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GALEN H. WOLGEMUTH v. RALPH R. KLEINFELTER AND JANET E. KLEINFELTER (12/23/81)

decided: December 23, 1981.

GALEN H. WOLGEMUTH, LLOYD G. GRANDER AND DANIEL L. LEIB, BOARD OF SUPERVISORS, HEIDELBERG TOWNSHIP, LEBANON COUNTY, PA., APPELLANTS
v.
RALPH R. KLEINFELTER AND JANET E. KLEINFELTER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of Ralph R. Kleinfelter and Janet E. Kleinfelter, his wife v. Galen H. Wolgemuth, Lloyd G. Grander and Daniel L. Leib, Board of Supervisors, Heidelberg Township, Lebanon County, Pennsylvania, No. 2071 of 1976.

COUNSEL

Robert C. Rowe, for appellants.

Kenneth C. Sandoe, with him Robert J. Eby, Steiner & Eby, for appellees.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 63 Pa. Commw. Page 396]

This is an appeal by the Board of Supervisors, Heidelberg Township (Board) from an order of the

[ 63 Pa. Commw. Page 397]

Court of Common Pleas of Lebanon County dismissing the Board's Motion to Open Peremptory Judgment. We reverse and remand.

On August 20, 1976, Appellees Ralph R. and Janet E. Kleinfelter filed a complaint in mandamus against the Board seeking to compel approval of a subdivision plan on the grounds that the Board, in denying the plan, failed to comply with the requirements of Section 508 of the Municipalities Planning Code (Code).*fn1 The Board filed an answer to the complaint and Appellees on September 19, 1978, filed a motion for peremptory judgment under Pa. R.C.P. 1098. A Rule to Show Cause why the peremptory judgment should not be granted was issued September 21, 1978, to which the Board made no answer. The Rule was made absolute on August 19, 1980, on motion of Appellees and the Board was ordered to approve Appellees' plans. The Board moved to open the judgment on September 10, 1980, and the motion was dismissed.

The Board asserts that the lower court erred in dismissing the motion to open because (1) significant issues of fact remained unresolved, and (2) the notice requirements of Pa. R.C.P. No. 1098 were not met.

Pa. R.C.P. No. 1098 reads:

At any time after the filing of the complaint, the court may enter judgment ...


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