              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of the Board                :
of Auditors of McKean                     :
Township/2017 Meeting                     :   No. 1419 C.D. 2017
                                          :
Appeal of: Board of Auditors              :   Argued: May 7, 2018
of McKean Township                        :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                         FILED: December 21, 2018


             The Board of Auditors of McKean Township (Board or Auditors) appeals
from the September 12, 2017 order and verdict entered by the Court of Common Pleas
of Erie County (trial court) in favor of the Supervisors of McKean Township
(Supervisors) following a non-jury trial. We affirm.


                                     Background
             In addition to their duties as elected Supervisors, for which they are paid
a statutorily imposed stipend, the Supervisors appoint themselves to work in various
additional capacities as employees of McKean Township (Township). (Trial Court’s
Finding of Fact (F.F.) No. 9.) However, like all other supervisors in Second Class
Townships, the Supervisors set the pay rates for the Township’s employees, (F.F. Nos.
8, 11), and this gives rise to general concerns that the Supervisors may engage in self-
dealing if they were vested with the authority to decide and approve their own
compensation as employees. See Delaware Township Board of Auditors v. Delaware
Township, 132 A.3d 523, 530 (Pa. Cmwlth. 2016). This is why, under section 606(a)
of The Second Class Township Code (Code),1 “[t]he compensation of supervisors,
when employed as roadmasters,” “secretary,” or some other permissible employment
position, “shall be determined by the board of auditors, at an hourly, daily, weekly,
semi-monthly or monthly basis.” 53 P.S. §65606(a). However, the auditors do not
have utterly free reign over the matter. Pursuant to section 606(a) of the Code, the
supervisors’ compensation, as set by the board of auditors, “shall be comparable to
compensation paid in the locality for similar services.” Id. The auditors’ authority to
determine the supervisors’ compensation is also curtailed by the general requirement
that discretion must not be abused in the legal sense. See Blumenschein v. Housing
Authority of Pittsburgh, 109 A.2d 331, 334-35 (Pa. 1954); Mason v. Hanover Township
School District, 89 A. 552, 552 (Pa. 1913).
                The Township has three elected Supervisors and three elected Auditors.
(F.F. Nos. 4, 6.) On January 4, 2017, as they are required to do so on a yearly basis,2
the Auditors, Joseph Szymanowski, Delores Renick, and Barbara Craig, established
the 2017 pay rates for the three Supervisors, Brian P. Cooper (supervisor and
roadmaster since 2012), Janice T. Dennis (supervisor and secretary, who in her second
term, has at least four years of experience), and Ronald T. Bole (supervisor and
roadmaster since 2016). Contrary to a past pattern and practice of gradually increasing
the wages for the Supervisors when working as a roadmaster or secretary, the Auditors



       1
           Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §65606(a).

       2
         Section 901(a) of the Code, 53 P.S. §65901(a) (“The board of auditors shall meet annually
[and] shall determine the compensations for the current year authorized in section 606 for supervisors
employed by the township.”).



                                                  2
reduced the salaries for these positions.3 Specifically, the Auditors reduced the wage
of Supervisor Cooper, in his role as roadmaster, from $23.60/hour in 2016 to
$20.19/hour, and reduced the wage of Supervisor Dennis, in her role as secretary, from
$23.60/hour in 2016 to $14.00/hour. Regarding Supervisor Bole, in his role as
roadmaster, the Auditors determined that his 2016 hourly wage rate of $18.00 would
remain the same in 2017. (F.F. Nos. 5-7, 13-14, 29.) The Auditors also eliminated the
Supervisors’ compensation for overtime and “substantially reduced” their benefit
packages. (F.F. No. 15.)
              Dissatisfied, the Supervisors appealed to the trial court. They contended
that the Auditors’ determinations with respect to their compensation were not
“comparable” to the compensation paid in the geographic locale, thereby violating
section 606(a) of the Code. The Supervisors further contended that the Auditors acted
arbitrarily, capriciously, with improper bias, and/or in bad faith.
              On May 3, 2017, the trial court conducted a non-jury trial. On June 15,
2017, the trial court deemed it necessary to appoint Aaron Phillips from Decision
Associates Business Consulting Group as a neutral expert in the field of human
resources, responsibilities/duties, and compensation/benefits. Citing Pa.R.E. 706, the
trial court entered an order appointing Phillips “as an expert to review possible
compensation, payroll and benefit packages for [the] Supervisors and develop a report
for [the trial court] and for both counsel.” (F.F. No. 23.) The trial reconvened on July
13, 2017. After receiving evidence and testimony from various witnesses, including


