Appeal from order of Commonwealth Court, No. 90 C.D., 1970, reversing orders of Court of Common Pleas of Lancaster County, Sept. T., 1969, No. 173 1/2, in re Annexation of 171.481 acres to the Borough of Millersville, County of Lancaster, and Commonwealth of Pennsylvania, from the Township of Lancaster.
Charles B. Grove, Jr., with him Michael D. Bull, and May, Grove, Stork & Blakinger, for appellant.
Christopher S. Underhill, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Manderino took no part in the consideration or decision of this case. Concurring Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this concurring opinion.
This appeal presents a narrow issue, well summarized in the opinion of the Commonwealth Court. Millersville Annexation Case, 2 Commonwealth Ct. 587, 279 A.2d 349 (1971), at 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 petition 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." (Emphasis in original.)
The trial court decided that a tenancy by the entireties constituted two freehold interests, and, therefore, on the basis of the stipulation entered into by both parties, there were 685 freeholders in the annexed area, of whom 330 (only 48.18%) signed the petition, which was not enough. The Commonwealth Court reversed, deciding that a tenancy by the entireties only counted as one freehold interest, which meant that there were 366 freeholders, of whom, it was undisputed, 209 signed the petition, a clear majority of 57.1%.
Because the decision of the Commonwealth Court is directly in conflict with a recent decision of the Superior Court, Phoenixville Boro. Case, 218 Pa. Superior Ct. 205, 275 A.2d 863 (1971), we granted allocatur.
Before we reach the question of how tenancies by the entireties are to be counted in determining the
number of signatures needed on a petition for annexation, we must first dispose of appellant's contention that the Commonwealth Court exceeded its proper scope of review on appeal. For this argument, appellant relies on the appeal section of The Borough Code, Act of February 1, 1966, P. L. (1965) 1656, No. 581, § 1010, 53 P.S. 46010, which reads as follows: "Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions, upon entering into recognizance with sufficient security to prosecute the same with effect and for the payment of costs, by any person aggrieved, within thirty days after the enactment of any ordinance or the adoption of any resolution, and the determination and order of the court thereon shall be conclusive. . . ." (Emphasis supplied.)
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 with only the question of jurisdiction, the regularity of the proceedings, excess in the exercise of power and constitutional questions.
However, we agree with the Commonwealth Court that the passage of the new Constitution in 1968 and its accompanying implementation by the Act of December 2, 1968, P. L. [ILLEGIBLE WORD], No. 351, § 1-2, 12 P.S. 1111.1-1111.2, and by the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, No. 223, art. I, § 101 et seq., 17 P.S. § 211.101 et seq., has changed ...