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ANNEXATION A PORTION TOWNSHIP FRANKLIN BY BOROUGH DELMONT (04/15/71)

decided: April 15, 1971.

IN RE: ANNEXATION OF A PORTION OF THE TOWNSHIP OF FRANKLIN BY THE BOROUGH OF DELMONT


Appeal from the order of the Court of Common Pleas of Westmoreland County, Criminal Division (Civil Docket), No. 91, 1969, in case of In Re: Annexation of a portion of the Township of Franklin by the Borough of Delmont.

COUNSEL

Henry A. Hudson, Jr., with him Costello & Snyder, for appellant.

Robert Y. Cassol, with him, Redlich, Cassol, Redlich & Morocco; Richard A. Zappala, Zappala & Zappala, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Mencer.

Author: Mencer

[ 2 Pa. Commw. Page 497]

In September, 1969, annexation proceedings were commenced to annex approximately 80 acres of land

[ 2 Pa. Commw. Page 498]

    situate in the Township of Franklin into the Borough of Delmont, both political subdivisions being in Westmoreland County. The Township of Franklin filed an appeal complaint as to the legality of the annexation ordinance under Section 1010 of the Act of February 1, 1966, P.L. (1965) , No. 581, as amended by the Act of October 9, 1967, P.L. , No. 181, 53 P.S. § 46010. The Borough of Delmont et al., petitioned the Court of Common Pleas of Westmoreland County for a rule to show cause why the appeal should not be quashed for the reason that the Township of Franklin had failed to enter into a recognizance with sufficient security, as required by said Section 1010 of the Act. On November 2, 1970, the lower court, by order, made the rule to show cause absolute and "quashed" the appeal complaint. This order, dated November 2, 1970, was entered and docketed in the Prothonotary's office on November 4, 1970. Fifty days thereafter, on December 24, 1970, the Township of Franklin filed this appeal, together with a petition for leave to file an appeal nunc pro tunc. The Borough of Delmont filed a reply to the petition and a motion to quash the appeal as untimely filed.

Section 502(a) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. , 17 P.S. §§ 211.101-211. 510, provides: ". . . [A]n appeal under this act from any order shall be filed within thirty days of its entry." Section 510 of this Act provided for the determination of the effective date of the Appellate Court Jurisdiction Act of 1970 and, in accordance with its provisions, September 11, 1970, became the effective date. Therefore, this instant appeal is subject to the thirty-day appeal period of Section 502(a).

The decisional law mandates strict compliance with statutory provisions for appeal. Kravitz v. Zoning Board of Adjustment, 415 Pa. 97, 202 A.2d 64 (1964); Blank v. Board of Adjustment, 390 Pa. 636, 136 A.2d

[ 2 Pa. Commw. Page 499695]

(1957). The Supreme Court of Pennsylvania indicated in the recent case of Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 261 A.2d 309 (1970), that it continues to insist upon such strict compliance. This conclusion is no less correct because the Eagles case dealt with the perfecting of an appeal as distinguished from the effecting of an appeal in the first instance.

The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of a court and its competency to act. See Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). It is the general rule that, where an act of assembly fixes the time within which an appeal may be taken, courts have no power to extend it, or to allow the act to be done at a later day, as a matter of indulgence. Something more than mere hardship is necessary to justify an extension of time, or its equivalent, an allowance of the act nunc pro tunc. Tuttle Unemployment Compensation Case, 160 Pa. Superior Ct. 46, 49 A.2d 847 (1946); Yeager v. United Natural Gas Company, 197 Pa. Superior Ct. 25, 176 A.2d 455 (1961); Morgan v. Pittsburgh Business Properties, Inc., 198 Pa. Superior Ct. 254, 181 A.2d 881 (1962). Two notable exceptions to this general rule are where there is presence of fraud or a breakdown in the court's operation to the prejudice of a party (Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938)); See Christiansen v. Zoning Board of ...


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