33 Pa. Commw. 180 | Pa. Commw. Ct. | 1977
Opinion by
The Borough of Valley-Hi (Borough) appeals from an order of the Court of Common Pleas of Fulton County striking the Decree of Incorporation of the Borough.
Upon submission of a Petition for Incorporation meeting the requirements of Section 202 of The Borough Code (Code), Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. §45202,
Appellee, the Board of Commissioners of Fulton County (County), filed answers to Borough’s petitions and a Motion to Strike the Decree of Incorporation alleging that the defect in the Borough’s legal description deprived the lower court of jurisdiction to issue the Decree. In response to County’s Motion to Strike,
Although we are troubled with the lower court’s grant of a Decree of Incorporation without taking evidence as to the necessity for incorporation,
Our Supreme Court, in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), held that standing requires an aggrieved party showing a substantial, direct and immediate interest in the subject matter of the litigation. The requirement of a “substantial interest” simply means that there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. The requirement of a “direct interest” means that the person claiming to be aggrieved must show causation of harm to his interest by the matter of which he complains. The nature of the connection between the action complained of and the injury to the person challenging
In support of its Motion to Strike, County asserts the following arguments to establish standing.
' It first contends that it is the “fiduciary of the public interest” of all its citizens, that Borough’s incorporation is contrary to the best interest of those citizens, and that, therefore, it has a right to object. A county is merely a creature of the sovereign created for the purpose of carrying out local governmental functions. See Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 366 A.2d 1298 (1976). See also Philadelphia v. Fox, 64 Pa. 169 (1870). The scope of its powers and duties are specified by the Constitution
County next alleges that, because it is liable for the $350.00 expense of conducting a.special election for
Finally, County alleges standing in its capacity as the Board of Assessment and Revision of Taxes. It contends that Borough’s defective description makes it impossible to determine the identity, location and liability for taxation of tracts of real estate within the Borough. While County tells us how it is affected by Borough’s defective description, it fails to explain why it is aggrieved. The record establishes that County will lose no taxes and it fails to demonstrate that County is, in fact, adversely affected by the alleged impossibility to identify and locate properties within the Borough. Bald assertions are not sufficient to obtain standing.
Accordingly, we
Order
And Now, this 27th day of December, 1977, the order of the Court of Common Pleas of the 39th Judicial District of Pennsylvania, Fulton County Branch, striking the Decree of Incorporation of the Borough of Valley-Hi, is hereby reversed and its order granting the Decree of Incorporation is reinstated. Accordingly, we remand to said court to decide the issues raised by the Borough’s Petition to Correct Description and its Petition to Decrease the Number of Bor
“The application for incorporation shall be a Petition signed by a majority of the freeholders residing within the limits of the
Section 204 of the Code, 53 P.S. §45204, requires that “[u]pon presentation to the court, the petition shall be filed with the clerk, and notice shall be given in one newspaper of general circulation in the county and in the legal journal, if any, for a period of not less than thirty days immediately following the filing thereof, during which time exceptions may be filed to the petition by any person interested. The notice shall be published once a week for four consecutive weeks. The notice shall state when and where the petition was filed and the time during which exceptions may be filed to the petition. The court, if it shall find, after hearing, that the conditions prescribed by this article have been complied with may grant the prayer of the petitioners and make a decree accordingly, but, if the court shall deem further investigation necessary, it may make such order. . . .”
The legal description set forth in the Petition for Incorporation did not close by approximately 1200 to 1300 feet.
A reduction in the number of Borough councilmen from seven to three was requested because Borough’s population was less than 1,000 people. See Section 818 of' the Code, 53 P.S. §45818.
See Bear Creek Township v. Penn Lake Park Borough, 20 Pa. Commonwealth Ct. 77, 84, 340 A.2d 642, 645 (1975), wherein we set forth factors to be considered before granting a Decree of Incorporation.
The lower court, finding County to be aggrieved, stated at 17 Adams, L.J, 47, 60 (1975), “[w]hile the eases [cited below] specifically hold that persons living within a proposed borough or in the .township which would lose land to the new borough or the township itself have standing to object, we conclude the legal principles enunciated are not limited to the conclusions reached, and do not require a specific loss or deprivation as a condition precedent to qualifying as an aggrieved party.” See Franklin Borough’s Incorporation Cases, 5 Pa. Commonwealth Ct. 85, 289 A.2d 503 (1972); Borough of Delmont v. Borough of Franklin, 7 Pa. Commonwealth Ct. 119, 298 A.2d 266 (1972); Hazel Township Annexation Case, 183 Pa. Superior Ct. 212, 130 A.2d 230 (1957).
Pennsylvania Const, art. 9, §4.
Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §101 et seq.
Under Sections 301 and 305 of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 12641(b), 2645, County is liable for the expenses of holding special elections and responsible for the maintenance and conduct of elections.
See Commonwealth v. Brown, 149 Pa. Superior Ct. 130, 28 A.2d 259 (1942).