       3
         In 2012 and 2013, the former Auditors increased the hourly pay rate of the Supervisors in
their capacities of roadmaster and secretary. (Pet’r Ex. 20-21.) In 2014, Auditors Renick and Craig,
along with then-Auditor Rodger Eck, voted unanimously to increase the hourly rate of the roadmasters
to $23.40 and to increase the hourly rate of the Secretary to $23.40. (Pet’r Ex. 22.) Apparently,
Supervisor Bole started at a lesser wage in his capacity as a roadmaster because he did not become a
supervisor and a roadmaster until 2016.


                                                 3
Phillips, the trial court directed the parties to submit proposed findings of fact and
conclusions of law. They complied. (Trial court op. at 3-4.)
              On September 12, 2017, the trial court entered its findings and
conclusions, which we summarize as follows.
              The Township is a Second Class Township with a population of 4,409 as
of the 2010 Census. There are 21 Second Class Townships located in Erie County,
Pennsylvania. (F.F. Nos. 1-2; 2010 Census Summary File, Geographic Identifiers.4)
              Auditor Craig contacted numerous Second Class Townships surrounding
the Township to inquire about the compensation of their supervisors, including the
years of service and salary; however, she did not inquire as to whether or not these
townships reduced their supervisors’ compensation. Auditor Craig stated that although
Supervisors Dennis and Cooper had their wage rates reduced, and Supervisor Cooper
was reclassified as a salaried employee, there were no problems with their work
performance. (F.F. Nos. 20-21.) Further, Auditor Szymanowski admitted that the
Auditors did not speak with comparable Second Class Townships that actually reduced
the compensation and benefits of their supervisors. (F.F. Nos. 37-38.)
              Auditor Renick complained that the Supervisors were being paid “too
much,” including overtime pay. (F.F. No. 36.) Auditor Szymanowski had previously
stated that the Supervisors’ benefits packages were “unheard of in this marketplace.”
(F.F. No. 44.) However, Supervisor Dennis stated that the Township faced no financial
problems, such as a budget crisis or debt issues, that would have a negative impact on
the Township employees’ compensation. (F.F. No. 50.)


       4
          American FactFinder, U.S. CENSUS BUREAU, POPULATION, HOUSING UNITS, AREA, AND
DENSITY: 2010 - COUNTY -- COUNTY SUBDIVISION AND PLACE 2010 CENSUS SUMMARY FILE 1,
available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF
(last visited December 4, 2018).


                                               4
             In addition, Auditor Szymanowski stated that in determining the
compensation rates for the Supervisors, the Auditors reviewed the results listed in the
Pennsylvania State Association of Township Supervisors 2016 Wage and Benefits
Survey (PSATS). (F.F. No. 39.) The PSATS provides the compensation wages for
Second Class Townships with populations between 4,001 and 8,000 throughout the
Commonwealth, separated into four categories: low, average, medium, and high. The
hourly rate information for a full-time roadmaster is: low—$9.00/hour, average—
$23.85/hour, medium—$23.60/hour, and high—$36.46/hour.               The hourly rate
information for a part-time secretary is: low—$16.48/hour, average—$18.84/hour,
medium—$17.24/hour, and high—$23.60/hour. (Reproduced Record (R.R.) at 37a.)
             According to Auditor Szymanowski, the Auditors established the
compensation and benefits for Supervisors Bole and Cooper by dividing the average
part-time roadmaster salary and the average full-time roadmaster salary, and then
multiplying that quotient and the salary of the non-elected roadmaster to arrive at
$18.00/hour and $20.19/hour, respectively. (F.F. Nos. 41, 43.) Auditor Szymanowski
stated that the Auditors established the compensation and benefits for Supervisor
Dennis by dividing the average part-time average Secretary salary and the average full-
time Secretary salary, then multiplying that quotient with the only full-time Secretary
salary that was obtainable from a nearby Second Class Township, Greene Township
($20.90/hour), to arrive at $14.00. (F.F. No. 42.)
             Phillips conducted his own inquiry into the matter and reviewed, among
other things, information from comparable and relevant Second Class Townships,
PSATS data, and the level of experience that the Supervisors possess. Phillips
ultimately opined that Supervisors Bole and Cooper, as roadmasters, should have a
compensation rate between $23.79 and $28.55, and Supervisor Dennis, as secretary,



