MUNICIPAL LAW

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

CITIZEN’S ARREST

 

A citizen’s arrest cannot be made for a summary offense. Only a police officer, as defined in Rule 103, may institute a summary criminal proceeding by arrest. Commonwealth v. John Rugg, 64 Som.L.J. 7 (2008) (Cascio, P.J.).

 

ELECTIONS – NOMINATING PETITIONS

 

Section 2868 provides that each signer of a nomination petition shall sign but one petition for each office to be filled provided, however, that where there are to be elected two or more persons to the same office, each signer may sign petitions for as many candidates for such office as, and no more than, he could vote for in the succeeding election.  25 P.S. § 2868.  In Re: Election board of Somerset County, Pennsylvania, 62 Som.L.J. 42 (2005) (Cascio J.). 

 

If a person shall sign any nomination petitions or papers for a greater number of candidates than he is permitted under the provisions of this act, if said signatures bear the same date, they shall, upon objections filed thereto, not be counted on any petition paper and if they bear different dates, they shall be counted in the order of their priority of date, for only so many persons as there are candidates to be nominated or elected.  25 P.S. § 2937.  In Re: Election board of Somerset County, Pennsylvania, 62 Som.L.J. 42 (2005) (Cascio J.). 

 

Any candidate receiving a total number of votes equal to or greater than the number of signatures required on a nomination petition, in this case ten, may be certified as a candidate and may appear on the ballot in the fall pursuant to the provisions of § 3155.  In Re: Election board of Somerset County, Pennsylvania, 62 Som.L.J. 42 (2005) (Cascio J.).

 

ELECTIONS – RECOUNTING

 

Applicable statutory and appellate authority mandate the filing of a separate petition for each district in which the opening of the ballot box is requested, properly verified by three electors resident in that district.  Mazzarese, et al. v. Somerset County Board of Elections, 60 Som.L.J. 63 (2001) (Fike, P.J.). 

 

When a petition to open ballot boxes and recount votes does not contain the requisite signatures or is not properly verified in accordance with statutory requirements, the court is without jurisdiction and the petition must be dismissed.  Mazzarese, et al. v. Somerset County Board of Elections, 60 Som.L.J. 63 (2001) (Fike, P.J.).

 

ELECTIONS – REGISTERED PARTY ELECTORS

 

We hold only that where there are not sufficient numbers of registered party electors, the provisions of the Code should not operate to bar the nomination of candidates under the party name.  In Re: Election board of Somerset County, Pennsylvania, 62 Som.L.J. 42 (2005) (Cascio J.). 

 

ELECTIONS – WRITE-IN VOTES

 

The procedures to be followed by the County Elections Board in a county which utilizes an electronic voting system are set forth in 25 P.S. § 3031.22 which does not supersede other portions of the Code except to the extent that the latter are inconsistent with the former.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

Write-in votes are specifically permitted when an electronic voting system is utilized.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

The use of stickers is equally applicable to voting by regular paper ballots and voting by paper ballots in electronic voting system districts.  25 P.S. § 3063.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

Absent clear ballot instructions to the contrary, any form of marking which shows the voter's choice and does not purposefully identify the ballot is valid and should be counted.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

Crossing out does not void the entire ballot.              In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

Election officers shall record write-in votes exactly as the name was written, stamped or applied to the ballot by sticker.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som. L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

A person nominated by more than one party for same office under different names may, not later than 5 days after certification, present a petition to the court of common pleas praying for an order declaring such petitioner by his true name to be the person who was thus nominated by more than one party under different names.  In Re: Petition to Open Ballot Boxes for Recount of Votes for the Office of Supervisor in Ogle Township, 54 Som.L.J. 13 (Dec. 5, 1995) (Cascio, J.) 

 

Although the spelling may differ, there should be no hesitation in ordering the accumulation of ballots where the candidate is named by both their first name and surname.   In Re: William D. Marteeny, 59 Som.L.J. 97 (2001) (Fike, P.J.). 

 

The court's task is to determine the intent of the voter and whether the identity of the candidate under different names has been established by clear and convincing evidence.  In Re: William D. Marteeny, 59 Som.L.J. 97 (2001) (Fike, P.J.). 

 

Where the voters' intent is found it should not be defeated by the fact that the name of the candidate is misspelled, the wrong initials employed, or some other or slightly different name of like or similar pronunciation has been written instead of that of the candidate actually intended to be voted for. A ballot may be counted which contains a candidate's surname only, although there are other persons in the county having the same surname, it being shown that there was no other person of such name who was a candidate for the same or any other office; and so also if only the middle name of the candidate is wrong or if the first name is abbreviated, or if the wrong initials are used.  In Re: William D. Marteeny, 59 Som.L.J. 97 (2001) (Fike, P.J.). 

