McDaniel v. COUNTY OF VENANGO

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent from the majority’s decision because William McDaniel (McDaniel) and Bonnie Sharrar (Sharrar) (collectively, Tax Collectors) properly challenged their compensation prior to their election to the position as tax collectors.

On February 2, 2005, the Venango County Commissioners passed a resolution reducing the compensation for the Venan-go County tax collectors which was to be*1272come effective in 2006. Because McDaniel and Sharrar were each intending to run for the office of tax collector, in response to this resolution and following “The Tax Collectors Manual”1 issued by the Governor’s Center for Local Government Services of the Commonwealth of Pennsylvania, each filed a “letter of discontent” with the prothonotary’s office on February 3, 2005, stating, among other things, their dissatisfaction with the compensation rate. Those letters of discontent were given docket numbers. In November 2005, McDaniel and Sharrar ran for and were elected to the office of tax collector. On January 5, 2006, Tax Collectors filed a class action complaint to have the resolution declared void because the level of compensation was inadequate. Venango County filed preliminary objections stating that they lacked standing because the compensation had been set before they took office. Tax Collectors argued that they filed their letters of discontent before they became candidates, that the letters of discontent should be viewed as a writ of summons, or, in the alternative, that they filed their complaint before they were sworn into office. The trial court sustained the preliminary objections finding that the Tax Collectors lacked standing because the letters of discontent were not the same as a pleading, and the Tax Collectors Manual was not authoritative on how to commence a lawsuit. The trial court also dismissed Tax Collectors’ other arguments.

On appeal, the majority also dismisses Tax Collectors’ arguments concluding that prior to their election, their “letters of discontent” were insufficient to challenge the compensation because they did not actually commence a lawsuit. Further, once they were elected, although not sworn into office, they could not file a complaint regarding their compensation. While I agree with the majority that Tax Collectors could not properly file a complaint after they had been elected, see e.g., Myers v. Newtown Township School District, 396 Pa. 542, 153 A.2d 494 (1959),2 I disagree that the filing of their “letters of discontent” improperly challenged the salary reduction.

42 Pa.C.S. § 708, titled “Improvident administrative appeals and other matters,” provides, in relevant part:3

*1273(a) General rule. — No objection to a governmental determination shall be defeated by reason of error in the form of the objection or the office of clerk of court in which the objection is filed.
(b) Appeals. — If an appeal is improvidently taken to a court under any provision of law from the determination of a government unit where the proper mode of relief is an action in the nature of equity, mandamus, prohibition, quo war-ranto or otherwise, this alone shall not be a ground for dismissal, but the papers whereon the appeal was taken shall be regarded and acted on as a complaint or other proper process commenced against the government unit or the persons for the time being conducting its affairs and as if filed at the time the appeal was taken.

Because this provision requires that an objection to a governmental determination, no matter whether the “form” of the objection is proper or not, must be heard, I would vacate the trial court’s order and remand to make a determination as to whether the level of their compensation set by the County was an abuse of discretion.4

Accordingly, I respectfully dissent.

. The Tax Collector Manuel provides:

Challenging Compensation Level
While the legislature has given taxing districts the power to set the tax collector’s compensation, this power is not absolute. Courts can intervene in cases of abuse of discretion. The pubic interest is affected whether the collector’s compensation is grossly excessive or entirely inadequate; both constitute capricious action on the part of the taxing body. Courts can both raise and lower compensation levels set by the taxing districts.
The courts can intervene in setting the tax collector's salary where the governing body is guilty of a misapplication of law, a clear abuse of discretion or arbitrary and capricious action resulting in an unlawful expenditure of public funds. Intervention is not warranted by a mere difference in opinion on the judgment exercised by the taxing body.
Compensation levels should be challenged by citizens or candidates for the office of tax collector immediately after they are set. Candidates have been advised to file a statement with the clerk of courts indicating they do not agree with the compensation level. They should subsequently seek legal assistance, either on their own or with other persons affected by the compensation level set by the taxing body. (Emphasis and bold added.)

(Tax Collectors Manual at 11.)

. That case is slightly different factually because there, the candidate won his election for tax collector, was sworn in and then filed his complaint regarding the reduction of salary. Our Supreme Court held that Myers was barred from pursing his claim after he had been elected and sworn in.

. The provision applies to all courts of this Commonwealth, including the courts of common pleas when sitting as appellate courts. 42 Pa.C.S. § 701.

. The majority responds to the dissent first by stating that it is based on an issue not raised. The issue in this case is whether the Tax Collectors filed a challenge before their election to the level of compensation set by the Venango County Commissioners. The Tax Collectors’ contend that the “letter of discontent” acted as a challenge filed before the election. While Tax Collectors admittedly did not mention 42 Pa.C.S. § 708 in their brief, that was not a failure to raise an issue but a failure of raising the correct rationale. Even if raised, the majority goes on to say that the "letter of discontent” does not provide the substance needed to challenge the appeal and does not provide an excuse not to follow the Rules of Civil Procedure. By ignoring that provision’s mandate that "no objection to a governmental determination shall be defeated by reason of error in the form of the objection,” the majority is essentially repealing this provision, ignoring that it was enacted to prevent some technical deficiency from taking away the right of citizens to have the complaints against the government redressed.