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MARIETTA BOROUGH v. EAST DONEGAL TOWNSHIP (12/16/71)

decided: December 16, 1971.

MARIETTA BOROUGH
v.
EAST DONEGAL TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Borough of Marietta v. East Donegal Township, No. 145 June Term, 1967.

COUNSEL

George T. Brubaker, with him Theodore L. Brubaker and Brubaker and Brubaker, for appellant.

B. M. Zimmerman, with him Zimmerman & Going, for appellee.

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

Author: Rogers

[ 3 Pa. Commw. Page 597]

This is still another annexation case upon which much time, talent and treasure has and will be expended because the Legislature has over the years at the urging of municipalities, enacted inconsistent statutes on the subject and has as yet been unable to enact the uniform legislation mandated by Article 9, Section 8 of the Constitution of this Commonwealth, adopted by the electorate on April 23, 1968. These cases are always difficult and this one especially so because the issue here presented is before an appellate court for the first time.

The Borough of Marietta, Lancaster County, acting pursuant to Section 426 of The Borough Code, Act of February 1, 1966, (1965) , No. 581, 53 P.S. § 45426, annexed 111.1 acres of land in East Donegal Township. The Township acting pursuant to Section 1010 of The Borough Code, 53 P.S. § 46010, filed complaint as to the legality of the annexation ordinance. After litigation, the annexation was approved. Marietta Borough Annexation Case, 61 Lanc. 303, aff'd, 213 Pa. Superior Ct. 76, 245 A.2d 706 (1968). The municipalities being unable to agree upon the financial settlement occasioned by the annexation, the Township, to the same

[ 3 Pa. Commw. Page 598]

    term and number as the annexation proceedings, made application to the Court of Common Pleas of Lancaster County that the Court determine the amount due. The Township claimed the sum of $29,102.90 which it had expended in the installation of storm sewers and fireplugs in the annexed area. This the Township said was due under the provisions of Section 308(a) of The Second Class Township Code, Act of May 1, 1933, P.L. 103, 53 P.S. § 65308(a). The Borough filed a motion to strike the Township's application on the ground that relief was not available to the Township under The Second Class Township Code. The Borough urged that the settlement should be made pursuant to The Borough Code under which the annexation proceedings had been initiated and pursued. The court below dismissed the motion to strike. The Borough has petitioned this court for allowance of appeal from an interlocutory order which we, in the interests of advancing the ultimate determination of this matter, have allowed.

In fine, the question is whether, in annexation proceedings commenced and pursued under The Borough Code, the financial settlement for and on account of the annexation should be determined in whole or part pursuant to provisions other than those contained in The Borough Code. The issue is here acute because the Supervisors of East Donegal Township, by action laudable in private affairs but often unwise and sometimes unfair in municipal undertakings, expended substantial sums for storm sewers and fireplugs out of current tax revenues instead of borrowing. The Township would avoid exclusive application of Sections 441 and 442 of The Borough Code, 53 P.S. §§ 45441, 45442, which are as follows:

§ 441 -- "Whenever a part of any township is annexed to any borough, the borough council and the governing body of the township shall make a just and proper adjustment of all the public property, both real

[ 3 Pa. Commw. Page 599]

    and personal, owned by the township at the time of such annexation, including funds, as well as indebtedness, ...


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