Action No. 99-6295, that the Counterclaim and affirmative defenses of the Township and Gill are not appropriately raised in Biddle's mandamus action. The Township and Gill do not believe that Biddle's position is legally correct, but have filed their separate mandamus action to render the issue moot. - 3 - 'r" ",_.,,,,.,;.,:- -'---~.b {'; ~,'~ -,""" ',-- -''-" .'''''',~- ---c';:'-",,,~:-_-'~i;;:j ,.,,,,, __'",X;';'. -- ,," .' ." WHEREFORE, Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill, request that this Court issue an Order consolidating the instant action with Civil Action no. 99-6295. McNEES, WALLACE & NURlCK By &/M /? ;:;:~ Michael R. Kelley LD. No. 58854 Norman L White LD. No. 7270 DebraP. Fourlas LD. No. 62047 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attomeys for Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill Dated: August 3/, 2000 -4- u~ - -'---'r"~-' " ,- --, ,- ., '.'.'''<.' _'~ """"', c_''"'__--~,',' .,~-.;.-i., -<> ,,''"'''~..__';',~''/._d>~',..,,' - '-cJ;_ ;.;; _ <," " '. '. " ,', CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by fIrst-class mail, postage prepaid, upon the following: Richard C. Snelbaker, Esquire SNELBAKER, BRENNEMAN & SPARE 44 West Main Street Mechanicsburg, PA 17055 September 1, 2000 IT,1~ Jib.'iJdj ,," ~'V : ..u ^~ "~.."- =~c "^ ,< hi. - -~ ^'""" ,--~- ,,' "_, ~ __h ,~__ "'j< ~" J1sL ", ~, . ~",-",-,-' ". " -, --~I . ~ v _ , .' " 0 (::J C" c:. (,.:) ;, c ,n ., ""'() ;:~:- " -r '. ni :'''0 , ~~ Sf CT, r::: ":r::-" --,- ""'-- ..~ C:' c> (~,:,j , n .J> C C'.l ; Z '1-" :.< :...~) :=.,~~ (...) -<, '1 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE .... ,',--'" ,,,':, - ':, '::, ,~ .> ,:;" - ,,,>>::,;' THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL vs. JANE E. BIDDLE, Treasurer of East Pennsboro Township. Defendant CIVIL ACTION - MANDAMUS DEFENDANT'S RESPONSE TO RULE TO SHOW CAUSE RE PLAINTIFFS' MOTION FOR CONSOLIDATION AND NOW, comes Defendant, Jane E. Biddle, Treasurer of East Pennsboro Township, by her attorneys, Snelbaker, Brenneman & Spare, P.C., and responds to the Rule to Show Cause issued by Honorable Edward E. Guido on September 12, 2000, and served on September 22, 200, as follows: PREFACE Since Plaintiffs' Motion for Consolidation is not verified, the allegations of fact therein need not be answered and, therefore, are deemed to be denied. Accordingly, this response does not admit any of the factual allegations or the assertions of reasons set forth in said Motion. However, in the interest of expediting a resolution ofthe litigation, Defendant responds as follows. i L.AW OFFICES SNELBAKER. BRENNEMAN & SPARE \"~Lo cCj ANSWER Defendant has no objection to consolidation of the within action with the case docketed to 99-6295 Civil in this Court provided (a) that the consolidation does not delay the trial of No. 99-6295 as scheduled for October 18, 2000, and (b) that Defendant does not waive any defenses to Plaintiffs' contentions. , BRENNEMAN & SPARE, P.C. By . hard C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Defendant LAW OFFICES SNELBAKER. BRENNEMAN & SPARE .'..'""","."" CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true and correct copy of the within Defendant's Response to Rule to Show Cause re Plaintiffs' Motion for Consolidation upon the Attorney for Plaintiffs by sending the same by first-class mail postage paid addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 ichard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 Attorneys for Defendant Dated: October 2, 2000 , II !i " II U ,'<'---,-,,- ..'..' -;""-"'~'-"- - "';= ,~- <','~ -, - . . ., . J.; THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA No. :Jtm-&'J':>o (;~1/ v. CIVIL ACTION - MANDAMUS JANE E. BIDDLE, Treasurer of East Pennsboro Township, Defendant NOTICE TO: DEFENDANT JANE E. BIDDLE YOU HAVE BEEN SUED IN COURT. If you with to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attomey and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claiIU or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 717-249-3166 or 800-990-9108 '000"'''''_''''_ , ',\0;'. '~,_ _",_ " .--. " .,_'_ '/'~ -' ~c,,~..;',:. c' ,h'h". 'e "',~ ,;,j ,~;---,,:-,,-,~;;";.:;i.r~- ".till . " , " A VISO A: DEFENDANT, JANE E. BIDDLE USTED HA SInO DEMANDADO/EN LA CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las paginas, debe tomar accion dentro de los proximos viente (20) dias despues de la notificacion de esta Demanda y A viso radicando personalmente 0 por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se Ie advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda 0 cualquier otra reclamcion 0 remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicionaL Usted puede perder dinero 0 propieded u ostros derechos importantes para usted. USTED DEBE LLEV AR ESTE DOCUMENTO A SU ABODAGO IMMEDIATEMENTE. SI USTED NO TIENE UN ABODGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 V AYA A LA SIGUlENTE OFICINA PARA A VERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 717-249-3166 or 800-990-9108 . ~ "-" .-_'_~"T' - ~"-, ;"'0'':;''_ ,.C,' ~';:__ , "'", .-_,,~ "~":' ~' , ",:,,' ',' ,'-,,'.'- , , , THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, Plaintiffs, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 1J.c-t;e;.5b ~~ v. CIVIL ACTION - MANDAMUS JANE E. BIDDLE, Treasurer of East Pennsboro Township, Defendant COMPLAINT 1. Plaintiff is the Board of Commissioners of East Pennsboro Township, Cumberland County, Pennsylvania (the "Township"), a First-Class Township, having attained such status beginning November 4, 1952. 2. Plaintiff Robert L. Gill is a resident and citizen of East Pennsboro Township and is the Manager of East Pennsboro Township. 3. Defendant, Jane E. Biddle ("Biddle"), is an individual residing at 12 Woburn Abbey Avenue, Camp Hill, Cumberland County, Pennsylvania. 4. Defendant Biddle has been the duly elected Treasurer of East Pennsboro Township since November, 1997, and has occupied the position of Treasurer since January 5, 1998. 5. The First-Class Township Code (the "Code") provides, inter alia, for the elected position of Township Treasurer. 