pennsylvania legislator's municipal deskbook, third edition

Municipalities – How They Change. . . Boundaries, Classification, orForms of Government

Pennsylvania Legislator’s Municipal Deskbook, Third Edition (2006)

9Pennsylvania General Assembly * Local Government Commission

The boundaries or governmental structure of Pennsylvania municipalities can be impacted in a varietyof ways: e.g., resolution of boundary disputes, annexations, mergers, consolidations, annulment of bor-ough charters, a change in classification or form of government, or adoption of a home rule charter oroptional plan.

Municipal Boundary-Related Changes

Boundary Disputes. Boundary disputes involve instances in which two or more municipalities are ineffect attempting to resolve a disagreement concerning the location of the dividing line betweenmunicipalities. The resolution of these disputes has been held to be distinct from a “consolidation,merger, or boundary change.” Boundary disputes are governed by the relevant sections of a municipality’sgoverning code.1

Annexation. Annexation is a type of boundary change wherebyone municipality attempts to acquire a portion of another. It isgoverned by the initiative and referendum procedure providedin Article IX, Section 8 of the Pennsylvania Constitution. Thisprovision was held to have superseded individual municipalcode procedures governing annexation.2

Consolidation and Merger. The Municipal Consolidationand Merger Act3 provides the methods by which municipali-ties may consolidate or merge. “Consolidation” is defined as“[t]he combination of two or more municipalities whichresults in the termination of the existence of each of themunicipalities . . . and the creation of a new municipality.”4 “Merger” is defined as “[t]he combinationof two or more municipalities which results in the termination of the existence of all but one . . . with

1 See 53 P.S. §§ 45502, 55302, 65302. See also Laflin Borough v. Yatesville Borough, 44 Pa. Cmwlth. 402, 404 A.2d 717 (1979).2 See Middle Paxton Township v. Borough of Dauphin, 10 Pa. Cmwlth. 431, 308 A. 2d 208 (1973), aff’d. sub nom., Derry Tp. Sup’rs. v.Borough of Hummelstown, 458 Pa. 396, 326 A.2d 342 (1974).3 53 Pa.C.S. § 731 et seq.4 53 Pa.C.S. § 732.

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Municipalities – How They Change . . .

the surviving municipality absorbing and assuming jurisdiction over the municipalities which have beenterminated.”5 The governing bodies of the municipalities may agree to merge or consolidate, after whichthe question is placed on the ballot in all municipalities involved. An alternate method is available wherebyelectors may initiate a merger or consolidation action.

Annulment of Borough Charters. The Borough Code permits at least ten percent of the registeredelectors of any borough to petition the court of common pleas to order an election on the question ofannulment of the borough charter or change of the borough corporate name.6 The annulment may haveone of two chosen effects: (1) the borough reverts to and becomes part of the township from which theborough was taken, or (2) the borough may become a new second class township. It is possible that thefirst scenario, in which a borough is incorporated into the surrounding township, might be considered a“merger” and thus be superceded by the Municipal Consolidation and Merger Act.7

Dissolution of Municipalities. Aside from the procedures provided in the Municipal Consolidationand Merger Act and those that govern the annulment of borough charters, there is no law that governsthe dissolution of a municipality. The municipal codes have provisions that govern the changing ofmunicipal classifications (see below).

Classification Changes8

Counties. The County Code generally provides that a county may advance in class if the last decennialcensus reveals that it is so entitled.9 A county may not recede in class until two successive censuses haverevealed a decrease in population that would warrant a new classification.10 For both scenarios, theGovernor is obligated to certify the change to the commissioners of the county on or before the first dayof October of the year following the year of the census. The change is effective the first day of the year

5 53 Pa.C.S. § 732.6 See 53 P.S. §§ 45301-45305.7 A common pleas court discussed this issue in 1972:

The annulment of a borough charter, resulting in its reverting to the township from which it was originallytaken, is no different in effect from a merger with the township. Consequently, the provisions of this sec-tion providing the procedure for such an annulment, are superseded by Const. Art. IX, 8, as ratified by theelectorate in 1968, and the schedule at the end of § 14 of that article, providing in effect that in the absenceof further legislation within a period of two years after adoption of the amendments of 1968 to theConstitution the merger of municipalities shall be effected by initiative and referendum as defined in Const.Art. IX, § 14.

In re St. Lawrence Borough Charter, 65 Berks 1, 56 Pa. D. & C. 2d 595 (1972). It is important to emphasize that common pleascourt decisions, such as this, do not have statewide application.8 Article III, Section 20 of the Pennsylvania Constitution provides that the legislature shall have the power to classify counties,cities, boroughs, school districts, and townships according to population. Using this method of classification, the legislaturehas created nine classes of counties, two classes of townships, four classes of cities, and five classes of school districts.9 See 16 P.S. § 211.10 Id.


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following the certification by the Governor. Salaries of county officials and employees will not bechanged as a result of the reclassification during the term of the officers. In the next municipal electionfollowing the certification and before the effective date, the proper number of elected officials representingthe new classification shall be placed on the ballot.

Townships. Townships are divided into two classes. First class townships are defined as those townshipshaving a population density of at least 300 people per square mile that have elected to choose first classtownship status. All other townships are townships of the second class. Given the requisite populationchange, statutory provisions exist for the creation of townships of the first class from townships of thesecond class and for the reestablishment of townships of thesecond class from townships of the first.