                                           5
should have a compensation rate between $18.91 and $22.69. (F.F. Nos. 24-29.)
Phillips also concluded that “Supervisors Bole and Dennis, both of whom work part-
time, are not eligible for Township benefits; however, Supervisor Cooper is eligible for
benefits, which he determined are currently inferior to benefits offered by other
comparable Second Class Townships.” (F.F. No. 30.)
             With respect to the Auditors’ motivation or intent in making the wage
reductions, the trial court found:

             22. Auditor Craig was “upset” that [the] Supervisors hired
             an independent auditor, Monahan & Monahan, to which she
             [(Auditor Craig)] wrote a “Letter to the Editor” expressing
             her disapproval with the outsourcing of auditing work and
             [the] Supervisors’ “refusal” to supply information relating to
             expenditures.

                                     *     *     *

             40. Auditor Szymanowski believed Supervisor Bole
             supported  and     campaigned     for    his  [(Auditor
             Szymanowski’s)] opponent for Auditor in 2015.

                                     *     *     *

             47. At the January 4th, 2017 meeting, Auditor
             Szymanowski told Supervisor Dennis that she “couldn’t ask
             questions” as to why [the] Supervisors’ compensation was
             reduced.

                                     *     *     *

             49. When [the] Supervisors hired an independent auditor,
             Monahan & Monahan, “as needed,” [the] Auditors became
             “upset.”

                                     *     *     *

             53. Supervisor Bole acknowledged he supported the
             opponent for Auditor Szymanowski’s Auditor position in


                                           6
            2015, and Auditor Szymanowski informed him to stop
            supporting his opponent “or else.”
(F.F. Nos. 22, 40, 47, 49, 53.)
            Based on these facts, the trial court made the following conclusions of
law:

            A comparison of the 2016 PSATS Survey compensation
            information and [the] Supervisors’ compensation following
            the January 4, 2017 Township meeting clearly demonstrates
            [that the] Supervisors’ compensation is below the average
            compensation for a full-time roadmaster and a part-time
            secretary in other Second[]Class Townships. Furthermore,
            [the] Auditors failed to present a specific methodology for
            arriving at [the] Supervisors’ compensation. According to
            Auditor Szymanowski, [the] Auditors divided the average
            compensation for part-time and full-time roadmasters and
            secretaries, and then multiplied the respective quotients by
            [the] Supervisors’ current salaries to arrive at the 2017
            compensation. However, [the] Auditors’ determination
            simply reduces [the] Supervisors’ compensation. [The]
            Auditors failed to account for “comparable compensation
            paid in the locality for similar services” pursuant to the
            [Code]. Rather, [the] Auditors “cherry-picked” certain
            Second[]Class Townships that they thought subjectively
            were comparable to [the] Township. The Court finds and
            concludes [that] the determinations made by [the] Auditors
            do not adhere to statutory requirements of the [Code].

            Furthermore, the Auditors’ decisions to reduce [the]
            Supervisors’ compensation and benefits are based upon
            improper bias and are arbitrary and capricious. First,
            Supervisor Bole supported and campaigned for Auditor
            Szymanowski’s opponent for Auditor in 2015, which created
            friction between Auditor Szymanowski and Supervisor Bole.
            Second, [the] Supervisors hired an independent auditor,
            Monahan & Monahan, to review [the] Township’s finances,
            which became another point of contention between the
            Auditors and Supervisors. Auditor Craig demonstrated
            displeasure about this decision to hire an independent auditor
            by her writing and submitting for publication a “Letter to the
            Editor,” expressing her disapproval with [the] Supervisors’