53 P.S. g55801 et seq. - '.'..' '-"<,,,",,',"J'.,.' ",--_'''_ . ,...... "" ';"".,' '" <~ ,,0 " ,._, . '-~c----, ~da..:~-_""'.. ,'. '..>,,,,,,,,i/." '-, T" ,_" _i;.;,~~-_.-_ ,-",",~ ;~-1 . . . , , " 6. The Code provides that: "Every Township Treasurer shall take charge of all Township monies from all sources, and promptly deposit the same in a bank, banking institution or trust company in the name of the Township...." 53 P.S. g55803 (emphasis added). 7. The Township Treasurer, by virtue of her office as Treasurer, is also the tax collector. 53 P.S. g55805. 8. Pursuant to the First-Class Township Code, the Board of Commissioners is vested with the authority and obligation "to adopt resolutions and ordinances prescribing the manner in which powers of the Township shall be carried out, and generally regulating the affairs of the Township." 53 P.S. g56502. 9. By memo dated March 16, 1999, the Township Manager, Mr. Gill, sent out a proposed Administrative Procedure and Policy regarding deposits and siguatures on checks so that the Township Treasurer, the Board and the Manager could work together. Mr. Gill noted in the memo: "These guidelines wil1...include the treasurer/tax collector making the daily/weekly/monthly bank deposits and the reconciliation of the monthly bank accounts." See Memo dated March 16, 1999 from Robert L. Gill, attached hereto as Exhibit "A" and made a part hereof. 10. Biddle, contrary to the First-Class Township Code and the Township's Administrative Procedure and Policy, has consistently refused to make deposits in a timely fashion. -2- ".-, '"q~. ~-.: ,,"',- ~'" ' ---., -"-" . ,..",'", ' "'____" ,,:.'" '" ;'_', _ ,,,,,-i>;" :j:':-H__';""~"-' - -< '- ,.",~ ''ie.--,' ;, ,__: . . '. 11. Biddle only wants to make deposits four days a week and after the time of day when banks credit a deposit with interest for that particular day. 12. Despite the fact that the Township has pointed out on numerous occasions that the Township would lose significant interest (approximately $23,000 per year), Biddle has persisted in her refusal to make the deposits in a timely fashion. 13. In order to prevent the loss of such funds to the people of East Pennsboro Township, the Township Manager has made sure that such deposits were timely made. 14. Since assuming her office as Treasurer, Biddle has also imposed a charge upon any property owner, title insurance company, bank, or mortgage company seeking a tax certification form from her office. 15. The Township specifically refused to adopt an ordinance permitting Biddle to collect this fee, yet she has persisted in wrongfully collecting it. See Minutes of East Pennsboro Township regular Meeting of Board of Commissioners, December 16,1998, attached hereto as Exhibit "B" and made a part hereof. 16. The collection of the tax certification fee is not part of the responsibilities of the Township Treasurer, is contrary to law, and is an unethical increase in the amount of compensation received by the Treasurer. 17. Although Biddle has been the Treasurer ofthe Township for over two and one- half (2 Y2) years, she has failed and refused to provide a Treasurer's Report to the Township. - 3 - -"-~ ~_.~,-, '" , ,~ - '-"; ,- "~- ,=,,'. "'.'" . '" ~''''''~''--' ,.., '-'-"'<''''':'.-~ '~-~','--'';'"/.".,.~"",,,,~- ,,;,,, ""'he'." "- --,-, ' ~ ,"' J_ i , . " 18. Although Biddle is required under the First Class Township Code to take control of all monies of the Township, she has never performed bank reconciliations to ensure that the monies expended by the Township conform with the records of the Township's banking institutions. 19. Plaintiffs seek to compel Biddle to comply with her obligations under the First- Class Township Code. 20. Plaintiffs' right to relief is clear. 21. The duties of the Township Treasurer at issue are statutory, ministerial duties. 22. Plaintiffs have no alternative relief. WHEREFORE, Plaintiffs, the Board of Commissioners of East Pennsboro Township and Robert L. Gill, respectfully request that this Court issue an order instructing Defendant Jane E. Biddle to do the following: (1) to be available on all traditional work days, including Fridays; (2) to make deposits of Township funds in a timely fashion so as not to affect detrimentally the interest earned by the Township; (3) to cease and desist from charging a tax assessment fee unless and until the Township chooses to authorize such a fee by duly enacted ordinance; (4) to provide a monthly Treasurer's Report of the financial status of the Township; and -4- <= " "",',,' ,-" - ~ , "_"'''':-,-,,'0' ~_ ,',' ';';c." ~~_"'_C.' '0 'd ,_~-c' ,', - --, ~" '~ ~il (5) to perform the functions of bank reconciliations and all other required tasks of the Township Treasurer / Tax Collector. McNEES, WALLACE & NURlCK By ~lh:J~ . chael R. Kelley I.D. No. 58854 Norman I. White I.D. No. 7270 Debra P. Fourlas I.D. No. 62047 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108-1166 Attomeys for Plaintiffs, Board of Commissioners of East Pennsboro Township and Robert L. Gill Dated: August 3/,2000 - 5 - I" ~, . ROBERT L. GILL TownShip Manager DONALD L. TAPPAN Assistant TownShip Managf EAST PENNSBORO TOWNSHIP MEMO TO: Board of Commissioners Donald Tappan, Assistant Township Manager Deborah Thomton, Administrative Assistant Henry F. Coyne, Solicitor Jane Biddle, Treasurerrrax Collector FROM: Robert L. Gill, Township Manager . . '->~-~fv,.:. SUBJECT: ADMINISTRATIVE PROCEDURE AND POllCY DEPOSITS AND SIGNATURE ON CHECKS '..;...) DATE: March 16, 1999 I have been directed by the Board of Commissioners -of East Pennsboro.Township. to. develop an Administrative Procedure and Policy establishing guidelines which will allow the . township's treasurer/tax collector to sign all checks disbursing township funds. These guidelines will also include the treasurer/tax collector making the daily/weekly/monthly bank deposits and the reconciliation of the monthly bank accounts. Regarding the Board's directive, listed below is a bteakdown of the administrative procedures and policies that are being