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

COMMONWEALTH COURT OF PENNSYLVANIA


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 Decree and therefore reverse the lower court's decision.*fn6

Our Supreme Court, in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), held that standing requires an aggrieved party showing a substantial, direct and immediate interest in the subject matter of the litigation. The requirement of a "substantial interest" simply means that there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. The requirement of a "direct interest" means that the person claiming to be aggrieved must show causation of harm to his interest by the matter of which he complains. The nature of the connection between the action complained of and the injury to the person challenging

[ 33 Pa. Commw. Page 184]

    it is the concern of the "immediate interest" element. 464 Pa. at 195, 346 A.2d at 282. County fails to demonstrate how it is aggrieved under these standards.

In support of its Motion to Strike, County asserts the following arguments to establish standing.

It first contends that it is the "fiduciary of the public interest" of all its citizens, that Borough's incorporation is contrary to the best interest of those citizens, and that, therefore, it has a right to object. A county is merely a creature of the sovereign created for the purpose of carrying out local governmental functions. See Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 366 A.2d 1298 (1976). See also Philadelphia v. Fox, 64 Pa. 169 (1870). The scope of its powers and duties are specified by the Constitution*fn7 and County Code;*fn8 it possesses no power nor bears any responsibility in the absence of a specific mandate. See the Concurring Opinion of Mr. Justice O'Brien in Citizens Committee to Recall Rizzo v. Board of Elections of the City and County of Philadelphia, 470 Pa. 1, 31, 367 A.2d 232, 247 (1976). See also Chester County v. Philadelphia Electric Co., 420 Pa. 422, 218 A.2d 331 (1966). We have made an exhaustive search of the Constitution and County Code and find no mandate for County to act as a fiduciary of the public interest. Without this mandate, County can have no fiduciary interests, and without an interest, it can have no standing. Therefore, in applying the standing criteria set forth in William Penn Parking Garage, Inc., supra, we conclude that County's fiduciary argument is without merit.

County next alleges that, because it is liable for the $350.00 expense of conducting a special election for

[ 33 Pa. Commw. Page 185]

    the reduction in the number of Borough councilmen, it is aggrieved and therefore has standing to object to the incorporation.*fn9 We find this argument frivolous. County's pecuniary interests are de minimis and its interest in assuring the integrity and uniformity of the election process*fn10 is in no way affected by the incorporation.

Finally, County alleges standing in its capacity as the Board of Assessment and Revision of Taxes. It contends that Borough's defective description makes it impossible to determine the identity, location and liability for taxation of tracts of real estate within the Borough. While County tells us how it is affected by Borough's defective description, it fails to explain why it is aggrieved. The record establishes that County will lose no taxes and it fails to demonstrate that County is, in fact, adversely affected by the alleged impossibility to identify and locate properties within the Borough. Bald assertions are not sufficient to obtain standing.

Accordingly, we

Order

And Now, this 27th day of December, 1977, the order of the Court of Common Pleas of the 39th Judicial District of Pennsylvania, Fulton County Branch, striking the Decree of Incorporation of the Borough of Valley-Hi, is hereby reversed and its order granting the Decree of Incorporation is reinstated. Accordingly, we remand to said court to decide the issues raised by the Borough's Petition to Correct Description and its Petition to Decrease the Number of Borough

[ 33 Pa. Commw. Page 186]

Councilmen in a manner not inconsistent with this opinion.

Judge Kramer did not participate in the decision in this case.

Disposition

Reversed. Decree of incorporation reinstated. Case remanded.


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