HomeMy WebLinkAbout92-1254 CivilIN RE: INCORPORATION
OF THE BOROUGH OF
ASHCOMBE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1254 CIVIL 1992
IN RE: MOTION FOR DISMISSAL OF PETITION
BEFORE OLER J
ORDER OF COURT
AND NOW, thiZrJ day of June, 1993, after careful consideration of the Motion
for Dismissal of Petition filed on behalf of Monroe Township, and following a hearing,
the Motion is GRANTED and the Petition for Incorporation is DISMISSED.
BY THE COURT,
V6,, L12ir It.
J esley Oler, Jr J,
Ivo V. Otto, III, Esq.
Attorney for Petitioners
James D. Bogar, Esq.
Andrew C. Sheely, Esq.
Attorneys for Monroe Township
Thomas L. Wenger, Esq.
Attorney for Elizabeth Ann Wenger
IN RE: INCORPORATION IN THE COURT OF COMMON PLEAS OF
OF THE BOROUGH OF CUMBERLAND COUNTY, PENNSYLVANIA
ASHCOMBE NO. 1254 CIVIL 1992
IN RE: MOTION FOR DISMISSAL OF PETITION
BEFORE OLER J
OPINION AND ORDER OF COURT
Oler, J.
This case is an action for incorporation of a new borough pursuant to the
provisions of the state Borough Code.' For disposition at this time is a motion to
dismiss the petition for incorporation,' based upon the enactment of recent
legislation.' A hearing was held on the motion on January 14, 1993, and March 22,
1993. For the reasons stated in this Opinion, the motion to dismiss will be granted.
Statement of facts. On April 6, 1992, four individuals" and a corporation,
Ashcombe Products Co., Inc. (Petitioners), said to represent all of the resident
freeholders' of a certain five hundred acre area of land in Monroe Township
(Township), Cumberland County, Pennsylvania,' filed a Petition for Incorporation of
1 See Act of February 1, 1966, P.L. 1656, §§201 et seq., as amended, 53 P.S. §§45201 et seq.
(Main Vol., 1992 Supp. & 1993 Supp.). At times during the course of this Opinion, it is
necessary to refer the reader to Purdon's 1992 Supplement for the text of a version of a
statute.
2 Motion for Dismissal of Petition Filed Re: Incorporation of the Borough of Ashcombe,
filed by Monroe Township on December 23, 1991.
3 Act of December 18, 1992, P.L. _, No. 181 (1992 Purdon's Pa. Leg. Serv., No. 7). The
1993 Purdon's Supplement to 53 P.S. §§45001-46200 incorporates the recent legislation
referred to.
4 Lawrence I. Widders, Delores E. Widders, Kenneth C. Miller and Betty F. Miller.
5 Petition for Incorporation, paragraph 2.
6 Petition for Incorporation, paragraph 1.
No. 1254 Civil 1992
the area as the Borough of Ashcombe (Petition or Petition for Incorporation).' Such
a filing was authorized by Section 202 of the Borough Code.8
The Petition was predicated upon Section 201 of the Borough Code, reading as
follows:
The courts of quarter sessions may incorporate any area
within their jurisdiction, not already incorporated or a part
of an incorporated municipality, as a borough, which, after
having been so incorporated, shall be a body corporate and
politic by the name which shall be decreed by the court.'
Notice of the filing of the Petition was published in accordance with Section 204
of the Borough Code.10 As authorized by the Code," exceptions were filed to the
Petition, by several hundred Monroe Township residents and by the Township itself.
Certain exceptants thereafter, on May 28, 1992, filed petitions for an immediate
Petition for Incorporation, paragraph 1.
Act of February 1, 1966, P.L. (1965) 1656, as amended, Act of July 10, 1981, P.L. 247,
§l, 53 P.S. §45202 (1992 Supp.). This provision has subsequently been further amended by
the Act of December 18, 1992, P.L. _, No. 181, §2 (1992 Purdon's Pennsylvania Legislative
Service, No. 7). This further amendment is reflected in the 1993 Purdon's Supplement to 53
P.S. §§45001-46200.
