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SALISBURY TP. APPEAL BIEBER ET AL. (01/20/53)

January 20, 1953

IN RE SALISBURY TP. APPEAL OF BIEBER ET AL.


COUNSEL

Harry P. Creveling, Wardell F. Steigerwalt, Allentown, David Freeman, Philadelphia, for appellant.

Henry L. Snyder, of Snyder, Wert & Wilcox, Allentown, for appellee.

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

Author: Rhodes

[ 172 Pa. Super. Page 264]

RHODES, President Judge.

The Borough of Emmaus enacted an ordinance on August 20, 1951, providing for the annexation of 15.3 acres of adjacent vacant land in Salisbury Township, then a township of the second class, in Lehigh County. The supervisors of the township appealed to the Court of Quarter Sessions of Lehigh County complaining that the ordinance was illegal and improper. After hearing, the court found the annexation to be legal, proper,

[ 172 Pa. Super. Page 265]

    and effective as of August 20, 1951, and dismissed the appeal. Before the conclusion of the annexation proceeding, Salisbury Township became a township of the first class.*fn1 The township commissioners were then substituted as parties, and they have appealed to this Court. The order of the court below will be affirmed.

Annexaton by a borough of land in a township of the second class is regulated by 'The General Borough Act' of May 4, 1927, P.L. 519, as revised and amended by 'The Borough Code' of July 10, 1947, P.L. 1621, 53 P.S. § 12221 et seq. The Code, § 5, as amended, 53 P.S. § 12461 provides: 'Any borough may, by ordinance, annex adjacent land situate in a township of the second class in the same or any adjoining county, upon petition, * * *. The petition shall be signed by a majority in number of all of the freeholders of the territory to be annexed.' Complaint as to the legality of the annexation ordinance may be made to the court of quarter sessions, 'and the determination and order of the court thereon shall be conclusive.' Section 23, 53 P.S. § 12900. The same section of the Code further provides: 'In cases of ordinances effecting annexation of territory * * *, the court shall have jurisdiction to review the propriety as well as the legality of the ordinance.' Section 23, 53 P.S. § 12900. Irwin Borough Annexation Case (No. 1), 165 Pa. Super. 119, 121, 122, 67 A.2d 757.

Appellants' argument follows their statement of questions involved. We shall consider them in the same order. However, matters not raised in the court below will not be considered by us on this appeal, especially where a review is requested of a factual matter

[ 172 Pa. Super. Page 266]

    not questioned or argued in the court below. See Skocich v. F. J. Boutell Driveaway Co., 317 Pa. 26, 176 A. 19.

First. The admitted effect of the annexation is to divide Salisbury Township into two noncontiguous parts, that is, to work a physical geographic division of the township. Appellants claim the ordinance is illegal and improper for this reason. This Court has held there was nothing in earlier legislation, or in the Constitution, which prohibited or rendered illegal annexation to a municipality of territory of an adjacent township where the result of an annexation was a separation of the remainder of the township. In re Annexation of Mill Creek Township, 1920, Erie County, 74 Pa. Super. 275, 278, ...


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