[J-37-2024]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.


  KLEINBARD LLC,                      :   No. 101 MAP 2023
                                      :
                   Appellant          :   Appeal from the Order of the
                                      :   Commonwealth Court at No. 204 CD
                                      :   2022 entered on April 25, 2023
            v.                        :   Affirming the Order of the Lancaster
                                      :   County Court of Common Pleas,
                                      :   Civil Division, at No. CI-21-06142
  THE OFFICE OF THE DISTRICT          :   entered on February 17, 2022.
  ATTORNEY OF LANCASTER COUNTY;       :
  HEATHER ADAMS, IN HER OFFICIAL      :   ARGUED: May 14, 2024
  CAPACITY AS DISTRICT ATTORNEY OF    :
  LANCASTER COUNTY; LANCASTER         :
  COUNTY BOARD OF COMMISSIONERS;      :
  JOSHUA PARSONS, IN HIS INDIVIDUAL   :
  CAPACITY AND OFFICIAL CAPACITY AS   :
  CHAIRMAN OF THE LANCASTER           :
  COUNTY BOARD OF COMMISSIONERS;      :
  RAY D'AGOSTINO, IN HIS INDIVIDUAL   :
  CAPACITY AND OFFICIAL CAPACITY AS   :
  VICE-CHAIRMAN OF THE LANCASTER      :
  COUNTY BOARD OF COMMISSIONERS;      :
  CRAIG LEHMAN, IN HIS INDIVIDUAL     :
  CAPACITY AND OFFICIAL CAPACITY AS   :
  LANCASTER COUNTY COMMISSIONER;      :
  BRIAN HURTER, IN HIS OFFICIAL       :
  CAPACITY AS LANCASTER COUNTY        :
  CONTROLLER; AND CHRISTINA           :
  HAUSNER, IN HER INDIVIDUAL          :
  CAPACITY AND OFFICIAL CAPACITY AS   :
  FORMER LANCASTER COUNTY             :
  SOLICITOR,                          :
                                      :
                   Appellees          :

OPINION

JUSTICE DOUGHERTY                                          DECIDED: December 17, 2024
       We granted discretionary review to consider whether the Commonwealth Court

correctly sustained preliminary objections and rejected as a matter of law the claim of a

law firm to payment for services rendered to a county’s district attorney. The panel below

determined the contract for legal services was void ab initio pursuant to certain provisions

of the County Code and dismissed the corresponding counts of the lawsuit. Our review

reveals the panel erred when it failed on preliminary objections to take certain operative

allegations in the complaint as true, and accordingly, we reverse and remand to the

Commonwealth Court for further proceedings.

                                               I.

       The matter arises from a power struggle between Craig Stedman, the former

District Attorney of Lancaster County, 1 and the county’s board of commissioners.

Stedman, in his role as District Attorney, sought to obtain from the county and use certain

assets obtained by law enforcement authorities through forfeiture. 2 The commissioners

balked, and ultimately, Stedman hired appellant Kleinbard LLC to file suit against the

county commissioners, the county controller, and then-Attorney General Josh Shapiro,

seeking declaratory and injunctive relief.          Kleinbard and Stedman executed an


1 Stedman is now a judge on the Lancaster County Court of Common Pleas.

2 See generally 42 Pa.C.S. §5803 (asset forfeiture). Specifically, Section 5803(f) provides

that forfeited property “shall be transferred to the custody of the district attorney, if the law
enforcement authority seizing the property has local or county jurisdiction,” and the district
attorney may “retain the property for official use[.]” Id. at §5803(f). Section 5803(g) further
provides these funds “shall be placed in the operating fund of the county in which the
district attorney is elected. The appropriate county authority shall immediately release
from the operating fund, without restriction, a like amount for the use of the district attorney
for the enforcement of or prevention of a violation of the provisions of The Controlled
Substance, Drug, Device and Cosmetic Act. The funds shall be maintained in an account
or accounts separate from other revenues of the office. The entity having budgetary
control shall not anticipate future forfeitures or proceeds from future forfeitures in adoption
and approval of the budget for the district attorney.” Id. at §5803(g).


                                        [J-37-2024] - 2
engagement letter stating the firm was representing him “‘in his official capacity as District

Attorney of Lancaster County,’ in connection with legal matters related to the District

Attorney’s Office, including the prosecution and litigation of the Commissioners’

Encroachment Lawsuit.” Complaint at ¶84, quoting Engagement Letter, 3/8/19 at 1.