' Act of February 1, 1966, P.L. (1965) 1656, §201, 53 P.S. §45201. This provision has
subsequently been amended by the Act of December 18, 1992, P.L. _, No. 181, §1 (1992
Purdon's Pennsylvania Legislative Service, No. 7). See text accompanying note 24 infra. This
subsequent amendment is reflected in the 1993 Purdon's Supplement to 53 P.S. 045001-
46200.
io Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. §45204; see Stipulation of Counsel,
N.T. 8, Vol. 1, Borough Advisory Committee Hearings (August 26, 1992).
" Act of February 1, 1966, P.L. (1965) 1656, §204, 53 P.S. §45204.
W
No. 1254 Civil 1992
determination of various "[i]ssues of law and [j]urisdiction."' However, on June 5,
1992, the Court entered an Order, with accompanying Opinion, declining to dispose of
the case at the preliminary stage of the proceedings then existing."
Thereafter, on July 7, 1992, pursuant to Section 202(b) of the Borough Code, 14
a Borough Advisory Committee (Committee or Advisory Committee) was appointed by
the Court, consisting of Carol J. Lindsay, Esq., chairperson, and Wendy Plowman,
George A. Jenner, Lawrence I. Widders and Kenneth C. Miller, additional members,
with the director of the County Planning Agency to serve as advisor.15 The statutory
duties of the Committee were set forth in the Borough Code as follows:
[The] committee shall, within sixty days of its creation,
advise the court in relation to the establishment of the
proposed borough. In particular, the committee shall
12 Issues raised involved (1) an alleged conflict between the provisions of the Borough Code
on incorporation of boroughs and Section 8 of Article IX of the Pennsylvania Constitution, (2)
an allegedly improper motive for the present application for incorporation, (3) an alleged
ineligibility of the land in question for incorporation because of its preexisting status as part
of an incorporated municipality, (4) an alleged incapacity of the corporate landowner in the
present case to petition for incorporation, (5) an alleged ineligibility of the area proposed for
incorporation due to the absence of existing towns, villages or other communities therein, (6)
a failure of the petitioners for incorporation to request a judicial determination as to the
fo
requisite number of signers of the petition, (7) a lack of consistency between the petition r
incorporation and certain pending legislation, and (8) alleged, unspecified conflicts between the
petition for incorporation and the fourteenth amendment to the federal constitution and
Pennsylvania laws.
13 Opinion and Order of Court, June 5, 1992.
14 Act of July 10, 1981, P.L. 247, §1, amending Act of February 1, 1966, P.L. (1965) 1656,
§202, 53 P.S. §45202(b) (1992 Supp.).
15 Order of Court, July 7, 1992.
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No. 1254 Civil 1992
render expert advice and findings 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.16
During the course of hearings conducted by the Advisory Committee, the
deadline for completion of its work was extended by the Court, upon stipulation of
counsel, a number of times. 17 On November 16, 1992, the Committee publicly opened
the ballots submitted by its members on the issue before it.18
The vote thus cast by the Advisory Committee was 3 to 2 against incorporation
is Act of July 10, 1981, P.L. 247, §1, amending Act of February 1, 1966, P.L. (1965) 1656,
§202, 53 P.S. §45202(c) (1992 Supp.); see also In re Borough of New Morgan, 527 Pa. 226, 590
A.2d 274 (elaboration upon duties of borough advisory committees), cert. denied, _ U.S.
112 S. Ct. 179, 116 L. Ed. 2d 141 (1991).
" Orders of Court, August 27, 1992, November 6, 1992, November 23, 1992.
