JEFFERSON BOROUGH INCORPORATION CASE, Pa. Super. Ct., Judgment, Law, casemine.com

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Attorney(S)

Alexander J. Bielski, for exceptant, appellant. Leo Kostman, with him Irwin I. Tryon, for appellee. Draza Musulin, for Borough of Jefferson, intervening appellee.

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Smart Summary

Factual and Procedural Background

This case arises from a petition by freeholders seeking the incorporation of the Borough of Jefferson in Allegheny County, Pennsylvania. A demurrer was filed by exceptants challenging the petition on the grounds that the proposed borough name was already in use by one or more boroughs in Pennsylvania and that the description of the borough's boundaries was incorrect or noncompliant with the law. The Court of Quarter Sessions overruled the demurrer, and an appeal was taken to the Superior Court of Pennsylvania.

Legal Issues Presented

Whether an order overruling a demurrer to a petition for borough incorporation is appealable.
Whether the name of the proposed borough is subject to the discretion of the lower court and how appellate review applies to such discretion.
Whether the decree of incorporation can be set aside on appeal absent a clearly established abuse of discretion by the court below.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pleasant Hills Borough Incorporation Case, 161 Pa. Super. 259, 53 A.2d 882	Standard that a decree of incorporation will not be set aside unless an abuse of discretion is distinctly charged and clearly established.	The court applied this precedent to affirm that it will not overturn the lower court’s decree absent clear abuse of discretion regarding the borough’s incorporation and naming.

Court's Reasoning and Analysis

The court determined that the order overruling the demurrer was interlocutory and thus not appealable under Section 209 of The General Borough Act, which permits appeals only from final decrees incorporating a borough. The demurrer was characterized as a "speaking demurrer," not founded solely on the petition's averments, and thus not sufficient to warrant interlocutory appeal. The court emphasized that the naming of the proposed borough falls within the discretion of the lower court, which may consider evidence of potential confusion or inconvenience. The appellate court’s review is limited to determining whether there was an abuse of discretion, and absent a distinct and clear showing of such abuse, the decree will not be overturned.

Holding and Implications

The appeal is quashed.

The court’s decision directly results in dismissal of the appeal from the interlocutory order overruling the demurrer. This ruling reinforces that interlocutory orders in borough incorporation proceedings are not subject to appeal under the relevant statute. The decision does not establish new precedent beyond affirming existing principles limiting appellate review to final decrees and emphasizing judicial discretion in borough naming.

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Jefferson Borough Incorporation Case.

Municipalities — Boroughs — Incorporation — Order overruling demurrer to petition — Interlocutory orders — Appeals — Name of proposed borough — Discretion of court below — Appellate review — The General Borough Act.

1. An order overruling a demurrer to a petition for the incorporation of a borough is interlocutory and no appeal may be taken therefrom.

2. Section 209 of The General Borough Act of May 4, 1927, P.L. 519, as amended by the Act of June 10, 1947, P.L. 1621 (which provides that an appeal to the Superior Court may be had from any decree incorporating a borough by any person aggrieved thereby) does not provide for appeal from an interlocutory order.

3. The name to be adopted by a proposed borough is within the control and discretion of the court below, and the appellate court is limited to determining whether there has been an abuse of judicial discretion.

4. A decree of incorporation of a borough will not be set aside on appeal unless an abuse of discretion on the part of the court below is distinctly charged and clearly established.

Argued November 15, 1948.

PER CURIAM, January 14, 1949:

This is an appeal from an order of the Court of Quarter Sessions of Allegheny County overruling a demurrer to the petition for the incorporation of a borough.

Under the demurrer it was contended that the petition was fatally defective because (1) the proposed name of the new borough is "Borough of Jefferson," and that before the presentation of the petition there were one or more boroughs in Pennsylvania with the name "Borough of Jefferson"; and (2) that the description of the boundaries of the proposed borough is not correct or in conformity with law.

The order is interlocutory and the appeal will be quashed.

Section 209 of The General Borough Act of May 4, 1927, P.L. 519, as amended by the Act of July 10, 1947, P.L. 1621, § 1, 53 P. S. § 12259, provides that an appeal to the Superior Court may be had from any decree incorporating a borough by any person aggrieved thereby. No appeal is provided by the statute from an interlocutory order.

Moreover, the demurrer is a speaking demurrer, not being founded on the averments of the petition.

We may add that the name to be given the proposed borough is within the discretion of the court below. If evidence at the hearing discloses that inconvenience or confusion would result if the suggested name was approved, the court may act accordingly. In any event, the name adopted is within the control and discretion of the court below, and our review will be limited to determining whether there has been an abuse of judicial discretion. A decree of incorporation of a borough will not be set aside by this Court on appeal unless an abuse of discretion on the part of the court below is distinctly charged and clearly established. Pleasant Hills Borough Incorporation Case, 161 Pa. Super. 259, 261, 53 A.2d 882.

Appeal is quashed.

JEFFERSON BOROUGH INCORPORATION CASE