Kleinbard further averred in the letter that it was not representing Stedman in his “personal

capacity, nor in [his] capacity as a candidate for any office.” Engagement Letter, 3/8/19

at 1. 3 The engagement letter stated Stedman agreed to compensate Kleinbard for legal

services at the firm’s “prevailing hourly rates for the legal services rendered by [its]

attorneys or paralegals[,]” which ranged at the time from $295 to $735, as well as costs

and expenses. Id. at 1-2.

         At the time, the commissioners had appropriated to the District Attorney’s Office a

line-item budget amount of $5,000 for legal services. The commissioners published a

letter stating they would not approve payment of costs or legal fees incurred by Stedman

beyond that budgeted amount because, in the commissioners’ view, the lawsuit against

them sought “damages personal to” Stedman and, as such, “no taxpayer or drug forfeiture

funds should be used to pay for [Kleinbard’s] representation of” Stedman. Letter from

County Solicitor to Mark Seiberling, 3/7/19 at 3. Kleinbard eventually invoiced the District

Attorney’s Office for legal fees in excess of $100,000 for services rendered between

March 2019 and December 2019. Days before resigning as District Attorney, Stedman

submitted a voucher to the county controller requesting payment of $74,193.06 4 in legal


3 The lawsuit was originally filed in Commonwealth Court, but the court determined on

preliminary objections that it lacked subject matter jurisdiction. See Stedman v. Lancaster
Cty. Bd. of Comm’rs, 

 (Pa. Cmwlth. 2019) (en banc). The matter was then
transferred to the court of common pleas, but the newly-elected district attorney chose to
discontinue the action. See Trial Ct. Opinion, 2/11/22 at 3.
4 Thisreduced amount represented a “discount if paid in full by [the] end of 2019.”
Complaint at ¶28 (citation omitted).


                                       [J-37-2024] - 3
fees to be paid to Kleinbard and drawn from the District Attorney’s Office legal account,

and from the office’s drug/alcohol diversionary program and bad check restitution

program (“Program Accounts”). See Complaint at ¶¶21, 27, 29, 36. 5 More specifically,

the completed voucher form indicated that, “[o]f the $74,193.06 payment to be made to

Kleinbard, $69,193.06 of the payment was to be drawn from the District Attorney’s Office’s

drug/alcohol diversionary program and the District Attorney’s Office’s bad check

restitution program accounts,” and “[o]nly $5,000 . . . was to be drawn from the District

Attorney’s Office’s legal account utilizing taxpayer funds from the County Treasury.” Id.

at ¶¶30-31 (footnotes omitted); accord Lancaster County Voucher Form, 12/10/19

(reflecting that monies were to be drawn from three separate accounts in the amounts of

$40,472.84, $28,720.22, and $5,000).

      The commissioners refused to pay Kleinbard’s bill. In October 2021, Kleinbard

filed the underlying complaint against the Lancaster County District Attorney’s Office,

newly-elected District Attorney Heather Adams, the county commissioners, the county

controller, and the county solicitor, seeking mandamus and damages for breach of

contract, unjust enrichment/quantum meruit, and tortious interference. Kleinbard also

filed a corresponding motion for peremptory judgment seeking to compel payment by the


5 The Lancaster County District Attorney’s Office website describes the Drug/Alcohol

Diversion Program as follows: “The Drug and Alcohol Diversion Program is intended to
divert minor drug and alcohol offenses at the district court level. Defendants charged with
minor drug and alcohol offenses who wish to participate in the program must waive their
preliminary hearing. The case then remains in the district court until the charge(s) is/are
withdrawn upon successful completion of the program. If the defendant does not
successfully complete the program, the case is returned to the Lancaster County Court
of Common Pleas.” Drug/Alcohol Diversion Program – Pathways to Recovery,
LANCASTER CNTY. OFF. OF THE DIST. ATT’Y, https://www.co.lancaster.pa.us/1052
/DrugAlcohol-Diversion-Program (last visited Dec. 9, 2024). The URL cited in the
complaint as linking to the office’s bad check restitution program is no longer valid. See
Complaint at ¶30 n.2, citing https://www.co.lancaster.pa.us/445/Bad-Check-Program
(last attempted Dec. 9, 2024).