18 Stipulation of Counsel, N.T. 12, Hearing on Motion for Dismissal of Petition Filed
N.T. ftRe:
Incorporation of the Borough ofAshcombe, January 14, 1993, and March 22,1993 (hereinafter
_, Hearing on Motion for Dismissal of Petition).
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No. 1254 Civil 1992
of the borough.19 On December 2, 1992, the Committee made its members' majority
and minority opinions part of its record,20 and on December 7, 1992, the Committee
filed the record and its reports with the Court.21 At this time, any prospect of
incorporation was subject to a contingency of voter approval in a referendum, the
holding of which was dependent upon Court rejection of the Committee
recommendation.22
On December 23, 1992, the Township filed a "Motion for Dismissal of Petition
Filed Re: Incorporation of the Borough of Ashcombe" (Motion for Dismissal of
Petition), based upon the enactment of legislation affecting the prerequisites for
incorporation of new boroughs.23 This legislation — the Act of December 18, 1992,
19 Stipulation of Counsel, N.T. 12, Hearing on Motion for Dismissal of Petition. In the
majority were Wendy Plowman, George A. Jenner, and Kenneth C. Miller; in the minority
were Carol J. Lindsay, Esq., and Lawrence I. Witters. See Majority and Minority Opinions of
the Borough Advisory Committee.
20 Praecipe to Enter Into the Record Briefs, Proposed Findings of Fact, Majority Report
and Minority Report.
21 The Court would be remiss if it did not formally, as it has done informally, express its
appreciation to the Advisory Committee members for the dedication which characterized their
work. It is testimony to the Committee's efforts that the docket in this case contains the
handwritten notation, "Record and Exhibits in Basement on Top of File Cabinet."
22 Act of July 10, 1981, P.L. 247, §1, amending Act of February 1, 1966, P.L. (1965) 1656,
53 P.S. §45202(d) (1992 Supp.). This provision has subsequently been amended by the Act of
December 18, 1992, P.L. _, No. 181, §2 (1992 Purdon's Pennsylvania Legislative Service, No.
7). The subsequent amendment is reflected in the 1993 Purdon's Supplement to 53 P.S.
§§45001-46200.
23 Motion for Dismissal of Petition, paragraph 8.
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No. 1254 Civil 1992
P.L. _, No. 181 (1992 Purdon's Pennsylvania Legislative Service, No. 7) — amended
Section 2 of the Borough Code to read, in pertinent part, as follows:
The courts of common pleas may incorporate any
contiguous area within their jurisdiction, not already
incorporated or part of an incorporated municipality and
ha fling a population of at least 500 residents as a borough
By its terms, the act is applicable to petitions for incorporation presented on or after
March 25, 1992,25 except in counties of the fifth class, where it is applicable to
petitions presented on or after its effective date, or December 18, 1992.28
Cumberland County is a county of the fourth class.27
Petitioners have responded to the Motion for Dismissal of Petition'28
challenging the constitutionality of the recent enactment on grounds of due process,29
24 Act of December 18, 1992, P.L. _, No. 181, §1 (1992 Purdon's Pennsylvania Legislative
Service, No. 7) (emphasis added), amending Act of February 1, 1966, P.L. (1965) 1656, §201
(Borough Code). This amendment is reflected in the 1993 Purdon's Supplement to 53 P.S.
§§45001-46200.
25 Act of December 18, 1992, P.L. No. 181, §3(a) (1992 Purdon's Pennsylvania
Legislative Service, No. 7).
26 Act of December 18, 1992, P.L. No. 181, §3(b) (1992 Purdon's Pennsylvania
Legislative Service, No. 7).
27 Stipulation of Counsel, N.T. 6, Hearing on Motion for Dismissal of Petition.
28 Answer to Motion for Dismissal of Petition, filed January 14, 1993.
29 Ashcombe Products, Inc.'s Brief against the Application of House Bill 2337 to the
Incorporation of the Borough of Ashcombe, at 2-6.