                                          7
             outsourcing auditing work and the Supervisors’ “refusal” to
             supply [the] Auditors with information relating to
             expenditures. Finally, during the January 4, 2017 meeting,
             Auditor Szymanowski refused to answer [the] Supervisors’
             questions [and] explain why [the] Auditors reduced [the]
             Supervisors’ compensation, thereby providing no rationale
             or basis for [the] Auditors’ decision-making. Therefore, the
             clear negativism between [the] Auditors and [the]
             Supervisors was the catalyst for [the] Auditors reducing [the]
             Supervisors’ compensation and benefits.
(Conclusions of Law (COL), at pp. 8-9.)
             The trial court then focused on the testimony and report of Phillips. The
trial court determined that Phillips “developed an agreeably and generally acceptable
methodology in the field of human resources for determining [the] Supervisors’
compensation.” Id. at 9. In his report, Phillips “analyzed and developed three (3)
options in crafting the appropriate ranges of compensation.” Id. “For the first option,
Mr. Phillips utilized Second[]Class Township data within the Northwest Region; for
the second option, he utilized Second[]Class Township data with populations between
4,001 and 8,000; and for the final option, he utilized a custom blend of similar size and
population Second-Class Townships within Erie County.”            Id.   In making this
multifaceted assessment, Phillips considered the PSATS data and compared the
Supervisors’ level of experience to other supervisors in Second Class Townships. The
trial court credited and accepted the recommendations of Phillips as “the appropriate
methodology for determining [the] Supervisors’ compensation and benefits.” Id. at 10.
             In a separate order dated September 12, 2017, the trial court (1) set the
compensation rate for Supervisors Bole and Cooper, while acting as roadmasters, at
$26.17/hour; (2) set the compensation rate for Supervisor Dennis, while acting as
Secretary, at $21.75/hour; (3) reinstated the Supervisors’ benefit packages, concluding
that the Supervisors’ inclusion in the fringe benefits program did not require approval



                                           8
by the Auditors pursuant to section 606(c)(1) of the Code, 53 P.S. §65606(c)(1); 5 (4)
reinstated the Supervisors’ overtime compensation; and (5) ordered the Township to
pay the Supervisors’ reasonable attorney’s fees under section 915(1) of the Code, 53
P.S. §65915(1).6
               Thereafter, the Auditors filed a notice of appeal, and the trial court ordered
them to file a statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). They did.
               In its accompanying opinion under Pa.R.A.P. 1925(a), the trial court
initially determined that the Auditors’ statement of errors was too lengthy and failed to
document the precise legal issues raised. The trial court therefore requested that this
Court deem the issues in the Auditors’ statement waived. (Trial court Pa.R.A.P.
1925(a) op. at 4-5.)
               Addressing the merits of the issues in the Auditors’ statements in the
alternative, the trial court reiterated its impression that the Auditors employed an
unsound methodology and that their “decision was influenced by improper bias.” Id.
at 5. The trial court emphasized the fact that the Auditors devised compensation rates
that were below the “average” listed in the section of the PSATS dealing with the wage
rates for Second Class Townships throughout Pennsylvania and reiterated that the
determinations were tainted by improper bias:



       5
         “In addition to the compensation authorized under this section, supervisors while in office
or while in the employ of the township may be eligible for inclusion in township-paid insurance
plans,” including “group life, health, hospitalization, medical service and accident insurance plans
paid in whole or in part by the township.” 53 P.S. §65606(c)(1).

       6
          “If in the opinion of the court the final determination is more favorable to the township
officer involved than that awarded by the board of auditors, the township shall pay reasonable attorney
fees.” 53 P.S. §65915(1).


                                                  9
                The [PSATS] clearly demonstrated [that the] Supervisors’
                2017 compensation, as set by [the] Auditors, is below the
                standard compensation for roadmasters and secretaries.
                According to “Townships with Populations from 4,001 to
                8,000,” the average full-time roadmaster salary is
                $23.85/hour, but [the] Auditors set [Supervisor] Cooper’s
                2017 compensation at $20.19/hour. Further, the average
                part-time roadmaster salary is $18.23/hour, but [the]
                Auditors had frozen [Supervisor] Bole’s 2017 compensation
                at $18.00/hour. Finally, the average part-time secretary
                salary is $18.84/hour, but [the] Auditors set [Supervisor]
                Dennis’ 2017 compensation at $14.00/hour. Although the
                [Code] did not require calculation of the average
                compensation or a specific methodology for determining
                calculations, the testimony and evidence demonstrated [that
                the] Auditors arbitrarily and capriciously reduced or had
                frozen [the Supervisors’] salaries and did not provide a
                consistent and well-reasoned methodology other than
                personal preference and ideals.
Id. at 10-11.
                This appeal ensued.