 

Where there is no other person with the same surname as a candidate for office, and the individual has held himself out to the voters as a candidate and campaigned for the office on a specific political ticket, it can be concluded that the individual has sufficiently identified himself to the electorate to require cumulation of the votes cast only in the individual's last name.  In Re: William D. Marteeny, 59 Som.L.J. 97 (2001) (Fike, P.J.).

 

GOVERNMENT – AGENCIES

 

Nothing under the Historic Preservation Act shall confer power upon a political subdivision or municipal authority to delay, deny, condition, or limit, or cause to be delayed, denied, conditioned or limited, any permit or approval because of failure to comply with this act.  37 Pa. C.S.A. § 508(b) Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.)

 

A Commonwealth agency is defined as "any executive agency or independent agency."  71 P.S. § 732-102.  Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.) 

 

An executive agency is "the Governor and the departments, boards, commissions, authorities and other officers and agencies of the Commonwealth government, but the term does not include any court or other officer or agency of the unified judicial system, the General Assembly and its officer and agencies, or any independent agency."  71 P.S. § 732-102 Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.) 

 

An independent agency is defined by 71 P.S. § 732-102.  Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.) 

 

Commonwealth agencies, political subdivisions, and municipal authorities shall cooperate fully with the Commission in the preservation, protection, and investigation of archeological resources.  37 Pa. C.S.A. § 507(a) Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.)

 

GOVERNMENT – COUNTY

 

The County, as a subdivision of the state, enjoys no sovereign power which would empower it to legislate on statewide matters.  The County is merely a political subdivision of the state, not a municipal corporation.  Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.)

 

The term "local government" shall be construed to include counties, cities, boroughs, towns, townships, school districts, and poor districts.  46 P.S. § 431.6 Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.) 

 

A Political Subdivision is any county, city, borough, incorporated town, township, school district, vocational school district and county institution district.  1 Pa. C.S.A. § 1991 Task Force for the Preservation of the Somerset County Armory v. Somerset County Board of Commissioners, 54 Som.L.J. 149 (Dec. 9, 1996) (Cascio, J.) 

 

Local courts have the power to formulate their own rules of practice and procedure, which will be given equal weight to rules established by the Supreme Court, provided they do not abridge, enlarge or modify substantive rights of the litigant.   Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.). 

 

42 Pa. C.S.A. § 323 states every court shall have power to make sure rules and orders of court as the interest of justice or the business of the court may require.  Haynes v. Haynes, 62 Som. L.J. 112 (2005) (Upor, J.). 

 

Pa.R.C.P. 239 provides, (b) (1) local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly and (b) (2) local rules which implement general rules to which the local rules correspond.  Haynes v. Haynes, 62 Som.L.J. 112 (2005) (Upor, J.).

 

Pursuant to the Specific Powers granted under the Borough Code at 53 P.S. § 46202, a Borough Council has the power to declare the accumulation of garbage and rubbish a nuisance, as well as prohibit the accumulation of such materials and provide for their removal. Commonwealth v. Shon Lei Owen, 65 Som.L.J. 165 (2012) (Cascio, P.J.).

 

A Borough Ordinance that both regulates the accumulation of waste materials and provides for their removal which is devoid of any language regarding nuisance, may be properly adopted in accordance with 53 P.S. § 46202(10). Commonwealth v. Shon Lei Owen, 65 Som.L.J. 165 (2012) (Cascio, P.J.).

 

A Borough Council’s authority to control the accumulation of waste arises not from its general power to regulate nuisances but from its specific power to control the accumulation and disposal  of these items in accordance with the Borough Code. Commonwealth v. Shon Lei Owen, 65 Som.L.J. 165 (2012) (Cascio, P.J.).

 

The Commonwealth was not required to prove that the offense constituted a nuisance per se under the Borough Ordinance adopted pursuant to 53 P.S. § 46202(10). Commonwealth v. Shon Lei Owen, 65 Som.L.J. 165 (2012) (Cascio, P.J.).

