HomeMy WebLinkAbout92-1254 CivilIN RE: INCORPORATION OF IN THE COURT O COMMON PLEAS OF
THE BOROUGH OF ASHCOMBE CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION-IIILAW
NO. 1254 CIVIL�1992
IN RE: MOTION FOR PRELIMINARY DETERMINATION
OF CERTAIN ISSUES
ORDER OF COURT
AND NOW, this 5th day of June, 1992, upon consideration of the
Petitions for Determination of Issues of Law and Jurisdiction, the
Petitions are DENIED, without prejudice to the parties' rights to
litigate such issues hereafter in these proceedings.
Pursuant to Section 202(b) of the Borough Code, the Board of
Supervisors of Monroe Township is requested to recommend to the
Court two residents of the Township, not resid ng within the
proposed borough, for membership on the Borough Advisory Committee.
James D. Bogar, Esq.
Solicitor for Monroe Township
BY THE COURT,
Ivo V. Otto, III, Esq.
Attorney for Petitioners for Incorporation
Thomas L. Wenger, Esq.
Attorney for Beth Ann Wenger and
Pennsylvania State Association of
Township Supervisors
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IN RE: INCORPORATION OF IN THE COURT OF COMMON PLEAS OF
THE BOROUGH OF ASHCOMBE CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 1254 CIVIL 1992
IN RE: MOTION FOR PRELIMINARY DETERMINATION
OF CERTAIN ISSUES
OPINION OF COURT
OLER, J.
On April 6, 1992, a Petition for Incorporation was filed in
this Court by Ashcombe Products Co., Inc., and several individual
landowners' who reside in Monroe Township, Cumberland County,
Pennsylvania. The petition seeks incorporation of a borough on a
five -hundred acre tract in the township pursuant to certain
provisions of the state Borough Code.Z The procedures generally
applicable to such incorporations have been set forth by the
Pennsylvania Supreme Court, as quoted in pertinent excerpts
hereafter:
The preliminary steps to be followei in creat-
ing a new borough are found in the Borough Code ....
Section 45201 provides that the courts of common
pleas have authority to incorporate certain areas
within their jurisdiction. Section 45202(a)
provides that application for incorporation shall
be by petition to the court of common pleas ....
In re Incorporation of Borough of New Morgan, 527 P . 226, 231-232,
' Lawrence I. and Delores E. Widders and Kennth C. and Betty
F. Miller.
2 Act of February 1, 1966, P.L. (1965) o. 581, §§201-
219, as amended, 53 P.S. §§45201-45219 (Main Vol. & 1991 Supp.).
The name of the proposed borough set forth in the petition is
"Ashcombe." Petition for Incorporation, para. ; see Act of
February 1, 1966, P.L. (1965) , No. 581, §203, as amended, 53
P.S. §45203 (1991 Supp.) (contents of petition).
590 A.2d 274, 276, cert. denied, U.S. , 1121 S. Ct. 179, 116
L. Ed. 2d 141 (1991). The petition is to be "signed by a majority
of the freeholders residing within the limits Of the proposed
borough, when all parts of the proposed borough are in the same
township"; the requisite number of signers are to be "ascertained
as of the date the petition was presented to court�.i3
Section 45202(b) [of the Borough Code] ... pro-
vides that when a petition for the creation of a
borough is received by the court, the court shall
establish a Borough Advisory Committee consisting
of two residents of the proposed borough, two residents
of the existing governmental [unit] not residing in
the proposed borough and recommended by the governing
bod[y] of th[at unit], and one resident of the
county not residing in either area to s rve as
chairman.
Id. at 232, 590 A.2d at 276. The Borough Advisory Committee is
assigned the responsibility of providing advice tc the court with
respect to the petitioners, proposal,' and typicall� holds hearings
for this purpose.'
Section 45202(c) provides for
committee as follows:
Such committee shall ... advis
court in relation to the estah
the proposed borough. In part
committee shall render expert
findings of fact relating to t
of such an incorporation, incl
limited to, advice as to:
(1) the proposed borough,
obtain or provide adequat(
community support service;
3 Act of February 1, 1966, P.L. (1965)
as amended, 53 P.S. §45202(a) (1991 Supp.).