instituted by my office relative to the following five (5) vital areas -- Dailv/W eek~v/Monthly Deposits. Bank Statement Reconciliation:. SiV'llture of Board of Commissioners' Ap,provedDisbursements. Sienllture ofPavroll Checks~ and monthly Treasurer's Re9<>rt. All procedures and policies will be effective April 1, 1999. . A. DAIL YIWEEKt.YIMONTHL Y DEPOSITS: - All departments under my supervision that make daily/weekly/monthly deposit reports will continue to turn these into Debbie Thornton, Admini"trative Assistant by noollon each calenqar day. Themail is usually delivered to the township office by approximately lO:OOAM. and this allows the office personnel two (2) hours to open the mail, post customer accounts and prepare a deposit report. Debbie will review the bank deposit reports from noon to 1:00 P.M. The deposit reports will be available for pick up by the treasurer/tax collector after 1 :00 P.M. 88 South Enola Drive. Enola, PA 17025-2786 . (717) 732-0711 ~- - " '_ L ""-"""-""'" Memo. Administrative Procedure & Policy March 16, 1999 Page 2 This will allow the treasurer/tax collector two (2) hours to prepare the deposit slips and deposit code reports and take the deposits to the bank by 3 :00 P.M. It is imperative that all deposits are received by the bank by 3 :00 P.M. to allow posting of the deposits on the appropriate day's transaction at the bank. . By the tenth (10th) of each month, Denise Sgrignoli, Police SecretaIy will submit the Police Depill tment' 5 previous month' 5 deposit and deposit report to the treasuIer/tax collector for processing. With regards to monies collected by thetre3smerltax collector - real estate, per capita &: delliiquent taxes, real estate transfer, etc., the treasurerItax collector will make such deposits. , Upon completion oithe bank deposit(s), the treasurerItax collector will return to Debbie . Thornton a copy of the bank deposit slip(s), alldepositreports, and a copy oithe proper deposit code report showing which township account the funds were deposited. The deposit code . report( s) are necess;uy 50 the township' 5 accountant can properly post the funds to his general . ledger. When Debbie is off the above procedures will be full-filled by the following personnel: 1. Larry Lint, Accountant 2. Donald Tappan. Assistant Township Manager 3. Robert Gill,. Township Manager It will be necessary for the treasurer/tax collector to provide the Administrative Office with a written list of her office staffwho will be responsible fortaking the daiIy/weeIdy/ monthly township deposits to the proper depository b8Ilk.. B. BANK ST A TEMENT(s) RECONCILIA nON: In previous years Mrs. Alicia Stine, former township treasurer/tax collector coorrl1n"tM with PNC Bank to pick the township's monthly bank statements for the generaI/sewerfund and payroll account Mrs. Jane Biddle, treasurer/tax collector shall continue with this same procedure. With the township switching its bank depository, we have contacted Commerce Bank and they will notify our office when the various statements are ready for pick up at their main office. - - ;. - ~<' Memo - Administrative Procedure & Policy March 16, 1999 Page 3 Mrs. Biddle will be responsible for reconciling the monthly bank statements and returning them to Debbie Thornton by the 12th of each month. This will allow our accountant enough time to close out his monthly reports and prepare a financial report for the second meeting of the Board of Commissioners. C. SIGNA TURF, OF PAYROLL CRF,CXSIDJ!'POSIT OF FUNDS. ETC.: .....~,. Effective Thursday, AprilS, 1999 the following procedure will be implementeclrelative to the biweekly township payroll. c. .. .' . '.. ~,-~!"r;J'~ Payroll checks will be prepared on a biweekly basis by Debbie Thornton. The payroll' " . checks andmisc~llaneous deduction checks will be prepared by noon the Thursday of pay week. These checks will then be available fur the tre3surerJtax collector's signature. The tIeas1irerftax . collector will be.responsi'blefoithe dePQsitof the d1eckto t:ransferthe funds to payroll.1iiC:':.' treasurer/tax collector will also be responsible fortaking 'the check for our employees' direct-.'" payroll deductions to MemherS,lst Federal Credit Union main office which is located on LOUise . Drive, Rossmoyne Square, Mechanicsburg, PA. Both of these deposit MUST be credited by' .,;: : 3 :00 P.M. on Thursday of pay week in order to have the appropriate funds deposited for the employees' payday which is Friday. D. SIGNATURE OF f'RF.CKS APPROVED BY BOARD OF COMMISSIONERS: P1Jrchase orders are genetllted in the administrative office and prepared on a daily/weekly basis. The purchase orders-will be available foneview by the treasurerltax collector on Thursday or Friday of each week. These purchase orders are used to generate a report of the scheduled bills to be paid. This report is presented to the Board of Commissioners for approval at their regular monthly meetings. Upon the Commissioners' approval of the report of scheduled bills to be paid, Larry Lint, township accountant Will enter the necessary information on the computer to generate the checks for payment of the approved bills. These checks will be ready for the treasurer/tax collector's signature between the hoursoflO:OO A.M and 1:00 P.M. the Friday following the Board of Commissioners meeting; After the checks have been signed by the treasurer/tax colle1:tor, Lany will prepare the checks for mailing to the vendors by 3:00 P.M. "~ -- ..'. " '~",- '~ . '.,j , . > Memo - Administrative Procedure & Policy March 16, 1999 Page 4 E. MONTHI.Y TRF.ASURER'S RF.PORT, The treasurerJtax collector will be responsible to prepare a monthly treasurer's report that reflects the status of the monthly bank balances for all accounts. This report shall be submitted. . to the Board of Commissioners at their second monthly meeting of each month. "~ -- In writinstbis"Administnrtive Procedure and Policy." I would hope that the township's treasurerItax collector will be available to perform the above functions Ile("'""'I~'Y to ensure the ' conti.I11eQ smootn ;;;,miftiofthe:town;'mp's>fift~recofds: -' ., .