Appeals, Nos. 260, 261, 262, 263, 264, 265, 266 and 267, Jan. T., 1961, from order of Court of Quarter Sessions of the Peace of Montgomery County, Feb. T., 1960, No. 35, in re petition for annexation of Rebel Hill Section of Upper Merion Township to the Borough of West Conshohocken. Order affirmed; reargument refused September 5, 1961.
John Morgan Davis, Leonard A. Talone, Howard Richard, Robert W. Tredinnick, and Davis, Bellis & Kolsby, and Berman, Richard & Brian, and Smillie, Bean, Davis & Tredinnick, for appellants.
Desmond J. McTighe, with him E. Humes Garber, and Duffy, McTighe and McElhone, for appellees.
Daniel L. Quinlan, Jr., with him Edward J. Ozorowski, for appellees.
Kesniel C. Acton and Alexander Ogle, for Pennsylvania State Association of Boroughs, amicus curiae.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
At issue herein is the attempted annexation by the Borough of West Conshohocken (Borough) of a 108 acre tract of land now part of Upper Merion Township (Township), both municipalities being located in Montgomery County.
The tract of land sought to be annexed - peninsular in shape and approximately 3700 feet long and 1200 feet wide - is bisected by the Schuylkill Expressway, a four lane limited access highway. To the east of the Expressway lie approximately 44 acres of the land sought to be annexed: this unimproved acreage adjoins the Borough, is owned practically in toto by Philadelphia Electric Company and, by reason of the Expressway, is inaccessible to and isolated from the rest of the land sought to be annexed.*fn1 To the west of the Expressway lies the balance - approximately 64 acres - of the land sought to be annexed. It consists of a wooded mountainous ridge, running generally north and south, entirely unimproved, except at its base, and is known as Rebel Hill. At its base are some private homes and property owned by Philadelphia Electric Company. The top of Rebel Hill - approximately 45 1/2 acres - is owned by "The Easttown Co. and/or John S. Trinsey, Jr." (Trinsey).
It is obvious from the record that the real motive behind this attempted annexation is to afford Trinsey an opportunity to develop the top of Rebel Hill into a self-contained community - four 20 story apartment buildings, a hotel, an office building and a heliport. Although no definite plans for such development appear of record and no assurance is given the Borough that the development will be completed, it is a fact that Trinsey's approach to the Borough to annex Rebel Hill was made after the Township had refused to rezone this area - an R-2 Residential district - so as to permit this development.*fn2
On January 28, 1960, ten freeholders - a majority of the freeholders in the area - petitioned the Borough council for annexation of the area. A copy of that petition was served on the Township. On February 4, 1960 the first and second reading of the Borough ordinance of annexation took place and on February 10, 1960, after a third reading, the ordinance was passed by the unanimous vote of the councilmen then present. On February 22, 1960 - at a special council meeting - the burgess of the Borough expressed his intent to veto the ordinance. On March 2, 1960, council, by a 7-2 vote, overrode the burgess' veto and enacted the ordinance. Thereafter, on March 5, 1960, the ordinance was advertised and, on March 11, 1960, a copy of the ordinance, maps, etc. were certified to the Court of Quarter Sessions of Montgomery County.
On April 8, 1960, three of the Township supervisors and five nearby residents of Rebel Hill filed severally two complaints: (1) one complaint asked the court to appoint a board of commissioners to take testimony in connection with the proposed annexation and (2) the other complaint attacked the legality of the ordinance.
The annexation petitioners intervened as parties in the litigation.
After a full hearing the Court of Quarter Sessions of Montgomery County on January 23, 1961 dismissed the annexation proceeding holding that the ordinance was invalid and that the proposed annexation was not in the public interest. From that order, these eight appeals have been taken.*fn3
In three respects, the Borough (i.e., the Borough and other appellants) challenge the propriety of the order of the court below: (1) the complaints - filed more than 30 days after passage of the ordinance - were untimely filed; (2) the ordinance was not invalid; (3) the annexation would be in the public interest. The Township (i.e., the Township and its co-appellees) urges the contrary.
Were the Complaints Timely Filed?
The resolution of this question depends, in the main, upon which statute governs this particular annexation proceeding, The Borough Code*fn4 or The Second Class Township Act of 1953.*fn5 It is the Borough's position that this proceeding is under The Borough ...