Act of February 1, 1966, P.L. (1965)
as amended, 53 P.S. §45202(b) (1991 Supp.).
he work of the
the
ishment of
cular, the
dvice and
e desirability
ding, but not
ability to
and reasonable
such as police
. 581, §202(a),
, No. 581, §202(b),
' See, e.g., In re Borough of New Morgan, 527 Pa. 226, 590
A.2d 274 (1991) (100 hours of hearings), cert. denied, U.S.
112 S. Ct. 179, 116 L. Ed. 2d 141 (1991).
No. 1254 Civil 1992
protection, fire protection and other
appropriate community facility services;
(2 ) the existing and potential commercial,
residential and industrial development of
the proposed borough; an
(3) the financial or tax effect on the
proposed borough and existing governmental
unit or units.
The requirements of this section are augmented
by Commonwealth Court's decision in Bear Creek
Township v. Penn Lake Park Borough, 20 Pa.
Cmwlth. 77, 340 A.2d 642 (1975), that the area
proposed for incorporation also must be one
harmonious whole with common interests and
problems which can be properly served by
borough government.
Id. at 232-233, 590 A.2d at 276-77. Ultimately, a decision on
whether a referendum shall be held on the matter s to be made by
the court, which is empowered to conduct its own earing prior to
such determination.6
3
...Section 4502(d) provides:
The court, if it shall find,
after
hearing and advice of the
committee,
that the conditions prescribed
...
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 court shall
enter a final
decree granting or denyi
g the prayer
of the petitioners.
6 Act of
February 1, 1966, P.L. (1965) , No.
581, §202(d),
as amended, 53
P.S. §45202 (d) (1991 Supp.) ; cf. In re
Incorporation
of Borough of
New Morgan, 127 Pa. Commw. 519, 562
A.2d 402 (1989)
(court's failure
to take testimony in additio
to committee
hearings held
not abuse of discretion), aff'd, 5
7 Pa. 226, 590
A.2d 274, cert.
141 (1991).
denied, U.S. , 112 S. Ct. 179,
116 L. Ed. 2d
3
No. 1254 Civil 1992
Id. at 233, 590 A.2d at 576-77.'
It has been held to be error for a court ofl'Icommon pleas to
bypass the prescribed procedure with respect to the Borough
Advisory Committee by deciding the issue on the merits without
benefit of the committee's appointment and advice on matters
assigned to it and determined by the court. In re Incorporation of
Borough of Two Ponds, 87 Pa. Commw. 324, 489 A 2d 939 (1985).
Thus, in Two Ponds the court construed the Act "to require the
court to establish a Borough Advisory Committee whenever an
application in the form described in subsection (ab of Section 202
[ ,
53 P.S. §45202, of the Borough Code) has been fi lied and to await
the Borough Advisory Committee's advice before deriding the issue
on the merits." Id. at 329, 489 A.2d at 941.
Following the filing of the petition in the i4tant case, and
' "Section [45204 of the Borough Code] seti 3 forth various
regulations for notice and payment of costs and expenses associated
with the petition. Section [45205] relates to the date upon which
the borough government becomes effective. Section 45206] provides
that when the proposed borough embraces lands used exclusively for
'farming or other large and unsettled lands, the court may, if it
deems such land does not properly belong to the proposed borough,
at the request of any party aggrieved, change the boundaries ... to
exclude ... the land used for farming or such oher purposes.'
Section [45207] provides for the naming of the bo ough. Section
[45208] sets forth the requisites for the charter hof the borough.
Sections [45210-45219] govern various issues relev4nt to the post -
incorporation period of the borough." In re 112corporation of
Borough of New Morgan, 127 Pa. Commw. 519, 562 A.2d 402 (1989) ,
aff'd, 527 Pa. 226, 590 A.2d 274, cert. denied, U.S.
, 112 S. Ct. 179, 116 L. Ed. 2d 141 (1991).
4
No. 1254 Civil 1992
as authorized by the Borough Code,' numerous exceptions to the
petition were submitted to the Court.' In confection with the
exceptions, two petitions have been filed requesting that the Court
make an initial determination on certain matters deed dispositive
of the case, without appointment of the committee io
The exceptions to which the petitions fo� a preliminary
determination relate, in one or both cases, are based on (1) an
alleged conflict between the provisions of the orough 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 kecause 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) failure of the
petitioners for incorporation to request a judici 1 determination
as to the requisite number of signers of the petition, (7) a lack
8 Act of February 1, 1966, P.L. (1965) Nc�. 581, §204, 53
P.S. §45204.
