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NORWEGIAN TOWNSHIP v. MINERSVILLE (05/01/72)

decided: May 1, 1972.

NORWEGIAN TOWNSHIP
v.
MINERSVILLE



Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Annexation Ordinance of the Borough of Minersville providing for the annexation of adjacent land in Norwegian Township, Schuylkill County, Pennsylvania, to the Borough of Minersville, No. 4 Misc. May Term, 1968.

COUNSEL

Isadore E. Krasno, with him Malcolm D. Reeves and Krasno & Krasno, for appellant.

Alvin E. Maurer, Jr., for appellee.

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

Author: Blatt

[ 5 Pa. Commw. Page 298]

The Supervisors of Norwegian Township ("Township"), a Township of the Second Class located in Schuylkill County, have appealed from an order of the Schuylkill County Court of Common Pleas, which affirmed the annexation of a part of the Township to the neighboring Borough of Minersville ("Borough"). The Pottsville Area School District ("School District") joined the Township in appealing to the court below, where both argued that the annexation ordinance enacted by the Borough was invalid.

The ordinance in question was adopted by the Borough Council on April 17, 1968, and approved by the Mayor on the same day. A copy of the ordinance was filed with the lower court on May 23, 1968, and on June 10, 1968, the Township filed a Motion for a Rule to Show Cause why the ordinance should not be dismissed. This was followed on June 21, 1968 by appeals from the ordinance filed by the Township and the School District. These pleadings stated that the provisions of Article IX, Section 8, of the new State Constitution, which had been approved by the voters on April 23, 1968, invalidated the provisions of the Borough Code pertaining to the annexation of Second Class Townships,*fn1 on which authority the ordinance had been enacted, and thus made the ordinance a nullity. They also argued that the provisions of the Borough Code had not been complied with because: (1) the application to the lower court for approval of the ordinance

[ 5 Pa. Commw. Page 299]

    had not been advertised and no notice of the filing had been given to the Township, (2) the ordinance did not petition the court to change the boundaries of the Borough, and (3) insufficient signatures were on the petition because twenty original signers had withdrawn their signatures and certain of the petitioners allegedly had signed without full knowledge of the facts regarding the proposed annexation. The Borough filed an answer to these pleadings, and raised as new matter the issue that the appeal to the lower court had not been filed within 30 days after the enactment of the ordinance as required by the Borough Code, 53 P.S. § 46010.

Following a hearing, at which no testimony was taken or evidence introduced, the lower court handed down an opinion dismissing the appeals and affirming the ordinance. In its opinion, the court ignored the other issues raised and discussed only the question of whether or not the approval of the new State Constitution invalidated the annexation provisions of the Borough Code. Finding that the Borough Code provisions pertaining to annexation were not immediately affected by the approval of the new State Constitution, the court held that this disposed of the questions raised by the Township and the School District and dismissed their appeals. In its appeal to this Court, the Township argues that the lower court acted improperly in failing to determine whether or not the Borough had correctly followed the procedures prescribed by the Borough Code and whether or not the annexation was in the public interest.

While we agree that the lower court might have been wise to discuss and dispose of all of the issues raised by the Township, it is also clear that, as a matter of law, these claims lacked validity, and it is also clear that the lower court was correct in holding that the approval of the new State Constitution had no immediate

[ 5 Pa. Commw. Page 300]

    effect on the applicability of the annexation provisions ...


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