Dissenting Opinion by
Rhodes, P. J.:I feel obliged to file a dissent to the majority opinion, as I would affirm the order of the court below.
The first question raised on the appeal in this proceeding is whether the court below had authority to permit petitioners in the proceeding to withdraw after the petition for annexation had been filed. Appellant admits that, if the withdrawals permitted by the court below are proper, as a matter of law, the petition must fail for lack of “the requisite 80% of the qualified electors and 80% of the assessed valuation.” Appellee joins in this admission. It is argued that the court below had no discretion to permit withdrawals for the reasons given at this stage of the proceeding. Appellant admits that if the withdrawals permitted by the court below are sustained, even though this number be taken as twenty-nine and not thirty-eight, the.petition must fail.
.....Twenty-eight..persons . had. signed the petition to with'draw which set forth that they had signed. tEe an-. *530nexation petition due to misrepresentations made to them. At the hearings on the annexation petition testimony was introduced in support of and supplementary to the averments in the petition to withdraw. Among the witnesses were thirteen who had signed the withdrawal petition. A number testified that they spoke for their respective spouses who had likewise signed the withdrawal petition. Some appeared for themselves and others who had signed the petition to withdraw. In another instance a party who had not signed the .withdrawal petition appeared and testified that he and his wife desired their signatures to be withdrawn from the annexation petition. Many additional witnesses appeared and testified although they may not specifically have requested that their names should be withdrawn from the annexation petition. The oral testimony was confirmatory of the petition to withdraw which contained twenty-eight signatures.. At least twenty-niné persons properly sought to withdraw, and the court permitted at least that many to withdraw.
The trial judge who heard the witnesses concluded that the withdrawing petitioners signed the annexation petition under a misapprehension of fact as to the reasons for that petition. The trial judge also dismissed the annexation petition on the ground that the amended petition and plan had not been approved by the annexing Township of Mount Lebanon. Exceptions were filed to the dismissal of the petition for annexation; on argument the court in banc affirmed the dismissal of the annexation petition, holding that it Was within the discretion Of the trial judge to permit the petitioners to' withdraw their names.
Certain undisputed facts fully supported by the evidence áre Set forth by the' opinion of "the court in banc as follows:
“(a). That a group of Mt. Lebanon property owners,. calling themselves Mt. Lebanon Property 'Owners *531Association, instituted this proceeding for the sole purpose of preventing the erection of apartment buildings on a tract of land in Scott Township;
“(b) That the committee formed to solicit signatures to the petition did not, in most instances, show a map or boundary line of the territory to be annexed to the residents or owners of property in the.area;
“(c) That many of the persons whose signatures were obtained did not know that the map or plan, bisected Scott Township into two separate tracts;
“(d) That the Mt. Lebanon Property Owners Association had underwritten the entire cost of this proceeding, and .that signers of the petition ■ did not ■ pay any money for fees, costs or other expenses of this proceeding;
“(e) That the Chairman of the Committee for annexation filed an amended petition and plan, and in the affidavit stated that he was authorized to do so by the signers to the petition; no such authority was requested or given according to the testimony of some of the signers to the petition who testified under subpoena;
“(f) That the plan was drawn without any rational boundary lines and did not follow streets, roads, streams, or other natural boundaries;
“(g) That the plan submitted consisted largely of property on the higher elevations which would throw a tremendous burden upon Scott Township by forcing Scott Township to take care of all the drainage from the district without getting any revenue therefrom;
“(h) That misrepresentations were made concerning the population, financial stability and adequate schooling for Scott Township;
“(i) The Committee made no attempt to inform some of the signers that the voters of Scott Township *532had authorized a bond issue of $225,000 to build a new school in the area; .
“(j) The amended plan which was offered in evidence was not presented to the Commissioners of Mt. Lebanon Township.” . .
Appellant’s position is that, as a matter of law, the court below had no authority or discretionary power to permit any of the petitioners to withdraw after the court had assumed jurisdiction of the annexation petition, especially in the absence of any finding that either fraud or misrepresentation had been practised upon those petitioners who sought to withdraw. Appellant contends that there is no evidence which would justify the court’s .permission for withdrawal. The right of petitioners to withdraw depends upon the circumstances ; no hard and fast rule can be laid down, and in such cases much must be left to the sound discretion of the court. Mercersburg Independent School District, 237 Pa. 368, 371-373, 85 A. 467.
The evidence in this proceeding supports the court’s finding that petitioners seeking withdrawal signed the annexation petition in some instances under specific misrepresentations; and while, as the court below states, the evidence may not, in all instances, have been sufficient to establish actual fraud or active misrepresentation, it does appear from the evidence that withdrawing petitioners acted at least under a misapprehension of the facts, and in many instances without a full and complete disclosure of all the relevant facts which would ordinarily motivate their action in signing such an annexation petition.
It devolves upon the court of quarter sessions to see that such an annexation proceeding is conducted properly, and that the requirements of the statute are fulfilled. If some petitioners are shown to have been induced to sign without full disclosure of material facts *533or under a misapprehension as to important facts, these matters go to the very foundation and legality of the petition, and may establish that the procedural requirements of the Act (June 19, 1939, P. L. 430) have not been met. In acting within its discretionary powers and permitting withdrawal of petitioners for cause shown, the court is in no. way exceeding its statutory authority. In the present case the court acted within its discretionary power in permitting petitioners to withdraw, and its decision cannot be reversed on the ground of abuse of that discretion.
The annexation petition was also properly dismissed by the court beiow for lack of another statutory requirement — approval of the amended plan by the annexing Township of Mount Lebanon. Act of June 19,1939, P.L. 430, § 3, 53 PS § 19092-312.3. Cf. Whitehall Borough Incorporation Case, 161 Pa. Superior Ct. 397, 403, 55 A. 2d 70. When counsel for petitioners offered in evidence the petition and amended petition,, counsel for Scott Township School Board, intervening appellee, objected on the ground that the amended plan had never been approved by the Commissioners of Mount Lebanon Township. It is admitted that such approval by Mount Lebanon Township was never obtained. The requirements of the statute are mandatory. In re Annexation of a Portion of Abington Twp. to Boro. of Jenkintown, 101 Pa. Superior Ct. 227, 230. Petitioners for annexation had the burden of showing compliance with the requirements of the statute. Braddock Township Appeal, 148 Pa. Superior Ct. 52, 59, 24 A. 2d 705.
The order of the court below dismissing appellant’s exceptions and affirming the dismissal of the annexation petition should be affirmed.
Judge Reno joins in this dissent.