# Plum Township Annexation Case

> Superior Court of Pennsylvania · July 21, 1955 · 178 Pa. Super. 376

URL: https://www.frixlaw.com/law-library/cases/9752924

## Case

- **Full name:** Plum Township Annexation Case
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 21, 1955
- **Citations:** 178 Pa. Super. 376; 116 A.2d 260; 1955 Pa. Super. LEXIS 511
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rhodes
- **Judges:** Rhodes, Hirt, Ross, Gunther, Wright, Woodside, Ervin
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752924

## Opinion text

Concurring and Dissenting Opinion by
Rhodes, P. J.:
I agree with the majority that the evidence supports' the order of the Court of Quarter Sessions of Allegheny County in this annexation proceeding, and therefore I concur in the conclusion of the majority that the action of that court should be affirmed.
I disagree, however, with the conclusion that our scope of review, under section 1010 of the Borough *384 Code, as amended, 53 PS §12900, in appeals involving annexation ordinances, is limited to that of a narrow certiorari. This Court should adhere to its many recent decisions holding that the scope of review, in an appeal from a court of quarter sessions involving an annexation ordinance, under section 1010 of the Borough Code, 53 PS §12900, is that of a broad certiorari. I believe this conclusion is based upon substantial and logical reasons. Beginning with Appeal of Bender, 106 Pa. Superior Ct. 376, 378 , 163 A. 47 , we have held that on appeal from a decree of the court of quarter sessions, in a proceeding under section 1010 of the Borough Code, our review is on broad certiorari. A primary reason for this rule is set forth in Warner Bros. Theatres, Inc., v. Pottstown Borough, 164 Pa. Superior Ct. 91, 93 , 63 A. 2d 101, 102 , as follows: “Under the Act of April 18, 1919, P. L. 72, 12 PS §1165, it is for us to examine the testimony as on an appeal from a judgment entered upon the verdict of a jury in an action at laAV and to decide the case on its merits.” And, in the following recent annexation cases involving section 1010 of the Borough Code, we have consistently adhered to this rule of revieAV on broad certiorari. Irwin Borough Annexation Case (No. 1), 165 Pa. Superior Ct. 119 , 67 A. 2d 757 ; Derry Township School District Appeal, 168 Pa. Superior Ct. 415 , 79 A. 2d 127 ; Dallas Borough Annexation Case, 169 Pa. Superior Ct. 129 , 82 A. 2d 676 ; Ontelaunee Township Annexation Case, 172 Pa. Superior Ct. 71, 75 , 92 A. 2d 262 ; Irwin Borough Annexation Case, 171 Pa. Superior Ct. 256, 265 , 90 A. 2d 365 ; Salisbury Township Annexation Case, 172 Pa. Superior Ct. 262 , 94 A. 2d 143 ; Lemoyne Borough Annexation Case, 176 Pa. Super Ct. 38, 107 A. 2d 149 .
In Irwin Borough Annexation Case (No. 1), supra, 165 Pa. Superior Ct. 119, 122 , 67 A. 2d 757, 759 , Judge Reno stated: “Notwithstanding the provision in' §1010 [of the Borough Code, 53 PS §12900],. . . declaring the' *385 determination of tlie court below conclusive, the case is here on a broad certiorari and, in addition to adjudicating the jurisdiction of the court below and the regularity of its proceedings, we examine the testimony which was made a part of the record by the Act of April 18, 1919, P. L. 72, 12 PS §1165. In Re Appeal of Bender, 106 Pa. Superior Ct. 376 , 163 A. 47 ; Warner Bros. Theatres, Inc., v. Pottstown Borough, 161 Pa. Superior Ct. 91 , 63 A. 2d 101 .” Our review on broad certiorari in these cases is in no small part based on the enlarged scope of review given the court of quarter sessions by the legislative amendment of 1933 to section 1010 of the 1927 Borough Code. In Salisbury Township Annexation Case, supra, 172 Pa. Superior Ct. 262, 266 , 91 A. 2d 143 , 145, we said: “The amendment to section 1010 of ‘The General Borough Act’ of May 4, 1927, P. L. 519, 53 PS §12900, giving the court of quarter sessions jurisdiction in cases of ordinances effecting annexation of territory to ‘review the propriety as well as the legality of the ordinance’ is in amplification rather than in derogation of the powers of the court of quarter sessions. North Braddock Borough’s Annexation Case, 126 Pa. Superior Ct. 53, 64 , 190 A. 357 .” On this same point, Judge Reno had previously stated, in Irwin Borough Annexation Case (No. 1), supra, 165 Pa. Superior Ct. 119, 131 , 67 A. 2d 757 , 763: “The court’s power to adjudicate the propriety of an annexation was introduced into the law by an amendment of May 18, 1933, P. L. 818, §1, to The General Borough Act of May 4, 1927, P. L. 519, 53 PS §12900. Its purpose was to lodge judicial discretion in the quarter sessions court in respect to annexations, somewhat analogous to the.power exercised by it under the Act of April 1, 1831, P. L. 163 and April 3, 1851, P. L. 320. See Penna. P. & L. Co. v. Shenandoah Borough, 362 Pa. 43 , 66 A. 2d 290 . Under those and cognate acts the Supreme Court held that the soundness of the dis *386 cretion exercised in approving borougli incorporations and annexations was not subject to review. Borough of Sewickley, 36 Pa. 80 ; Annexation to Borough of Camp Hill, 142 Pa. 511 , 21 A. 978 . However, since the Act of April 18, 1919, P. L. 72, . . . under which the testimony becomes a part of the record and subject to review, the exercise of the discretion has been reviewable, North Braddock Borough’s Annexation Case, supra, but the court will be reversed only upon a clear showing that its discretion has been abused.”