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No. 1254 Civil 1992
separation of powers,30 and equal protection or special legislation,31 and also
utilizing principles of statutory construction to exclude their Petition from operation
of the act.32 At a hearing held by the Court on the Motion, evidence was presented
on the history of the legislation and background of the Petition.33
With respect to the legislation, the bill forming the basis for the enactment was
introduced in the House of Representatives on January 27, 1992.34 As passed by the
House on March 25, 1992, the legislation was to apply to any petition for incorporation
filed on or after March 15, 1992.35 As passed by the Senate on November 24, 1992,
it was to apply to any petition filed on or after March 25, 1992, the date of House
passage, subject to an exception in the case of fifth class counties, wherein the effective
' Ashcombe Products., Inc.'s Brief against the Application of House Bill 2337 to the
Incorporation of the Borough of Ashcombe, at 9-11.
Notice to the Commonwealth's Attorney General of the constitutional challenge
to the act was provided by Petitioners pursuant to Pa. R.C.P. 235, on or about January 24,
1993. Notice Pursuant to Pa. R.C.P. 235, filed January 14, 1993.
" Ashcombe Products, Inc.'s Brief against the Application of House Bill 2337 to the
Incorporation of the Borough of Ashcombe, at 6-9.
32 Ashcombe Products, Inc.'s Brief against the Application of House Bill 2337 to the
Incorporation of the Borough of Ashcombe, at 11-14.
33 See N.T. 1-58, Hearing on Motion for Dismissal of Petition.
34 N.T. 33, Hearing on Motion for Dismissal of Petition; Monroe Township Exhibit 1,
Hearing on Motion for Dismissal of Petition.
35 N.T. 34, Hearing on Motion for Dismissal of Petition; Monroe Township Exhibits 1, 2
(H.B. 2337, Printer's No. 3348), Hearing on Motion for Dismissal of Petition.
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No. 1254 Civil 1992
date of the act was to be controlling.se
On November 25, 1992, the House concurred in the Senate version. 37 As a
result of the Senate's passage of the bill as aforesaid, which was by a vote of 49 to 0,
and the House's concurrence, which was by a vote of 193 to 0, the Governor approved
the bill on December 18, 1992.38
With respect to the Petition for Incorporation filed in this case, it has been
noted that the date of presentation was April 6, 1992,39 and it has been stipulated
that the number of residents within the proposed borough is less than 20.40
Approximately $120,000 has been expended by the corporate petitioner and its
stockholders in connection with the incorporation proceedings, primarily for
W N.T. 42, Hearing on Motion for Dismissal of Petition; Monroe Township Exhibits 1, 2
(H.B. 2337, Printer's No. 4261), Hearing on Motion for Dismissal of Petition.
Evidence was presented on behalf of Petitioners tending to show (a) that the
exception as to fifth class counties would render the legislation inapplicable to a petition filed
in Monroe County for incorporation of the borough of Pocono Raceway and
of the general application date to March 25, 1992, might render the legislation t inapplicahat the ble go
a petition filed in Allegheny County for incorporation of the borough of Frazer Heights. N.T.
31-33, Hearing on Motion for Dismissal of Petition; Ashcombe Exhibits 4, 3, Hearing on
Motion for Dismissal of Petition. Implicit within such evidence is the suggestion that the
exception and change may have been motivated for these purposes.
37 N.T. 43, Hearing on Motion for Dismissal of Petition; Monroe Township Exhibit 1,
Hearing on Motion for Dismissal of Petition.
38 N.T. 43, 49, Hearing on Motion for Dismissal of Petition; Monroe Township Exhibit 1,
Hearing on Motion for Dismissal of Petition.
