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LOWER MACUNGIE TOWNSHIP ANNEXATION CASE (NO. 1) (11/14/68)

decided: November 14, 1968.

LOWER MACUNGIE TOWNSHIP ANNEXATION CASE (NO. 1)


Appeal from order of Court of Quarter Sessions of Lehigh County, No. 9, 1966 Road Docket, in re annexation of land situate partly in Lower Macungie Township and partly in Upper Milford.

COUNSEL

Wallace C. Worth, Jr., Solicitor for Upper Milford Township, with him Gene D. Smith, Solicitor for Lower Macungie Township, for appellants.

Robert K. Young, with him Wiener and Young, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J. Watkins, J., dissents.

Author: Montgomery

[ 213 Pa. Super. Page 315]

This appeal is by the second class townships of Lower Macungie and Upper Milford from an order affirming the annexation of contiguous parts of said townships by the Borough of Macungie (Borough), all of said municipal bodies being in Lehigh County.

Appellants raise four issues which we shall consider seriatim. The answer to the first question, whether it was intended that these proceedings follow the Act of July 20, 1953, P. L. 550, 53 P.S. § 67501, is clear. The original petition filed by the property owners with the Borough recites it was intended to be under that statute and matters proceeded on that basis. The propriety of such action is recognized in Jenner Township Annexation Case, 423 Pa. 609, 225 A.2d 247 (1967). We approve the action of the lower court in considering the matter on that basis.

Appellants next contend that the proceedings are not in conformity with the requirements of the 1953 Act in that the petition presented to the Borough did not have attached to it a certificate of the filing of a copy thereof with the townships, signed by at least one of the petitioners. Paragraph (2) of Section (1) of the Act, 53 P.S. § 67501, provides as follows: "A copy of the petition, without the signatures, shall be filed with the supervisors of the township concerned prior to its presentation to the city, borough or township, and a certification of such filing shall be signed by at least one signer of the petition and be attached to

[ 213 Pa. Super. Page 316]

    the petition when presented to the city, borough or township."

The petition was served on both townships prior to its presentation to the Borough. The certificate, however, was signed by Richard H. Rauch, Esq., attorney for the petitioners, who made the service, rather than by one of the petitioners personally. In the case of Carnegie Borough Annexation Case, 408 Pa. 146, 182 A.2d 527 (1962), our Supreme Court declared as bordering on the frivolous an objection that a certification was not physically attached to a similar petition. We would classify the present objection in the same manner. The important reason for such service upon the townships was to alert them to the efforts of some of its citizens to secure acceptance of their properties as part of the Borough, and to afford them an opportunity to object before the Borough acted on the petition. They were fully informed of that action in the present case. It, therefore, seems to border on the frivolous when they now attempt to invalidate the entire annexation proceeding by objecting to the certification made on behalf of the petitioners by their attorney who made the service. This objection is overruled since we are of the opinion there was substantial compliance with the requirements of the Act.

Appellants contend also that the proceedings are invalid because the record shows no public interest being served and that only the petitioners will benefit by the annexation. They complain further on this point, that the lower court made no finding that a public interest was being served.

The procedure to be followed in annexation matters under the 1953 Act is generally set forth in Palmer Township Annexation Case, 416 Pa. 163, 204 A.2d 760 (1964). Following the adoption of the ordinance ...


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