
    Louis D. Ekin and Lillian S. Ekin, his wife, et al., Appellants v. The Board of Commissioners of the County of Allegheny, et al., Appellees.
    Argued October 11, 1985,
    before Judges Craig and Barry, and 'Senior Judge Barbieri, .sitting as a panel of three.
    
      
      Thomas P. Cole, II, for appellants, individuals and North Huntingdon Township.
    
      Lee V. Price, with him, Alfred C. Maiello, for appellant, Norwin School District.
    
      James J. Dodaro, Solicitor, with him, Ira Weiss, Deputy Solicitor, for appellee, County of Allegheny.
    
      Evan E. Lloyd, for appellee, The Township of South Versailles.
    
      Robert P. Costello, for appellee, The McKeesport School District.
    
      Arnold V. Plum, with him, W. Richard Booth, Plum S Booth, P.C., for appellee, The Borough of White Oak.
    
      December 17, 1985 :
   Opinion by

Senior Judge Barbieri,

Appellants have appealed here an order of the Court of Common Pleas of Greene County which dismissed their exceptions to that court’s order of July 27,1984 and also dismissed their motions for judgment n.o.v. and for a new trial. The common pleas court’s order of July 27, 1984 determined that the boundary line between Allegheny and Westmoreland Counties is the line as surveyed by the United 'States Coast and Geodetic .Survey in 1934. That order further directed that the properties of the 'individual Appellants be assessed in the respective counties ¡and municipalities according to that boundary line. We affirm.

The f ollowing facts are pertinent. Louis D. Ekin, one of the Appellants here, owned a parcel of land which straddled the Allegheny-Westmoreland county line. On March 2, 1956, Ekin .recorded a subdivision plan with the Recorder of Deeds office for Westmoreland County. The plan of lots filed by Ekin did not indicate where the county line bisected the plan and further failed to show in which of the counties each of the lots was physically located. Subsequently, as lots were sold out of the Ekin parcel according to the plan, deeds were recorded in Westmoreland County although the .overwhelming majority of the lots were physically located in Allegheny County. Although the official tax maps fox both Allegheny and "Westmoreland County clearly .showed that these properties were, for the most .piart, located in Allegheny County, they were as,seas ed by "Westmoreland County ¡and its municipalities which also provided the Appellants with the necessary municipal -services.

In 1982, .South Versailles Township, Allegheny County, in which ,a number of the -subject properties ¡are physically located, ¡appealed the 1982 assessment-by the Board of Property Asi&eis-sment Appeals and-Review for Allegheny County (Allegheny Board) which failed to ¡show ¡an assessment for those subject •properties. After the Allegheny Board decided not to change that assessment, ¡South Versailles Township appealed the assessment to the ¡Court of Common Pleas ¡of Allegheny County. which• docketed the appeal at Docket No. G.D. 83-02161® In January 1983, Appellants filed an action with this Court invoking our -original jurisdiction pursuant to Section 302(a) of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §302(a), and Section 2(a),[1310] of the Judiciary Act Repealer-Act (JARA), Act of April 28,1978, PA. 202, 42 P.S. §20002(a)¡[1310], and requested that this Court designate a neutral court to determine the correct boundary line between Allegheny ¡and Westmoreland Counties. Pursuant to 16 P.S. §302(a), we designated the .Court of ¡Common Pleas iof Greene .County to hear this boundary .dispute. After a hearing, that Court confirmed, that the Allegheny-'Westmoreland County boundary line was that line as surveyed .and found by the United .States 'Coast and Geodetic ¡Survey pursuant to an agreement entered into between Allegheny and Westmoreland ¡Counties dated February 6, 1934. The common pleas court further directed that the properties of the .individual Appellants ¡should be assessed by the counties and municipalities in ¡which they are physically located in accordance with the 1934 county line as confirmed by the court. Appellants filed exceptions to that ¡order and moved for a judgment n.o.v. land a new trial. By order on October 27,1984, the common pleas Court dismissed those motions and the exceptions. It is from that order that Appellants noiw appeal.

