Appeals from the Order of the Court of Common Pleas of Luzerne County in case of Laflin Borough v. Yatesville Borough v. Jenkins Township, No. 1438 of 1974.
James R. Anzalone, for Jenkins Township.
Edward J. Geist, for Laflin Borough.
Joseph J. Musto, for Yatesville Borough.
President Judge Bowman and Judges Wilkinson, Jr., Rogers, Blatt, Craig and MacPhail. Judges Crumlish, Jr., Mencer and DiSalle did not participate. Opinion by President Judge Bowman.
[ 44 Pa. Commw. Page 403]
At issue in these appeals is the vitality of certain provisions of Section 502 of The Borough Code,*fn1 53 P.S. § 45502, in light of the uniform legislation provision Article IX, Section 8 of the Pennsylvania Constitution and the failure of the General Assembly to legislate thereunder.
In June, 1974, Laflin Borough (Laflin), appellant in No. 1548 C.D. 1978, filed in the Court of Common Pleas of Luzerne County a "Petition to Determine Disputed Boundaries." Named as a respondent in said petition is the Borough of Yatesville (Yatesville); appellee in Nos. 1533 and 1548 C.D. 1978. The petition represents that the territory of Laflin is contiguous on its easterly boundary with the westerly boundary of Yatesville. Attached to the petition is a map on which Laflin has designated (a) "the disputed boundary" which it claims to be its rightful easterly boundary, and (b) "the disputed boundary" claimed by Yatesville as its westerly boundary. Invoking Section 502 of The Borough Code, Laflin's petition requests the court "to appoint three commissioners
[ 44 Pa. Commw. Page 404]
to examine and view the disputed boundary and make a report thereon to the Court. . . ."
Three commissioners were appointed. After hearing testimony from registered engineers and residents of the area and receiving in evidence old maps, recorded original charters and deeds and original surveys of the disputed area, the commissioners determined that the boundary was not located where either borough claimed, but that the land in dispute was part of Jenkins Township, appellant in No. 1533 C.D. 1978.
Both Laflin and Yatesville filed exceptions to the commissioners' report, and Jenkins Township was permitted to intervene at this stage of the proceedings. The court, finding the record insufficient to rule on the merits of the exceptions, ordered the commissioners to take further testimony. This done, the commissioners filed an addendum report which, like their initial report, recommended that the disputed area was in Jenkins Township. Pursuant to Section 503 of The Borough Code, 53 P.S. § 45503, the court confirmed the report nisi. Thereafter, Laflin and Yatesville filed exceptions. Yatesville's first exception, objecting to the court's jurisdiction to entertain this type of boundary proceeding in light of the provisions of Article IX, Section 8 of the Pennsylvania Constitution, was sustained and is the subject of the instant appeals. We reverse and remand.
In Middle Paxton Township v. Borough of Dauphin, 10 Pa. Commonwealth Ct. 431, 308 A.2d 208 (1973), aff'd 458 Pa. 396, 326 A.2d 342 (1974), we found that the failure of the legislature to enact by April 23, 1970 "uniform legislation establishing the procedure for consolidation, merger or change of the boundaries of municipalities," as mandated by Article IX, Section 8 operated to abrogate all pre-existing ...