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ALBERT AYRE ET AL. v. MOUNTAINTOP AREA JOINT SANITARY AUTHORITY ET AL. (04/14/81)

decided: April 14, 1981.

ALBERT AYRE ET AL., APPELLANTS
v.
THE MOUNTAINTOP AREA JOINT SANITARY AUTHORITY ET AL., APPELLEES



Appeals from the Orders of the Court of Common Pleas of Luzerne County in case of Albert Ayre, Arline Ayre, Robert G. Byram, Frank Golumbeski, John J. Malone, Jr., Ann Meneeley, Anna Pollock, Leonard Sobiecki, James R. Thomas, Jr., Alvin V. Ziedonis, Prova Automotive Enterprises, Inc. v. The Mountaintop Area Joint Sanitary Authority, William J. Desciak, Francis L. Zabowski, Mel J. Boyne, Robert Rundle, Ronald Bonomo, William LaVigna and Brook March, No. 569-C-1980.

COUNSEL

John L. McDonald, with him Erik N. Dingle, for appellants.

Joseph P. Mellody, Jr., with him Joseph A. Quinn, Jr., Hourigan, Kluger & Spohrer Associates, for appellees.

Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Craig

[ 58 Pa. Commw. Page 511]

Albert Ayre and ten other property owners (appellants) seek review of an order of the Court of Common Pleas of Luzerne County which sustained preliminary objections of The Mountaintop Area Joint Sanitary Authority (authority), to appellants' class action complaint, dismissing certain counts of the complaint because of laches, and granting appellants thirty days to file an amended complaint with respect to the other counts.

Appellants filed the class action complaint on February 20, 1980, seeking equitable and monetary relief from the authority and seven individual defendants -- members of the authority at the time of the averments made in the complaint.

Claiming representation of 876 property owners in Wright Township, appellants alleged that the authority and its members had engaged in illegal, false and misleading practices with respect to construction, contracting, financing and assessments for a sewer system.

The authority filed extensive preliminary objections to the class action complaint in the nature of a motion to strike, laches, demurrer, a motion for more

[ 58 Pa. Commw. Page 512]

    specific pleadings and pleading appellants' lack of capacity to sue.

From the court's action in favor of the authority, as noted above, appellants appealed to this court on July 25, 1980; the authority filed a motion to quash on the ground that the order was interlocutory and unappealable. By memorandum and order of August 13, 1980, Judge Mencer held part of the lower court's order, dismissing the four counts of the complaint on the basis of laches, to be final and appealable; he granted the motion as to the remainder of the order, which he held was interlocutory.

Appellants did not file an amended complaint within the time limit; they decided to stand on their original complaint and filed a praecipe for judgment on August 4 directing the prothonotary to dismiss their complaint with ...


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