Salisbury Township Annexation Case

172 Pa. Super. 262
CourtSuperior Court of Pennsylvania
DecidedJanuary 20, 1953
DocketAppeal, No. 192
StatusPublished
Cited by11 cases

This text of 172 Pa. Super. 262 (Salisbury Township Annexation Case) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salisbury Township Annexation Case, 172 Pa. Super. 262 (Pa. Ct. App. 1953).

Opinion

Opinion by

Rhodes, P. J.,

The Borough of Emmaus enacted an ordinance on August 20, 1951, providing for the annexation of 15.3 acres of adjacent vacant land in Salisbury Township, then a township of the second class, in Lehigh County. The supervisors of the township appealed to the Court of Quarter Sessions of Lehigh County complaining that the ordinance was illegal and improper. After hearing, the court found the annexation to be legal, proper, [265]*265and effective as of August 20, 1951, and dismissed the appeal. Before the conclusion of the annexation proceeding, Salisbury Township became a township of the first class.1 The township commissioners were then substituted as parties, and they have appealed to this Court. The order of the court below will be affirmed.

Annexation by a borough of land in a township of the second class is regulated by “The General Borough Act” of May 4,1927, P. L. 519, as revised and amended by “The Borough Code” of July 10, 1947, P. L. 1621, 53 PS §12221 et seq. The Code, §5, as amended, 53 PS §12461 provides: “Any borough may, by ordinance, annex adjacent land situate in a township of the second class in the same or any adjoining county, upon petition, . . . The petition shall be signed by a majority in number of all of the freeholders of the territory to be annexed.” Complaint as to the legality of the annexation ordinance may be made to the court of quarter sessions, “and the determination and order of the court thereon shall be conclusive.” Section 23, 53 PS §12900. The same section of the Code further provides: “In cases of ordinances effecting annexation of territory . . ., the court shall have jurisdiction to review the propriety as well as the legality of the ordinance.” Section 23, 53 PS §12900. Irwin Borough Annexation Case (No. 1), 165 Pa. Superior Ct. 119, 121, 122, 67 A. 2d 757.

Appellants’ argument follows their statement of questions involved. We shall consider them in the same order. However, matters not raised in the court below Avill not be considered by us on this appeal, especially where a review is requested of a factual matter [266]*266not questioned or argued in the court below. See Skocich v. F. J. Boutell Driveaway Co., 317 Pa. 26, 176 A. 19.

First. The admitted effect of the annexation is to divide Salisbury Township into two noncontiguous parts, that is, to work a physical geographic division of the township. Appellants claim the ordinance is illegal and improper for this reason. This Court has held there was nothing in earlier legislation, or in the Constitution, which prohibited or rendered illegal annexation to a municipality of territory of an adjacent township where the result of an annexation was a separation of the remainder of the township. In re Annexation of Mill Creek Township, Erie County, 74 Pa. Superior Ct. 275, 278 (1920), allocatur refused 75 Pa. Superior Ct. xxviii. Although this decision was under an earlier statute, it is applicable as to the result under the present Act.

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.

The court below fully considered the effect of the division of Salisbury Township into two parts by reason of the annexation by the Borough of Emmaus of the narrow strip of land located east of the borough and west of the City of Allentown. The Borough of Emmaus and other boroughs have been carved out of the township, and the City of Allentown has annexed portions thereof. The court observed that Salisbury Township was presently comprised of three hetero[267]*267geneous parts — the portion east of the City of Allentown being urban; the south portion, mountainous; and the west, rural. The court concluded that severance of the township by reason of the annexation was harmless, because portions of the township had already been absorbed by various municipalities, and there is no highway into the western section of the township from the other parts except through the City of Allentown. We think it is clear that the court did not abuse its discretion in concluding that the division of the township did not preclude the annexation.

Second. In accordance with the statutory requirement, there was filed in the annexation proceeding a description and a plot of the borough showing the same before and after the annexation. The Code, §5, 53 PS §12462. There was testimony that the description of the borough failed to close by 120 feet. Appellants contend this alleged error in the description renders the annexation proceeding fatally defective. Neither the township engineer nor the borough engineer went upon the ground and made a survey. This was not necessary. Irwin Borough Annexation Case (No. 1), supra, 165 Pa. Superior Ct. 119, 128, 67 A. 2d 757. The only possible misdescription concerned the prior boundaries of the Borough of Emmaus. There was no misdescription of the territory sought to be annexed. The borough engineer merely copied the existing description of the borough and used it in the present proceeding. The township engineer plotted the borough description academically without reference to monuments; and he made no examination of the description of the territory to be annexed.

The borough engineer explained that the alleged misdescription of the boundaries of the borough resulted from the use by the borough in its existing description of true polar bearings, whereas the descrip[268]*268tion of the borough and the plot as made by the township authorities were based on magnetic bearings. In the description in the petition for annexation, magnetic bearings were used. These were revised to conform with the true polar bearings used by the borough in its descriptions and plots. The borough engineer testified that the variance between these bearings was a constant ratio. If this explanation is accepted there was no variance or misdescription of any hind in the proceedings, and this the court of quarter sessions found to be a fact. Moreover, any misdescription concerned only the other borough boundaries and did not relate directly to the 15.3 acres which are the subject of the annexation proceeding. The boundaries of all of the municipal subdivisions concerned are clear both before and after the annexation. The court of quarter sessions was warranted in finding that any misdescription that might exist was not material and had no effect on the proceeding; and that any error in bearings or distance would be controlled on the ground by the monuments mentioned. Absolute accuracy is not mandatory, but the description and the plot must together definitely fix the boundaries with reasonable certainty. Dallas Borough Annexation Case, 169 Pa. Superior Ct. 129, 139, 82 A. 2d 676. Minor discrepancies may be disregarded. Irwin Borough Annexation Case (No. 1), supra, 165 Pa. Superior Ct. 119, 125, 67 A. 2d 757. The present appeal is distinguishable from the Irwin Borough case in that any misdescription was minor and immaterial and did not relate to the territory to be annexed.

Third.

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Related

In re Annexation Ordinances ex rel. Borough of Carlisle
69 Pa. D. & C.2d 180 (Cumberland County Court of Common Pleas, 1974)
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304 A.2d 713 (Commonwealth Court of Pennsylvania, 1973)
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186 A.2d 13 (Supreme Court of Pennsylvania, 1962)
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152 A.2d 731 (Supreme Court of Pennsylvania, 1959)
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118 A.2d 242 (Superior Court of Pennsylvania, 1955)
Plum Township Annexation Case
116 A.2d 260 (Superior Court of Pennsylvania, 1955)
Lemoyne Borough Annexation Case
107 A.2d 149 (Superior Court of Pennsylvania, 1954)
Camp Hill Borough Annexation Case
107 A.2d 157 (Superior Court of Pennsylvania, 1954)

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Bluebook (online)
172 Pa. Super. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salisbury-township-annexation-case-pasuperct-1953.