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MATTER BOROUGH FOREST CITY ABOLITION WARDS. BOROUGH FOREST CITY (10/31/84)

decided: October 31, 1984.

IN THE MATTER OF THE BOROUGH OF FOREST CITY ABOLITION OF WARDS. BOROUGH OF FOREST CITY, APPELLANT


Appeal from the Order of the Court of Common Pleas of The 34th Judicial District, Susquehanna County Branch, in the case of In the matter of the Borough of Forest City Abolition of Wards, No. 1982-1056 Civil.

COUNSEL

Robert J. Fields, for appellant.

Jeffrey T. Tucker, Curtin and Heefner, for appellee.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 85 Pa. Commw. Page 600]

Appellant, the Borough of Forest City (Borough), appeals from an order by the Court of Common Pleas of Susquehanna County which dismissed the Borough's petition to abolish all Borough wards. We vacate and remand.

The Borough filed its petition on October 19, 1982, pursuant to Section 601 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. ยง 45601 (Borough Code), requesting that the trial court abolish the Borough's two wards. A hearing was scheduled for November 30, 1982, at which time the trial court granted the motion of the Forest

[ 85 Pa. Commw. Page 601]

City Regional School District (School District) and Henry Prince to intervene. A hearing was held on March 29, 1983*fn1 and subsequently the trial judge refused and dismissed the Borough's petition. The Borough appealed the decision to this Court and the School District filed a motion to dismiss the appeal for failure to file exceptions or to praecipe for entry of final judgment. Both the appeal and the motion to dismiss are now before this Court.

The School District argues that this matter is governed by Pa. R.C.P. Nos. 1038(d) and 1518 which it says requires the Borough to file exceptions within ten days of the trial judge's decision, or such exceptions are deemed waived.*fn2 The School District argues that because the Borough failed to file exceptions to the decision of the trial judge, that decision was not final and therefore there is no final judgment from which an appeal may be taken to this Court. We disagree. The Borough's petition to abolish wards is neither an action in assumpsit which Pa. R.C.P. 1038 addresses, nor is it an action in equity which Pa. R.C.P. 1518 addresses. The Borough petitioned to abolish wards pursuant to the statutory authority set forth in the Borough Code. There is no language in the Borough Code which requires that exceptions must be filed to the trial court's decision on the petition to abolish wards, or that a decision by a single judge does not constitute a final decision. Furthermore, the School District has failed to cite to this Court any rules in the Court of Common Pleas in

[ 85 Pa. Commw. Page 602]

Susquehanna County which require exceptions to be filed to a single judge's decision on a petition to abolish wards. We hold that the trial judge's decision to deny the petition to abolish wards was a trial decision which was ripe for appeal to this Court; therefore, the School District's motion to dismiss must be denied.

Concerning the substantive issues on appeal, we note that the order of the trial court states that the trial judge found no pressing or substantial reason for the elimination of the wards. It is apparent to us that the trial court has broad discretionary power to enter an appropriate order in such proceedings and in the absence of an abuse of that discretion, ...


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