INTERGOVERNMENTAL COOPERATION AGREEMENTS

 

Dismissal of charges is granted where the Defendants filed Omnibus Pretrial Motions on the grounds that the arresting officer – employed by Conemaugh Township and patrolling in Quemahoning Township, pursuant to the terms of an Agreement For Law Enforcement Services executed by the supervisors of both townships – was not properly authorized to act outside of his employing jurisdiction and extraterritorially arrest the Defendants, because the townships to the Intergovernmental Cooperation Agreement both failed to approve the Agreement by adopting ordinances as required by the General Local Government Code, 53 Pa.C.S.A. § 2301 et seq., particularly the requirement that each municipal body must pass an ordinance to enter into such an intergovernmental cooperation agreement. Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

Townships are statutorily authorized by the Township Code, at 53 P.S. § 66903 and § 66904, to enter into agreements both to secure and to provide police services to other municipalities. However, neither section spells out the method by which such arrangements are to be accomplished. Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

53 P.S. § 66903 and § 66904 do not conflict with 53 Pa.C.S.A. § 2305 of the General Local Government Code, and, in our view, § 2305 merely spells out the procedural device by which townships may complete their substantive contract as permitted under companion sections 66903 and 66904 of the Township Code. In addition, the Township Code – at P.S. § 66507 – specifically authorizes township supervisors to adopt ordinances to enter into agreements as authorized by the Intergovernmental Cooperation Act. Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

LIQUOR CODE

 

Section 4-461(b.3) of the Liquor Code describes the application process for an inter-municipal transfer of a liquor license.  Smith v. Borough of Confluence, 61 Som.L.J. 354, 355 (2005) (Cascio, J.) 

 

A trial court may only look to the evidence relied on by the Borough Council if a full and complete record was made before it.  Smith v. Borough of Confluence, 61 Som.L.J. 354, 356 (2005) (Cascio, J.) 

 

Section 754(b) of the Local Agency Law, 2 Pa.C.S. § 754(b) requires a court to affirm the agency's adjudication unless it finds that any finding of fact by the agency and necessary to support its adjudication is not supported by substantial evidence.  Smith v. Borough of Confluence, 61 Som.L.J. 354, 357 (2005) (Cascio, J.) 

 

Testimony of witnesses conveying general fears regarding the proposed transfer and not providing specific details is not considered sufficient to support a finding that the transfer would be detrimental to the welfare of the community.  Smith v. Borough of Confluence, 61 Som.L.J. 354, 358 (2005) (Cascio, J.)

 

MUNICIPAL AUTHORITIES

 

Defendant, as a municipal authority, has the power conferred on it by the Municipality Authorities Act to fix alter, charge and collect rates at reasonable and uniform rates to be determined exclusively by it and by doing so to reasonably classify and reclassify customers.  McKool v. Conemaugh Township Municipal Authority, 53 Som.L.J. 35 (1994).

 

The charging of different rates for utility service rendered under varying conditions and circumstances is not unlawful.  McKool v. Conemaugh Township Municipal Authority, 53 Som.L.J. 35 (1994). 

 

An authority may set different rates for the same type of user where the basis for the distinction is reasonable and the rate established is uniform within a given classification.  McKool v. Conemaugh Township Municipal Authority, 53 Som.L.J. 35 (1994).

 

MUNICIPAL CONTRACTS

 

The minutes of a Borough Council meeting are the best evidence of actions taken by the municipality.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.).

 

Where the consent of a township is demonstrated by a written instrument duly signed and acknowledged, and where the township and the Borough acquiesced in a railway company's operations pursuant to the terms of a written instrument for a period of twenty-six years, the absence of evidence of a minute of the transaction in the township records does not operate to invalidate the consent and agreement under which the railway company operates.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

Laches may be imputed to the Commonwealth as well as to an individual. And, if the Commonwealth may be charged with laches, clearly a municipality is not immune.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

The failure of a municipality to produce a minute of a transaction does not automatically operate to invalidate other evidence of consent. However, more than a bare written agreement is required for enforceability, and in order for a procedurally defective agreement to be enforceable, there must be other evidence of ratification or laches.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

Even if not adopted through the formal procedural steps, a contract within the scope of the municipality's corporate powers, and entered into by a municipality's officers or agents may nevertheless be binding upon the municipality, if ratified.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

A municipality can act only if legislatively authorized, and if authorized, must strictly adhere to the statutory mandate.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

POLICE OFFICERS – AUTHORITY

 

In general, a police officer is permitted to act only within the geographical limits of the employing municipality. However, this rule is subject to certain statutory exceptions. Commonwealth v. Charlton/Hummel, 63 Som.L.J. 432 (2008)(Cascio, P.J.)