                                     [J-37-2024] - 4
commissioners of $74,193.06. Kleinbard’s complaint alleged that $69,193.06 of its bill

should be paid from the Program Accounts, which “are not County taxpayer funded but

instead are funded by fees paid by participants” in the District Attorney’s Office drug and

alcohol diversionary and bad check restitution programs. Complaint at ¶30 (emphasis in

original). According to the complaint, these are “District Attorney-controlled programs[,]”

and the funds in the Program Accounts are therefore “beyond the purview and oversight

authority” of the commissioners.      Id. at ¶3.   Kleinbard further alleged the Program

Accounts were “not taxpayer funds subject to any degree of discretionary review or

oversight by the County Commissioners or other County officials.” Id. at ¶72 (emphasis

omitted). Kleinbard also claimed “there is no requirement in the County Code that the

County Commissioners or other County officials approve, issue and sign checks that

involve non-taxpayer funds that are not drawn from the County Treasury.” Id. at ¶73

(emphasis in original). Kleinbard further alleged that, “[u]pon information and belief,” both

the county controller and treasurer “approved payment of the full $74,193.06 to Kleinbard

for the legal services it rendered to” Stedman and the District Attorney’s Office. Id. at

¶32. According to Kleinbard, the commissioners had “no authority to block payments

using non-taxpayer funds . . . such as the District Attorney-controlled” Program Accounts.

Id. at ¶114.

       Appellees filed preliminary objections, arguing Kleinbard was not entitled to

payment because Stedman was not authorized to enter into a legal services agreement

for more than the amount budgeted by the commissioners to his office. Appellees relied

on the County Code, specifically 16 P.S. §1773(b), which was titled “Supplemental

appropriations, transfers of funds and appropriation limits,” and provided: “No work shall

be hired to be done, no materials purchased, no contracts made and no order issued for

the payment of any money by the county commissioners which will cause the sums




                                      [J-37-2024] - 5
appropriated to be exceeded.” 16 P.S. §1773(b), repealed by Act 14 of 2024, S.B. 945,

208th Gen. Assemb., Reg. Sess., Printer No. 1111 (Pa. 2024) (effective July 8, 2024). 6

       The court of common pleas7 sustained the preliminary objections in part, allowing

payment of $5,000 to Kleinbard, but dismissing with prejudice the remaining claims. The

court cited the “general and fundamental principle of law that persons contracting with a

municipal corporation must at their peril inquire into the power of the corporation or its

office[r]s to make the contract or incur the debt.” Kleinbard LLC v. Office of Dist. Attorney

of Lancaster Cty., No. CI-21-06142, slip op. at 5 (C.P. Lancaster, Feb. 11, 2022) (“Trial

Ct. Opinion”), quoting, inter alia, Pittsburgh Baseball, Inc. v. Stadium Auth. of Pittsburgh,

 (Pa. Cmwlth. 1993). The court noted Kleinbard and Stedman “were

specifically informed shortly after making their agreement that the County would not

authorize payment of the fees” beyond the District Attorney’s budgeted amount. Id. at 6.

The court concluded the parties’ agreement was thus unenforceable beyond $5,000, and

in addition, the County Code precluded Stedman’s use of funds from any other line item

6 Following briefing in this case, the General Assembly unanimously enacted Act 14 of

2024, which Governor Josh Shapiro signed into law on May 8, 2024, and which became
effective on July 7, 2024. See S.B. 945, 208th Gen. Assemb., Reg. Sess., Printer No.
1111 (Pa. 2024). Act 14 incorporated the freestanding County Code into Title 16 of the
Pennsylvania Consolidated Statutes. To effectuate those changes, the General
Assembly repealed the County Code in its entirety, including 16 P.S. §1773. However,
aside from a few substantive changes not relevant here, Act 14 was generally intended
to affect a “continuation” of the County Code, despite its repeal. See id. at §6; id. at
§(6)(1) (“Except as otherwise provided in 16 Pa.C.S. Pts. I, II, III and IV, all activities
initiated under [t]he County Code shall continue and remain in full force and effect and
may be completed under 16 Pa.C.S. Pt. I, II, III, or IV.”); id. at §6(2) (“Except as provided
in paragraph (3), any difference in language between 16 Pa.C.S. Pts. I, II, III and IV and
[t]he County Code is intended only to conform to the style of the Pennsylvania
Consolidated Statutes and is not intended to change or affect the legislative intent, judicial
construction or administration and implementation of [t]he County Code.”). Notably, the
substance of Section 1773 of the County Code is now found in 16 Pa.C.S. §14976
(Supplemental appropriations, transfers of money and appropriation limits).
7 The Honorable Robert J. Eby sat by designation when the Lancaster County bench

recused.