----'.. ,'''' - , - . . .~. -,.' ... . f...... i" ; . ,. '..!<'. - .;' It is aiSo ~ tfuit all checxs gen~:fur- signature ~ pl""'J.~~, ord~ do not".., luRthe administrative-office at anytime. ProvisiOIlS are available for the signing of checks and reviewofpun:haseorders in room 103 or room !Q6~ .'. .. .' '.~".;. - <. " _. ,. .. . . . It is aJsO;~ that iftlie ~~_~llector is no.tgoing to be~le.to meet the eommitineirtS outlfuedabove, that she provide thetoWDSbip ...aftllgerwith.written. :!: corifirmation'ofhciuDaVallaQilitY'::sucit aSvaclition - ~-four (24) hburs in advance. This, will allow the lulrniniStrative ilffice tinieto makeariangements to meet the nece:'-""ry' _j ,.';-:i': co;:;;;:;'itn1_'~" , ", C'" --,..... ." ',-- - -' '. . ',: If you have any ~ons concerning the above information or wishto meet with me to . discuss this, please feel free to contact this office. NOV- ~:99 TUE 11:50 AM 4367913126963 1l/€l2/1ggg 11:16 717- '7818 --,I , . ~ "'. FAX NO. 7]77375161 . EASTPENNSBCROT" .' r 2/ 7 PAGE. 82 " BAS'l' PENNSBORO 'l'OWNsrrIP BOAAD Ol!' COMMISSIONBRs REGULAR MEETING, OECil>lBlil~ 16, 1998 Regula~gession B:30 p.m. The ~egulady Bche4uJ.ed meeting of the Ran PennlPQoro Township Board of COmmisB:i.oners was hald on Wednesday, December 16, 3.998, at.B:30 p.m. at the COIIIllUnity and Municipal Center, 98 S. Enola Drive, Bnola, pennsylvania. Those present were: CommiB!lioners - George DeMartyn, President.; James Hertzler, Vice !>resideot; Dolores McAl.ister, Charles Yohe, Md Alida Stine; Robert L. Gill, Township Manage:r; lienJ:j' 11. Coyne, Esquire., Township Solicitor; Joseph Bonarrigo, TO'Wllship Engineer; John Pietropaoli, AAJ::is!:ant Codes Enforcement Officer; Debbie Thornton, staff; and Chief Dougherty. Police Chief. I. CALL TO ORDER P~esident DeMartyn called the meeting to order at 8:30 p.m. A tnOOlent of silent JIleditation was held, followed by the Pledge of Allegiance to the Flag. II . A:ePROVAL OE' MINUTES MOTION.approving the following iteMized minutes: 1. Ragu~ar . Meeting of J:leoember 2, :1-998 2 , Spedal Budget Meetin9' of: December B, 1998 with noted corrections, was made by Mrs. .St1ne, seconded by Mr. Yohe, and was carried by !l unanimous ayliiJ vote. III. APPJ<O\7AL OF UPOR1'S MOTION approving the fol~owing itemized reports: 1. Financial Repo~t for October 1998 2. Building Department RepOrt for NovembeJ:", 1998 was made by Mr. Hertzier, seconded by Mrs. McAlieter, and .was carried by a unanimous aye vote. IV. 2USlNESS FROM THE FLOOR Prizes were awarded to the 13th Annual Rouse and Door Decorating Contest winners by commissioner MrS. McAliater. (Whereupon, the proceedinss were recessed at 8 :.40 l? .tn. in ordex: to hold a pub11c hearing. and were resumed at 8:53 p.m.) It N,OV- '?-99 mE 11 :50 AM 4357913125963 '11/02/1~99 11:16 7l77M'81a FAX NO ryj77,ry'151 '. I" J I J EAST?ENN~nP ~ '~.." , ~ P 3/ n i PAGE 133 Board of Commissioners Decelllber 16,. 1996 Page :2 V. ITEMS POR DISCUSSION AND APPROVAL MOTION to deny che request for David R Bret2, 17.83 acres for rezoning from residential single-family (R-ll to residential 1!l1l1ti-:tarnily (R-2J for the following reasons: On Novelllber S, our Bast Psnnsboro Township Planning and zoning Commisgion recommended. denying it ]:)acaUlS!!l of 't:h~ ~rland County Planning C~esion recommendation chat it ia uo'!: cQmp~tible with the townab.ip' a future land ua!!l map which shows this area illS residential low density OU the township CgmprebenBive Plan,wae made by Mr. yohe. ggconded by MrS. McAlister, and was carried. I:>y a unanimous aye vota. Mr. Heruler stated that the township haa controlled development within the scope of a oOlllprehensive plan that attempts to balance all interests including commercial, residential. I!>nvironlllental, wate%.', public safety, et cetera, and that without eontrolled development and without the comprehens~ve plan. current I?,-l property values be muCh less. MOTION to deny the request for rezoning of Gilbert N. and Blanche M. Derrick of 3.73 acres of land from residential single-family (R-l) to residential multi-family (R-2) for. the fOllowing reasons: Bast I'eIlnsboro TOWlllShip Planning and zoning Commission recommended denial of the rezoning on November 5 meeting! and the Cu~rland county Planning COIllIllission has recoramended to deny it because it does not match the township's future land use Illap which shOWS tMt this area as residential low density on the tOWllllhip comprehensive plan, was made by Mr. Yoh~, seconded by Mrs. McAlister. and was carried. hy a unan1!l1OUs aye vote. The board then discussed the preliminary land development plan for the Centers for Bxc9011ence. Mr. Qill referred to the lel:ter c1ated December 16. :1.998, from the Department of General Services outlining an overall comprehensivQ statement, and the township staff is satisfied with the preliminary land development plan subn,!.t.ted. They are working with 003 on the curbing and sidewalk and overall land development plan. (A copy of the December 16, 19~e, lett.er from DOS is attached to the min~tes.) President DeMartyn stated that after reading the letter he thiDks the board' B concerns bavebeen addressed, and he eX'pJ:'essed his appreciation with the State's CIJoperaCion tllrOllgh the process. -._,~-" . -.,' .,,~~ . NOV- .pg TilE 11: 51 AM l.1/62/1999 1<:16 4367913126963 7l7P~"'na FAX NO. 7177375161 EAS'il'ENNSBCROTIoF' , r"HUF- ,P 41 7 ~. Board of commissioners December 1~, 1998 lIage 3 Mr. Hertzler stated he appreciates what t~ State is doing for nQcessary precautiOns tor all departments chat will ~e placed in th~ Centers for' Excellence for any environmental hazards to the communi.ty. He aho cOlX1Plimen.ted the State on the movement of the salt shed. and he is also very happy with the potential for the township to bEt able to li<as& that at no cost for recreational purpoees for the community and the centers for Excellence, and also the traffic improvements that the State haS agreed to make. MaTrON' co approve the preliminary land development plan for the CQnters for Excellence, the village of Su~rdale, East pennsooro Township, incorporating the December 16, 1.998, letter trOln the pepartlllenc of General Services, was made by Mr. HertZler, seconded by MJ:'S. Stine, and was carried by a l.U1animous aye voce. MOTION authorizing payment of invoic@s pending review and signatures of Commissioners, was made by Mr. YOhe, seconded by Mr. Hgrtzler, and was carried by II unanimous aye vote. MOTION to approve R.aolut~Qn No. 1998-31 for the sewer pla:rming module for carl J. And Sophie A. Zysk, was made by Mrs. t'lcAlis ter . seconded by Mr. Hertzler. and was ca=ied by a. unanimous aye vote. MOTION" to approve the r$qUl!lat from Dale A. Clemens. AARP Tax Aida coordinator. to use the township facilities for tax assistance for the elderly on Tuesdays and ThurSdays starting the firet week of February througlt April 15. 