                                         Discussion
                The Auditors assert that any perceived conflict between them and the
Supervisors is superficial and that the evidence was legally inadequate to support a
finding of bad faith, arbitrary or capricious action, or an abuse of power. The Auditors
contend that they discharged their duty in accordance with section 606(a) of the Code
and properly balanced the financial interests of the taxpayers that they represent and
those of the Supervisors.             According to the Auditors, their compensation
determinations were based on rational calculations; the wages were consistent with the
PSATS survey dealing with the Northwest Region of the Commonwealth; and the trial
court effectively substituted its own judgment as to what the rates should be, using a
court-appointed expert to do so.


                                             10
              In rebuttal, the Supervisors point out that the Auditors cut or reduced their
wages and claim that this is a drastic and novel event, marked by a “complete lack of
methodology.” (Supervisors’ brief at 18.) The Supervisors further argue that the
Auditors acted in bad faith or were impermissibly biased because they “followed
through with threats to punish the Supervisors.”           Id. at 12.   Additionally, the
Supervisors urge this Court to conclude that the Auditors’ statement of errors was
extremely vague, resulting in waiver of all the issues they seek to raise on appeal.
              The   Pennsylvania     State   Association    of   Township     Supervisors
(Association) filed an amicus brief. Most notably, the Association asserts that the
Auditors need a legitimate reason to reduce wages, such as budgetary issues.


                                         Waiver
              Prefatorily, this Court declines to find waiver due to alleged deficiencies
in the Auditors’ statement of errors. Under the Pennsylvania Rules of Appellate
Procedure, a statement of errors “should be sufficiently specific to allow the judge to
draft the opinion required under 1925(a), and . . . the number of issues alone will not
constitute waiver—so long as the issues set forth are non-redundant and non-
frivolous.” Pa.R.A.P. 1925, Note. Here, the Auditors have filed a “concise-yet-
sufficiently-detailed,” id., statement of errors, specifically listing the findings of fact
that they challenged and the relevant portions of the trial court’s conclusions of law.
(See Auditors’ brief at App. C.) The trial court also issued an opinion fully addressing
the issues raised, and our ability to conduct appellate review has not been hampered in
any manner.




                                             11
            Bias, Bad Faith, or Arbitrary/Capricious Decision-Making
             Although the Auditors possess discretion under section 606(a) of the Code
to set salaries, Synoski v. Hazle Township, 500 A.2d 1282, 1285 (Pa. Cmwlth. 1985),
this discretion cannot be exercised in a manner that is stained with “bad faith, fraud,
capricious action or abuse of power.” Blumenschein, 109 A.2d at 334. As our Supreme
Court observed while discussing a statute that provided an elected board of officials
with discretion to determine the compensation rate of a municipal employee:

             [T]here must be somewhere a line of demarcation between
             the exercise of reasonable official discretion in fixing
             compensation upon the one hand, and a clear abuse of that
             discretion, and the unreasonable performance of duty, upon
             the other. No specific rate of compensation is fixed by the
             law. It contemplates the exercise of reasonable discretion . . .
             in the interest of the public. The language of the [statute] is
             not, however, to be construed as vesting in the [] board an
             arbitrary discretion, to be used in defiance of the public
             interest, and without restraint.
Mason, 89 A. at 552.
             In order for a public official to render a decision that is not arbitrary and
capricious, the official

             must examine the relevant data and articulate a satisfactory
             explanation for [the] action including a rational connection
             between the facts found and the choice made. In reviewing
             that explanation, [the court] must consider whether the
             decision was based on a consideration of the relevant factors
             and whether there has been a clear error of judgment . . . .
Cary v. Bureau of Professional and Occupational Affairs, State Board of Medicine,
153 A.3d 1205, 1210 (Pa. Cmwlth. 2017) (en banc) (quoting Motor Vehicle
Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S.
29, 43 (1983)).