39 See text accompanying notes 4-7 supra.
40 N.T. 10, Hearing on Motion for Dismissal of Petition.
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No. 1254 Civil 1992
engineering and legal costs, including expert witness fees.41 A substantial portion of
these expenses was incurred after objections were raised to the Petition.42
Statement of law. A number of principles of law are of assistance in an analysis
of the present matter. First, "[a] statute commands the presumption of
constitutionality when it is lawfully enacted, unless it clearly, palpably, and plainly
violates the constitution.... Any doubts are to be resolved in favor of sustaining the
legislation." Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988),
affirmed 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990). This presumption
of constitutionality has been described as "strong," and "a party seeking to rebut
that presumption bears a heavy burden of persuasion." Commonwealth v. McFarlin,
41 N.T. 19-20, Hearing on Motion for Dismissal of Petition. Testimony on this subject was
given by John Thornton, President of Ashcombe Products Co., Inc., and member of the family
having sole ownership of the corporate stock. His testimony included the following:
Q In total, how much has the Thornton family and
Ashcombe Products spent on this proceeding?
A On this proceeding alone, about $120,000.00.
Q And that's from the date of the filing of the Petition for
Incorporation through the present?
A That includes that, yes.
N.T. 20, Hearing on Motion for Dismissal of Petition.
42 N.T. 24, Hearing on Motion for Dismissal of Petition.
43 Commonwealth v. McFarlin, 402 Pa. Super. 502, 506, 587 A.2d 732, 734 (1991);
Commonwealth v. Buggy, 33 Cumberland L.J. 513 (1983).
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402 Pa. Super. 502, 506, 587 A.2d 732, 734 (1991), affirmed 530 Pa. 167, 607 A.2d 730
(1992).
Second, "it is a fundamental principle in our conception of judicial authority that
courts are not to inquire into the wisdom, reason or expediency behind a legislative
enactment. Nor are the motives of the legislators in passing the act open to judicial
consideration. Our inquiry in such cases can only be directed to the manner in which
the legislature effectuates its will, to insure that the enactment does not transgress
some specific constitutional prohibition." Commonwealth v. Sutley, 474 Pa. 256, 260,
378 A.2d 780, 782 (1977).
Third, "ftjhe object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly." Act of December 6,
1972, P.L. 1339, §3, 1 Pa. C.S. §1921(a) (1993 Supp.). "Amendatory statutes are not
to be construed as retroactive unless such a construction is so clear as to preclude all
question as to the intention of the legislature ...." DeMatteis v. DeMatteis, 399 Pa.
Super. 421, 434, 582 A.2d 666, 672 (1990); see Act of December 6, 1972, P.L. 13391 §3,
1 Pa. C.S. §1926 (1993 Supp.). On the other hand, "fwjhen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit." `'4
Fourth, a retroactive application of a statute may be impermissible on
44 Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1921(b) (1993 Supp.).
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No. 1254 Civil 1992
constitutional grounds — it may be violative of due process when a "vested right" is
impaired, 45 or violative of the separation of powers doctrine when a case is affected
that has "accrued under the Judiciary's authority.i46 However, these principles are
subject to qualification.
As to vested rights, it has been observed that '7a] right is not vested unless it
is fixed and without condition." Ashbourne School v. Commonwealth of Pennsylvania,
Department of Education, 43 Pa. Commw. 593, 600, 403 A.2d 161, 165 (1979). In this
regard, the question of whether retroactive application of new legislation will offend
due process is, ultimately, a question of whether, "balancing the interests of both
parties, such application would be unreasonable." Krenzelak v. Krenzelak, 503 Pa. 373,
382, 469 A.2d 987, 991 (1983). An analysis of a statute for reasonableness will take
into account considerations such as "(1) [t]he nature and strength of the public interest
45 See Krenzelak v. Krenzelak, 503 Pa. 373, 382-83, 469 A.2d 987, 991 (1983) (issue of
retroactive application of equitable distribution provisions of Divorce Code to prior property
transfer).