1.999, _6 made by Mrs. Stine, seconded by Mr. Yohe, and: was carried by a unanimous aye voce. Mr. Gill noted' that th:l.s service ~s been used tremendously by township residents. MOTION to approve paymant of Requj.sition No .280 to Gannett Fleming, Inc., from the J.985/89 Sewer construction Fund Aac01J11t for 6ngineeringservices relative to the conetructionphase of the Qrandview Acre gewer project in the amount of $766.64, was made by Mr. YoM. seconQ.ed. by MrS. McAlister, and was carried by a unanimous aye vote. MOTION to approve paytllenc of Requisition No. 132 to Gannett Fleming. Inc" from: the J.9% Sewer construction Fund ACC01,1I1t for en~ineering services relative to the Bnola trunk line project, Brentwater Road pumpil1g scation rehab, and ChEt rehab project for the l?llIlIping s.te.tions nlmber 3, 5 Md 6, in the amoUliC of $1,164.64, was 1IIllde by Mrs. Stine, seconded by Mr. Yohe, and was carried by a unanimoUB aye vote. NOV-..?~99 T.UE II :52 AM 4367913126963 11/B2/1999 11:16 7177?~-'le FAX NQ 7[77375161 EASTPENNS8I:RQTiIP t"~,:.ll:' co P 5/" Board of commissioners DGcember 16, 1998 Page 4 MOTION to approve payment of Requisition No. 242 to Su-M company trom the 1~96 General Construction lfund Account for work perfo:cmed itS Of November ~5, J.998, on the River Road/Overview Bridge project in the amount of $133,543.66, per invoice No. 11, which represencs 34 percent complet::!.on, was made by I\!rs. McAJ.ister, seconded by Mr. HeZ't~ler, and was carried by a unaniitlOus aye vete. MOTION to approve pa~t of Requisition No. 243 to Handwerk Contractors', Inc. I from the 1996 General Construction Fund Account for work performed as of November 25, 1998, relative to the Center Street relocation project in the amount of $27,80=.65, per invoice No.6, which represents 18.53 percent completion, waS made by Mr. Hertzler, seconded by Mrs. Stine, and was carried by a 1.lI1animous aye vote. MOTION to authorize the execution of the addendum to the BiQsolids Management Service asreement betw~en E&8t PeDnsboro Township 2Uld CDR Mid-Atlantic for tbe continuation of the present managament service agreement for the period of January 1, 2000, through December 31, 2004, was made by Mrs. Stine, seconded by Mr. Yohe, and was carried by e. unanimous aye vote. MOTION to eli1Il:iMte any burning in East Pennsboro TOWIlflhip while the area i~ under the Governor's draught waming, unl;;i.l further Il,Qtice, was made by Hr. 'lohe, secondAd. by Mrs _ McAlister, and was carried by a unanimous aye vote. MOTION to approve 11 tax exonerations as BUl:mdtted by ehe Tax Collector ~ approved by the Finance CDIIIllit::tee, was made .by Mrs. Stine, seconded by Mr. Hertzler, and was carried ~y II. unanimous aye vot~. Mr. Gill inforrnAd T.h~ board at the request of the school district and their arehitect, the West Creek Elet1l*ntary School pl~ will be comiU9 before the board for approval at the January 6 meeting. HI'S. McAlister stated that at the worktll.op se.ssion she addressed the board at the request of the township Treasurer/Tax Collector that a resolution iJ:I needed enabling the TreaSul?&r/Tax Collector to collect a $3 fee for duplicates processed in her office. Mrs. Biddle feels the fee charges a~ cOllllllOIlly done throughout Pennsylvania. MOTION approving the resolution submitted by the Treasurer/Tax Collector to cha~e a $3 fee, was made by Mrs. McAlister, and tai~ed due to lack of a second. " ~ ,-, i. .'~" _ i'_' ~ ", ~ov- 2-99 ~UE 11:52 AM 4367913126963 . . '. , H102/1999 11:15 7177:-- '16 FAX NQ 7177375161 EASTPE:NNSB:roT\oP "'''''1;.' P 6/" <10 Board of COlldissionElrs Decgmber 15, 1998 page 5 Mrs. McAlister requested that the Township Solicitor send written correspondence to the Tax Collecto~ regareing the resolution.. MOTION authorizing eM president of the Board of Commissioners to respond in writing to tbe Township Tre~liUrer' s recent correspondence to the Board of Commissioners explaining once again why the Board of: cOllilliasioners has no authority whatsoever to provide for this fee and tbat the board is opposed to an increase in compensation in midterm, and also to ask the Treasurer to recons.:i:de:z:- her positiert: that she not p:rovide tax certifications, which are critical to the timely settlement of the sale and purchase of property in the township, which service had historically been provided or the prQvious Treasurer, and that most of the surrounding lllUllJ.cipalitiell do not have. such an ordinance or resolution of this type, and that there is nothing in case law requiring it, ai1d that it can be inCexprated as increase in cOlllpensacion in lIlidterm, and the board cannot do it, was made by Mr. Hert:zler, seconded' by Mrs. St1ne, and was carried by a unanimous a.ye vote. President DeMartyn noted tor the record that he received a letter from Senator Jeffrey piccola concerning a couple of Senate bil13 recently passed that enables the township to have more control over absentee landlords and slumlords. He gave the liet of Senate bills to the staff and asked if the Solicitor could cOllllllent about what tbe board would have to do to enact anyt:;hing to put them into effect. Mr. DeMartyn stated that occasionally there are prol;Jlems in the township and he ",&:/tts to make sure the townsnip has all