Opinion
Argued June 4, 1971
July 8, 1971.
Annexation — The Borough Code, Act 1966, February 1, P. L. (1965) 1656 — Time for challenging the legality of an ordinance — Requirement of recognizance with sufficient security — Constitution of Pennsylvania, Article IX.
1. A complaint attacking the legality of an annexation ordinance of a borough filed more than thirty days after the approval of the ordinance by the mayor is not timely filed under the provisions of The Borough Code, Act 1966, February 1, P. L. (1965) 1656, in effect when the complaint was filed. [311-12]
2. A bond filed with no surety is not a recognizance with sufficient security. [312]
3. The adoption by the electorate of the proposal amending Article IX of the Constitution of Pennsylvania did not, absent legislative action, affect annexation ordinances enacted under The Borough Code, Act 1966, February 1, P. L. (1965) 1656, at least until two years from April 23, 1968. [312]
Argued June 4, 1971, before Judges CRUMLISH, JR., MANDERINO and ROGERS, sitting as a panel of three.
Appeal No. 154 C.D. 1971 from Opinion and Decree of the Court of Common Pleas, Criminal Division, of Westmoreland County at No. 44 January Term, 1970 (Civil Docket) in case of Annexation of a Portion of the Township of Franklin by the Borough of Delmont.
Complaint attacking legality of annexation ordinance filed with bond in the Court of Common Pleas of Westmoreland County. Motion to quash filed. Motion to quash sustained. McCORMICK, J. Township appealed. Held: Affirmed.
Henry A. Hudson, Jr., with him Costello Snyder, for appellant.
Robert Y. Cassol, with him Redlich, Cassol, Redlich Morocco, for appellees.
On December 19, 1969, the council of the Borough of Delmont adopted and its mayor approved an ordinance which annexed to the borough about 232 acres of land theretofore situate in the Township of Franklin. A certified copy of the ordinance was filed in the office of the clerk of courts, notice given to the Westmoreland County Election Board, and the ordinance advertised all on January 16, 1970. On January 27, 1970, the Township of Franklin filed its complaint as to the legality of the ordinance and a bond, without surety, to prosecute the complaint with effect and for the payment of costs. Upon proper application of the borough and after argument the court below quashed the township's complaint. We affirm.
The Borough Code, 1966, February 1, P. L. (1965) 1656, Section 1010, 53 P.S. 46010 effective when this proceeding was instituted required that complaint as to legality of an ordinance should be made within thirty days after the enactment of the ordinance complained of. The date of enactment of a borough ordinance is the date of its approval by the mayor. The Borough Code, supra, Section 1007, 53 P.S. 46007; see Cooke v. Borough of Greenville et al., decided June 7, 1971, 2 Pa. Commonwealth Court 417, ___ A.2d ___ (1971). Hence, this complaint made January 27, 1970 as to the legality of an ordinance enacted December 19, 1969 was not timely. In re: Filing of Ordinance by the Borough of State College, 104 Pa. Super. 211, 158 A. 298 (1932).
By amendment of 1970, December 10, P. L. ___, No. 286, the time for making complaint was extended to the period within thirty days after the advertisement of the ordinance.
The Borough Code, supra, Section 1010, 53 P.S. 46010, requires that "recognizance with sufficient security" be entered. The phrase "with sufficient security" means sufficient sureties. Appeal of Borough of Irwin, 171 Pa. Super. 256, 259, 90 A.2d 365, 367 (1952). The bond filed here contains no surety, and is, therefore, fatally defective.
On this appeal, the township repeats the contention that the electorate's adoption on April 23, 1968 of the proposal amending Article IX of the Pennsylvania Constitution repealed the Borough Code provisions as to annexation. Baldwin Borough Appeal, 217 Pa. Super. 346, 271 A.2d 731 (1970) holds that annexation statutes continued in effect at least until two years from April 23, 1968 and that in the absence of legislative action pending proceedings being conducted within the two years period were not affected. We adhere to that holding.
Decree affirmed.