                                       [J-37-2024] - 6
of his budget without the commissioners’ approval of supplemental appropriations. See

id. at 8, citing 16 P.S. §1773. The court ruled “that while there was an Agreement between

the parties, . . . there was no breach of contract, no tortious interference, and no unjust

enrichment relative to this matter[.]” Id. at 9.

       A three-judge panel of the Commonwealth Court affirmed. See Kleinbard LLC v.

Office of Dist. Attorney of Lancaster Cty., No. 204 C.D. 2022, 

 (Pa.

Cmwlth., Apr. 25, 2023) (unpublished memorandum). The panel held the District Attorney

had no authority to enter into the contract with Kleinbard beyond the budgeted amount,

regardless of the existence of the Program Accounts. The panel reasoned: “The fact that

there may have been money elsewhere to pay the invoice is beside the point. The point

rather is that Stedman could not enter into the contract[.] . . . He had no right to unilaterally

enter into a contract for the payment for legal services that far exceeded his allotted

budget for legal expenditures without first obtaining the Commissioners’ approval.” Id. at

*4 (emphasis omitted). The panel also noted Kleinbard had not provided “any citation to

or reference to where or by whom the drug/alcohol diversionary program account and the

bad check restitution program account were created, nor have we been able to locate any

information about the programs.” Id. The panel stated it had “nothing . . . to reference

with respect to the limitations, if any, on the use of the funds in such accounts[,]” and was

“unable to confirm that Stedman was, in fact, entitled to use funds for a purpose other

than that for which they are earmarked.” Id. The panel opined that, even if he “had an

indeterminate amount of resources at his disposal [it would] not change the fact that the

engagement agreement was invalid because Stedman contracted for legal fees in an

amount that exceeded his allotted legal fees budget.” Id. The panel suggested the reason

for this rule “is apparent. If a DA is allowed to contract for services over and above the

assigned budget based on his belief that there will be available funds elsewhere to cover




                                        [J-37-2024] - 7
the surplus debt, the County could be exposed to legal and budgetary accountability if

that belief turns out to be wrong. Indeed, it is not at all clear that Stedman had unfettered

authority to reallocate funds from the Program Accounts to pay for Kleinbard’s legal fees.”

Id. at *4 n.5.

       Kleinbard filed a petition for allowance of appeal, which we granted to consider the

following questions:

   1) Did the lower courts err when they applied 16 P.S. §1773 of the County Code to
      District Attorney-controlled accounts because the monies in those accounts are
      not appropriated from the County Treasury, and thus are not subject to the County
      Commissioners’ discretion?

   2) Did the lower courts misconstrue Yost v. McKnight, 

 (Pa. Cmwlth.
      2005), and related case law given that the District Attorney sought to draw monies
      from District Attorney-controlled accounts and therefore did not ask the County
      Commissioners for additional monies from the County Treasury?

   3) Did the lower courts’ holdings violate separation of powers principles by allowing
      the county Commissioners to interfere with the District Attorney’s right to spend
      monies within his budget in order to defend against the Commissioners’ illegal
      encroachment on his constitutional role in County government?
Kleinbard LLC v. Office of Dist. Attorney of Lancaster Cty., 

 (Pa. 2023) (per

curiam). We review the decision sustaining preliminary objections and dismissing the

complaint to determine whether, “on the facts averred, the law says with certainty that no

recovery is possible. Where a doubt exists as to whether a demurrer should be sustained,

this doubt should be resolved in favor of overruling it.” Allegheny Reprod. Health Ctr. v.

Pa. Dep’t of Human Servs., 

, 849 (Pa. 2024) (citation omitted). Moreover,

we must “accept as true all well-pleaded, material, and relevant facts alleged in the

complaint and every inference that is fairly deducible from those facts.”         Raynor v.

D’Annunzio, 

, 52 (Pa. 2020) (internal quotation marks and citation omitted).

Mindful of these standards, we proceed to consider the first issue presented, and

conclude it resolves the appeal.



