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INCORPORATION BOROUGH VALLEY-HI. BOROUGH VALLEY-HI (12/27/77)

decided: December 27, 1977.

IN RE: THE INCORPORATION OF THE BOROUGH OF VALLEY-HI. BOROUGH OF VALLEY-HI, APPELLANT


Appeal from the Order of the Court of Common Pleas of Fulton County in case of In Re: Incorporation of the Borough of Valley-Hi, Quarter Sessions Docket No. 7, Page 375.

COUNSEL

Jerome T. Foerster, with him Richard W. Cleckner, and Cleckner and Fearen, for appellants.

Merrill W. Kerlin, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 33 Pa. Commw. Page 181]

The Borough of Valley-Hi (Borough) appeals from an order of the Court of Common Pleas of Fulton County striking the Decree of Incorporation of the Borough.

Upon submission of a Petition for Incorporation meeting the requirements of Section 202 of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. ยง 45202,*fn1 the lower court set a

[ 33 Pa. Commw. Page 182]

    hearing date and ordered that proper notice of the petition and hearing be given.*fn2 The hearing was held with no exceptions or objections being raised and the Decree of Incorporation was granted without taking any evidence. Approximately 10 months thereafter, it was learned that the legal description submitted with Borough's petition was defective,*fn3 and the Borough submitted a petition to correct the description, together with a petition to reduce the number of Borough councilmen.*fn4

Appellee, the Board of Commissioners of Fulton County (County), filed answers to Borough's petitions and a Motion to Strike the Decree of Incorporation alleging that the defect in the Borough's legal description deprived the lower court of jurisdiction to issue the Decree. In response to County's Motion to Strike,

[ 33 Pa. Commw. Page 183]

    the Borough filed preliminary objections alleging that County lacked standing. The lower court granted County's motion and Borough appealed to us.

Although we are troubled with the lower court's grant of a Decree of Incorporation without taking evidence as to the necessity for incorporation,*fn5 we fail to find an adequate basis for County's standing to object to the ...


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