Appeal from the Order of the Court of Common Pleas of Bradford County in the case of Bradford County Citizens in Action et al. v. Board of Commissioners of Bradford County et al., No. 78-30 E.
David L. Kurtz, for appellant.
Robert L. Knupp, Knupp and Andrews, P.C., for appellees.
Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 350]
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*fn1 filed a complaint in equity on September 15, 1978 charging that the Bradford County Board of Assessment Appeals (Board) was illegally constituted by the Bradford County Commissioners (Commissioners) and that the Board's actions with respect to assessment appeals, therefore, should be declared
[ 64 Pa. Commw. Page 351]
null and void. The specific and only basis set forth in the complaint to support the charge of illegality is the allegation that all three members of the Board were Republicans whereas Section 301 of The Fourth to Eighth Class County Assessment Law (Law)*fn2 states that no more than two members of the Board may be of the same political party.
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). ...