Under the fourteenth amendment to the federal constitution, it is provided that
"[no] State [shall] deprive any person of life, liberty, or property, without due process of law
Under Section 1 of Article I of the Pennsylvania Constitution, it is provided that "[a]11
men ... have certain inherent and indefeasible rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing and protecting property and reputation, and
of pursuing their own happiness." It has been said that "[t]he latter provision is substantially
equivalent to the federal due process clause ...." Krenzelak v. Krenzelak, 503 Pa. 373, 382, 469
A.2d 987, 991 (1983).
46 See Gibson v. Commonwealth, 490 Pa. 156, 161, 415 A.2d 80, 83 (1980) (issue of
retroactive application of statute creating sovereign immunity to prior cause of action);,see also
Cranberry Township v. Builders Assn of Metropolitan Pittsburgh, _ Pa. _, 621 A.2d 563
(1993).
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No. 1254 Civil 1992
served by the statute in question[,] (2) Whe extent to which the statute impairs a right
secured under pre-existing law[,] and (3) [t]he nature of the right so impaired." Id. at
383 n.5, 469 A.2d at 991-92 n.5.
As to separation of powers, concern has been focused upon enactments which
effect an "in toto" elimination of an accrued remedy. See Gibson v. Commonwealth, 490
Pa. 156, 162, 415 A.2d 80, 83 (1980). It also may be noted that a degree of
circumspection on the part of courts in this area is probably appropriate. As Justice
Holmes observed, "Uludicial decisions have had retrospective operation for near a
thousand years." Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S. Ct. 140, 148,
54 L. Ed. 228 (1910).
Fifth, "the above principles [relating to impermissible retroactivity] become
pertinent only after it has been determined that the proposed operation of the statute
... would indeed be retroactive.... A retroactive law has been defined as one which
relates back to and gives a previous transaction a legal effect different from that which
it had under the law in effect when it transpired." R & P Services, Inc. v.
Commonwealth of Pennsylvania, Department of Revenue, 116 Pa. Commw. 230, 235,
541 A.2d 432, 434 (1988). The Commonwealth Court has stated as follows:
A law is given retroactive effect when it is used to impose
new legal burdens on a past transaction or occurrence....
Where no vested right or contractual obligation is involved,
an act or a regulation is not impermissibly construed
retroactively when applied to a condition existing on its
effective date, even though the condition results from events
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No. 1254 Civil 1992
which occurred prior to that date.47
Thus, "[w]here ... a condition triggering the application of [a] statute ... exists on its
effective date, it cannot be said that the statute ... has been given retroactive operation
merely because the substantive right it affects is claimed or asserted in an application
or petition filed prior to its effective date." R & P Services, Inc. v. Commonwealth of
Pennsylvania, Department of Revenue, 116 Pa. Commw. 230, 238, 541 A.2d 432, 435-36
(1988).48
Sixth, a statute may be invalid as violative of the equal protection clause of the
federal constitution 40 or the state constitution's prohibition on certain types of special
legislation.60 "These issues may be considered together, for the content of the two
provisions is not significantly different." Baltimore & O.R.R. v. Commonwealth of
Pennsylvania, Department of Labor and Industry, 461 Pa. 68, 83, 334 A.2d 636, 643
(1975).
47 R & P Services, Inc. v. Commonwealth of Pennsylvania, Department of Revenue, 116 Pa.
Commw. 230, 235, 541 A.2d 432, 434 (1988); see Creighan v. City of Pittsburgh, 389 Pa. 569,
132 A.2d 867 (1957); Department of Labor and Industry, Bureau of Employment Security v.
Pennsylvania Engineering Corp., 54 Pa. Commw. 376, 421 A.2d 521 (1980).
" Cf. In re Malick, 137 Pa. Super. 139, 8 A.2d 494 (1939) (filing of petition to strike tax
liens held ineffectual to create vested right as against subsequent statute permitting their
revival).
49 "Wo State shall] deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const., amend. IV, §1.
50 Pa. Const., art. 111, §32; see Baltimore & O.R.R. v. Commonwealth of Pennsylvania,
Department of Labor & Industry, 461 Pa. 68, 334 A.2d 636 (1975).
