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March 28, 1951



Mahlon E. Lewis, Walter O. Howarth, Pittsburgh, for appellant.

Louis D. Cooper, Cooper, Hunter & Lewis, David M. Harrison, Harrison & Louik, Howard Zacharias and Peter Cooper, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Arnold and Gunther, JJ.

Author: Gunther

[ 168 Pa. Super. Page 518]


The issue here presented is whether the court below erred in permitting the withdrawal of signatures to a petition seeking annexation of a tract of land in Scott Township to Mount Lebanon Township, both first class townships in Allegheny County. The annexation

[ 168 Pa. Super. Page 519]

    petition was opposed by Scott Township and the School District of Scott Township, appellees. The court below permitted the withdrawal of 28 original signers and then dismissed the annexation petition on the ground that the statutory provisions*fn1 requiring signatures of 80% of the qualified electors and signatures of the owners of 80% of the assessed valuation of the real estate in the tract to be annexed had not been complied with. Erwin Lerten has taken this appeal on behalf of the annexation petitioners.

Erwin Lerten and 326 others, on August 2, 1949, filed their petition in the Court of Quarter Sessions of Allegheny County averring, inter alia, that they constituted (1) the owners of more than 80% of the assessed valuation of the property desired to be detached and annexed, and (2) that they constituted more than 80% of the qualified electors resident in the territory. The petitioners prayed that a tract of land consisting of approximately 324 acres located in Scott Township be annexed to Mount Lebanon Township pursuant to the provisions of the Act of June 19, 1939, P.L. 430, Section 1 et seq. 53 P.S. Section 19092-312.1 et seq. Attached to the petition was a plan or survey of the territory desired to be detached and annexed, together with a certified copy of the approval of the proposed annexation by the Mount Lebanon Township Board of Commissioners. On August 2, 1949, the court entered an order that the annexation petition be served upon the secretary of the Township Commissioners of Scott Township. Scott Township filed an answer denying the material averments of the annexation petition and averred, by way of new matter, that the annexation petition was not filed in good faith, and that the underlying purpose of the annexation petition was to force

[ 168 Pa. Super. Page 520]

    the Paul tract into Mount Lebanon Township, thereby effectively prohibiting the Pauls from constructing certain apartment-type dwellings which were permissible under contemplated amendments to the zoning ordinance and regulations of Scott Township.*fn2 The School District of Scott Township was, upon petition, permitted to intervene.

The matter came on for hearing on September 26, 1949. The petitioners seeking annexation presented testimony establishing the averments of their petition. At the close of petitioner's case in chief, counsel for Scott Township offered to present a petition signed by 28 persons seeking to withdraw their names from the annexation petition averring that since they had signed '* * * they have discovered that the person or persons circulating said (annexation) Petition had

[ 168 Pa. Super. Page 521]

    made certain misrepresentations to them, and they have therefore reconsidered their action and are now desirous of withdrawing their names as petitioners. * * *' The court below refused to permit the 28 signers to recant merely upon averments of the withdrawal petition, but to enable the court to determine whether a proper and sufficient reason for withdrawal existed, permitted testimony of any person who wished to withdraw. The court below, after a full and extensive hearing, concluded that 38 signatories*fn3 had established valid and sufficient reasons for withdrawal and dismissed the petition. Exceptions were filed by Erwin Lerten on behalf of the annexation petitioners. This appeal is from dismissal by the court en banc of the material exceptions.

It is stated that if these 28 persons, plus one witness who had not signed the withdrawal petition but who appeared and testified and sought the withdrawal of his and his wife's signatures (or 30 in all) are permitted to withdraw, the annexation must fail for the reason that the annexation petition would not only lack the names of the owners of the required 80% of the assessed valuation of the real estate in the territory desired to be annexed, but would also lack the requisite 80% of the qualified electors residing within the tract.

[ 168 Pa. Super. Page 522]

Appellant contends that (1) jurisdiction of the court attached upon filing of the annexation petition and the court below lacked power thereafter to permit signatories to withdraw their names therefrom; (2) assuming power to permit withdrawal, it could be exercised only upon proof which would sustained a finding of fraud and deceit sufficient to avoid a contract; and (3) the evidence is insufficient to sustain a finding of fraud or deceit.

Prior to the decision of the Supreme Court in Re Mercersburg Independent School District, 237 Pa. 368, 85 A. 467, there are decisions lending weight to appellant's position that after the filing of the petition, recanting signers should not be permitted to withdraw. See In re Borough of Quakertown, 1855, 3 Grant Cas. 203; Mann v. Cassidy, 1875, 1 Brewst. 11, 43; In re Tullytown Borough, 1891, 1 Dist. 292; Warren Borough's Annexation, 1895, 168 Pa. 441, 32 A. 37, 38; In re Incorporation of Flemington Borough, 1895, 168 Pa. 628, 32 A. 86; Incorporation of the Borough of Old Forge, 1900, 12 Pa. Super. 359; Cf. Newton v. Emporium Borough, 1909, 225 Pa. 17, 73 A. 984. In Re Borough of Quakertown, supra, the Court said: 'The Courts were right in disregarding recantations of some of the petitioners, for after the jurisdiction had attached, they could not oust it by any act of theirs.' Again in Incorporation of the Borough of Old Forge, supra, the Court said at page 362, of 12 Pa. Super.: 'The court in determining whether the original petition had been signed by the required number of freeholders, counted as signers these parties who had signed but changed their minds when the proceeding was almost finished. Petitioners cannot thus play fast and loose with the court, joining with others to make up the number necessary to confer jurisdiction, and then threaten to deprive the court of jurisdiction, by withdrawing, if all collateral

[ 168 Pa. Super. Page 523]

    questions are not decided as they suggest.' The cases cited above, together with the cases cited in the footnote*fn4, indicate that the question here involved has been rather extensively considered by the appellate and lower courts. A considerable variation in result and a conflict in judicial reasoning as to the right to withdraw appears. In Re Mercersburg Independent School District, supra, the Court reviewed the cases cited, and although the Court recognized that those cases appeared to sustain appellant's contention that those seeking to withdraw could not by any act of their own oust jurisdiction of the court once jurisdiction had attached, it said, 237 Pa. at page 372, 85 A. at page 469: 'Certainly, it was not intended to say that petitioners under no circumstances, even with leave of court, could withdraw. Such a rule would not only be a harsh one, but it would not be in keeping with the spirit and purpose of our system of jurisprudence. In such cases much must be left to the sound discretion of the court. The jurisdiction of a court in a sense attaches as soon as the petition is filed, or presented, but, prior to a hearing, and before anything has been done involving the rights of the parties, reasonable discretion should be exercised in favor of petitioners who in good faith and for proper ...

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