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KORONA v. BENSALEM TOWNSHIP. (05/21/56)

May 21, 1956

KORONA, APPELLANT,
v.
BENSALEM TOWNSHIP.



Appeal, No. 89, Jan. T., 1956, from judgment of Court of Common Pleas of Bucks County, May T., 1954, No. 3, in Equity, in case of Chester Korona et al. v. The township of Bensalem et al. Judgment vacated.

COUNSEL

Charles S. Schermer, for appellants.

Robert K. Baker, Lawrence A. Monroe and Barrett & Monroe, for appellees, were not heard.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 385 Pa. Page 284]

OPINION BY MR. JUSTICE JONES

This appeal by the plaintiffs is from a certification of their suit in equity to the law side of the court. Subsequently, the court entered judgment for the two individual defendants because of the plaintiffs' failure to file an amended complaint within the time the court had allotted therefor by further order.

An order certifying an equity suit to the law side of the court does not raise a question of jurisdiction appealable under the Act of March 5, 1925, P.L.23, 12 PS § 672 et seq., Section 4 thereof (12 PS § 675) expressly excluding such an order from the purview of that Act; and Section 2 of the Act of June 7, 1907,

[ 385 Pa. Page 285]

P.L. 440, 12 PS § 1228, under which such an order was appealable, has been suspended by Rule 1550 (10) of the Pennsylvania Rules of Civil Procedure. It is clear, therefore, that the only thing appealable was the final judgment entered in favor of the two individual defendants as above stated. And, the appellants offer no meritorious excuse for their dereliction in such regard except the expressed uncertainty and evident confusion of their counsel as to the type of amended pleading the court had in mind when it made its order allowing for amendment, and counsel's continued insistence that the controversy be proceeded with in equity.

However, in order that the plaintiffs may not be summarily precluded from any cause of action they might possibly have with respect to the matters complained of in their complaint, we are disposed to vacate the default judgment and proceed to a disposition of the questions raised by the appellants with respect to the action of the court below in sustaining various preliminary objections to their complaint in equity and in ordering them to file an appropriately amended pleading on the law side of the court within the time specified therefor.

In a prolix and multifarious bill in equity, the plaintiffs, for the themselves and in the nature of a class bill for the benefit of others similarly situated, complained that, in the laying out by the individual defendants of an unrecorded plan of lots, known as Spring Garden View, in the defendant township, they had illegally opened, constructed and dedicated certain streets, roads and drainage facilities with respect to their lot plan in violation of specified Acts of Assembly and various ...


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