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No. 1254 Civil 1992
However, "[n]either the Equal Protection Clause nor [the state constitutional]
prohibition of special laws forbids the state to draw distinctions. Rather, both require
only that the distinctions drawn have some rational relation to a proper state purpose."
M-51 In this regard, distinctions drawn on the basis of county classification have
traditionally been upheld; Pennsylvania's Supreme Court has stated as follows:
It is well known that the Legislature has classified cities
and counties. A law dealing with all cities or all counties of
the same class is not a local or special law, but a general
law, uniform in its application.... [A] law dealing with but
one county of a class consisting of ten, would be local or
special. This is what is interdicted by [the constitutional
proscription on special legislation.]"
The United States Supreme Court has been equally, if not more, accepting of
differences based upon governmental unit classification. "The 14th Amendment," it
has stated, "does not prohibit legislation merely because it is ... limited in its
application to a particular ... political subdivision of the State." Fort Smith Light &
" "The test is more stringent if the basis of the classification is `suspect' or if it infringes
upon a `fundamental right."' Baltimore & O.R.R. v. Commonwealth of Pennsylvania,
Department of Labor and Industry, 461 Pa. 68, 83 n.11, 334 A. 2d 636, 643 n.11 (1925).
52 Heuchert v. State Harness Racing Commission, 403 Pa. 440, 446-47, 170 A. 2d 332, 336
(1961).
This principle itself is of constitutional dimension: "The Legislature shall have power
to classify counties ... according to population, and all laws passed relating to each class ... shall
be deemed general legislation within the meaning of [the Pennsylvania] Constitution." Pa.
Const., art. III, §20. With regard to purely procedural matters in connection with local
government, however, the Constitution contains this provision as well: "The General Assembly
shall provide by general law for local government within the Commonwealth. Such general
law shall be uniform as to all classes of local government regarding procedural matters." Pa.
Const., art. IX, §1.
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No. 1254 Civil 1992
Traction Co. v. Board of Improvement of Paving, District No. 16, 274 U.S. 387, 391, 47
S. Ct. 595, _, 71 L. Ed. 1112, 1115 (1927); see also Salsburg v. Maryland, 346 U.S.
545, 74 S. Ct. 280, 98 L. Ed 281 (1953).
Furthermore, when a statute is challenged on the ground that an exemption
contained in it arbitrarily favors a certain group, the course most likely to be chosen,
if the statute is to be saved, is to strike the offending exemption as opposed to
changing the general rule and thereby more obviously frustrating legislative intent.
See, e.g., Percival v. City of Philadelphia, 12 Pa. Commw. 628, 317 A.2d 667 (1974),
vacated on other grounds, 464 Pa. 308, 346 A.2d 754 (1975).
Seventh, the proposition that a potential use of land may fairly be affected by
legislation which is pending prior to an application for such use is not foreign to
Pennsylvania. For instance, "[t]he pending ordinance doctrine provides that a
municipality may deny an application for zoning relief if at the time of application a
zoning ordinance is pending which would prohibit use of the land sought by the
application." In Re: Appeal of the Gillies Corp., 59 Pa. Commw. 526, 528-29, 430 A.2d
694, 695 (1981).
Finally, the creation of political subdivisions within the Commonwealth is
uniquely a matter of legislative prerogative. "In an early Pennsylvania case, Justice)
Sharswood said that a municipal corporation `is merely an agency instituted by the
sovereign for the purpose of carrying out in detail the objects of government —
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No. 1254 Civil 1992
essentially a revocable agency — having no vested right to any of its powers or
franchises — the character or act of erection being in no sense a contract with the
state — and therefore fully subject to the control of the legislature, who may enlarge
or diminish its territorial extent or its functions, may change or modify its internal
arrangement, or destroy its very existence, with the mere breath of arbitrary
discretion. Sic volo, sic jubeo, ["] that is all the sovereign authority need say."' 2
McQuillin, Municipal Corporations §4.05, at 18-19 (1988), quoting Philadelphia v. Fox,