                                           12
              Moreover, a discretionary act made by a public official will be set aside if
it is made in bad faith; that is, when the decision is tainted with an improper motive or
ill will. See Lily Penn Food Stores, Inc. v. Pennsylvania Milk Marketing Board, 472
A.2d 715, 719 (Pa. Cmwlth. 1984); Bruhin v. Commonwealth, 320 A.2d 907, 910 (Pa.
Cmwlth. 1974); Redevelopment Authority of the City of Erie v. Owners or Parties in
Interest, 274 A.2d 244, 247 (Pa. Cmwlth. 1971). The decision of a public official
cannot “be based upon private motives inconsistent with the public welfare.”
Washington Park, Inc. Appeal, 229 A.2d 1, 3 (Pa. 1967). Somewhat relatedly, an abuse
of discretion occurs when there is “a showing of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.”
Paden v. Baker Concrete Construction Inc., 658 A.2d 341, 343 (Pa. 1995). “Fairness
of course requires an absence of actual bias.” In re Schlesinger, 172 A.2d 835, 840
(Pa. 1961).
              Upon review, we conclude that the evidence was sufficient to support the
trial court’s findings and legal conclusion that the Auditors’ compensation decisions
were the byproduct of bad faith, improper bias, and/or constituted arbitrary or
capricious action.
              With regard to the Auditors’ underlying motive, the credited evidence
demonstrates that there were no discernable problems with the Supervisors’ work
performance as roadmasters or secretary, or that the Township was experiencing
financial problems, that would necessitate or rationalize the wage reductions. (F.F.
Nos. 20-21, 50.) Instead, the trial court’s findings establish that the Auditors were
“upset” that the Supervisors outsourced auditing work to a private firm, (F.F. Nos. 22,
49), which is most notably memorialized in Auditor Craig’s letter to an editor in a local
newspaper. In this submission, Auditor Craig portrayed a deep and divisive conflict



                                             13
between the Auditors and the Supervisors, alleged that the Supervisors have acted
indecorously, and essentially requested the public to take the side of the Auditors in the
dispute:

             The state municipal code in part charges the elected auditors
             with auditing, adjusting and settling the accounts of all
             elected officials of the township.

             Of major concern to the elected auditors and taxpayers is the
             supervisors’ outsourcing of the audit to Monahan &
             Monahan, public accountants, to restrict the open records
             availability to the elected auditors for inspection.

             Historically the [] Township auditors have a record of
             performing a detailed audit of township records, which in the
             past has identified supervisors’ personal household expenses
             being paid with township monies.

             Over the last year, the supervisors have refused to supply the
             elected auditors with information relating to expenditures.
             However, the auditors through an intense investigation have
             been able to put their fingers on runaway township
             expenditures . . . . [T]he auditors have also put their fingers
             on major purchases made outside municipal code
             regulations.

             The auditors have focused on doing their job for the
             taxpayers by employing over 2,000 hours of their time, at no
             cost to the township, and look for taxpayers’ support as they
             push forward in a positive direction for the township.
(Pet’r Ex. 17.)
             Based on their content, the above allegations strongly suggest, if not
outright claim, that the Supervisors have engaged in misconduct and intentionally
thwarted the Auditors’ statutory responsibilities, namely their duty to oversee and
conduct an official inspection of the expenditures of the Supervisors and the




                                           14
Township’s overall fiscal health.7 This animosity toward the Supervisors is further
reflected by the fact that the Auditors refused to answer questions regarding the
reductions in compensation at the January 4, 2017 meeting and failed to provide the
Supervisors with a reason for the downward adjustments. In addition, the strife
occurring between the Supervisors and the Auditors is underscored by the fact that
Auditor Szymanowski utilized the phrase “or else” toward Supervisor Bole on the
campaign trail, carrying with it a thinly veiled threat that there “will be consequences”
for the Supervisors. (F.F. Nos. 22, 49.)
               Viewing these circumstances collectively and in a coalesced fashion, we
conclude that they provided the trial court with an adequate basis upon which to
reassess the Auditors’ wage determinations on a substantive level to ensure fairness.
In conducting such an inquiry, the trial court found that the Auditors engaged in
statistical “cherry picking” and concluded that the Auditors arrived at their wage
reductions through a flawed methodology. (COL at pp. 8-9, 11.) Given the trial court’s
factual findings, which find ample support in the record and are not meaningfully
contested by the Auditors, we cannot conclude that the trial court erred in inferring, as
a matter of law, that improper “personal preference and ideals” served as “the catalyst
for [the] Auditors reducing [the] Supervisors’ compensation and benefits.” Id.; see




       7
          Pursuant to the Code, the Auditors are statutorily obligated to audit, settle, and adjust the
accounts of all elected officials of the Township, including the Supervisors. Section 901(a) of the
Code, 53 P.S. §65901(a). The Auditors must also issue an annual report that contains, among other
things, “a statement of the disbursements of the township during the fiscal year,” “a detailed statement
of the indebtedness of the township at the close of the fiscal year and the provisions made for the
payment thereof together with the purposes for which it was incurred,” and “a statement of the cost
of ownership and operation of each public service industry owned, maintained or operated by the
township.” Section 904(b)-(d) of the Code, 53 P.S. §65904(b)-(d).



