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BEAR CREEK TOWNSHIP v. BOROUGH PENN LAKE PARK (06/30/75)

decided: June 30, 1975.

BEAR CREEK TOWNSHIP, APPELLANT,
v.
BOROUGH OF PENN LAKE PARK, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of In Re: Incorporation of the Borough of Penn Lake Park, No. 1173 of 1973.

COUNSEL

Thomas E. Mack, with him Mack and Meyer, for appellants.

Pasco L. Schiavo, for appellee.

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

Author: Wilkinson

[ 20 Pa. Commw. Page 78]

This is an appeal by the Supervisors of Bear Creek Township from the decree of the Court of Common Pleas of Luzerne County which granted the prayer of the petition to incorporate as a borough by the majority of the resident freeholders of approximately 1,000 acres, being a portion of Bear Creek Township and Dennison Township. The petition had been opposed by both Townships in the court below, but only Bear Creek Township took this appeal. As a matter of interest, the area involved in this incorporation as a borough is only 2.5% of the total assessed valuation of Bear Creek Township.

Many objections were raised before the court below and each was considered, discussed and dismissed in an able opinion by President Judge Bernard C. Brominski. Only two questions were raised on appeal. The principal

[ 20 Pa. Commw. Page 79]

    issue pressed by appellant (23 pages of its 28 pages of argument in its brief filed with this Court) is whether the lower court was in error in concluding that the proposed borough possessed the necessary prerequisites for self-government and that the establishment of such a borough would not be to the detriment of Bear Creek Township. The other issue raised is whether the provisions of Article IX, Section 8 of the 1968 Constitution of Pennsylvania apply to incorporation of a borough.

We can dispose of the second issue with dispatch. Article IX, Section 8 of the 1968 Constitution of Pennsylvania provides:

"Uniform Legislation. The General Assembly shall, within two years following the adoption of this article, enact uniform legislation establishing the procedure for consolidation, merger or change of the boundaries of municipalities.

"Initiative. The electors of any municipality shall have the right, by initiative and referendum, to consolidate, merge and change boundaries by a majority vote of those voting thereon in each municipality, without the approval of any governing body.

"Study. The General Assembly shall designate an agency of the Commonwealth to study consolidation, merger and boundary changes, advise municipalities on all problems which might be connected therewith, and initiate local referendum.

"Legislative Power. Nothing herein shall prohibit or prevent the General Assembly from providing additional methods for consolidation, merger or change of boundaries."

On its face, by plain language, if the Legislature had intended to include incorporation of a borough within this restriction, it could have done so by including the word "incorporate" along with "consolidate, merge and change boundaries." It is of no avail for ...


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