Appeal from the Order of the Court of Common Pleas of Bucks County in case of Northampton Residents Association v. Northampton Township Board of Supervisors, No. 72-9471-04-6.
Steven A. Cotlar, with him Cotlar and Mantz, for appellants.
E. Dillwyn Darlington, with him Cadwallader, Darlington & Clarke, for appellee.
Leonard L. Wolffe, with him Stanley A. Uhr, Marc D. Brookman and Pechner, Sacks, Dorfman, Rosen & Richardson, for intervenor-appellee.
President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr., did not participate. Opinion by Judge Blatt. Concurring and Dissenting Opinion by Judge Rogers. Judge Kramer joins in this Concurring and Dissenting Opinion.
[ 14 Pa. Commw. Page 517]
On September 20, 1972, the Board of Supervisors of Northampton Township (Township), enacted an ordinance amending the Township Zoning Code and permitting planned residential developments (Ordinance 129). On September 27, 1972, the Township enacted another ordinance (Ordinance 130), this one rezoning a tract of 319 acres owned by Verree Welsh Homes, Inc. (Verree Welsh) so as to permit the use of this property as a planned residential development.
[ 14 Pa. Commw. Page 518]
On October 18, 1972, the Northampton Residents Association (Association), a non-profit corporation, filed a complaint*fn1 in the Criminal Division (later transferred by stipulation of the parties to the Civil Division) of the Court of Common Pleas of Bucks County challenging the validity of Ordinances 129 and 130. The Township filed an answer, and Verree Welsh intervened and filed preliminary objections and an answer. Subsequently both the Township and Verree Welsh filed motions for summary judgment, attaching affidavits thereto in support of these motions. On May 21, 1973, the lower court granted the motions for summary judgment and dismissed the Association's appeal. Also on that date, the lower court denied a petition to intervene filed by six individuals (intervenors). The Association and the would-be individual intervenors have appealed to this Court.
No permits having been issued pursuant to the ordinances in question at the time of the commencement of this action, only issues pertaining to the procedural, rather than the substantive, validity of the ordinances could properly have been raised. Gerstley v. Cheltenham Township Commissioners, 7 Pa. Commonwealth Ct. 409, 299 A.2d 657 (1973). See Sections 915 and 1005 of the MPC, 53 P.S. §§ 10915 and 11005. The lower court, therefore, properly considered only these issues of procedure.
The first issue raised here by the Association relates to the propriety of the lower court's grant of summary
[ 14 Pa. Commw. Page 519]
judgment. We note that, when the motions for summary judgment were made, answers had been filed and the record had thus been closed. A motion for summary judgment was appropriate, therefore, and we believe that the lower court did not err by granting it. The Association asserts that summary judgment should not have been granted because there were genuine issues of material fact present, and it is true, of course, that the complaint and the answers filed thereto did raise issues of fact. It is also true, however, that the Township and Verree Welsh filed extensive affidavits in support of their motions for summary judgment, while no contravening affidavits were filed by the Association. Where, as here, no opposing affidavits are filed, a court is bound by Pa. R.C.P. No. 1035 to conclude that there are no genuine issues as to any of the material facts contained in the affidavits, and any allegations to the contrary which are contained in the pleadings do not properly raise a genuine issue of material fact. Once a motion for summary judgment is made, a party may not rely on the controverted allegations of the pleadings. "A motion for summary judgment under Rule 1035 would be a useless procedural appendage if a court were required to deny such a motion because the original pleadings raised a genuine issue of material fact. ...