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FRANKLIN BOROUGH'S INCORPORATION CASES (12/20/72)

decided: December 20, 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, for appellant, Borough of Export.

John G. Gent, with him Henry A. Hudson, Jr., Ted J. Padden and Quinn, Gent, Buseck & Leemhuis, Inc., for appellee.

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

Author: Rogers

[ 7 Pa. Commw. Page 121]

In Franklin Borough's Incorporation Cases, 5 Pa. Commonwealth Ct. 85, 289 A.2d 503 (1972), we denied the motion of the Borough of Franklin to quash appeals here taken by the Boroughs of Delmont and Export from an order of the Court of Common Pleas of Westmoreland County incorporating the Borough of Franklin. Franklin's motion to quash was based upon the circumstance that Delmont and Export were not parties to the Franklin incorporation proceedings in the court below. Our denial of the motion was grounded on our conclusion that Delmont and Export were persons aggrieved by the order, within the meaning of Section 209 of The Borough Code, Act of February 1, 1966, P.L. 1656, 53 P.S. § 45209.*fn1 Our opinion was filed March 29, 1972, and after consideration and denial of an application for remand filed by Franklin, the matter was listed for argument on the merits for October 30, 1972. On that day Franklin filed a supplemental brief bringing to the court's attention for the first time that Section 209 of The Borough Code had been repealed by subdivision 174 of subsection (a) of Section 509 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, as amended by Act of June 3, 1971, P.L. , 17 P.S. § 211.509(a)(174). The Appellate Court Jurisdiction Act took effect September 11, 1970, a date more than a year after commencement of this proceeding in the court below, but before the court below entered its order approving the incorporation.

The parties and the court were not earlier apprised of the repealer of Section 209 of The Borough Code because the 1972-73 Supplement to Title 53 of Purdon's

[ 7 Pa. Commw. Page 122]

Pennsylvania Statutes, indicating the repealer for the first time in that publication, was not published until sometime in June of 1972.

Subdivision 174 was not only one of 181 subdivisions of subsection (a) of Section 509 of the Appellate Court Jurisdiction Act, it alone, in addition to repealing Section 209, repealed parts of thirteen other provisions of The Borough Code. That neither counsel for the several litigants nor the court knew of the repealer of Section 209 earlier is understandable, especially in view of the fact that the title of the Appellate Court Jurisdiction Act, "An act relating to the jurisdiction and powers of the Supreme, Superior and Commonwealth courts," provides no notice that the class of persons entitled to appeal any matter would be thereby narrowed. We are not, however, required to base our determination to dispose of this protracted and public litigation on the merits upon a principle of constitutional law. In Plains Township School District Appeal, 438 Pa. 294, 265 A.2d 358 (1970), the Supreme Court allowed an additional period for appeal on the ground that the Act of December 2, 1968, P.L. , 12 P.S. § 1111.1, was as a practical matter not available until the publication of the 1970 Supplement of Purdon's Pa. Statutes. In Williams Appeal, 438 Pa. 309, 265 A.2d 360 (1970), the Supreme Court for the same reason entertained an appeal which under the Act of December 2, 1968 should have been taken to the Superior Court. We will entertain Delmont's and Export's appeals here upon the same consideration.

Furthermore, the court below incorporated as part of the new Borough of Franklin areas sought to be annexed by the Boroughs of Delmont and Export. If we should determine that Delmont and Export were without standing to appeal because they were not parties below, those municipalities would not be bound by the

[ 7 Pa. Commw. Page 123]

    decree of incorporation.*fn2 Thus the same issues here ripe for decision would become the subject of new litigation, further delaying the resolution of this presumably important public matter, now pending for more than three years.

This case requires us to construe, and in so doing hopefully to provide order in, the provisions of The Borough Code relating to the subjects of the incorporation of boroughs and the ...


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