                                      [J-37-2024] - 8
                                             II.

       Kleinbard argues the lower courts erred when they held as a matter of law, based

on former Section 1773(b) of the County Code, that it is not entitled to payment from the

Program Accounts. According to Kleinbard, Section 1773 applies only to “appropriated

monies.” Kleinbard’s Brief at 20 (emphasis in original). This makes sense, Kleinbard

argues, because the commissioners must assess the county’s revenues and

expenditures as well as appropriation requests made by county officers when making a

budget, and Section 1773 “protects the commissioners’ legislative prerogative regarding

the budget.” Id. at 21. But, Kleinbard claims, the statute has nothing to do with “non-

appropriated money because such money was not distributed by the [c]ommissioners

pursuant to their legislative authority.” Id. Kleinbard asserts the Program Accounts

“cannot fall within Section 1773’s reach because they are participant funded and not

funded by the commissioners.” Id. at 22. According to Kleinbard, when the district

attorney “spends monies from the Program Accounts, the Commissioners’ budget is

untouched: every appropriation is the same; the amount of taxpayer funds in the County

treasury is the same; and the tax rate remains sufficient to fund the budget.” Id. at 22-23.

Kleinbard insists Section 1773(b) prohibits the district attorney only from making a

contract that “will cause the sums appropriated to be exceeded” and “according to the

well-pleaded facts in the Complaint — which the Commonwealth Court ignored — the

contract did not cause the $5,000 appropriation to be exceeded.” Id. at 23, 25 (emphasis

omitted). Kleinbard focuses on the Commonwealth Court’s “unwillingness to accept the

well-pleaded fact” that Stedman had discretion to use the District Attorney-controlled

Program Accounts to pay his legal bills in excess of the amount appropriated in his

budget. Id. at 26. Kleinbard argues it is entitled to proceed to discovery about the

Program Accounts because, at the preliminary objections stage, the “facts are simply that




                                      [J-37-2024] - 9
the Program Accounts contain non-appropriated revenue that is separate from taxpayer

monies in the County Treasury and over which the District Attorney has sole control.” Id.

at 27.

         Appellees echo the lower courts’ position that Stedman was unauthorized to make

a contract for legal services that exceeded the $5,000 appropriation for such fees, without

first obtaining approval from the commissioners. They argue the commissioners are the

managers of the fiscal affairs of the county, and as such they have sole discretion over

the budgeting process. See Appellees’ Brief at 9, citing 16 P.S. §1701. They claim a

district attorney must request a supplemental appropriation for additional funds pursuant

to Section 1773(a), and failing that request and approval, there is no authority to make

contracts to spend more than the allotted amount.          Appellees reject the notion the

Program Accounts may be used for anything at all by the District Attorney, “even if the

use of such funds infringes on the County Commissioners’ exclusive role of setting the

budget for all county expenditures.” Id. at 12. They claim Kleinbard’s “simplistic analysis

ignores that the Commissioners may consider all funds available to the District Attorney

and all expenses when creating the annual budget[,]” and the Program Accounts “are

necessarily intertwined with the County’s budgeting process.” Id. Moreover, appellees

argue, whether Stedman “had sole control over the Program Accounts is a question of

law, not fact[,]” and there was no error below when the preliminary objections were

sustained and the claim for amounts in excess of $5,000 was dismissed. Id. at 13. 8



8 Amicus Curiae County Commissioners Association of Pennsylvania filed a brief in
support of appellees. The Association argues county row officers like district attorneys
may enter into contracts, but that authority is limited by former 16 P.S. §1773(b). It further
claims Kleinbard has provided no legal authority for its position the Program Accounts are
not county assets subject to the control and appropriation of commissioners, and allowing
a county row officer to enter into contracts that exceed budgeted amounts would invade
the statutory right and obligation of commissioners to determine priorities.


                                      [J-37-2024] - 10
                                               III.

       The lower courts relied on provisions of the County Code for their conclusion that

Stedman, as District Attorney, did not have the authority to enter into the contract with

Kleinbard for legal services that cost more than his budgetary allocation of $5,000 for

legal fees. First, they pointed to former Section 1701, which provided: “The county

commissioners shall be the responsible managers and administrators of the fiscal affairs

of their respective counties in accordance with the provisions of this act and other

applicable law.” 16 P.S. §1701, repealed by Act 14 of 2024, S.B. 945, 208th Gen.

