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MILLERSVILLE ANNEXATION CASE (07/12/71)

decided: July 12, 1971.

MILLERSVILLE ANNEXATION CASE


Appeal from the Order of the Court of Common Pleas of Lancaster County, Criminal Division, No. 171 1/2, September Term, 1969, in case of In Re: Annexation of 171.481 acres to the Borough of Millersville, County of Lancaster and Commonwealth of Pennsylvania from the Township of Lancaster.

COUNSEL

Christopher S. Underhill, with him Windolph, Burkholder & Hartman, for appellant.

Charles B. Grove, Jr., with him May, Grove, Stork & Blakinger, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino. Concurring Opinion by President Judge Bowman. Judge Mencer concurs in this opinion. Concurring Opinion by Judge Crumlish, Jr. Judge Rogers concurs in this opinion.

Author: Manderino

[ 2 Pa. Commw. Page 589]

On July 21, 1969, a number of freeholders of a one hundred seventy-one acre residential area in Lancaster Township known as Quaker Hills petitioned the Council of the Borough of Millersville to be annexed to the Borough. After a public meeting, the Borough of Millersville concluded that a sufficient number of freeholders (a majority) had signed the petitions to effectuate the annexation. The Borough then enacted an ordinance on October 6, 1969, annexing Quaker Hills to the Borough of Millersville.

Soon thereafter, Lancaster Township filed a complaint in the Lancaster County Court of Common Pleas, alleging that the annexation ordinance was invalid because a majority of the freeholders of Quaker Hills had not signed the petition requesting annexation. This dispute arose over the question of whether a tenancy by the entireties should be counted as one or as two freeholds.

While hearings on the annexation were being held, counsel for both the Borough and the Township entered into a stipulation to the effect that if a tenancy by the entireties was counted as two freeholds, then a majority of freeholders had not signed the petition. The stipulation further stated that if such a tenancy was to be counted as one freehold, then a majority of freeholders had signed the petition.

[ 2 Pa. Commw. Page 590]

The lower court decided that a tenancy by the entireties constituted two freehold interests and that, on the basis of the stipulation entered into by both parties, a majority of freeholders in Quaker Hills had therefore not signed the petition for annexation. We do not agree.

The first question to be dealt with is the scope of review of this court with respect to the question presented by this case. Prior to the adoption of the new Constitution in 1968, the scope of review of an appellate court on a challenge to a Borough ordinance was very limited. The Borough Code provides as follows: "Complaint as to the illegality of any ordinance . . . may be made to the court of quarter sessions . . . by any person aggrieved, within thirty days after the enactment of any ordinance . . . and the determination and order of the court thereon shall be conclusive." (Emphasis supplied.) (Act of February 1, 1966, P.L. , 53 P.S. 46010.) When the Borough Code and other statutes made the order of a lower court "conclusive", appellate review could be had only on narrow certiorari. On narrow certiorari, an appellate court dealt only with the question of jurisdiction, the regularity of the proceedings, excess in the exercise of power and constitutional questions.

However, with the passage of the new Constitution in 1968, the right to appeal in many cases, including the one before us now, was greatly broadened. Article Five, Section Nine, of the new Constitution provides in part as follows: ". . . there shall . . . be a right of appeal from a court of record . . . to an appellate court, the selection of such court to be as provided by law. . . ." This section of the Constitution has been implemented by the Appellate Court Jurisdiction Act (Act No. 223 of July 31, 1970). Section 402 of that Act provides as follows: "The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases . . . (4) All

[ 2 Pa. Commw. Page 591]

    actions or proceedings arising under any county, institution district, city, borough, incorporated town, township, public school, planning or zoning code . . . or where is drawn in question the application, interpretation, or enforcement of . . . any home rule charter or local ordinance or resolution." (Emphasis supplied.) The language of the above implementing legislation is as broad as that in the Constitution. Read together, the two provisions envision a broad scope of review on which the reviewing court may consider the entire record of the case brought before it. Thus, the Commonwealth Court, in hearing this challenge to the validity of an ordinance of the Borough of Millersville, is not limited to reviewing only the narrow questions of jurisdiction, regularity of proceedings, excess of exercise of powers, and violation of constitutional rights.

Turning to the merits of this case, we first address ourselves to the question decided by the lower court: whether a tenancy by the entireties constitutes one or two freehold estates. Contrary to In Re: Annexation by the Borough of Phoenixville of a Portion of Schuylkill Township, Chester County, 218 Pa. Super., 205, 275 A.2d 863 (1971), we hold that owners ...


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