64 Pa. Commw. 349 | Pa. Commw. Ct. | 1982
Opinion by
Once again this Court is confronted with an appeal where the procedural posture of the case presents a real question of whether we can or should address the merits.
Appellants
The Board and Commissioners (Appellees) filed preliminary objections to the complaint in the nature of a demurrer, a motion to dismiss for mootness, a motion to strike for lack of jurisdiction and a motion to dismiss because Appellants allegedly lacked capacity to sue. In their motion to dismiss for mootness, Appellees averred in their preliminary objection that on September 19,1978, a new Board was appointed by the Commissioners which did meet the requirements of the Law. Although the preliminary objections were verified, there was no notice to plead.
The case was listed for argument on the preliminary objections. The court of common pleas sustained the preliminary objection in -the nature of a motion to dismiss for mootness. The court did not rule on the other objections. Appellants have appealed from the order dismissing their complaint.
Initially, we must note that a motion to dismiss for mootness is not one of the allowable preliminary objections under Pa. R.C.P. No. 1017(b). Since Appellees did not file an objection to the preliminary objection, that defect is deemed to be waived. Swartz v. Masloff, 62 Pa. Commonwealth Ct. 522, 437 A.2d 472 (1981).
When ruling on preliminary objections, the court is limited to a review of the allegations set forth in the challenged pleading. Zurenda v. Hydeman, 46 Pa. Commonwealth Ct. 67, 405 A.2d 1124 (1979). Nowhere in the pleading challenged here is any mention
We observe, however, that not only did Appellant 'fail-to raise the issue just discussed but in its argument to this court states- as a fact in its' brief that on September 19j 1978, the Commissioners did appoint a hew Board which complied ivith the provisions of the Law! In view of the fact that the procedural defect has not been raised or discussed and Appellants have admitted that the omitted fact is true we will exercise our authority under Pa. B.C.P. No. 126 and disregard the error. We heartily agree with Appellees and the court of ’common pleas that since the Board'is now and has been since September 19, 1978 properly constituted, the sole issue raiséd' by .the complaint filed by the Appellants is moot.
To add to the procedural problems which we have already discussed,, the-court of common pleas did not
From the Appellants’ complaint we are informed that the Appellees were in 1978 implementing a proposed county-wide reassessment. The applicable notice requirements and appeal process relative to the revised assessments, therefore, is that provided in Section 701(c) of the Law, 72 P.S. §5453.701 (c). Section 701(c) was added by the Act of July 1, 1978, P.L. 714, which took effect immediately .and provides, inter alia, that, “All appeals shall be heard and acted upon by the board by not later than the last day of October. ’ ’
Appellants argue that Section 701(c) was inapplicable to the Board’s action in reconsidering the assessment appeals because the notice requirements of that Section were not satisfied. Aside from a bald assertion in Appellants’ brief that the requirements of Section 701(c) were not met, Appellants specifically point only to the fact .that the notice regarding reconsideration sent by the Board did not set forth the date on which the de novo hearing would be held.
Filially, Appellants argue, somewhat inconsistently, that if the requirements of Section 701(c) were not satisfied by the Board, then Section 702 of the Law, 72 P.S. §5453.702, would apply to prohibit hearings after- October 1, 1978.
Order affirmed.
And Now, this 1st day of February, 1982 the order of the Court of Common Pleas of Bradford County, dated October 24,1980, No. 78-30 E, is hereby affirmed.
Bradford County Citizens in Action and Frank Bonin.
Act of May 21, 1943, P.L. 571, as amended, 72 P.S. §5453.301.
Appellants also contend the notices were defective since they were sent after July 1, 1978. The Law does not require that notice of a hearing date be mailed by Julyl; it requires only that notice
Section 702, at all times relevant to this litigation, provided that assessment appeals must be acted upon no later than the first day of October of a given year. Section 701(c) provides that, notwithstanding any other provisions of the law, where a county-wide reassessment is proposed appeals may be acted on until October 31. Where, as here, a county-wide reassessment is involved Section 701(c) provides the applicable period for Board action. (We note that Section 702 was amended by the Act of October 5, 1978, P.L. 1138, to also provide for appeals to be acted on through October 31. That amendment, however, had a 60 sixty day delayed effective date rendering it inapplicable to the instant case.)