enforcement lined up to take care of these problems. Mr. Hertzler informed the board that a number ot issues were disC1.Issed at the West ShOI:e council of Govermuents meeting, including the distribution of an Cumberland County application :form for homestead exclu&ion. Applications must b6 filed with the county assessor's office by March 1, but Commissioner Besch advised. that even thO\lgh Cumberland county was required to put this together and that nwnicipalities will be getcing copies of this application, that potentially it does not mean a thing because there is no way for any tlmlic1pa1.ity or the -county or the! school district to provide for a hCll\lSsteadexcluslon where you will get sOllIe kind of a tax reduction unless and until thera' B a correspo1U1mg new source of revenue. ACt 50, local tax reform, passed by the General Assembly, only applies to SChool d:l.stricts where by a referellrlum the people have to vote on whether they want to have this tax increase. ~' HVI '" -J,j 1 VI,;, 11' JJ run 'i~402/19S9 11:1& , . . ~JO'J1J1LOJOj 7l7730~~16 Board of Commissioners December ~6, ~9ge Page 6 lAX KQ 1177375161 EASTPENNSEl:RO lOA-" . . . "........ P 7/" President DeMartyn note~ for the record that Len Portzline gave the board a pictorial. history of the last year with ehe merger of the :!lorough of W8&t Purview. Mr. Gill was directed to send a letter of thanks to Mr. l?ortzline. MOTION to adjourn at 9:25 p.m.. was made by Mr. Hertzler, seconded by Mr. Yohe ,and was carried. by a unanimous aye vote. DATED: Januaxy 4, 1999 Respectfully .submitted, ROBERTL. GILL Township Manager ANN-MARIE P. SWEBNBY Recording Secretary , < ; '- ,----' ,.-'-.",,' '~;).:;.,+, " _~,_c~-~ ,;-"C;d,,i;; ,'- "N~"" J,-,,,_ "CC"L;:fO~___ ~",::, '0,,-,,' '_.,',~ ",' ~ "IT,; . . .- VERIFICATION I, George A. DeMartyn, certify that I am the President of the Board of Commissioners of East Pennsboro Township (the "Township"), the Plaintiff in the above action, and that I am authorized to make this Verification on behalf of the Township. I verify that the facts set forth in the foregoing Complaint are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. g 4904, relating to unswom falsification to authorities. George A. De artyn, Presiden Board of Commissioners of East Pennsboro Township Date: August 31~ ,2000 :;;~-',,~,>, ',,', >",_J~_Jii'"~ :,- ", - ", ,-, ';'" .~' I!~~.....N"__ ' ''''~IIl.j '. . ,;'~ 1. ',,,,~i!i'i,'-"''iC,.,;",,,<,.-:j.'~';\;-J; .,;;;, 'j-~', , __""'~ _ , '_:";',--';'y;..-;.;~ ,~ c 'o'"cCC, c, ",". 'ji II 'I 1 ~I , ! Q ~;;; .. "'T7 C~', [:",r ~ ~ ~ ..c::- ~,:- (j'; ::b::: YI ~ .. , - ~ d '. - ...0 ~ -, 25 ~ ~" .~ VI <;' Ci\ ~ 2t "=> -- ~ --.l;) ~ ::t:. ::J::,. <: -+- "< .P ~ ~ . . G ,-, ~; 1 .,'1 , ~ -n LAW OFFICES SNELBAKER. BRENNEMAN & SPARE . - ,,' ',--<.-- ',:.~, ,~\-:o;,;;,' <', --;' '-, ' :' _,,' _',- c~,:.: THE BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO: 2000 - 6050 CIVIL vs. JANE E. BIDDLE, Treasurer of East Pennsboro Township. Defendant CIVIL ACTION - MANDAMUS ANSWER TO COMPLAINT AND NOW, comes Defendant, Jane E. Biddle, Treasurer of East Pennsboro Township, by her attorneys, Snelbaker, Brenneman & Spare, P.C., and responds to the Plaintiffs' Complaint as follows: 1. Defendant admits the existence and identity of Plaintiff Township, which admission does not admit the standing of said Plaintiff to bring this action. 2. Defendant admits the existence and identity of Plaintiff Gill, which admission does not admit the standing of said Plaintiff to bring this action. .... 3. Admitted. 4. Admitted. 5. Admitted. By way offurther response, it is averred that Plaintiffs' citation is not complete. Section 510 of the First-Class Township Code provides for the election of the township treasurer: 53 P.s. 9 55510. 6. While the content of paragraph 6 is a conclusion oflaw and no response is required, it is admitted that the quotation is only a part of the section being cited. , The entire section is quoted as follows: I ;.'=----.-~--"-.y'_~'.'ffi"'-'"-,,' Every township treasurer shall take charge of all township moneys from all sources, and promptly deposit the same in a bank, banking institution or trust company in the name of the township, and keep distinct accounts of all sums received from taxes and other sources, which accounts shall at all times be open to the inspection of the commissioners and township auditor or controller. He shall annually state his accounts, and lay the same, together with the books and the vouchers, before the township auditors or controller for audit. By way offurther response and because it was omitted by Plaintiffs, Section 804 of said Township Code is averred to provide as follows: The township treasurer shall payout the moneys coming into his hands only on orders, numbered in the order of their issue, signed by the president or vice president and attested by the secretary or assistant secretary of the board, and designating the appropriation out of which the orders shall be paid. The signature of the president or vice president may be a facsimile signature. Any township treasurer who shall payout moneys in excess of the appropriation, shall be allowed no credit in the settlement of his accounts for the sum or sums so paid out, nor shall he have any claim or right of action against the township therefor. 7. Admitted. 8. The content of paragraph 8 is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied for the purpose of this action. If said cited statute is relevant, it will speak for itself. 9. It is admitted that Plaintiff Gill sent the document identified as "Exhibit A". It is denied, however, that the document had legal effect or other bearing upon LAW OFFICES SNELBAKER, BRENNEMAN & SPARE the Defendant. On the contrary, it is averred that said document is a nullity and an attempted unlawful interference with Defendant's official duties as township treasurer. ! I 2 i LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ''-'''' "'),'.,-;"" .. ""_'; -:;u_,~,~,T 10. The content of paragraph 10 alleging violation of the First-Class Township Code and of Plaintiff Gill's unauthorized Administrative Procedure and Policy is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied. It is denied that Defendant has refused to make deposits in a timely manner. On the contrary, Defendant has offered and stood ready to make deposits in a timely manner and on intervals more frequently than performed by Plaintiffs. 