In this appeal, Appellants contend that (1) the common pleas court erred by failing to- appoint a commission to determine whether the present boundary line between Allegheny and Westmoreland County should be moved; '(¡2) that the Common pleas court’s confirmation of ¡the 1934 line as the county boundary line constituted an abuse ,of ¡discretion; and (¡3) that the common pleas court abused its ¡discretion and erred as a matter of law when it directed that the .subject properties foe assessed by the counties and municipalities in which they were physically located. We shall address these issues in the ¡order .stated, being mindful that onr scope of review, where the common pleas court has taken testimony and heard the matter de novo, is limited to determining whether that court’s order constitutes an arbitrary or capricious abuse of discretion or whether that court committed an .error of law. Huntingdon County Line, Appeal of Mifflin County, 8 Pa. Superior Ct. 380 (1898); Huntingdon County Line, Appeal of Huntingdon County, 11 Pa. Superior Ct. 386 (1899).

We .shall first review Appellants’ contention that the common pleas court erred by failing to appoint a commission pursuant to 16 P.S. §3G2(ib). Section 302 (b) provides that:

(b) If it appears to the court so designated that the county line, or any part thereof, shall be surveyed or marked, it ishall appoint a commission, composed of three surveyors or professional .engineers in civil .engineering, to aet for the court as hereinafter provided. (.Emphasis added.)

The Common pleas court held that the appointment of a commission was neither necessary, nor appropriate, in .that the court found that “the boundary line has been long fixed, and is well and clearly .established.” Slip op. :at 8, P.R. 402a.

As noted by ¡the common pleas court, the appointment of :a commission is within the discretion ,of the designated court only where justified to resolve a disputed boundary line. The authority which was previously .contained in iSection 305(a) of the .County Code, 16 P.S. §305(,a), to readjust bounty boundaries .where the existing 'county line became inconvenient o.r improper, was abrogated by Article 9, Section 8, of the Pennsylvania Constitution. Under that article, the General Assembly bad until April .23, 1970 in which to enact uniform legislation to .establish a procedure for-.altering tbe boundaries of municipalities. Tbe failure of tbe General Assembly to so act abrogated all such pre-existing legislation dealing with altering municipal .boundaries .and left initiative and referendum as the sole method of changing municipal boundaries. Derry Township Supervisors v. Borough of Hummelstown, 458 Pa. 396, 326 A.2d 342 (1974). Article 9, Section 14,. of the Pennsylvania Constitution clearly includes .counties in its definition of “municipality” as used in Article 9. Therefore, the provisions of Article 9, Section 8, are clearly applicable ¡to the boundary alteration provisions-of -the County ¡Code, specifically 16 P,S. §§301, 302 and 305. Since Appellants concede that tlxere -exists- no- dispute- as to the present location of -the Allegheny-Westmor-eland County boundary line, there, was no need to have that line -either surveyed or marked ¡and th-e common pleas ¡court ¡acted correctly when it refused t.o appoint a .commission under 16 P;-S. §302(ib).

W-e now turn -to- Appellants’ second-contention, which, is -that the common pleas court abused its discretion when it confirmed the 1984 county, boundary-line as the correct boundary .line. The gravamen of Appellants ’ argument is that the common' pleas court abused its ¡discretion when it failed .to relocate the. county -line .so that the properties of the individual Appellants would be ¡situated in Westmoreland County. rather than Allegheny County in light -of the demographic ¡and geographic evidence presented by the Appellants. Appellants point to the fact that the/ Allegheny Board had historically treated the ¡subject-properties as if they were part -of Westmoreland ¡County and had refused to ¡assess those properties in Allegheny County.. Appellants further point out that the-, children who reside at the subject properties have ¡always attended the Norwin ¡School District, in Westmoreland County. Were the common pleas court decision -upheld, Appellants stress, the ¡children will -experience a severe ¡disruption to their education necessitated iby their 'changing from Norwin to McKeesport School District. Finally, Appellants contend that the common pleas ¡court ignored the geographic reality of the -area in that the ¡subject properties ¡are not accessible from Allegheny ¡County except through North Huntingdon Township, in Westmoreland County. While initially appealing, Appellants’ arguments must fail in light of the mandate of Article- 9, ¡Section 8. As we ¡previously noted, the authority which .previously existed under 16 P.iS. §305. to revise, county boundary lines was abrogated as of April 23,1970 when .the Gen-, eral Assembly failed to enact, uniform legislation to provide for -altering municipal boundaries. See Derry Township Supervisors. Therefore, under Article 9, Section 8, as interpreted by Our ¡Supreme Court in Derry Township Supervisors and by this Court in In re Establishment of Boundary Between Collier Township and Robinson Township, 25 Pa. Commonwealth Ct. 230, 360 A.2d 841 (1976), the common pleas court did not have the power ;or authority to ¡alter the existing county line and it did not abuse its discretion by confirming the county line as determined by the 1934 survey conducted by the United States .Coast and Geodetic ¡Survey.

