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INCORPORATION BOROUGH NEW MORGAN (THREE CASES). APPEAL KATHLEEN HOOD (07/17/89)

decided: July 17, 1989.

IN RE INCORPORATION OF BOROUGH OF NEW MORGAN (THREE CASES). APPEAL OF KATHLEEN HOOD, ET AL. AND HARRY J. SMITH, ET AL., APPEAL OF ROBESON TOWNSHIP, BERKS COUNTY, PENNSYLVANIA. APPEAL OF CAERNARVON TOWNSHIP, BERKS COUNTY, PENNSYLVANIA


Appeal from Berks County Common Pleas Court, Honorable Thomas J. Eshelman, Judge.

COUNSEL

Norman Ashton Klinger, Norman Ashton Klinger & Associates, P.C., Norristown, for appellants/intervenors.

Richard DiSalle, Thomas W. Corbett, Jr., Kim D. Eaton, Rose, Schmidt, Hasley & DiSalle, Henry M. Koch, Jr., Pittsburgh, for appellee-Morgantown Properties.

Thomas L. Wenger, Stephen J. Dzuranin, Wix, Wenger, Weidern, Fenstermacher & Gunnisson, Harrisburg, for Pennsylvania State Ass'n Tp., Sup'rs, amicus curiae.

Brett A. Huckabee, John A. DiGiamberardino, Huckabee & Weiler, Wyomissing, for Caernarvon Tp.

Norman E. Dettra, Jr., Rhoda, Stoudt & Bradley, Reading, for Robeson Tp.

George F. Mahaney, Sharon, for Pennsylvania State Ass'n of Boroughs, amicus curiae.

Craig, Barry and Palladino, JJ. Barry, Judge, dissenting.

Author: Palladino

[ 127 Pa. Commw. Page 522]

Caernarvon Township, Robeson Township (Townships), Kathleen Hood, et al., and Harry J. Smith, et al. (Intervenors) (collectively, Appellants) appeal from a decision of

[ 127 Pa. Commw. Page 523]

    the Court of Common Pleas of Berks County (trial court) granting the petition of Morgantown Properties to incorporate the Borough of New Morgan.

The present dispute arises from the petition of Morgantown Properties (Applicant) to incorporate as a borough a tract of land it owns in Berks County. The prescribed procedure for the creation of a new borough is found in The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§ 45101-48501. Specifically, sections 201-219 of The Borough Code, 53 P.S. §§ 45201-45219, govern the preliminary steps relating to incorporation of a borough. Section 201 authorizes courts of common pleas to incorporate an area within their jurisdiction as a borough. Section 202(a) provides that the application for incorporation shall be by a petition to the court of common pleas. In addition, section 202(a) provides that where the proposed borough is entirely in one township, the petition must be signed by a majority of the freeholders residing within the proposed borough. Where, as here, the proposed borough encompasses portions of different townships, the petition must be signed by a majority of the freeholders residing in each of such separate portions.

Section 202(b) requires the court of common pleas to establish a Borough Advisory Committee comprised of two residents of the proposed borough, two residents of the existing governmental unit or units,*fn1 and one resident of the county not residing in either area, who serves as the chairman of the committee. In addition, section 202(b) provides that the director of the County Planning Commission shall serve as an advisor to the committee.

Section 202(c) provides, in pertinent part:

(c) Such committee shall . . . advise the court in relation to the establishment of the proposed borough. In particular, the committee shall render expert advice and findings

[ 127 Pa. Commw. Page 524]

    of fact relating to the desirability of such an incorporation, including, but not limited to, advice as to:

(1) the proposed borough's ability to obtain or provide adequate and reasonable community support services such as police protection, fire protection and other appropriate community facility services;

(2) the existing and potential commercial, residential and industrial development of the proposed borough; and

(3) the financial or tax effect on the proposed borough and existing governmental unit or units.

53 P.S. § 45202(c). Section 202(d) provides, in full:

(d) The court, if it shall find, after hearing and advice of the committee, that the conditions prescribed by this section have been complied with, shall certify the question to the board of elections of the county for a referendum vote of the residents of the proposed borough. Upon receipt of the certified election results, the ...


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