9 I
Also filed were a number of statements From persons in
support of the petition.
io
These petitions were filed by Monroe Towns ip and by Beth
Ann Wenger and the Pennsylvania State Associati n of Township
Supervisors.
0
No. 1254 Civil 1992
of consistency between the petition for incorporation and certain
pending legislation, and ( 8 ) alleged, unspecified cll nflicts between
the petition for incorporation and the fourteenth amendment to the
federal constitution and Pennsylvania laws.
Although there may be merit to one or more f the foregoing
exceptions, this Court is reluctant to depart rom the normal
statutory procedure as outlined above unless a g en exception is
so compelling on its face as to warrant preemptory action. An
application of this standard to the various exceptions militates
against a preliminary determination in the present case.
First, the argument that the provisions of the Borough Code on
incorporation of boroughs are in conflict with Section 8 of Article
IX of the Pennsylvania Constitution" has not been laccepted by the
Pennsylvania Supreme Court. In re Incorporation of Borough of New
Morgan, 527 Pa. 226, 590 A.2d 274, cert. denied, U.S. , 112
S. Ct. 179, 116 L. Ed. 2d 141 (1991). Second, �ith respect to
motivation of an applicant for incorporation of 'a borough, the
Court has said that "[a]bsent ... fundamental �constitutional
concerns or other direction from the General Assembly, we do not
understand inquiry into motive of the applicant to b�e appropriate."
Id. at 234, 590 A.2d 274.
Third, location within a township of landproposed to be
i
11 "The General Assembly shall, within two year s following the
adoption of this article, enact uniform legislation establishing
the procedure for consolidation, merger or change of the boundaries
of municipalities...." Pa. Const., Art IX, §8.
6
No. 1254 Civil 1992
incorporated as
p a borough would seem to be expressly contemplated
by the Borough Code. Act of February 1, 1966, P.L. (1965) , No.
581, §202(a), as amended, 53 P.S. §45202(a) (1991Supp.). Fourth,
corporate land developers have been held to be entitled to the
benefits of the incorporation provisions of the Borough Code, under
appropriate circumstances. In re Incorporation of Borough of Seven
Fields, 75 Pa. Commw. 334, 462 A.2d 865 (1983). Fifth, at least
one borough has been approved for incorporation when "only six
occupied homes" existed in the proposed municipality. In re
Incorporation of Borough of New Morgan, 527 Pa. 22 231, 590 A.2d
274, 276, cert. denied, U.S. , 112 S. Ct. 1179, 116 L. Ed.
2d. 141 (1991).
i
i
Sixth, the statutory provision for "ascertai�[ment]" of the
requisite number of signers of a petition for incorporation of a
borough as of the petition's filing can be read as establishing a
point in time at which such number is fixed, not a deadline for its
judicial determination. Seventh, an adjudication pn the basis of
i
pending litigation would clearly constitute prematu�e action. And,
finally, general averments of unconstitutionality o� illegality can
not be said to be compelling for present purposes.
i
For these reasons, the Court will decline to grant the
petitions for a preliminary determination of certain issues as
aforesaid, without prejudice to the parties' r�ghts to fully
litigate such matters hereafter in these proceedin4s.
V/
No. 1254 Civil 1992
ORDER OF COURT
AND NOW, this 5th day of June, 1992, upon consideration of the
Petitions for Determination of Issues of Law and Jurisdiction, the
Petitions are DENIED, without prejudice to the parties' rights to
litigate such issues hereafter in these proceedin s.
Pursuant to Section 202(b) of the Borough Code, the Board of
Supervisors of Monroe Township is requested to recommend to the
Court two residents of the Township, not residing within the
proposed., borough, for membership on the Borough Adv' sory Committee.
BY THE COURT,
J.
James D. Bogar, Esq.
Solicitor for Monroe Township
Ivo V. Otto, III, Esq.
Attorney for Petitioners for Incorporation
Thomas L. Wenger, Esq.
Attorney for Beth Ann Wenger and
Pennsylvania State Association of
Township Supervisors
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