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decided: November 24, 1964.


Appeal from order of Court of Quarter Sessions of Northampton County, June T., 1961, No. 145A-145B, in re annexation ordinance No. 38 of Township of Palmer.


Tom P. Monteverde, with him Robert M. Blair-Smith, Bernard V. O'Hare, Jr., Robert H. Jordan, and Schnader, Harrison, Segal & Lewis, for appellants.

E. Jerome Brose, with him Danser, Brose & Poswistilo, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell concurs in the result.

Author: Cohen

[ 416 Pa. Page 165]

On July 26, 1961, a majority of the freeholders of a portion of the Township of Bethlehem, Northampton County, Pennsylvania, filed with the Supervisors of Palmer Township, Northampton County, Pennsylvania, a petition for annexation of such portion of the former township to the latter township. Since both townships were of the second class on the date of filing, the proceedings were and are governed by the provisions of the Act of July 20, 1953, P. L. 550, 53 P.S. §§ 67501-67508.*fn1

Subsequently, on August 7, 1961, the Board of Supervisors of Palmer Township enacted an ordinance approving the petition; and on August 14, 1961, they caused it to be certified to the Court of Quarter Sessions of Northampton County as provided by the Act of 1953, supra, § 2, 53 P.S. § 67502.

On September 7, 1961, Bethlehem Township, the School District of Bethlehem Township, the Bethlehem Township Municipal Authority and three individual residents of Bethlehem Township filed two complaints with the court objecting to the annexation. In one, the complainants asked the court to declare the ordinance void or to appoint a fact-finding board in accordance with the Act of 1953, supra, § 3, 53 P.S. § 67503. In the second, they challenged the validity of the ordinance pursuant to the Act of May 1, 1933, P. L. 103, § 702,

[ 416 Pa. Page 166]

    cl. XLI, as amended, 53 P.S. § 65741, and also alleged that the Act of 1953, supra, (1) was unconstitutional and (2) did not provide for the annexation of a second class township to a township of the same class.

Answers to both complaints were filed by the Township of Palmer, denying the allegations of invalidity and asking for the appointment of the fact-finding board. Thereafter, on October 23, 1961, the lower court entered an order requiring argument by the parties on November 7, 1961, as to (1) the specificity of certain allegations in the complaints, (2) the procedure to be followed and (3) the burden of proof. This argument was held as ordered, and the court below determined (1) that the complainants should amend one of their complaints in certain particulars; (2) argument on the constitutionality of the statute and legality of the ordinance would be heard on November 20, 1961, after which testimony, where needed, would be taken as to the legality of the proceedings; and then, if necessary, testimony as to the propriety of the annexation would be taken; (3) on all factual questions raised in the complaints, the complainants have the burden of proof.

The amended complaint was duly filed, and argument duly held. On March 30, 1962, the lower court handed down an opinion, holding that (1) the Act of 1953, supra, does not involve an unconstitutional delegation of legislative powers in its placing upon the courts the duty of determining the propriety of an annexation as serving public interests, (2) the Act of 1953 authorizes a township of the second class to annex a portion of another township of the same class, (3) the advertisement of the proposed adoption of the annexation ordinance by the supervisors of Palmer Township was not defective and (4) the School District was not a proper party complainant. Accordingly, the court overruled the complainants' legal objections

[ 416 Pa. Page 167]

    to the annexation and directed them to place the matter on a hearing list for the taking of testimony.

Thereafter, on May 18 and 25, 1962, the complainants presented testimony before the lower court on the other objections raised by them. In its opinion on September 25, 1962, the court en banc ruled as follows: (1) the complainants, not those seeking annexation, have the burden of proving both the illegality and impropriety of the annexation; (2) unless fraudulent or flagrantly improper, the motives of those seeking annexation are irrelevant to the questions of legality and propriety; (3) the supervisors of Palmer Township did not abuse their discretion in adopting the annexing ordinance; (4) the evidence presented by the complainants did not sustain their objection that a majority of freeholders in a part of the area to be annexed were opposed to the annexation; and (5) while the court was satisfied initially with the legality and propriety of the annexation, a board of commissioners should be appointed, in accordance with § 3 of the Act of 1953, to study the facts regarding the annexation.

The board was appointed, held hearings and made a factual report to the court. Final argument was held, no exceptions being filed to the report of the board; and the lower court en banc handed down its opinion and order affirming the annexation on April 1, 1963. This appeal followed.*fn2

The appellants, complainants in the court below, raise three issues here. First, and most extensively, they question the constitutionality of the Act of 1953, contending that it involves an invalid delegation of legislative power to the judiciary in placing upon the courts the responsibility of being satisfied with the

[ 416 Pa. Page 168]

    propriety of the annexation as serving public interests without establishing standards to guide the court in so doing. Second, they assert that the court below erred in three particulars in considering the proceeding: (a) in placing the burden of proof as to the propriety of the annexation on appellants, (b) in ruling that the motives of the proponents of annexation were irrelevant and (c) in making findings of fact unsupported by any evidence. Third, they contend the court's reliance on the belief that a majority of persons in the area to be annexed favored such action was improper.

The Act of July 20, 1953, 53 P.S. §§ 67501-67508, contains no provision regarding an appeal. Consequently, the scope of our review is on broad certiorari. Chartiers Township Appeal, 414 Pa. 176, 199 A.2d 443 (1964); Bell Appeal, 396 Pa. 592, 152 A.2d 731 (1959). In such a case we may consider (1) the jurisdiction of the court below, (2) the regularity of the proceedings, (3) the record, to determine if the findings are supported by competent evidence and to correct any errors of law. Kaufman Construction Company v. Holcomb, 357 Pa. 514, 55 A.2d 534 (1947); Chartiers Township Appeal, supra.

The Act of 1953 governs annexation of territory in a second class township to a borough, city or township.*fn3 It is merely one of a number of statutory provisions

[ 416 Pa. Page 169]

    regarding annexations, not all of which are similar. They may be ...

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