 

The authority of a police officer to make arrests outside his or her employing municipality is limited to the statutory authorization granted by the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953 et seq., and the Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2301 et seq. Commonwealth v. Charlton/Hummel, 63 Som.L.J. 432 (2008)(Cascio, P.J.)

 

POLICE OFFICERS – CHIEF OF POLICE ACT

 

Section 218 of the Chief of Police Act provides in clear, unambiguous terms that it applies to employees who have been forcibly removed from bargaining units by rulings of the Pennsylvania Labor Relations Board.  Stern v. Borough of Somerset 58 Som.L.J. 467 (2001) (P.J. Fike)

 

The term "forcible removal" in the Chief of Police Act, means that the removal must be the result of an adversarial proceeding before the PLRB and an adjudication by the Board resulting in a Board Order, such action is required by the plain language of the Act.  The Act requires the removal of the police officer by a ruling of the Board, which is quite different than the removal of the officer by an agreement of the parties which the Board merely approves.  Stern v. Borough of Somerset 58 Som.L.J. 467 (2001) (P.J. Fike) 

 

When the exclusion of the Chief of Police in a bargaining unit is effected by stipulation of the parties and then approved by the Pennsylvania Labor Relations Board there is no forcible removal as defined by the Chief of Police Act.  Stern v. Borough of Somerset 58 Som.L.J. 467 (2001) (P.J. Fike) 

 

An individual is not forcibly removed from the bargaining unit when they assume the Chief of Police position voluntarily.  Stern v. Borough of Somerset 58 Som.L.J. 467 (2001) (P.J. Fike)

 

POLICE OFFICERS - GENERALLY

 

Discussion of the statutory construction of the Collective Bargaining for Policemen and Firemen Act, 43 Pa.C.S.A. 217.1 et seq. (Act 111); Act 111 is applicable to one-man police forces.  Mosky v. Jenner Township, 50 Som.L.J. 79

 

When any duly employed municipal police officer who is within the Commonwealth but beyond the territorial limits of his or her primary jurisdiction is in hot pursuit of any person for any offense which was committed, or which he or she has probable cause to believe was committed, within the officer’s primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense, the officer has the power and authority to enforce the laws of the Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his or her primary jurisdiction.  42 Pa. C.S.A. 8953(a)(2).  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

The Statutory Construction Act provides that [the Municipal Police Jurisdiction Act] 42 Pa. C.S.A. 8953 is not within the class of statutes that are to be strictly construed; rather the Act must be liberally construed to promote the interests of justice.  1 Pa. C.S. 1928(b), (c).  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

 

The Municipal Police Jurisdiction Act does not contemplate or condone extra-territorial patrols.  The entire purpose of the Act is to provide a general limitation on extra-territorial patrols while allowing exceptions for such patrols in response to specifically identified criminal behavior that occurs within the primary jurisdiction of the police.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.)

 

The test set for in [the Municipal Police Jurisdiction Act] 42 Pa. C.S.A. ' 8953(a)(2) is not whether an officer has observed something that would merely raise his suspicions, but rather whether he has probable cause to believe that an offense has been committed within his primary jurisdiction.  Commonwealth v. Burella, 54 Som.L.J. 279 (October 22, 1997) (Cascio, J.) 

Even if subsection 42 Pa.C.S.A. § 8953(a) (4) of the Municipal Police Jurisdiction Act (“MPJA”) did apply to the cases at bar, the Conemaugh Township Chief of Police would be required to seek “prior consent” of the commanding officer of the local State Police Barracks, not the supervisors of Quemahoning Township. Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

Although the Court in Stein v. Com., Department of Transportation, Bureau of Licensing, 857 A.2d 719 (Pa. Comwlth. Ct. 2004), concluded that the question of a police officer’s ability to act outside his or her home municipality is governed by the MPJA and not the General Local Government Code, it did not address those situations, such as the one in the cases at bar, in which the “general rule” portions of the MPJA, by their own terms, do not apply. Here, rather than a situation where an officer from one jurisdiction seeks authority to enter another jurisdiction to perform some specific duty in a particular case in which he or she is already involved as contemplated by 42 Pa.C.S.A. § 8953(a)(4), the Agreement deals with a situation where one municipality lacking its own police department contracts with another for the provision of all police functions. Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

The MPJA, at 42 Pa.C.S.A. § 8953(e), does not recognize other types of “cooperative police service agreements,” which appear to provide for situations not covered by the “general rule” provisions. Our Court has opined that “[s]ubsection (e) authorizes extraterritorial arrest when permitted under the terms of a written intermunicipal agreement . . . “ Commonwealth v. Charlton/Hummell, 63 Som.L.J. 417 (2008)(Cascio, P.J.)

