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FRANKLIN BOROUGH'S INCORPORATION CASES (03/29/72)

decided: March 29, 1972.

FRANKLIN BOROUGH'S INCORPORATION CASES


Appeals from the Order of the Court of Common Pleas of Westmoreland County in case of In Re: Incorporation of the Borough of Franklin, No. 1, October Term, 1969.

COUNSEL

Robert Y. Cassol, with him Redlich, Cassol, Redlich & Morocco, for appellant, Borough of Delmont.

Clarence F. McBride, with him Marker and McBride, William Fearen and Cleckner and Fearen, for appellant, Borough of Export.

B. Patrick Costello, with him Henry A. Hudson, Jr., and Costello, Snyder, Berk & Horner, for appellee.

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

Author: Rogers

[ 5 Pa. Commw. Page 86]

We are again confronted with a suit arising out of this Commonwealth's inscrutable annexation statutes.

We have before us a motion to quash the appeals to this court of the Boroughs of Delmont and Export from an order of the Common Pleas Court of Westmoreland County incorporating the Borough of Franklin. The ground for the motion is that the appellant Boroughs were not parties to the incorporation proceedings below and therefore have no standing to appeal.

[ 5 Pa. Commw. Page 87]

The appellee cites as authority for its motion the following: Alloy Metal Wire Company, Inc., Appeal, 329 Pa. 429, 198 A. 448 (1938); Bankes Estate, 431 Pa. 283, 243 A.2d 371 (1968); Mechanics National Bank Page 87} of Trenton v. Buckman, 253 Pa. 245, 97 A. 1056 (1916); Dethlefson Appeal, 434 Pa. 431, 254 A.2d 6 (1969); Urbano v. Zoning Hearing Board of Upper Merion Twp., 1 Pa. Commonwealth Ct. 574, 275 A.2d 905 (1971). These cases dealt with appeals under either the Act of May 22, 1722, 1 Sm. L. 131, 12 P.S. § 1091, which states: "If any person or persons shall find him or themselves aggrieved with the judgment . . . it shall and may be lawful to and for the party or parties so aggrieved, to have his or their writ or writs of error . . ."; or under Section 1003 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. , 53 P.S. § 11003, providing that zoning appeals may be taken "by any party before the board." (Emphasis supplied.)

We are here concerned with the incorporation of boroughs, the procedure for which is prescribed by The Borough Code, Act of Feb. 1, 1966, P.L. (1965) , 53 P.S. § 45101, et seq. Section 209 of the Code, 53 P.S. § 45209, provides: "An appeal to the [Commonwealth Court] may be had in the manner provided by law for appeals to said court from any decree incorporating a borough by any person aggrieved thereby." (Emphasis supplied.) There is thus no requirement that the person aggrieved be a party below. The only requirement for standing under this provision is that the appellant be a person aggrieved; that is, one who has an interest in and is affected by the Court's order. Pa. Commercial Drivers Conference v. Pa. Milk Control Commission, 360 Pa. 477, 62 A.2d 9 (1948); State Board of Undertakers v. Joseph T. Sekula Funeral Home, Inc., 339 Pa. 309, 14 A.2d 308 (1940). The Act of 1722, 12 P.S. § 1091, is the general appeals statute. As this makes engagement as a party below a prerequisite to standing to appeal and as many other statutes*fn1 have the same

[ 5 Pa. Commw. Page 88]

    requirement, there is, as appellee suggests, a paucity of authority for the right of one not a party to appeal. Furthermore, the inherent improbability of a non-participant seeking to appeal reduces the occasions for such actions. On the other hand, under statutes conferring the right to appeal upon persons aggrieved, an appeal has been allowed where the only proceeding below has been a general order of a Commission. Milk Maid Dairy Products, Inc. v. Pennsylvania Milk Control Commission, 35 D. & C. 2d 286 (1964). See also Denny Building Corporation Appeal, 387 Pa. 311, 127 A.2d 724 (1956); Committee to Preserve Mill Creek, et al. v. Secretary of Health, et al., 3 Pa. Commonwealth Ct. 200, 281 A.2d 468 (1971). At the risk of belaboring the point, we note that predecessor provisions of The Borough Code required that the appeal should be taken by not less than three persons aggrieved. Act of May 4, 1927, P.L. 519, § 209. Under a still earlier but identical provision, the Superior Court held that although a single person might file exceptions, three were needed to appeal. Swissvale Borough Incorporation, 9 Pa. Superior Ct. 212 (1898). While in that case there were only two exceptants who were also the proposed appellants, it contains a faint but discernible implication that three persons aggrieved might appeal although less than that number had been ...


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