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CITY PITTSTONS DEBT. APPEAL ROSENN ET AL. (11/12/52)

SUPERIOR COURT OF PENNSYLVANIA


November 12, 1952

IN RE CITY OF PITTSTONS DEBT. APPEAL OF ROSENN ET AL.

COUNSEL

Henry Greenwald, Paul Orrson and Max Rosenn, Wilkes-Barre, for appellants.

George F. B. Appel, Philadelphia, J. Earl Langan, Pittston, Benjamin R. Townsend and Townsend, Elliott & Munson, Philadelphia, for appellee.

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

Author: Reno

[ 172 Pa. Super. Page 56]

RENO, Judge.

Invoking the provisions of the Municipal Borrowing Law of June 25, 1941, P.L.159, § 502(a), as amended, 53 P.S. § 2011.502, the City of Pittston, a city of the third class, petitioned the court below for an order authorizing it to fund an unfunded debt for $91,292.63 which had been incurred for operating expenses. Upon presentation of the petition the court set a date for a hearing and directed that notice thereof be given by publication in a newspaper and a legal periodical. Appellants, taxpayers of the city, filed an answer raising questions of law and fact. After a hearing the court below entered an order approving the application 'as to the sum of $41,292.63, being the amount of indebtedness set forth in the petition, less the note of $50,000.00 held by the Miners Savings Bank of Pittston.' Appellants brought the case here.

The petition recited 'That as of December 1, 1951, the City of Pittston has unfunded debt contracted for current operating expenses in the total amount of $91,292.63' (the details of which were supplied by an annexed exhibit), and 'That in the opinion of the Council of the City of Pittston, the financial condition of

[ 172 Pa. Super. Page 57]

    the City is such that it cannot meet such unfunded debt within the current fiscal year without an unreasonable curtailment of municipal services or the levy of an excessive tax.' For the amount stated, it desired to issue bonds, and it averred that its total debt, including the proposed bonds, was within 2% of the assessed valuation of the taxable property. At the hearing, where both sides had ample opportunity to produce evidence, it was disclosed that $50,000 of the unfunded debt of $91,292.63 was represented by the city's tax anticipation note issued in 1951 to the Miners Savings Bank of Pittston. This note, the court below held, 'should be paid out of current revenue.'

The cited section of the Law, upon which this proceeding was based, provides: 'Whenever any municipality has any unfunded debt, contracted for current operating expenses, which is due and owing and the financial condition of the municipality is such that, in the opinion of the council in the case of cities * * * it cannot meet such debt within the fiscal year without an unreasonable curtailment of municipal services or the levy of an excessive tax, they may by petition apply to the court of quarter sessions * * *. After hearing, * * * the court shall make such order granting authority to fund such unfunded debt contracted for current operating expenses in whole or in part, if it believes the proposed funding will accomplish the relief intended, or refusing to permit the municipality to fund the same as it deems just and equitable. The action of the court shall be final.' (Emphasis added.)

The concluding sentence of the section restricts appellate review to the question of the jurisdiction of the court below and the regularity of its proceedings. 'Where a statute is silent on the right of appeal, this court may review the case in the broadest sense allowed on certiorari; but, where an appeal is expressly

[ 172 Pa. Super. Page 58]

    denied or it is provided that the action of the court below shall be final, our appellate review will be limited to questions of jurisdiction and those relating to the regularity of the proceedings.' Grime v. Department of Public Instruction, 324 Pa. 371, 375, 188 A. 337, 338. See also White Township School Directors Appeal, 300 Pa. 422, 150 A. 744, and Kaufman Construction Co. v. Holcomb, 357 Pa. 514, 55 A.2d 534, 174 A.L.R. 189. '[T]he merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the * * * court below may have been erroneous'. Kaufman case, supra, 357 Pa. at page 518, 55 A.2d at page 536.

Appellants concede, as they must, that the court below had jurisdiction to entertain the petition, and the record before us establishes the regularity of its proceedings. The court acted upon a petition which laid its averments in the very language of the Municipal Borrowing Law and invoked the remedy provided by the Law. The court provided for notice, accorded both parties a hearing upon the merits, and entered an order conforming to the provisions of the statute. Every element of procedural due process was scrupulously followed, and the proceedings in the court below were entirely regular. Even if, as appellants urge, the court erred in its interpretation of the facts or the law (and we shall not so much as intimate that it did), we cannot examine the merits of their contentions.

Order affirmed at appellants' costs.

19521112

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