 

Upon granting the Commonwealth’s request for reconsideration of the prior Order dated February 4, 2008, the Court reinstated the prior ruling—because the arresting officer in each of the cases at bar lacked the authority to conduct the arrest—with modification only to the remedy previously ordered, which was dismissal of the charges, to suppression of the evidence. Commonwealth v. Charlton/Hummel, 63 Som. L.J. 432 (2008)(Cascio, P.J.)

 

In general, a police officer is permitted to act only within the geographical limits of the employing municipality.  However, this rule is subject to certain statutory exceptions. Commonwealth v. Charlton/Hummel, 63 Som. L.J. 432 (2008)(Cascio, P.J.)

 

The authority of a police officer to make arrests outside his or her employing municipality is limited to the statutory authorization granted by the Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953 et seq., and the Intergovernmental Cooperation Act, 53 Pa.C.S.A. § 2301 et seq. Commonwealth v. Charlton/Hummel, 63 Som. L.J. 432 (2008)(Cascio, P.J.)

 

POLITICAL SUBDIVISION TORT CLAIMS ACT

 

The Political Subdivision Tort Claims Act provides in part, that except as otherwise provided, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.  42 Pa.C.S.A. 8541.  Cober v. Somerset County General Authority, 53 Som.L.J. 42 (1994).

 

The real property exception to the Political Subdivision Tort Claims Act can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury.  Cober v. Somerset County General Authority, 53 Som.L.J. 42 (1994). 

 

Under the real property exception to the Political Subdivision Tort Claims Act, the conduct or negligent act complained of must be directly related to the condition of the property and must derive, originate from or have at its source the government realty.  Cober v. Somerset County General Authority, 53 Som.L.J. 42 (1994). 

 

Under the real property exception to the Political Subdivision Tort Claims Act, only an act of the local agency or its employees which makes the property unsafe for the activities for which it is intended to be used, or for which it may reasonably be foreseen to be used are acts which make the local agency amenable to suit.  Cober v. Somerset County General Authority, 53 Som.L.J. 42 (1994). 

 

When Plaintiff makes no allegation that a prison site is unsafe for the activities for which it is intended and Plaintiff is merely objecting to the location of the prison near its home, the defendant is immune from civil suit under the Political Subdivision Tort Claims Act.  Cober v. Somerset County General Authority, 53 Som.L.J. 42 (1994). 

 

PUBLIC SCHOOL CODE – PETITION TO ESTABLISH AN INDEPENDENT SCHOOL DISTRICT – GENERALLY

 

Under Section 2-242.1(a) of the Public School Code of 1949, a majority of the taxable inhabitants of any contiguous territory in any school district . . . may present their petition to the court of common pleas of the county in which each contiguous territory . . . is situated, asking that the territory be established as an independent district for the sole purpose of transfer to an adjacent school district contiguous thereto. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

Once the petition is filed with the trial court, the court must notify both (1) the district out of whose territory the proposed independent school district is to be taken and (2) the district into which the territory is proposed to be assigned, then hold a hearing. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

The trial court has a limited role of determining whether the statutory provisions and procedural requirements are met; the court has no authority to determine or inquire into the merits of the petition. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

So long as the court is satisfied that the procedural requirements have been met, the role of determining the merits of the petition lies exclusively in the province of the designated educational authorities, i.e., the Secretary of Education. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

Section 2-242.1(a) of the Public School Code creates a shifting burden, and petitioners bear the initial burden to present their petition to the trial court containing the following: (1) signatures of 51% of the taxable inhabitants of a contiguous territory; (2) a description of the boundaries of the proposed independent school district; (3) reasons for requesting the transfer; and (4) the name of the new district where the proposed territory will be placed. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

Presentation of the four (4) requirements to the trial court creates a rebuttable presumption that the signatures on the petition are valid and that they represent 51% of the taxable inhabitants; the burden then shifts to the challenging party to prove that the petition is not sufficient under 24 P.S. § 2-242.1(a). In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

The petition may be established as insufficient with proof of any of the following: (1) lack of pleading requirements under § 2-242.1(a); (2) signatures are invalid; (3) “signatories are not taxable inhabitants in the area in question”; or (4) a lack of a majority of the taxable inhabitants. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

PUBLIC SCHOOL CODE – PETITION TO ESTABLISH AN INDEPENDENT SCHOOL DISTRICT – MAJORITY OF TAXABLE INHABITANTS OF A CONTIGUOUS TERRITORY

