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PLUM TOWNSHIP ANNEXATION CASE. (07/21/55)

July 21, 1955

PLUM TOWNSHIP ANNEXATION CASE.


Appeal, No. 134, April T., 1954, from order of Court of Quarter Sessions of Allegheny County, Jan. T., 1952, No. 4, in re Appeal of Township of Plum and School District of Township of Plum. Order affirmed.

COUNSEL

Lorraine L. Bieno, with her Louis Rosenberg, for appellant.

Fred Shoemaker, Borough Solicitor, with him Shoemaker & Knoell, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 178 Pa. Super. Page 377]

OPINION BY ERVIN, J.

This is an annexation proceeding wherein a borough by ordinance annexed an adjacent portion of a second class township pursuant to a petition requesting the annexation signed by a majority in number of all the freeholders of the annexed territory. Sections 425 and 426 of "The General Borough Act" of May 4, 1927, P.L. 519, as amended and recodified by the Act of July 10, 1947, P.L. 1621, 53 P.S. 12461, 12462. Section 1010 of the Borough Code, as amended, 53 P.S. 12900, provides: "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, by any person aggrieved, within thirty days after any ordinance or resolution takes effect, and the determination and order of the court thereon shall be conclusive. In cases of ordinances effecting annexation of territory or laying out streets over private lands, the court shall have jurisdiction to review the propriety as well as the legality of the ordinance." (Emphasis added) Nothwithstanding the language declaring the determination of the court below conclusive, this Court, in a number of cases, has stated that the appeal is on a broad certiorari, and, in addition to adjudicating the jurisdiction of the court below and the regularity of its proceedings, we have examined the testimony which was made a part of the record by the Act of April 18, 1919, P.L. 72, 12 P.S. 1165, to determine whether the findings and determination of the lower court are supported by competent evidence. In Appeal of Bender, 106 Pa. Superior Ct. 376, 378, 163 A. 47, we said: "The decision below is not conclusive; nor is our jurisdiction on this appeal limited to a review of the regularity of the proceedings, as was formerly the rule on

[ 178 Pa. Super. Page 378]

    a certiorari: Davis v. Crafton Borough, 75 Pa. Superior Ct. 37; Hand's Case, 266 Pa. 277. Although this appeal is in effect a certiorari the testimony taken in the court below and filed 'shall be reviewed by the appellate court as part of the record, with like effect as upon an appeal from a judgment entered upon the verdict of a jury in an action at law, and the appeal so taken shall not have the effect only of a certiorari to review the regularity of the proceedings in the court below': Act of April 18, 1919, P.L. 72. Prior to the passage of this statute we had authority, when a case was brought to this court by certiorari, to examine the opinion of the court below for the purpose of ascertaining the basis of its action and whether it exceeded its jurisdiction or its proper legal discretion: Independence Party Nomination, 208 Pa. 108; Chester County Republican Nominations, 213 Pa. 64." See also Warner Bros. Theatres v. Pottstown Boro., 164 Pa. Superior Ct. 91, 93, 63 A.2d 101, wherein we said: "Under the Act of April 18, 1919, P.L. 72, 12 PS ยง 1165, it is for us to examine the testimony as on an appeal from a judgment entered upon the verdict of a jury in an action at law and to decide the case on its merits." In Irwin Borough Annexation Case (No. 1), 165 Pa. Superior Ct. 119, 122, 123, 67 A.2d 757, we said: "However, we do not weigh the evidence, resolve its conflicts, or pass upon the credibility of the witnesses. The findings of fact by the court below will not be disturbed if our examination of the testimony shows that they are supported by competent evidence."

In Derry Township School Dis. Appeal, 168 Pa. Superior Ct. 415, 419, 79 A.2d 127, we said: "While we are authorized to review the finding of the court below upon the propriety of the annexation, we reverse only upon a showing of a manifest abuse of the discretion vested in it." See also Dallas Borough Annexation

[ 178 Pa. Super. Page 379]

    purpose cannot be broadened into something more extensive, either by our prior rulings on the general subject in hand, or by operation of the Act of April 18, 1919, P.L. 72.'*fn1 The distinction thus made has been reiterated and reinforced in a multitude of subsequent cases holding that where a statute expressly provides that there shall be no appeal the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceedings; the merits of the controversy cannot be considered even though the interpretation ...


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