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PRICE APPEAL. (04/16/58)

THE SUPERIOR COURT OF PENNSYLVANIA


April 16, 1958

PRICE APPEAL.

Appeals, Nos. 24 and 25, Feb. T., 1958, from order of Court of Quarter Sessions of the Peace of Luzerne County, April T., 1956, No. 222, in re petition to consolidate wards in the Borough of Plymouth, Luzerne County, Pennsylvania. Appeal quashed.

COUNSEL

Max Rosenn, with him Joseph J. Gale, and Rosenn, Jenkins & Greenwald, for appellants.

Joseph P. Olexy, with him Edward E. Hosey, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Woodside

[ 186 Pa. Super. Page 34]

OPINION BY WOODSIDE, J.

Pursuant to section 601 of The Borough Code,*fn1 the Court of Quarter Sessions of Luzerne County, upon petition, appointed a commission to inquire into the propriety of consolidating the wards of Plymouth Borough. The commission first recommended that the court abolish all wards and ward lines, but the court, concluding that there was no basis in the law for the recommendation of the commission, remanded the report "for further consideration and an adjudication in conformity with the statute."

[ 186 Pa. Super. Page 35]

The commission, thereupon, filed a second report in which it recommended that the 13 wards be consolidated into seven wards. This report was confirmed nisi, but subsequently it, too, was remanded to the commission. On April 24, 1957, the commission filed its third report in which it again recommended that all ward lines and wards in the borough be abolished. This report was confirmed nisi on the day it was filed, and absolutely on May 28, 1957.

At the time the report was confirmed, the Borough of Plymouth had 13 councilmen - one elected from each ward.*fn2

At the primary election, held between the date when the report was confirmed nisi and the date when it was confirmed absolutely, Councilmen Price and May, were nominated for re-election from their respective wards.

On October 2, 1957, after the expiration of the term in which the final order of May 28th had been entered, and after the statutory period of appeal had passed, Price and May obtained a rule upon the original and intervening petitioners to show cause why the order of May 28th should not be vacated.

After argument, the court below concluded it had no power to vacate the order "because the term at which it was entered expired on the 16th day of September, 1957, and the time for appeal had also expired."

Price and May appealed to this Court. The appellees have moved to quash the appeal on the ground it was taken too late. We are of the opinion that the appeal must be quashed because it was not taken within

[ 186 Pa. Super. Page 36]

    the time prescribed by statute. Commonwealth v. Mackley, 175 Pa. Superior Ct. 304, 104 A.2d 169 (1954); Commonwealth v. Wynn, 175 Pa. Superior Ct. 546, 106 A.2d 647 (1954); Fenerty Disbarrment Case, 356 Pa. 614, 52 A.2d 576 (1947); Hanna Estate, 367 Pa. 337, 80 A.2d 740 (1951).

Relying upon Weiner Appeal, 176 Pa. Superior Ct. 255, 261, 106 A.2d 915 (1954), and Commonwealth v. Harradine, 148 Pa. Superior Ct. 451, 25 A.2d 576 (1942), the appellants contend that the court below was without jurisdiction to enter its order and that, therefore, they can appeal at any time.

Section 601 of The Borough Code, 53 PS ยง 45601, supra, provided as follows at the time the order was entered:*fn3

"The court of quarter sessions, upon petition, may divide boroughs into wards, erect new wards out of two or more adjoining wards or parts thereof, consolidate two or more wards into one ward, divide any ward already erected into two or more wards, alter the lines of any two or more adjoining wards, or cause the lines or boundaries of wards to be ascertained and established."

There is no doubt that the court had jurisdiction of the original petition and had the power to reduce the number of wards in the Borough of Plymouth. We agree with the appellants that the court misconstrued

[ 186 Pa. Super. Page 37]

    the statute in ordering all wards abolished, but this was an erroneous construction of its power and not a lack of jurisdiction over the subject matter such as would give the right of appeal after the statutory period had passed. The court had the power to enter on the inquiry and to determine controversies of the general class to which the case presented for its consideration belongs. See Heffernan's Appeal, 121 Pa. Superior Ct. 544, 547, 184 A. 286 (1936); Meetish Liquor License Case, 161 Pa. Superior Ct. 468, 55 A.2d 770 (1947); Hellertown Borough Referendum Case, 354 Pa. 255, 47 A.2d 273 (1946); Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 461, 130 A.2d 686 (1957).

Disposition

Appeal quashed.


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