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HAZLE TOWNSHIP ANNEXATION CASE. (03/20/57)

March 20, 1957

HAZLE TOWNSHIP ANNEXATION CASE.


Appeals, Nos. 10 and 11, Feb. T., 1957, from order of Court of Quarter Sessions of Luzerne County, Nov. T., 1955, No. 283, in re annexation of three portions of Hazle Township to the Borough of West Hazleton. Order vacated in part.

COUNSEL

James P. Costello, Jr., with him Leo T. Connor, for appellant.

Joseph J. Ustynoski, with him Elwood H. Jones, for appellee.

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

Author: Ervin

[ 183 Pa. Super. Page 213]

OPINION BY ERVIN, J.

The Borough of West Hazleton passed an ordinance annexing three portions of Hazle Township, a second class township, following a petition signed by a majority of the freeholders of the annexed territory. A certified copy of the ordinance approving the annexation petition was filed in the Court of Quarter Sessions by the secretary of the borough on December 15, 1955. On January 12, 1956 a petition was filed in said court by Hazle Township Supervisors, the School District of Hazle Township and John and Anna Brogan, Michael and Catherine Matyas, taxpayers of the township, asking for the appointment of a board of commissioners as a fact finding body in accordance with the Act of 1953, July 20, P.L. 550, 53 PS §§ 111-118. On April 6, 1956 the lower court ordered the petitioners to file an amendment to their petition so as to allege facts showing why each of the petitioners is an aggrieved person under the above mentioned statute. On April 20, 1956 an amended petition was filed by the township supervisors, the township school district and the four

[ 183 Pa. Super. Page 214]

    above mentioned taxpayers setting forth facts and reasons why they deemed themselves to be aggrieved because of the proposed annexation. On May 11, 1956 the Borough of West Hazleton obtained a rule to show cause why the amended petition should not be dismissed. On June 7, 1956 the lower court filed an order making the rule absolute as to Hazle Township School District and the individual taxpayers and their amended petition was dismissed. In the same order the rule to show cause was discharged as to Hazle Township. Hazle Township School District and the individual taxpayers then appealed to this Court.

The lower court determined that Hazle Township School District and the individual taxpayers of Hazle Township had not averred sufficient reasons in their petition to show that they were aggrieved persons within the meaning of § 3 of the above mentioned 1953 act. The lower court likewise determined that Hazle Township was an aggrieved person but no hearing was ever held on the merits to determine either the legality or the propriety of the annexation because of the present appeals. Section 3 of the Act of 1953, July 20, P.L. 550, 53 PS § 113, provides as follows: "If, within thirty days after the ordinance has been certified to the court, any person aggrieved by the ordinance shall complain to the court, asking for the appointment of a board of commissioners as a fact finding body, the court, if satisfied with the legality of the proceeding and the propriety of the annexation as serving public interests, shall appoint a board of three commissioners to make a study of the facts in the matter." The court would, after hearing, determine both the legality and the propriety of the annexation proceedings. The character and scope of an appeal from an annexation ordinance have been changed and enlarged by the Act of 1953.

[ 183 Pa. Super. Page 215]

Before it was enacted the proceedings in a case such as this would arise by an appeal from the annexation ordinance. The Borough Code, regulating an appeal from an annexation ordinance, expressly provided that "the determination and order of the court thereon shall be conclusive." (Emphasis added) On appeals to the appellate court the review was under a narrow certiorari and was limited to questions of jurisdiction and regularity of the proceedings of the court below. Plum Twp. Annexation Case, 178 Pa. Superior Ct. 376 (Allocatur refused ibid xxix), 116 A.2d 260. Under the 1953 act the lower court appoints a board of three commissioners to make a study of the facts and the board must inquire into and make findings of fact as to (1) the relative advantages and disadvantages to the borough and the township affected by the annexation, (2) the assessed valuation of the township, the assessed valuation of the territory to be annexed, and how the annexation would affect the remainder of the territory, (3) the township indebtedness, (4) the value of all public improvements, including, but not limited to, roads, buildings and sewers in the territory to be annexed and the indebtedness chargeable thereto, (5) the future plan of the entire area, and (6) any other matters directed by the court. The court is directed to consider the findings of the board, together with any facts that may be submitted to it, and then make an order either dismissing the proceedings or affirming the annexation. If it affirms ...


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