We consider now Appellants’ final contention which is that the common pleas court abused its discretion and erred ¡as a matter of law when it directed that the subject properties be assessed by the counties and municipalities in which they are physically located as determined by the 1934 county boundary line. They argue that in so ¡ordering, the common .pleas court ignored the Mansion House Rule embodied in Sections 411 and 413 of the Act of May 22, 1933, P.L. 853, as amended, 72 P.S. §§5020-411 and 5020-413, and Section 608 of the Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §5453.608, as well as exceeding the scope of its jurisdiction under 16 P.S. §302(a) and 42 P.S. §20002 (a)[1310].

The “Mansion House Rule” .provides 'that where a tract of land is divided iby a county line, the .whole tr act is assessable in the county in which the mansion house is located. Bausman v. Lancaster County, 50 Pa. 208 (1865); Ellis v. Hall, 19 Pa. 292 (1852). The rule is aimed at preventing the mischief which would flow from contests between the assessors of adjoining municipal divisions, respecting the right and duty of assessing property intersected by the division lines of districts, and it guarded against the low valuation which assessments of an entire property in parcels tended to produce. Bausman, 50 Pa. at 211. Appellants contend that the original mansion house of the Ekin tract was located in Westmoreland County and, therefore, the subdivided lots which are derived from that original tract are properly assessed in Westmoreland County under the Mansion House Rule. Our research into the applicable ease law indicates that this contention is incorrect.

The Mansion House Rule, as discerned by our study of the ¡applicable case law, ¡applies to individual tracts of land depending upon their particular use. The Mansion House Rule ¡as applied to a single tract does not carry over to 'all of the smaller parcels which are created by a subdivision of that original tract.' An example of this rule is found in the 1905 Pennsylvania Supreme Court case of York Haven Water & Power Company’s Appeal, 212 Pa. 622, 62 A. 97 (1905). There, a power company owned a four hundred acre tract of land in York County which ,was bordered on the east by the ¡Susquehanna River. The company had erected a mansion house in York ¡County as well as various farm buildings and a warehouse in which it stored materials used in its business. 'Subsequently, the company erected a crib dam in the ¡Susquehanna River, ¡south from which ran a retaining wall, which was part of the dam, ¡at the end of which was erected a power house where ¡electricity was generated using the water power of the river. The major part of the dam, retaining wall land the power house were determined to .be located in Lancaster County which assessed the power house. The company argued that the power house ¡and associated improvements should be assessed in York ¡County ¡since the original mansion house is located there ¡and the power house was erected on part of the original four hundred ¡acre tract covered by that original mansion house. In rejecting that argument, the Pennsylvania iSupreme Court held that the portion of the farm which was occupied by the dam and ¡power house was no longer used as part of, or in connection with, the original 'farm, and was therefore severed therefrom. and used for- a separate and independent purpose. That, the Court wrote, was the controlling fact and'the location .of the original mansion house in-York 'County did not draw that portion of -the tract, where, the power house was erected, which was in -Lancaster. County, into York'County for the purposes of taxation. Id. -at 624, 62 A. at 98..'

The York Haven decision alone would require us to reject Appellants’ reliance upon the Miansion House Rule to place their properties in "Westmoreland County for the purpose ¡of' taxation. We aré further persuaded by our iSuperior Court’s decision in Quigley v. Reiff, 39 Pa. Superior Ct. 425 (1909). In Quigley, the owner .of :a farm which was divided by a township line constructed a -new dwelling -house across the., township line from the original house. The owner subsequently moved his family to ..the-new dwelling and placed a tenant in the old dwelling. The Superior Court, citing Bausman,, held that "the dwelling house in which the owner- resides must be- regarded as the mansion house, for, purposes of the Mansion-House Rule and .the property was.properly -taxable-in the township-in which the new dwelling house was located. Id. &t 428-429.- The: clear implication of the rationale, of Quigley is that the location.of the original mansion.house is .irrelevant where circumstances .change the use of that house or of the, parcel in general. See also, York Haven. Therefore, in light of the foregoing, the common pleas court was correct in-failing to .extend the Mansion House Rule as.applied to. the original Ek-in tract to all of the subdivided parcels which were derived from "the subdivision of that tract.

