In re Incorporation of Laurel Mountain

Opinion by

Judge Rogers,

The Supervisors of Ligonier Township (Township) appeal from an order of the Court of Common Pleas of Westmoreland County granting the prayer of a property owner’s petition seeking the incorporation as a borough of an approximately 90 acre tract of land within the Township known as Laurel Mountain Park (Park).¹ A trial was conducted by Judge Loughran sitting without a jury. Evidence there adduced shows that the Park was originally a community of second homes. It now consists of 110 homes, about 15 of which are of the vacation variety, a swimming pool, tennis courts, and other common land and buildings. The recreational facilities, common holdings and certain easements and utility facilities are owned and managed by an association of property owners. Maintenance and debt service have been financed by dues and assessments.

Tbe president of tbe Park association testified below to the association’s difficulties with dues collection, tbe failure of tbe Township to install and maintain storm, sewers and domestic water lines, and its longstanding refusal to accept dedication of Park roads or to assist in tbeir repair or maintenance. Tbe same witness expressed a hope and belief that tbe power to tax as a borough would solve tbe Park’s residents ’ problems.

By order of tbe Court of Common Pleas, a study by tbe Pennsylvania Economy League was commissioned. This study has been made a part of tbe record. It sets forth in great detail tbe history of tbe Park, its necessary expenses, tbe sources of revenue it would have as a borough, and other considerations necessary to a reasoned decision of tbe question of whether tbe Park ought to be a borough. Concerning tbe immediate effects of incorporation, tbe report concludes:

1. One of tbe most obvious immediate results of borough incorporation is tbe power to tax. Laurel Mountain Park would thus have tbe ability to adequately finance its operations and services by various tax levies, rather than by dues assessments.

2. Borough status for Laurel Mountain Park will have a minimal financial impact on Ligonier Township. According to 1977 tax figures, taxes paid by Laurel Mountain Park residents represented approximately 2.3 percent of tbe Township’s 1977 proposed budget.

3. Residents would be paying less for tbeir services as a borough than they currently are as part of Ligonier Township for probably at least tbe next few years.

4. All local taxes paid by residents of the proposed borough would be a legitimate deduction on their Federal income tax returns, whereas now Association dues are not a deductible expense.

5. The incorporation of Laurel Mountain Park could serve to bring political legitimacy to an area that already appears to have a sense of community, based on its physical and psychological isolation from the rest of Ligonier Township.²

Two owners of homes within the proposed borough boundaries appeared at the trial and expressed their concern that there would not be enough Park residents willing to fill the elective borough offices and that the short term fiscal relief of incorporation would be followed in the long run by greater expense and inadequate municipal services. These persons have not appealed; and a few other objections were withdrawn when it was stipulated that the objectors’ properties would not be included within borough boundaries.

The Township, which remains as the only contestant, first argues that technical defects in the petition, including allegedly illegible and duplicative signatures and an assertedly inadequate description of the borough boundaries, require reversal. We will not consider these issues because they were waived when the Township failed to raise them in its exceptions to the lower court’s decision. See Canada Dry Bottling Co. v. Mertz, 264 Pa. Superior Ct. 480, 400 A.2d 186 (1979); Lundvall v. Camp Hill School District, 25 Pa. Commonwealth Ct. 248, 362 A.2d 482 (1976); Pa. R.C.P. No. 1038(d). The Township seeks to overcome this difficulty by arguing that tbe alleged defects call into question tbe lower court’s subject matter jurisdiction, and can be raised at any point in tbe proceedings. However, this precise contention was rejected in In Re Borough of Valley-Hi, 54 Pa. Commonwealth Ct. 53, 420 A.2d 15 (1980).

Tbe Township takes issue with tbe court’s findings as to tbe availability to tbe proposed borough of adequate police and fire protection, tbe presence of tbe requisite community of interest of Park residents, and with tbe court’s refusal to exclude from tbe proposed borough certain properties located outside tbe original Park boundaries but connected to utilities originating within tbe Park.

Tbe legislative grant of discretion to tbe Courts of Common Pleas in tbe matter of borough incorporation is founded in tbe belief that tbe judges of those courts;

having personal knowledge of tbe territory sought to be incorporated and of tbe witnesses who testify as to tbe facts, are more likely to arrive at a correct conclusion, as to tbe municipal needs, than tbe members of a tribunal sitting at a distance from tbe scene of controversy, who are without full information as to local conditions.

Blandon Borough Incorporation Case, 182 Pa. Superior Ct. 304, 307-308, 126 A.2d 506, 508 (1956) quoting Swoyerville Borough, 12 Pa. Superior Ct. 118, 123-124 (1899). Therefore, “a decree incorporating a borough will not be disturbed by an appellate court unless illegality appears on tbe record, or an abuse of discretion is distinctly charged and clearly shown.” Whitehall Borough Incorporation Case, 161 Pa. Superior Ct. 397, 402, 55 A.2d 70, 72 aff’d per curiam 358 Pa. 90, 55 A.2d 746 (1947). See Bear Creek Township v. Penn Lake Park Borough, 20 Pa. Commonwealth Ct. 77, 340 A.2d 642 (1975).

We have examined the record and find abundant evidentiary support for each of the challenged determinations. The discretion of the Court of Common Pleas was soundly exercised.

Order affirmed.

Order

And Now, this 8th day of June, 1981, the order of the Court of Common Pleas of Westmoreland County is affirmed.

1 This petition was filed pursuant to the provisions of Section 202 of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, 53 P.S. §45202.

2 Long range prognostications contained in the Economy League report are less sanguine; but they are also expressed with far less certainty.