11. It is admitted that Defendant has heretofore offered to make deposits on Mondays through Thursdays consistent with her established office hours as township treasurer. Mter reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments relating to the daily interest terms of unidentified "banks" and, therefore, the same are deemed to be denied pursuant to Pa. R.C.P. 1029 (c). Defendant is only aware of the policy of Commerce Bank which is irrelevant since the Bank receives deposits by courier. By way of further response, the allegations in paragraph 11 are irrelevant and moot because of existing courier arrangements with Commerce Bank (the Township's depository) whereby a means exists for township funds to be deposited daily in time to obtain interest. 12. It is admitted that Plaintiff Township has alleged loss of interest, but has failed to prove the same. After reasonable investigation, Defendant is without information or knowledge sufficient to form a belief as to the truth of the averments \ 3 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE ;-,'''^' ""'.-;','" _L,:", "",A"-, , .- concerning the alleged loss of interest and amount thereof and, therefore, the same are deemed to be denied pursuant to Pa. R.C.P. 1029 (c). It is denied that Defendant has refused to make deposits in a timely fashion. On the contrary, Defendant has offered and stood ready to make deposits in a timely fashion and on intervals more frequently than performed by Plaintiffs. By way of further response, the allegations in paragraph 12 are irrelevant and moot because of existing courier arrangements with Commerce Bank, the Township's depository, whereby a means exists for township funds to be deposited daily in time to obtain interest. 13. It is denied that Plaintiff Gill's control over the deposit of township funds was/is based upon any alleged non-performance by Defendant. On the contrary, said control is based upon other motives, apparently political or personal in nature, to actively deny Defendant's participation in Township financial business consistent with her official duties as township treasurer, which control has been exercised since assuming her elected office despite Defendant's continuous protests. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment that Plaintiff Gill "has made sure that such deposits were made" and, therefore, the same is deemed to be denied pursuant to Pa. R.C.P. 1029 (c). 14. The averments of paragraph 14 are irrelevant in an action in mandamus and should be stricken as impertinent. However, to the extent that a response may be lawfully required and without waiving the contention in the first sentence hereof, 4 :1 l.AW OFFICES SNELBAKER. BRENNEMAN & SPARE ,""'-,, -'~ ~",~,.o, "'+,,] .-~~ ___",.' '(''J1:,,:.- "";-1 Defendant admits that she imposes a nominal service charge for tax certificates requested by title insurance companies, banks or mortgage companies. It is denied that Defendant imposes such charge on "any property owner." 15. The averments of paragraph 15 are irrelevant in an action in mandamus and should be stricken as impertinent. However, to the extent that any response may be lawfully required and without waiving the contention in the first sentence hereof, Defendant admits the Township's refusal to enact the legislation. Any implications from said admission or averments that such refusal was based upon any illegality is denied. On the contrary, Defendant believes and, therefore, avers that the refusal was based on the Township's continued efforts to obstruct the performance of Defendant's duties as township treasurer and tax collector. The allegation of Defendant's alleged "wrongful" collection of the service charge is a conclusion of law to which no response is required and, therefore, is deemed to be denied. 16. The content of paragraph 16 is a series of conclusions of law to which no response is required and, therefore, is/are deemed to be denied. By way of further response, it is averred that the certification charge is lawful and proper. 17. It is admitted that Defendant has been the treasurer since taking office in January 1998. It is denied that she has failed and refused to provide a treasurer's report to the Township. On the contrary, Defendant has routinely provided Township with reports on such financial information as she may have official knowledge, keeping in mind that Plaintiffs have continuously obstructed 5 II IJ LAW OFFICES SNELBAKER. BRENNEMAN & SPARE "",,,,;, Defendant's performance of her duties as township treasurer except only with respect to her tax collection duties. 18. The content of paragraph 18 implying that "bank reconciliation" functions come within Defendant's duties under the First-Class Township Code is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied. By way offurther response, it is denied that Defendant has refused without reason to perform bank account reconciliation functions. On the contrary, she has declined to do so because (a) having been denied money disbursement rights, including, but not limited to, the execution of checks, Defendant (as continuously requested) does not have the records required to perform such reconciliation, and (b) she believes that appropriate business, accounting and auditing practices require the reconciliation process to be conducted by persons not having check writing functions and responsibilities. By way of further response, Defendant avers that upon taking office in 1998, Plaintiffs' bookkeeper informed Defendant that she, the bookkeeper, would perform the reconciliation functions and not Defendant. 19. The content of paragraph 19 is a conclusion oflaw and request for reliefto which no response is required and, therefore, is deemed to be denied. 