Appeal from the Order of the Court of Common Pleas of Lancaster County, in case of Annexation of a Portion of the Township of Manor, Lancaster County, Pennsylvania, by the Borough of Millersville, Minute No. 25 of 1970.
John P. Hohenadel, with him Nikolaus & Hohenadel, for appellant.
Christopher S. Underhill, with him Windolph, Burkholder & Hartman, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Judge Crumlish, Jr., dissents.
On April 22, 1970, the Borough of Millersville (Borough) enacted an ordinance pursuant to Section 426 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. § 45426, annexing 163.5 acres of land from the Township of Manor (Township). On May 7, 1970, the Borough filed a certified copy of the ordinance and a map of the Borough indicating the property to be annexed with the Court of Common Pleas of Lancaster County. The Borough also gave proper notice of the filing to the Lancaster County Board of Elections. The Township thereafter filed a complaint with the lower court, attacking the validity and the propriety of the annexation ordinance. A hearing was held and an order was subsequently issued by the lower court affirming and approving the ordinance and dismissing the Township's complaint.
The sole issue before us is the validity of the petition which was filed with the Borough and which purportedly indicated the assent to the annexation on the part of a majority of the freeholders in the area of the Township to be annexed. Section 426 of The Borough Code, 53 P.S. § 45426 is controlling in this matter and it provides: "Any borough may, by ordinance, annex adjacent land situate in a township of the second class in the same or any adjoining county, upon petition, and may attach such annexed territory to an existing ward
or wards. The petition shall be signed by a majority in number of all of the freeholders of the territory to be annexed. If an ordinance to make such annexation is defeated, no other proceeding for the annexation of the same territory, or any part thereof, shall be had within five years thereof." (Emphasis added.)
The total number of freeholders in the area to be annexed by the Borough in this case was 74, and the petition presented to the Borough bore signatures representing 39 freeholders. The Township, however, challenged three of the signatures, which constituted two freehold interests. Two of these signatures were of a husband and wife who hold title to their property as tenants by the entireties, thus constituting one freehold interest. Millersville Annexation Case, 447 Pa. 310, 290 A.2d 102 (1972). The other signature is of an individual who owned the sole interest in his land. If these signatures are successfully challenged, therefore, this would leave signatures representing only 37 freehold interests on the petition, one less than the majority required by Section 426 of The Borough Code.
At the hearing before the lower court, there was testimony that one John M. Barley had signed the names of Benjamin M. Barley, Hazel B. Newcomer and J. Vernon Newcomer to the annexation petition. It was alleged that he had received prior oral authority to sign the names of Benjamin M. Barley and Hazel B. Newcomer, and that he had later received written authority from both of the Newcomers on June 10, 1970 and from Benjamin Barley on June 29, 1970. All of such written authority was admittedly received, however, after the petition had been sent to the Borough, after the ordinance had been enacted and filed with the court and after the Township had filed its complaint. The Borough urges that this is simply a matter of agency law and that all of the signatures were valid. We cannot agree.
The purpose of the petition requirement in Section 426 of The Borough Code is to provide a method of accurately determining the wishes of the freeholders in a specific area as to which of two local governmental bodies they wish that area to belong, and it is important that the petition truly reflect the wishes of the majority of freeholders concerned. Indeed, unless it is clear that a majority in number of the freeholders in the area to be annexed have in fact properly and knowingly signed the ...