Cities. There are four classes of cities in Pennsylvania: firstclass cities with populations of 1 million and over(Philadelphia),11 second class cities with populations of250,000 and under 1 million (Pittsburgh), second class A citieswith populations of 80,000 and under 250,000, and which electby ordinance to be classified as such (i.e., Scranton), and thirdclass cities with populations less than 250,000,12 i.e., all of theremaining 53 cities in the Commonwealth.13 If two consecu-tive decennial censuses demonstrate that a city of the first, second, or second A class has a populationbelow the minimum required for its current classification, or a city of the second, second A, or third classhas increased in population beyond its current classification, the Governor shall certify the fact.14

Additional Changes to Local Forms of Government

Incorporation of Boroughs. Generally, boroughs are not “classed” based on population.15

A borough may be incorporated from an existing township by petition to the court of common pleas,both by a majority of the landowners residing in the area of the proposed borough and by owners of amajority of the land within the area of the proposed borough, provided that the proposed borough areahas a population of at least 500.16 Upon receipt of the petition, the court shall appoint a borough advi-sory committee that shall determine the economic and logistic feasibility of the proposed borough and

11 The consolidated city/county of Philadelphia is also the only first class county and is subject to the County Code, Section210, which provides that first class counties must have a population of 1,500,000 inhabitants or more.12 Third class cities include those with populations less than 250,000 and more than 80,000 that have not chosen, by ordinance,to become second class A cities. See 53 P.S. § 101.13 See 53 P.S. § 101.14 See 53 P.S. § 102.15 The Borough Code does use population as a distinguishing factor for a variety of administrative purposes. See, e.g., 53 P.S.§ 46001 (compensation of council members determined by population), 53 P.S. § 46025 (compensation of mayor determinedby population), 53 P.S. § 46104 (no elected official may serve as an employee of a borough with a population of 3,000 or more).16 See 53 P.S. §§ 45201-45202.

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Municipalities – How They Change . . .

what effect incorporation would have on the “parent” municipality. After receiving the findings from thecommittee, the court conducts a hearing, and determines, with the advice of the committee, if “the areaproposed for incorporation [will] be one harmonious whole with common interests and problems whichcan be properly served by borough government.”17 If the court determines that the requisites of incor-poration have been satisfied, the court certifies the question to the county board of elections for a voteby the residents of the area to be incorporated. Upon certification of results that favor incorporation bya majority of the affected voters, the court shall grant the petitioners’ request for incorporation. Thedecree serves as the borough charter. The Pennsylvania Supreme Court has determined that this proce-dure does not constitute a “consolidation or merger” that would be preempted by Article IX, Section 8of the Pennsylvania Constitution.18

Creation of Boroughs from Cities. At least 10 percent of the residents of a city that has been operatingfor at least five years may petition the court of common pleas to order the question of whether the citycharter should be changed to a borough charter.19 If a majority of voters elect to change the charter, thecourt will order that the proceedings be recorded in the office of the county recorder of deeds, wheresuch recording will constitute the new borough charter. If the question fails, a similar question shall notbe presented to the voters for five years following the election.

“Creation” of Third Class Cities. The corporate authorities of a town, township, or borough, or acombination thereof, in the same county or two or more contiguous counties, may on their own motion,or upon petition of 200 or more qualified electors of the municipality, shall, submit the question to thevoters as to whether or not the municipality should be chartered as a third class city. During the sameperiod, the corporate authorities or 200 or more electors may petition the court of common pleas toappoint a charter commission to study and report recommendations on the form of government the cityshall assume.20 The municipality or combination of municipalities must have a population of at least10,000.21 If a majority of the electors vote in favor of the change, the corporate authorities shall, within60 days of the election, inform the Secretary of the Commonwealth with information about the new city,and the Governor shall issue a charter.

Home Rule and Optional Charter Changes. In addition to changes discussed above, a municipali-ty may change its form of government or adopt a home rule charter. In 1957, the legislature provided foroptional charters for third class cities with the Optional Third Class City Charter Law.22 Authorization toadopt charters under this law was eliminated in 1972; however, 13 cities continue to operate according tothis statute. The addition of Article IX, Local Government, to the 1968 Pennsylvania Constitution explic-itly gave all municipalities, excluding the consolidated city-county of Philadelphia,23 the right to frame and

17 Bear Creek Township v. Penn Lake Park Borough, 20 Pa. Cmwlth. 77, 84, 340 A.2d 642, 645 (1975).18 See In re Incorporation of Borough of New Morgan, 127 Pa. Cmwlth. 519, 562 A.2d 402 (1989), aff’d., 527 Pa. 226, 590 A.2d 274(1991), cert. denied, 502 U.S. 860 (1991). 19 See 53 P.S. § 45231.20 See 53 P.S. § 35250 et seq.21 See 53 P.S. § 35201.22 53 P.S. § 41101 et seq.23 The City of Philadelphia operates under a home rule charter pursuant to the provisions of the First Class City Home RuleAct (1949 P.L. 665, No. 155), as amended.


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adopt home rule charters and optional plans.24 In 1972, the General Assembly enacted the Home RuleCharter and Optional Plans Law,25 which established general procedures for most municipalities adopt-ing an alternative form of government. Pursuant to this law, a government study commission is electedto examine the current form of government and make recommendations regarding an alternative form.If the commission recommends home rule, it drafts a charter and presents it to the voters. Upon a major-ity vote in the referendum, the charter is adopted. For optional plans, the same commission procedure isfollowed, except that the commission chooses one of the optional plans provided for in the act. Optionalplan municipalities continue to be governed by their respective municipal codes except where it is super-seded by the optional plan itself. The law also provides streamlined methods by which local governmentsin the process of a merger or consolidation may adopt the charter of one of the municipalities or framea new optional plan or home rule charter.26

24 See Pa. Const. Art. IX, §§ 2, 3.25 53 Pa.C.S. § 2901 et seq.26 See 53 Pa.C.S. § 731 et seq.

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