20. The content of paragraph 20 is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied. 21. The content of paragraph 21 is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied. By way offurther denial, the township treasurer's duties are not purely "ministeriaL" On the contrary, the 6 I LAW OFFICES SNELBAKER, BRENNEMAN & SPARE -, -:'~i township treasurer's duty is discretionary in the requirement to "take charge of all township moneys" and "payout the moneys coming into his hands." 22. The content of paragraph 22 is a conclusion oflaw to which no response is required and, therefore, is deemed to be denied. By way of further response, it is denied that Plaintiffs have no alternative relief; they can simply comply with Article VIII of the First-Class Township Code and cooperate with Defendant in her efforts to comply therewith, and to refrain from the attitude of obstructing Defendant in her attempt to perform her duties. WHEREFORE, Defendant requests your Honorable Court to dismiss Plaintiffs' Complaint and enter judgment thereon in favor of Defendant and against Plaintiffs and award Defendant her costs and expenses incurred in defending this action By c r C. Snelbaker, Esquire 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 (717) 697-8528 Attorneys for Defendant il ,';.-- ~~ L. >"-';-- " ,'- VERIFICATION I, JANE E. BIDDLE, East Pennsboro Township Treasurer, verify that the facts in the above Answer are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are subject to the penalties of 18 Pa. C.S. 9404 relating to unsworn falsification to authorities. ~~~ Jane E. BIddle Treasurer of East Pennsboro Township Dated: September 29 ,2000 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE "'."'-""",,'_,C.'o'u CERTIFICATE OF SERVICE I hereby certify that I am this date serving a true copy of the within Answer to Complaint upon the Attorney for Plaintiffs by sending the same by first-class mail postage paid addressed as follows: Michael R. Kelley, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, P A 17108- lC ard C. Snelbaker, Esquire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 Attorneys for Defendant Dated: October 2, 2000 ,~""""'o-"""""'--"~.." ~= fill ~.~ ~< " "'~" SHERIFF'S RETURN - REGULAR \ \. , CASE NO: 2000-06050 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND EAST PENNSBORO TOWNSHIP B OF C VS BIDDLE JANE E J. MICHAEL ICKES , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BIDDLE JANE E TREASURER EAST PENNSBORO TOWNSHIP the DEFENDANT , at 0012:40 HOURS, on the 13th day of September, 2000 at 98 S. ENOLA DRIVE ENOLA, PA 17025 by handing to JANE E. BIDDLE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 9.30 .00 10.00 .00 37.30 So ;:;~~ R. Thomas Kline Sworn and Subscribed to before 09/14/2000 MCNEES, WALLACE & NURICK By: 1 fJ;~"J~dl ~ ~ Deputy Sheriff me this ;Z 1M- day of )-4fi-'17.. ~ .2hzR:> A. D. ~C-~A~~/ rothonotary , ~, ~ 1',_ . ~ ,0 ,'" ,..;....,; BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - MANDAMUS JANE E. BIDDLE, TREASURER: OF EAST PENNSBORO TOWNSHIP, Defendants 00-6050 CIVIL TERM IN RE: PARTIES TO FILE BRIEFS ORDER OF COURT AND NOW, this 3rd day of November, 2000, the parties are given until November 13, 2000, to file briefs in support of their respective positions. The parties are given additional time until November 20, 2000, to file reply briefs, if deemed necessary. By the Court, Edward E. Guido, J. Michael R. Kelley, Esquire For the Plaintiffs Richard Snelbaker, Esquire For the Defendant l~~ il.7.N '-t-' . . :mae i. "~, 0" H ". Oo, . ,". '~Ir ~,. ... ~'" ~, - 1:~?U:D-t,)FF!CE ~'F T' TOo."",., '('''orADY U~ ji~;C ;-':.';Uir'~,)j";l I/in 00 NOV - 6 PM I: 5 I CUlv18ERLAND COUN1Y PENNSYLVtVll1A l:lWii~~,,~~~:tlM:' _ _,Jl_,M~,i~~ -,- -- ~~ -,~ ~,' =' "'",;;" . --,--> - I, , ,___, ____ C.'_". ;;;;-~. ,-~ ..",'-~' '""/-e',,_,' - ~ . ,,,~-" BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - MANDAMUS JANE E. BIDDLE, TREASURER: OF EAST PENNSBORO TOWNSHIP, Defendants 00-6050 CIVIL TERM IN RE: REQUEST FOR WRIT IN MANDAMUS ORDER OF COURT AND NOW, this 21st day of November, 2000, after hearing, and after a thorough review of the briefs submitted by each party, Plaintiff's request for a writ in mandamus is DENIED. By the Court, ~.-.-._......_~:.., ....'- " , . ' A(,..'" . :c.~ . Edward E. Guido, J. Richard Snelbaker, Esquire For the Plaintiff ~ -fY)~ 11-,2/ -00 RKS Michael R. Kelley, Esquire For the Defendants :mae ;'f " , ~ ,~ . ~ "",, ~ IlI!MI!! <,- '^'.' ,"r. ~, '", '_'.,,."JJ" '-'. ~ ~ MJ"" ~ - ~~ -"'~.~ -":'>;}i~i"f-\Y f1n "H1~! ? I -' ,.. (. '_' i- ~"~ ; [->1-'1 '). ")51 ,J. .J...... '''['ri'''"'' " V.; \'it"(C:"~<'" ,,\1'-"', ,"'("'-.< I~ '''':'\/ . ..J_, 11.1"'1 JU l.,...JU'~f r Pi:NNSYL\J"\"I~. I \ .III,', ,., "",:::":U~~"'1!1%"~,1;":ffl.\(~~~~~M~~WF.i ,~~ ,~ ,,'l!P<1lf1II~ 1. - - < ;.,' - ~",' , d Wjc , BOARD OF COMMISSIONERS OF EAST PENNSBORO TOWNSHIP and ROBERT L. GILL, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - MANDAMUS JANE E. BIDDLE, TREASURER: OF EAST PENNSBORO TOWNSHIP, Defendants 00-6050 CIVIL TERM IN RE: HEARING CONTINUED ORDER OF COURT AND NOW, this 18th day of October, 2000, hearing on this matter is continued to November 3rd, 2000, at 1:00 p.m. The testimony will be limited to the relief requested with regard to the tax certification fee unless this Court is convinced otherwise that its ruling with regard to the monthly reconciliations and monthly treasurer's report have been made in error. The Plaintiffs are to submit authority with regard to those latter issues to this Court by close of business on Friday, October 27, 2000. If the Court deems a reply is needed from the Defendant, we will advise counsel by conference call on Monday, October 30, 2000. By the Court, ~ ~O ~~ ~O c.~ \O'}~ Edward E. Guido, J. ~ I I i I !I,. , ." "'_.f> .j" _ T ~. ,~.'" ""-~ DD r;-;"~ ," CUi\.::::, L; ~:'J 1... .'.. __,.,., t.!'ii,''''-~.u>''''~''"' ,~.fE,; ~,,_ ~~JSI'!,.~",.,,~~ " - -.. -.'.'- ,/ ',--~.',~ '~ ~ -;. ",. , ~ .;", """'---t~ , . Richard Snelbaker, Esquire For the Plaintiff Michael R. Kelley, Esquire For the Defendants :mae