                                                  15
Robb v. Stone, 146 A. 91, 93-94 (Pa. 1929) (discussing the authority of the fact-finder
to infer that official action amounted to “arbitrary will and caprice”).
               Although the Auditors dedicate a great portion of their brief in an attempt
to minimize the conflict with the Supervisors and validate their wage reductions, these
matters concern the weight and credibility of the evidence presented to the trial court.
In essence, the Auditors contend that the trial court should have believed and afforded
greater evidentiary weight to their testimony.8
               It is beyond peradventure that the trial court, sitting as the fact-finder, is
free to believe all, part or none of the evidence, to make all credibility determinations,
and to resolve all conflicts in the evidence. See Commonwealth v. Holtzapfel, 895 A.2d
1284, 1289 n.2 (Pa. Cmwlth. 2006). An argument that the evidence was “unbelievable”
is one that goes to the credibility of the witness’s testimony. Commonwealth v. Griffin,
65 A.3d 932, 939 (Pa. Super. 2013). An argument that the fact-finder should have
credited one witness’s testimony over that of another witness goes to the weight of the
evidence. Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009). Under
our standard of review, however, this Court cannot upset the trial court’s credibility
determinations or reweigh the evidence to make findings contrary to the trial court.
Holtzapfel, 895 A.2d at 1289 n.2. Indeed, where, as here, a sufficiency of the evidence

       8
          See, e.g., Brief for the Auditors at 15 (“Auditor Szymanowki testified that he has known
Supervisor Bole for more than 60 years and has considered him a friend, and did not agree he had any
interactions with Supervisor Bole regarding political campaigns.”); 16-17 (“In her testimony, Auditor
Craig admitted to some concern and explained that allowing the [] Auditors to perform the audit
would have saved the taxpayers money.”); 17 (“While Auditor Renick did testify she was upset, she
explained she felt that way because the role of auditor is to watch out for the taxpayers and there had
been discrepancies in the books before. She denied the 2017 compensation decisions were in
retaliation for outsourcing the audit.”); 17 (“Auditor Szymanowski testified that he was happy the
audit had been outsourced, though he was concerned with the company hired for the audit due to
problems in other townships with missing money.”); 17 (“The individual Auditors voiced some
legitimate concerns over the decision to outsource the audit, and in some cases, shared those concerns
with the township citizens.”).


                                                 16
claim is raised, issues concerning the credibility and weight of the evidence are
irrelevant and not part of the calculus. Griffin, 65 A.3d at 939; Gibbs, 981 A.2d at 281-
82; Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003). Instead, in a
sufficiency challenge, we must view the evidence in the light most favorable to the
Supervisors as the verdict winner and disregard any unfavorable evidence. See Prieto
Corporation v. Gambone Construction Co., 100 A.3d 602, 609 (Pa. Super. 2014).
Applying that standard here, we are unable to find merit in the Auditors’ arguments.
             In analogous situations, the appellate courts of this Commonwealth have
not hesitated to affirm the vacatur of reduced compensation where the fact-finder
inferred that the decision maker based the reduction on an improper motive. See Robb,
146 A. at 93-94 (affirming a trial court’s decree enjoining and voiding the decisions of
a board of school directors to erect a new school and award a construction contract
because the decisions were “influenced by other considerations than the public
interests,” being “based upon selfish and improper motives” and indicative of an
“attitude . . . of revenge”); Farris v. Swetts, 46 A.2d 504, 506-07 (Pa. Super. 1946)
(concluding that the decision of the board of school directors to lower the compensation
of the tax collector from 4% to 2% on taxes collected was an arbitrary exercise of power
where the trial court found that the compensation was “inadequate” and “unreasonable”
and the decision was motivated by “political differences . . . between the tax collector
and president of the school board”). Therefore, providing the trial court the deference
it is entitled to as the fact-finder, we conclude that the trial court neither erred nor
committed an abuse of discretion in setting aside the Auditors’ wage determinations.




