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APPEAL BOROUGH IRWIN. APPEAL SCHOOL DIST. BOROUGH IRWIN (07/17/52)

July 17, 1952

APPEAL OF BOROUGH OF IRWIN. APPEAL OF SCHOOL DIST. OF BOROUGH OF IRWIN


COUNSEL

Carroll Caruthers, Greensburg, for appellant Borough of Irwin.

Elder W. Marshall, Pittsburgh, and Louis E. Sensenich, Greensburg, for appellant School Dist. of Borough of Irwin.

Fink & Jennings, Scott Fink, Smith, Best & Horn, Robert W. Smith, Greensburg, for appellee.

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

Author: Dithrich

[ 171 Pa. Super. Page 258]

DITHRICH, Judge.

Upon petition of a majority of the freeholders of the territory proposed to be annexed, the Borough of Irwin, Westmoreland County, on February 13, 1950, enacted an ordinance annexing a section of North Huntingdon Township, Westmoreland County, adjacent to and east of the Borough. The action was taken by authority of and pursuant to the provisions of article IV, § 425, of The General Borough Act of May 4, 1927, P.L. 519, as amended by The Borough Code of July 10, 1947, P.L. 1621, 53 P.S. § 12461.

A certified copy of the ordinance, together with the required description of boundaries, was duly filed in the Court of Quarter Sessions and one month later, to wit, March 28, 1950, a complaint was filed by the Township, the School District and six freeholders of the Township. When the matter came on for hearing August 23, 1950, the Borough moved to dismiss the complaint on the ground that the complainants had not entered into a recognizance with 'sufficient security' as required by § 23 of the Act, 53 P.S. § 12900. The section provides in part that 'Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions, upon entering into recognizance with sufficient security to prosecute the same with effect and for the payment of costs * * *.' The motion

[ 171 Pa. Super. Page 259]

    was overruled and the court proceeded with the taking of testimony. Eo die the Borough School District was permitted to intervene. Testimony closed August 25, 1950, and on October 10, 1950, complainants filed an amended recognizance 'with the original petitioners as parties to the proceedings and Mabel L. Broker and Mary Emma Herold * * * added as sureties.' (Emphasis added.) On motion of counsel for complainants and over objection by counsel for the Borough and the School District of the Borough, the amended recognizance was approved and ordered filed nunc pro tunc as of March 28, 1950.

One of the questions raised on this appeal is the power of the court below to permit a recognizance to be filed more than seven months after the effective date of the ordinance. But since we are deciding this case on the merits we will not pass on the question of the sufficiency of the original recognizance, except to say that we do not agree with the learned court below that 'no sureties are required in this type of case.' To our way of thinking it is inconceivable that the Legislature would have required the 'entering into recognizance with sufficient security' if the words 'sufficient security' did not denote sufficient 'sureties' in the usual and customary adaptation of the term.

On August 17, 1951, after argument before the president judge and the three associate judges of the court sitting en banc, the complaint was sustained and the ordinance decreed to be illegal and void, one judge dissenting. The Borough and the School District of the Borough have appealed. While the Township and the Borough are parties of record, the ...


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