Appeal from order of Commonwealth Court, No. 459 C.D. 1971, reversing order of Court of Common Pleas of Lancaster County, June T., 1967, No. 145, in re The Borough of Marietta v. East Donegal Township.
B. M. Zimmerman, with him Zimmerman & Going, for appellant.
George T. Brubaker, with him Theodore L. Brubaker, and Brubaker and Brubaker, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice O'Brien dissent.
This appeal requires the resolution of yet another inconsistency in the statutory provisions governing the annexation of land from a Second Class Township by a Borough.*fn1
In 1967 the Borough of Marietta annexed 111.1 acres of land from East Donegal Township under the procedures provided in the Borough Code.*fn2 Although the Township contested the merits of the annexation, it was affirmed on appeal by the Superior Court. East Donegal Township Annexation Case, 213 Pa. Superior Ct. 76, 245 A.2d 706 (1968). This appeal is the result of a post-annexation controversy between the Borough and the Township over the Township's right to reimbursement for the cost of municipal improvements
which were installed on the land at Township expense prior to the annexation.
After the annexation was upheld by the Superior Court, the Township and Borough were unable to agree on a post-annexation financial adjustment. Subsequently, the Township filed an application in the Court of Quarter Sessions of Lancaster County for reimbursement in the amount of $29,102.90 to recover the cost of storm sewers and fireplugs installed at Township expense on the annexed territory between 1962 and 1966. These improvements were paid for out of general Township revenue as they were installed and at the time of the annexation, there was no outstanding indebtedness attributable to them. The Township based its claim on Section 308(a) of the Second Class Township Code which provides that whenever a portion of a Township has been annexed by a Borough, the Borough is liable to the Township for "the cost of sewer systems constructed by the township within fifteen years."*fn3
The Borough filed preliminary objections contending that, since the annexation had followed the procedure of the Borough Code, the post-annexation financial adjustment should also be governed exclusively by the provisions of the Borough Code. In maintaining that it owed nothing to the Township as a result of the annexation the Borough relied specifically on the language of Section 441 of the Borough Code: "In adjusting property and indebtedness [after an annexation] streets, sewers and utilities shall not be considered except to the extent that current and unpaid indebtedness was incurred for the construction and improvement thereof."*fn4
The trial court dismissed the Borough's preliminary objections but certified that an important question of law was presented justifying immediate review. The Commonwealth Court reversed the trial court, granting the Borough's preliminary objections to the Township's application for reimbursement. Marietta Borough v. East ...