Assemb., Reg. Sess., Printer No. 1111 (Pa. 2024). 9 Then, they relied on former Section

1773, which, as earlier noted, was titled “Supplemental appropriations, transfers of funds

and appropriation limits,” and specifically, paragraph (b):

       (a) The commissioners may:

              (1) At any time, by resolution, make supplemental appropriations for
                  any lawful purpose from any funds on hand or estimated to be
                  received within the fiscal year and not otherwise appropriated,
                  including the proceeds of any borrowing now or hereafter
                  authorized by law.

              (2) Authorize the transfer of:

                 (i) Any unencumbered balance of any appropriation item or any
                     portion thereof.

                 (ii) Within the same fund, any unencumbered balance or any
                      portion thereof from one spending agency to another.

              (3) During the last fifteen days of a fiscal year, authorize the transfer
                  of any unencumbered balance, or any portion thereof, from any
                  county fund to any fund of the institution district, and to
                  reappropriate that money to the institution district.

9 A nearly identical provision to former Section 1701 of the County Code is now found at

16 Pa.C.S. §14901 (“The county commissioners shall be the responsible managers and
administrators of the fiscal affairs of their respective county in accordance with this part
and other applicable law.”).


                                      [J-37-2024] - 11
       (b) No work shall be hired to be done, no materials purchased, no
           contracts made and no order issued for the payment of any money
           by the county commissioners which will cause the sums
           appropriated to be exceeded.

16 P.S. §1773 (emphasis added). 10 According to the Commonwealth Court, application

of Section 1773(b) leads to the inescapable legal conclusion that Kleinbard is not entitled

to relief, as its contract for legal services exceeded the sums appropriated to the District

Attorney for such expenses, and the contract was therefore void ab initio. See Kleinbard,

, at *4 (“[Stedman] had no right to unilaterally enter into a contract for

the payment for legal services that far exceeded his allotted budget for legal expenditures

without first obtaining the Commissioners’ approval.”).

       But the Commonwealth Court also rejected Kleinbard’s argument that the Program

Accounts were available to Stedman for payment of his legal bills, as an alternative (or a

supplement) to the Commissioners’ budgeted appropriation. The panel admitted it had

no details about the nature of the Program Accounts, and could not be sure whether

Stedman had, as a matter of fact, the right to use those funds to pay for legal fees:

       Kleinbard has not provided the Court with any citation to or reference to
       where or by whom the drug/alcohol diversionary program account and the
       bad check restitution program account were created, nor have we been able
       to locate any information about the programs. Accordingly, there is nothing
       for this Court to reference with respect to the limitations, if any, on the use
       of the funds in such accounts. Therefore, we are unable to confirm that
       Stedman was, in fact, entitled to use funds for a purpose other than that for
       which they are earmarked.



10 Again, the substance of Section 1773(b) has simply been moved to 16 Pa.C.S. §14976

and slightly reworded. See 16 Pa.C.S. §14976(b) (“The county commissioners may not
do any of the following which would cause the sums appropriated to be exceeded: (1)
Hiring work to be done. (2) Purchasing materials. (3) Making a contract. (4) Issuing a
payment order.”).


                                      [J-37-2024] - 12
Id. The panel took this view even though the matter was before it on an appeal from

preliminary objections, and in reviewing the trial court’s decision, it had the obligation to

accept as true the well-pleaded facts in the complaint as well as every inference fairly

deducible from those facts. See Raynor, 243 A.3d at 52. Moreover, the panel apparently

ignored the rule that, to the extent it had doubts about the facts alleged in the complaint,

it should resolve those doubts in favor of overruling the demurrer. See Allegheny Reprod.

Health Ctr., 309 A.3d at 849.