 

To fulfill the requirement that a majority of the taxable inhabitants of a contiguous territory sign the petition, under 24 P.S. § 2-242.1(a), (1) the signatories must qualify as “taxable inhabitants”; and (2) the boundaries of the proposed independent school district must be contiguous to the new district into which it will be transferred. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

In an 1896 case involving the annexation of a municipality, the Pennsylvania Supreme Court adopted an expansive definition of the phrase “taxable inhabitant,” and it concluded that a “taxable inhabitant” was “one who is, or who may lawfully be, taxed.” In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

For purposes of the Section 2-242.1(a) of the Public School Code of 1949, a “taxable inhabitant” is only an individual property owner, residing within the proposed “contiguous territory” at the time the Petition is filed and personally subject to tax within the district, because (1) the legislature used the term “taxable” to modify – rather than as a noun itself – the term inhabitant in the Public School Code of 1949; (2) the legislature distinguished between other types of “taxable” items throughout the Public School Code of 1949 but listed only “taxable inhabitants” under Section 2-242.1(a); and (3) though an individual may have paid taxes within a district, if he or she does not reside in the district at the time of the petition then he or she should not be considered an inhabitant. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

Qualifying “taxable inhabitants” cannot merely tack on adjacent property owners – who do not qualify as taxable inhabitants – to their Petition to Establish an Independent School District in order to satisfy the requirements that (1) a proposed independent school district be comprised of a contiguous territory and (2) the independent school district only transfer to an “adjacent school district contiguous thereto.” In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

Section 201 of the Public School Code of 1949 established the general rule that children in a particular municipality should attend the same schools, and each municipality should not be divided into two or more school districts. In Re: Petition to Establish an Independent School District for Property Situate in Jefferson Twp., Somerset County, for Purposes of Transfer to an Adjacent School District, 65 Som.L.J. 194 (2012) (Klementik, J.).

 

ROAD SYSTEM

 

The Second Class Township Code provides that the court has the power to appoint a Board of View if a township board of supervisors denies a petition to “open and vacate” a road. 53 P.S. § 67304(c). Shaw v. Jefferson Township, 63 Som.L.J. 355 (2007)(Klementik, J.)

 

 Where the Petition is for “Request of Improvement, Repair, and Maintenance of Roadway” and the Petitioners aver that the general public uses the roadway, the Petitioners do not seek the Township to genuinely lay out and open the road but, rather, in essence, to simply take over maintenance of a road already open to and used by the public. Shaw v. Jefferson Township, 63 Som.L.J. 355 (2007)(Klementik, J.)

 

Under the Second Class Township Code, the purpose of a Board of View is to open and lay out roads, not to force a township to maintain a road already used by the public.  When a road already exists and is used by the public as if a public road, there is no need to open the road and no further purpose to appoint a Board of View. Shaw v. Jefferson Township, 63 Som.L.J. 355 (2007)(Klementik, J.)

 

Existing roads in a second class township cannot judicially be made part of the road system by appointment of a board of view, petitioners must follow the codified dedication process, and the court has no jurisdiction over the matter. Shaw v. Jefferson Township, 63 Som.L.J. 355 (2007)(Klementik, J.)

 

SEWER SYSTEMS

 

Adjacent municipalities may interconnect adjoining sewer pipelines and may enter into agreements for the payment of rental for the use of the servient sewer lines and for a division of the costs of maintenance of those lines.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.).

 

§§2061, 2062, and 2063 of the Code, 53 P.S. §§47061, 47062 and 47063, provide the authorization to collect rental or other charges for use of sanitary sewer lines from owners of property serviced by those lines.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

As a general rule, municipalities may provide extraterritorial service and charge nonresident users for that service. However §2024, 53 P.S. § 47024, contemplates prior agreement and approval by the governing bodies of the involved municipalities. Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

By entering into an agreement with the adjacent defendant municipality for the use of the defendant's sewer lines by the plaintiff's residents, the plaintiff has approved the method of collection specified in the agreement and has authorized the defendant to collect the sewer rental directly from the affected residents.  Scalp Level Borough v. Paint Borough, 60 Som.L.J. 6 (2000) (Fike, P.J.). 

 

WASTE MANAGEMENT

 

An accumulation of waste tires constitutes municipal waste, even though the tires may have had value to the person who obtained them because they were capable of being profitably recycled for further use.  Commonwealth v. Griffin, 51 Som.L.J. 377