Finally, there is Appellants-’ argument that the' common pleas court exceeded the scope of its authority under, .our designation and 16 P.S. §302(,a) and 42 P.S.:. §20002(a) [1310] when it directed that the subject properties be assessed iii the counties 'and'municipalities in which they are physically located., In ;so directing, the common, pleas court recognized that the' sole reason f-or the boundary dispute was over, where these subject properties were, to be properly , assessed. In •'directing that the properties were to'be assessed by the counties ¡and municipalities in which they are. physically located .as determined, by the 1934 county boundary line, the common pleas, court was only restating 'the law. Accordingly, the common pleas court did not commit error' by so ¡stating the law; ' '

' ’ Having disposed ef Appellants’ contentions .in favor of ..the Appellees, we shall affirm the .order of the common pleas Court.

Order .

' Now, Dec.ember'17, 1985 the' Order of the Court of Common Pleas of Greene County at Docket No. Misc. Nq,; 22, 1983,. ¡dated October 29, 1984, is .hereby • aD firmed. ... .■ v- 
      
       Lords D. ¡Ekin, Lillian S. Ekin, John W. MaoCIaren, Dorothy M. MacCIaren, John H. Baldwin, Patricia A. Baldwin, Milton H. Shapiro, Patricia Shapiro, Eileen M. Mossburg, Diane M. Mossburg', Richard G. Gangle, Barbara L. Gangle, Thomas E. Clark, Margaret R. Clark, Charles A. Provan, Marjorie B. Provan, Donald W. Rhodes, Edith J. Rhodes, Louis Slade, Eileen K. Slade, John L. Morrison-, Margaret A. Morrison, Sidney A. Jackson, Marion Jackson, Arthur T. Trexler, Edith M. Trexler, The Township of North Huntingdon, The Norwin School District, and The Board of Commissioners of the County of Westmoreland.
     
      
       The tax map indicates that the Ekin, Morrison, MaeOlaren, and Rhodes properties actually straddle the county line. Of those properties, only .the Ekin and Mor-rison properties are mostly located in Westmoreland County. Slip Op., Court Exhibit “A,” R.R. 409a.
     
      
       By order dated April 27, 1978, this Court stayed- the assessment appeal of .South Versailles Township pending tresototion of .the county boundary issue. Accordingly, that action is still pending in Allegheny County Common Pleas Court.
     
      
       16 P.S. §302(a) reads as follows:
      §302. Superior Court to designate neutral court; appointment of commission
      
      
        (a) Tlie Court, upon the filing of such petition, shall designate a court of a county not affected by the question and not adjoining any of the counties involved to act in the proceeding. The court so designated shall sit in its home county.
      Section 2(a) [1310] of JABA repealed that part of 16 P.S. §302 which referred to the Superior Court and vested jurisdiction in such cases in this Court.
     
      
       R.R. 95a-97a.
     
      
       Appellants also contend that this constitutional issue was improperly raised in that the Appellees failed to inform the Attorney General of the Commonwealth of their challenge as required by PaVR.O.P. No. 235. Rule 235 requires that where an Act of the General Assembly is alleged to be unconstitutional and the Commonwealth is not a party to the action, the party raising the question- of constitutionality shall promptly give notice thereof by registered mail to the Attorney General of the Commonwealth. While Appellees failed to comply with Rule 235 -in this action, we find that they were not challenging the constitutionality of any Act of the General Assembly. Rather, the Appellees contended that the Constitution’ of 1968 abrogated pre-existing municipal boundary change, legislation.. The Pennsylvania Supreme Court has already ruled tha-t Article 9, §8, of the Constitution of 1968 abrogated all pre-existing municipal boundary, change législation. See Derry Township Supervisors. Since the Appellees raised the issue of constitutional abrogation, ‘rather than the unconstitutionality • of the statute in question, we hold that the notification requirement of Rulé 235 is not applicable to the case at bar.
     
      
       The Board of Commissions of the County of Allegheny, The Board of Property Assessment Appeals and Review for Allegheny County, The Township of South Versailles, The McKeesport School District, and the Borough of White Oak. ...
     