       Specifically, when it declared its uncertainty about the nature of the Program

Accounts, and Stedman’s authority to use them, the panel disregarded Kleinbard’s factual

allegation they “are not County taxpayer funded but instead are funded by fees paid by

participants” in the District Attorney’s Office drug and alcohol diversionary and bad check

restitution programs. Complaint at ¶30 (emphasis in original). The panel also failed to

take as true Kleinbard’s factual allegation these are “District Attorney-controlled

programs.” Id. at ¶3. We are unpersuaded by appellees’ assertion the issue of whether

the District Attorney controls the Program Accounts is a question of law, particularly where

they have presented neither facts nor legal support for that position. Appellees simply

state the Program Accounts “are necessarily intertwined with the County’s budgeting

process[,]” Appellees’ Brief at 12, but fail to explain more about what they are and how

they operate.    Indeed, neither the panel below nor appellees seem to have this

information. Kleinbard, on the other hand, alleges the Program Accounts are funded

independently from the monies used by the commissioners for their County Code

appropriations; appellees and Kleinbard clearly see the operative facts differently, but




                                      [J-37-2024] - 13
material disputes of fact preclude demurrer. 11           Where Kleinbard’s complaint was

dismissed at the preliminary objections stage, it was error for the panel to affirm on the

basis it was “unable to confirm” the nature of the Program Accounts. Kleinbard, 

, at *4. Instead, the lower courts should have taken Kleinbard’s allegations as

true and assessed the legal viability of its claim in the context of those facts.

       The factual allegations in the complaint, taken as true, establish the Program

Accounts are funded by fees paid by participants in the drug and alcohol diversionary and

bad check restitution programs controlled by the District Attorney. These facts — if true

— remove the Program Accounts from the purview of the prohibition in Section 1773(b)

(now 16 Pa.C.S. §14976(b)) regarding Commissioner-appropriated sums. See 16 P.S.

§1773(b) (“No work shall be hired to be done, no materials purchased, no contracts made



11 The dissent ignores this factual dispute and pretends the ultimate question of the

District Attorney’s authority over the Program Accounts can be answered without
factfinding about the nature and source of the funds. But it cannot, and this is exactly
when a demurrer should be overruled — we neither change any standards nor “flip” any
burdens. Dissenting Opinion at 2, 5. We also reject the dissent’s position Kleinbard’s
“failure to point to a statutory authority for the creation of the Program Accounts and a
district attorney’s unfettered discretion to expend funds contained in the accounts should
have been the end of the case.” Id. at 5-6. As the concurrence points out, unlike drug
forfeiture funds, which are expressly regulated by statute, it seems the General Assembly
may presently be unaware of the collection and use of these types of funds by district
attorneys, which could explain the apparent absence of laws directly governing them.
See Concurring Opinion at 8 (“If it is true that our law gives district attorneys — without
any transparency or oversight — carte blanche to spend money that was intended to fund
diversionary programs, the General Assembly should consider changing the law.”). We
join the concurrence in urging the General Assembly to address the matter, but unlike the
dissent, we do not fault Kleinbard for failing to identify in its complaint statutes it does not
believe exist. Again, Kleinbard’s bottom line is that the Program Accounts contain non-
appropriated revenue that is separate from taxpayer monies in the county treasury and
over which the District Attorney has sole control — in other words, that the funds in the
Program Accounts fall outside the purview of former 16 P.S. §1773(b) or any other statute.
The only way to resolve that legal question is to first establish the relevant facts, but the
lower courts erroneously prevented Kleinbard from getting that far.


                                       [J-37-2024] - 14
and no order issued for the payment of any money by the county commissioners which

will cause the sums appropriated to be exceeded.”). Although discovery may yield

information that undermines Kleinbard’s entitlement to payment from these funds, the

decision to deny relief as a matter of law at the preliminary objections stage was

premature. 12


                                             IV.

       Accordingly, we hold the Commonwealth Court erred in affirming the trial court’s

order sustaining appellees’ preliminary objections in the nature of a demurrer. The

Commonwealth Court’s order is reversed, and the matter remanded to the trial court for

further proceedings. Jurisdiction relinquished.

       Chief Justice Todd and Justices Wecht, Mundy, Brobson and McCaffery join the

opinion.

       Justice Wecht files a concurring opinion in which Justice McCaffery joins.

       Justice Donohue files a dissenting opinion.




12 For similar reasons, Yost v. McKnight, 

 (Pa. Cmwlth. 2005), is irrelevant

at this juncture. The Yost court considered the district attorney’s authority to hire a special
assistant when the county budget included funds earmarked for this use. See Yost, 

. As we conclude the allegations in Kleinbard’s complaint establish the
Program Accounts are not budgeted or “appropriated” by the commissioners, we need
not address this additional basis for the Commonwealth Court’s decision. We also do not
reach Kleinbard’s third issue presented for appeal because our holding on the first is
dispositive in its favor.


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