                                           17
                                Propriety of Expert Testimony
               The Auditors contend that the trial court erred in appointing and relying
upon an expert, Phillips, asserting that this had the effect of “usurping the statutory role
of the elected [] Auditors.” (Brief for Auditors at 27.) However, in advancing this
argument, the Auditors presuppose that they exercised their wage-setting discretion in
an appropriate manner. As previously discussed, the trial court did not err in voiding
the Auditors’ wage determinations. Consequently, as a functional matter, it was
necessary for the trial court to appoint an independent and neutral expert to decide the
appropriate amount of wages for the Supervisors, especially considering that any expert
proffered by the Supervisors would be exposed to claims of self-dealing and would
severely undermine the command and purpose of section 606(a) of the Code. See
Delaware Township Board of Auditors, 132 A.3d at 530 (“[T]he manifest intent of the
legislature in Section 606 of the Code [is] to limit self-interested decision-making by
supervisors.”). In this context, we disagree with the Auditors that the trial court
substituted its own discretion for that of the Auditors by appointing Phillips as an
expert.
               In their brief, the Auditors concede that Pennsylvania Rule of Evidence
706 vests the trial court with authority to appoint an expert witness. We must agree.
See Pa.R.E. 706 (Court-Appointed Expert Witnesses);9 Commonwealth v. Correa, 648
A.2d 1199, 1203 n.2 (Pa. Super. 1994) (reiterating a trial court’s authority to appoint
its own expert in a bench trial); see also Wayne v. Cassatly, 349 A.2d 545, 548 (N.J.
Ct. App. 1975) (upholding the appointment of an independent expert when the


       9
           “Where the court has appointed an expert witness, the witness appointed must advise the
parties of the witness’s findings, if any. The witness may be called to testify by the court or any party.
The witness shall be subject to cross-examination by any party, including a party calling the witness.
In civil cases, the witness’s deposition may be taken by any party.” Pa.R.E. 706.


                                                   18
testimony of the parties’ experts suggested “undue partisanship”). Notably, a trial court
need not accept the recommendation or conclusions of a court-appointed expert, see
Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super. 2002), and a court-appointed
expert is subject to the same standards which govern other expert witnesses under the
Pennsylvania Rules of Evidence, see In re Shell Oil Co., 607 A. 2d 1213, 1223 (Del.
1992) (observing that appointed experts are treated like any other expert under the
Delaware Rules of Evidence).
               Here, the Auditors do not challenge the admissibility of Phillip’s expert
opinion through the Frye test or otherwise.10                Rather, the Auditors attack the
evidentiary value of his expert testimony, contending that Phillips’ survey “was limited
by severe time constraints as he only had one day to collect the information”; his
methodology “skewed the numbers presented” in the data forming the bases for his
opinions; and Phillips erroneously interpreted “the experience claimed by the
individual Supervisors.” (Auditors’ Brief at 28-30.) These arguments, however, mount
challenges that pertain to the weight of the evidence. See Craftmaster Manufacturing,
Inc. v. Bradford County Board of Assessment Appeals, 903 A.2d 620, 625, 629 (Pa.
Cmwlth. 2006) (concluding that an expert’s “error was relevant to the weight to be
given to [his] opinion”); Emerick v. Carson, 472 A.2d 1133, 1136 (Pa. Super. 1984)
(finding argument that the expert’s opinion was “flawed” was a contention that
“obviously goes to the weight to be accorded to [the] testimony . . . and not to its
admissibility”). As explained above, such issues are to be resolved by the trial court
as fact-finder and do not provide this Court with grounds to find reversible error.

       10
          See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Commonwealth v. Safka, 95 A.3d
304, 306-08 (Pa. Super. 2014) (discussing the standards for admissibility of expert opinion testimony
pursuant to the Frye test); see also Pa.R.E. 702 (Testimony by Expert Witnesses); 703 (Bases of an
Expert’s Opinion Testimony); 704 (Opinion on an Ultimate Issue); 705 (Disclosing the Facts or Data
Underlying an Expert’s Opinion).


                                                 19
            Therefore, we conclude that the trial court did not err in appointing
Phillips as an expert and crediting his testimony to support its findings of fact and
conclusions of law.


                                    Conclusion
            For the forgoing reasons, we can perceive no basis upon which to upset
the trial court’s order setting aside the Auditors’ compensation determinations and
devising a proper compensation package and remedy for the Supervisors.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         20
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of the Board            :
of Auditors of McKean                 :
Township/2017 Meeting                 :    No. 1419 C.D. 2017
                                      :
Appeal of: Board of Auditors          :
of McKean Township                    :



                                   ORDER


            AND NOW, this 21st day of December, 2018, the September 12, 2017
order and verdict entered by the Court of Common Pleas of Erie County is hereby
affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
