Appeals from the Orders of the Court of Common Pleas of Dauphin County in cases of In Re: An Ordinance for Annexing to the Borough of Dauphin, a Section of Middle Paxton Township, Dauphin County, Pennsylvania, No. 97 Misc. Docket 1972; In Re: An Ordinance Providing for the Annexation of a Tract of Land Containing 53.53 Acres, Situate in Derry Township, Dauphin County, Pennsylvania, a Second Class Township, to the Borough of Hummelstown, Dauphin County, Pennsylvania, No. 310 Misc. Docket 1971; and In Re: An Ordinance Providing for the Annexation of a Tract of Land Containing 3 1/2 Acres, Situate in Derry Township, Dauphin County, Pennsylvania, a Second Class Township, to the Borough of Hummelstown, Dauphin County, Pennsylvania, No. 66 Misc. Docket 1972.
Kent H. Patterson, with him William Fearen and Cleckner & Fearen, for appellants, Derry Township Supervisors.
Charles E. Sweigard, Jr., for appellant, Middle Paxton Township.
Herbert A. Schaffner, with him Reynolds, Bihl and Schaffner, for appellee, Borough of Hummelstown.
David B. Disney, with him McNees, Wallace & Nurick, for appellee, Borough of Dauphin.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.
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These are three consolidated appeals from orders of the Court of Common Pleas of Dauphin County dismissing complaints challenging annexation ordinances of the Borough of Dauphin and the Borough of Hummelstown.
The factual background of the first appeal is as follows: on February 22, 1972, acting upon a petition of freeholders of the territory to be annexed the Council of the Borough of Dauphin enacted Ordinance No. 72-1, annexing to the Borough 62.79 acres of land situate in Middle Paxton Township. Pursuant to Section 427 of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. § 45427, the next day an annexation certificate was filed in the Court of Common Pleas of Dauphin County thereby completing the annexation. The Supervisors of Middle Paxton Township, in their official and individual capacities, then filed a complaint challenging the annexation ordinance and requesting relief as provided by Sections 1 and 3 of the Act of July 20, 1953, P.L. 550, 53 P.S. §§ 67501, 67503, pertaining to Townships of the Second Class. To the complaint the Borough of Dauphin filed preliminary objections, which included a demurrer and also raised the matter of the court's jurisdiction over the subject matter. The Court of Common Pleas of Dauphin County dismissed the Township's complaint.
The second two appeals originate in two ordinances similarly adopted by the Borough of Hummelstown. On October 19, 1971, and December 21, 1971, the Borough
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enacted ordinances numbered 8 and 13 annexing 53.53 and 3 1/2 acres respectively of land situate in Derry Township, Dauphin County. Both annexations were effected pursuant to the Borough Code; the complaints filed by the Township Supervisors, in their official and individual capacities, challenging the respective annexation ordinances sought relief as provided in the Borough Code. After an answer and stipulation of counsel were filed, the lower court also dismissed these complaints.
Besides the issue of improper annexation procedure, the Middle Paxton Township complaint alleges that the annexation was defective since the electors of the municipalities involved were not given the right of initiative and referendum as is mandatory, the Township argues, under Article IX, Section 8, of the 1968 Constitution of Pennsylvania. No statutory questions are raised in the Derry Township complaints, but similar constitutional issues are presented, i.e., that the annexation ordinances violated Article IX, Section 8, by not having provided for an initiative and referendum. The complainants argue that the ...