In re Appeal of Bender

• Decision Date: 21 November 1932
• Docket Number: 177-1932
• Parties: In re: Appeal of Bender et al. from Ordinance of Borough of Akron
• Court: Pennsylvania Superior Court

163 A. 47

106 Pa.Super. 376

In re: Appeal of Bender et al. from Ordinance of Borough of Akron

No. 177-1932

Superior Court of Pennsylvania

November 21, 1932

Argued October 3, 1932

Appeal by Borough of Akron from decree of Q. S., Lancaster County September T., 1930, Minutes 228, In re: Appeal of Laura Bender, Cyrus M. Mohler and the Akron Athletic Association from Ordinance of the Borough of Akron.

Petition to declare void an ordinance. Before Atlee, J.

The facts are stated in the opinion of the Superior Court.

The court declared the ordinance void and of no effect. Borough of Akron appealed.

Error assigned, among others, was the decree of the court.

Reversed.

G. T Hambright, and with him John E. Malone, for appellant. -- A court of quarter sessions, on an appeal from a borough ordinance, may not substitute its judgment or discretion for that of the borough authorities, where the ordinance is passed in pursuance of positive legislative authority: In re: Annexation of a Portion of Porter Township to the Borough of Jersey Shore, 72 Pa.Super. 543; In re: Annexation of a portion of Abington Township to Borough of Jenkintown, 101 Pa.Super. 227; Commonwealth v. Walton, 236 Pa. 220.

Harris C. Arnold, and with him John A. Coyle, for appellee, cited: Kimber v. Schuylkill Co., 20 Pa. 366; Annexation to Camp Hill Borough, 142 Pa. 511; Annexation to Elk Township School District, 146 Pa. 1.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Gawthrop, J.

Under Section 1010, Article X, of The General Borough Act (1927, P. L. 519), appellants applied to the quarter sessions to have declared void and of no effect an ordinance of the Borough of Akron; the court sustained the appeal and entered an order that the ordinance "be and the same is hereby declared void and of no effect." The decision below is not conclusive; nor is our jurisdiction on this appeal limited to a review of the regularity of the proceedings, as was formerly the rule on a certiorari: Davis v. Crafton Borough, 75 Pa.Super. 37; Hand's Case, 266 Pa. 277. Although this appeal is in effect a certiorari the testimony taken in the court below and filed "shall be reviewed by the appellate court as part of the record, with like effect as upon an appeal from a judgment entered upon the verdict of a jury in an action at law, and the appeal so taken shall not have the effect only of a certiorari to review the regularity of the proceedings in the court below": Act of April 18, 1919, P. L. 72. Prior to the passage of this statute we had authority, when a case was brought to this court by certiorari, to examine the opinion of the court below for the purpose of ascertaining the basis of its action and whether it exceeded its jurisdiction or its proper legal discretion: Independence Party Nomination, 208 Pa. 108, 57 A. 344; Chester County Republican Nominations, 213 Pa. 64, 62 A. 258. We have, therefore, examined the record, including the testimony brought up and the opinion of the court below.

The plan of the Borough of Akron adopted in 1895 contained a street known as Eighth Street, extending from Main Street to the southwestern borough line. This street was never opened and the borough never began any proceedings to open it. On March 26, 1929, Laura Bender, one of the appellees here, filed in the court of common pleas of Lancaster County a bill in equity alleging, inter alia, that Eighth Street, as designated on the borough plan above mentioned, extended over and upon her land; that no proceedings had been taken by the borough to open the street or assess damages to the owners of the land over which the street was laid out; and that the borough was threatening to open the street. After hearing on the bill and answer, the court entered a decree striking from the plan of the borough so much of the street designated thereon as Eighth Street as extended through plaintiff's land, and restraining the borough from entering upon or interfering with the plaintiff's premises by virtue of the previous ordaining of the street. It was ordered further that the plaintiff and her successors in title should hold and enjoy said premises free and clear of any effect of the presence of Eighth Street on the plan. The decision and decree were grounded upon the conclusion of law that the plaintiff's land was relieved of the burden of this street by the provision of the Act of June 1, 1911, P. L. 541, repealed and reenacted by the General Borough Act of May 14, 1915, P. L. 312, and the General Borough Act of May 4, 1927, P. L. 519, which provided as follows: "That if any borough within this Commonwealth has heretofore surveyed, laid out, enacted or ordained, or shall hereafter survey, lay out, enact or ordain any street, road, lane, alley, court or common sewer over or under private property located in whole or in part within the limits of said borough, and proceedings to open the same and to assess damages arising therefrom shall not be proceeded with within two years from the enactment of said ordinance, it shall be null and void." That decree was made January 18, 1930, and no appeal was taken from it.

On April 7, 1930, the borough council passed, and the burgess approved, an ordinance entitled "An ordinance laying out as a public thoroughfare Eighth Street, for its whole length from Main Street to the southwestern borough line." The street as laid out by this ordinance replaces the street involved in the equity proceeding. The proposed street is located on land owned by appellants. This appeal is from an order sustaining the complaint made against the ordinance of 1930.

The complaint averred, inter alia, that the proposed street, as laid out by the ordinance, is the same street which the court of common pleas of Lancaster County, in a proceeding in equity, ordered and decree to be void as laid out on the borough plan of 1895, and directed that the same be stricken from said plan; that the borough council had no intention of opening the street; that the passage of the ordinance was a deliberate effort of the borough...