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JENNER TOWNSHIP ANNEXATION CASE (01/04/67)

decided: January 4, 1967.

JENNER TOWNSHIP ANNEXATION CASE


Appeal from order of Superior Court, April T., 1965, No. 347, affirming 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

Robert W. Critchfield and Archibald M. Matthews, for Jenner Township, appellant.

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

Robert E. Woodside, R. J. Woodside, and Woodside & Woodside, for Township Association, under Rule 65.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Jones. Mr. Justice Musmanno and Mr. Justice Roberts join in this dissenting opinion.

Author: Cohen

[ 423 Pa. Page 611]

On October 8, 1963, the Borough of Jennerstown, Somerset County, adopted an ordinance annexing a portion of Jenner Township, Somerset County, adjacent to the borough. The ordinance was preceded by a petition to the borough purportedly signed by a majority of the freeholders of the tract to be annexed and requesting the annexation. On October 16, 1963, a certified copy of the ordinance was filed with the Court of Quarter Sessions of Somerset County and the county board of elections of that county. This filing stated that it was made pursuant to the provisions of The Borough Code, Act of May 4, 1927, P. L. 519, § 426, 53 P.S. § 45426.

Subsequently, on October 30, 1963, certain individual taxpayers of Jenner Township and the supervisors of that township lodged an appeal with the court of quarter sessions complaining as to the legality of the annexation ordinance. The appellants raised several issues: (1) whether the petition to the borough was signed by a majority of the freeholders of the annexed territory, (2) whether the annexation was in the best interests of the township and the borough and (3)

[ 423 Pa. Page 612]

    whether the ordinance was wholly void since the procedure did not follow the requirements of the Act of July 20, 1953, P. L. 550, 53 P.S. §§ 67501-67508.

The borough answered, stating that the petition was properly signed by a majority of the freeholders, that the public interest was served by the annexation and that the provisions of the Act of 1953 were inapplicable.

The lower court then heard extensive testimony and on May 21, 1964, ruled that (1) the provisions of The Borough Code regarding annexation and those of the Act of 1953 are in pari materia and may stand together, (2) the required number of signatures was affixed to the petition and (3) the propriety of the annexation should be determined, preliminarily, by referring the matter to three commissioners as required by the Act of 1953. This was done, and the commissioners submitted a report of a rather inconclusive nature.

The court below then ordered additional testimony on the issue of the propriety of the annexation. This was done in March and April, 1965. Thereafter, the court issued a final opinion in which it reaffirmed its two prior rulings and, further, found that the annexation was a proper and justified one.

The complainants then appealed to the Superior Court which ruled that the Act of 1953 did not impliedly repeal the annexation provisions of The Borough Code and that, in reviewing the record, it found ample evidence to support the lower court's determination with regard to the number of signers and the propriety of the annexation. Jenner Township Annexation Case, 208 Pa. Superior Ct. 62, 220 A.2d 385 (1966). Complainants then petitioned us to allow an appeal, and we granted the petition.

The vexing issue of whether the Act of 1953 impliedly repealed the annexation provisions of various other

[ 423 Pa. Page 613]

    acts, including those of The Borough Code, has lingered undetermined by us for a number of years. We referred specifically to the history of this controversy and to our previous refusals to decide it in Palmer Township Annexation Case, 416 Pa. 163, 204 A.2d 760 (1964), a proceeding in which we also reviewed the various existing (and confusing) statutory provisions governing annexation of territory in a second class township to a borough, city or another township. In the present case, although certain after-the-fact actions were taken to provide a semblance of adherence to the Act of 1953, it is clear that the initial, crucial steps followed only the ...


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