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JENNER TOWNSHIP ANNEXATION CASE (06/17/66)

decided: June 17, 1966.

JENNER TOWNSHIP ANNEXATION CASE


Appeal from order of Court of Quarter Sessions of Somerset County, Sept. T., 1963, No. 3, in re annexation to Jennerstown Borough of portions of Jenner Township.

COUNSEL

Archibald M. Matthews, with him Robert W. Critchfield, for appellants.

Charles H. Coffroth, with him Joseph N. Cascio, Robert I. Boose, and Fike, Cascio and Boose, for appellees.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Ervin, P. J.

Author: Ervin

[ 208 Pa. Super. Page 63]

This case involves one major and two subordinate issues. The annexation petition to the borough council specifically stated that it was filed pursuant to art. IV, § 425 of The Borough Code (Act of May 4, 1927, P. L. 519, 53 PS § 45425), and the proceedings followed the requirements of that act. The appellants contend that these provisions were repealed by implication by the Act of July 20, 1953, P. L. 550, 53 PS § 67501 et seq., and that therefore the annexation ordinance was invalid.

The question of whether the Act of 1953 repealed by implication other statutory provisions regarding annexation of territory has been raised in three cases before the Supreme Court*fn1 and in one case before this Court,*fn2 but each case was decided on other grounds and the present question was left unresolved. However, in this case (and in Gallitzin Township Annexation Case, 208 Pa. Superior Ct. 70, 220 A.2d 164, decided concurrently herewith) the question is squarely raised and must be decided.

Since this case arose in the court below by an appeal from the enactment of an ordinance and since § 1010 of The Borough Code, 53 PS § 46010, provides

[ 208 Pa. Super. Page 64]

    that the decision of the court of quarter sessions shall be conclusive, our review is by narrow certiorari only and our inquiry is limited to a determination of whether the court below had jurisdiction, whether the proceedings were regular, whether the court below exceeded its power and authority and whether there was a violation of constitutional rights: Badali v. Hartman, 410 Pa. 652, 190 A.2d 301.

We start with the general principle that the repeal of a statute by implication is not favored and that there must be an irreconcilable repugnancy between the two acts before it can be held that the second statute repealed the former by implication and that in such a situation the question is exclusively one of legislative intent: Kelly v. Phila., 382 Pa. 459, 115 A.2d 238; George v. Moore, 394 Pa. 419, 147 A.2d 148; First National Bank of Millville v. Horwatt, 192 Pa. Superior Ct. 581, 162 A.2d 60.

In Parisi v. Phila. Zoning Board of Adjustment, 393 Pa. 458, 143 A.2d 360, it was said, at page 462: "The Board's contention is confronted by the further barrier that implied repeals are not favored by the law: Scott v. Bell, 344 Pa. 243, 246, 25 A.2d 308, and H. C. Frick Coke Company Appeal, 352 Pa. 269, 274, 42 A.2d 532. Of course, that does not mean that the additional obstacle cited is insurmountable in all instances. There may, indeed, be an implied repeal of a legislative enactment. But it can arise only where the language used in the later statute necessarily discloses an irreconcilable repugnancy between its provisions and those of the earlier statute so inconsistent as not to admit of any fair consonant construction of the two. In Scott v. Bell, supra, we quoted with approval from Endlich on ...


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