64 Pa. 169, 180 (1870).
Independent of legislative action, the inhabitants of a given
territory or place possess no inherent power to incorporate
themselves ....11
"This power of the legislature has been said to be plenary .... Furthermore, it
has been declared that the institution of subdivisions of a state and the accompanying
distribution of state power is an exercise of political power and raises no judicial issue
so long as the agencies to which state power is delegated do not exceed their
authority."ss
Application of law to facts. In this case, a number of factors militate in favor
of granting the Motion for Dismissal. First, as a matter of statutory construction the
As I wish, I order.
54 1 McQuillin, Municipal Corporations §3.02b, at 240 (1987).
55 1 McQuillin, Municipal Corporations §3.02, at 235 (1987).
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No. 1254 Civil 1992
legislation in question must be understood as proscribing the proposed incorporation.
The intention of the legislature to apply the minimum population requirement to
petitions such as the present one is too clearly expressed to hold otherwise.be
Second, it can not be said that the enactment clearly, palpably and plainly
violates the constitution. As to due process, the rights of Petitioners were unfixed and
contingent when the statute took effect, were reasonably subject to regulation in light
of the state interest in the structure of local government, and can not be said to have
been vested. As to separation of powers, the enactment does not effect an in toto
ss The Court is unable to agree with Petitioners that the "application date" of the bill was
transformed in accordance with Section 1701(b)(2) of the Statutory Construction Act of 1972
[Act of December 6, 1972, P.L. 290, §3, 1 Pa. C.S. §§1501 et seq. (1993 Supp.)] into a date 60
days after final enactment. See Ashcombe Products, Inc.'s Brief against the Application of
House Bill 2337 to the Incorporation of the Borough of Ashcombe, at 11-12. This provision,
it appears to the Court, was intended to correct any inadvertency by the legislature in
expressing the date on which a bill is to become law — not to reformulate its clear intention
as to the objects of its application. The present bill was to become law "immediately," and to
apply to petitions presented on or after certain dates.
Similarly of little avail to Petitioners is the argument that Section 1976(a) of the
Statutory Construction Act precludes enforcement of the legislation as written. This provision
reads, in pertinent part, as follows:
The repeal of any civil provisions of a statute shall not affect
or impair any act done, or right existing or accrued, or affect any
civil action pending to enforce any right under the authority of
the statute repealed.
Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. §1976(a) (1993 Supp.). This provision is in
a subchapter of the act entitled "Repealing Statutes," whereas the present legislation is
amendatory and supplemental — the subject of another subchapter. In addition, to the extent
that the two acts are in irreconcilable conflict, "the subsequent act must prevail." Sutherland,
2B Statutory Construction §51.03, at 141 (1992).
17
No. 1254 Civil 1992
prohibition on incorporation. As to equal protection and special legislation, the statute
utilizes a permissible classification system and, in any event, would be remedied as to
inequality by the striking of its exemption rather than the abrogation of its general
rule.
Third, the legislation was pending when the Petition was filed. And, fourth, the
subject of the legislation is one in which considerable deference must be accorded the
legislature.
For these reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this23rday of June, 1993, after careful consideration of the Motion
for Dismissal of Petition filed on behalf of Monroe Township, and following a hearing,
the Motion is GRANTED and the Petition for Incorporation is DISMISSED.
Ivo V. Otto, III, Esq.
Attorney for Petitioners
James D. Bogar, Esq.
Andrew C. Sheely, Esq.
Attorneys for Monroe Township
Thomas L. Wenger, Esq.
Attorney for Elizabeth Ann Wenger
BY THE COURT,
s/ J Wesley Oler. Jr.
J. Wesley Oler, Jr. J.
M