Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Annexing a Portion of Connellsville Township, Fayette County, Pennsylvania, Fronting Partially on the Southerly Side of Kensington Street, Property Now or Formerly of Helen M. Hyatt and the Mary D. Newmyer Estate, No. 471 Civil Docket 1971.
William H. Soisson, Jr., for appellants.
Robert E. Eberly, Jr., with him Paul V. Mahoney, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 14 Pa. Commw. Page 533]
This appeal is from an order of the Court of Common Pleas of Fayette County discharging a rule to show cause why a decree dated April 4, 1972, should not be opened and vacated. That decree sustained preliminary objections to a complaint filed by Connellsville Township Supervisors (Appellant) which challenged an annexation
[ 14 Pa. Commw. Page 534]
proceeding commenced after April 23, 1970 under the Third Class City Code, Act of June 23, 1931, P.L. 932, 53 P.S. §§ 35501 et seq., inter alia, contending that it violated Article IX, Section 8, of the 1968 Constitution of Pennsylvania because the proceedings failed to provide for an initiative and referendum. In sustaining the preliminary objections and approving the annexation, the lower court held that this constitutional provision was not self-executing and that the "two-year time limitation therein set forth is merely hortatory and does not constitute an express or implied repealer of all extant legislation in those areas" and therefore the annexation provisions of the Third Class City Code controlled. This decision was not appealed.
Following our holding in Middle Paxton Township v. Borough of Dauphin, 10 Pa. Commonwealth Ct. 431, 308 A.2d 208 (1973), that the time limitation of Article IX, Section 8 is mandatory, and that in the absence of supplantive uniform legislation, initiative and referendum is the only procedure available to authoritatively effect changes in municipal boundaries after April 23, 1970, Appellants filed a petition for a rule to show cause why the prior judgment should not be opened. It relied on Middle Paxton Township v. Borough of Dauphin, supra, contending that it conclusively determined that the instant annexation proceedings under the Third Class City Code were null and void. Being so, Appellant argues that the court was without jurisdiction to approve the annexation ordinance in issue. The rule was discharged on October 29, 1973, the lower court finding that the prior unappealed decree was res judicata.
Initially, we note that the identities of party, cause of action, and thing sued for, all the time honored prerequisites to the application of the doctrine of res judicata are present here. McCarthy v. Township of McCandless,
[ 14 Pa. Commw. Page 5357]
Pa. Commonwealth Ct. 611, 300 A.2d 815 (1973); Philadelphia v. Stradford Arms, Inc., 1 Pa. Commonwealth Ct. 190, 274 A.2d 277 (1971). These facts being indisputable, counsel for Appellant argues that the prior judgment is open to collateral attack because the lower court was without jurisdiction to render a judgment since the underpinning of its authority to approve the annexation [the annexation petition having been brought under the Third Class City Code without provision for initiative and referendum] was subsequently declared to be null and void. Appellant falters in this argument because, although a court may have no jurisdiction over a particular subject matter, it may have jurisdiction to determine the question of its own jurisdiction, and an unappealed final determination of its subject matter jurisdiction -- albeit erroneous -- is res judicata as to those litigants. Durfee v. Duke, 375 U.S. 106, 84 ...