The power of the Supreme Court to issue certiorari cannot be taken away by the Legislature. Rimer’s Contested Election, 316 Pa. 342, 346 , 175 A. 544 , citing Twenty-First Senatorial District Nomination, 281 Pa. 273, 278 . There has been a gradual and understandable tendency to expand, rather than to narrow, the scope of review on certiorari. Rimer’s Contested Election, supra, 316 Pa. 342, 351 , 175 A. 544 . Legislative attempts to limit appellate review by prohibiting appeals could constitute undue interference with the administration of justice by the judicial branch of the government. At least it can create injustice where “the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the governmental agency or the court below may have been erroneous.” Kaufman Construction Company v. Holcomb, 357 Pa. 514, 518 , 55 A. 2d 534, 536 . There is no doubt the Legislature may prohibit appeals from the findings or actions of an administrative board where no property right is involved and the board does not act as a judicial body, but merely carries out the' Legislature’s mandates in regard to a matter peculiarly within the Legislature’s prerogative tó control. Newport Township School District v. State Tax Equalization Board, 366 Pa. 603 , 79 A. 2d. 641. However, in referring to this case, the Supreme Court, in Delaware County National Bank v. Campbell, 378 Pa. 311, 321 , *387 106 A. 2d 416, 421 , said: “It impliedly appears from this case that certiorari will lie to this Court from an order or judgment of an Administrative Board which is judicial in nature and substantially affects property rights.” An attempt by the Legislature to prohibit appeals from an order or judgment, whether it be from an administrative board or court, judicial in nature and vitally affecting the property and basic rights of the public may result in a miscarriage of justice and a deprivation of due process. To this end, the courts may properly take into account the public interest in exercising their power to review on appeal.
Cases involving the validity of ordinances, especially annexation ordinances, concern municipal subdivisions and broad public rights, as distinguished from the private rights of individual parties to litigation. The Amendment of 1933 to section 1010 of the Borough Code of 1927, 53 PS §12900, is subsequent, chronologically and grammatically, to the original proviso making the action' of the court of quarter sessions conclusive, and there is good reason to think that the Legislature did not intend to limit the scope of review in cases involving annexation ordinances. Appeals from the court of quarter sessions involving annexation ordinances, therefore, do not come in that category where the Legislature has, without more, denied the right of appeal. See cases cited in Kaufman Construction Company v. Holcomb, supra, 357 Pa. 514, 518 , footnote 2.
Furthermore, annexation ordinances may involve serious constitutional issues which should be examined by the appellate court on a broad review. Where broad questions of statutory construction, administrative law, and constitutional issues were involved, the Supreme Court has entered into an extended discussion of these legal questions and given a broad review, even though the statute involved expressly forbid an appeal and the rule of narrow certiorari applied. See Grime v. De *388 partment of Public Instruction, 324 Pa. 371, 378-384 , 188 A. 337 . Cf. Beatty v. State Board of Undertakers, 352 Pa. 565 , 43 A. 2d 127 . The rule of narrow scope of review, where the statute forbids an appeal expressly, as announced in the Kaufman case, apparently has not been applied by the Supreme Court in cases involving review of the action of the court of quarter sessions upon the validity of annexation ordinances. In fact, in Dormont Borough Appeal, 371 Pa. 84 , 89 A. 2d 351 , the Supreme Court reviewed on broad certiorari where a resolution of borough council was attacked, under section 1010 of the Borough Code of 1927, 53 PS §12900, and where the appeal was from the action of the court of quarter sessions. Also, section 1010 of the Borough Code, as amended, 53 PS §12900, provides: “. . . and the determination and order of the court thereon shall be conclusive.” Nowhere is an appeal expressly prohibited. If this were the result sought, the Legislature could have said that the determination and order of the court shall be conclusive and there shall be no appeal or there shall be no right of appeal, as it has done in a number of other statutes. Kaufman Construction Company v. Holcomb, supra, 357 Pa. 514 , 55 A. 2d 534 ; White Township School Directors Appeal, 300 Pa. 422 , 150 A. 744 ; Twenty-First Senatorial District Nomination, 281 Pa. 273 , 126 A. 566 . In Kaufman Construction Company v. Holcomb, supra, 357 Pa. 514, 517 , 55 A. 2d 534 , the Supreme Court, citing from Twenty-first Senatorial District Nomination, 281 Pa. 273, 279 , 126 A. 566, 568 , said: “Where, in a statutory proceeding, the legislature fails to provide for an appeal, and because of that omission, the action of the tribunal involved is, generally speaking, considered final ... a certiorari to inspect the record, in the broadest sense allowed by our cases, may, nevertheless, issue; but where the legislature . . . particularly states that no appeal shall be permitted, then review, beyond deter *389 mining questions of jurisdiction, cannot be had; . . .” If the word “conclusive,” as used in section 1010 of the Borough Code, is synonymous with the word “final,” as stated in the majority opinion, the above quoted portion of the opinion in the Kaufman case is peculiarly applicable here. It is inconsistent to state that there can be no appeal here because “the determination and order of the court thereon shall be conclusive” or “final” and give as an authority a case stating that, while the action of tribunal involved is considered “final,” nevertheless a broad certiorari may be allowed.
For these reasons, I think the Superior Court cases granting a review on certiorari in the broadest sense, where the validity of annexation ordinances is involved, are sound and supported by logic. This Court should not overrule its own line of reasoned decisions by an uncritical application of the rule of limited review, which, as a matter of fact, the Supreme Court has never applied to appeals involving annexation ordinances.
Judges Gunther and Wright join in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752924. Public record. Not legal advice.