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FRANK CABELL v. CITY HAZLETON ET AL. (03/24/86)

decided: March 24, 1986.

FRANK CABELL, APPELLANT
v.
THE CITY OF HAZLETON ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Frank Cabell v. The City of Hazleton, a political subdivision; Louis Blass, an individual, et al., No. 1965-C of 1982.

COUNSEL

Maurice A. Cardone, with him, Gifford S. Cappellini, for appellant.

James A. Schneider, for appellee, City of Hazleton.

James S. Palermo, for appellee, Louis Blass.

Judges MacPhail and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 96 Pa. Commw. Page 130]

Frank Cabell (Appellant) appeals from an order of the Court of Common Pleas of Luzerne County denying his motion for post-trial relief in the nature of judgment non obstante veredicto and his motion for a new trial. We reverse and grant Appellant's motion for a new trial.

This case has been pending since June 4, 1982, when Appellant filed suit against the city of Hazleton,

[ 96 Pa. Commw. Page 131]

    the Council of the City of Hazleton and Louis Blass (Appellees) in quo warrantor and mandamus.*fn1 Appellant avers that Mr. Blass is currently filling a seat on the Greater Hazleton Joint Sewer Authority (Authority) which Appellant rightfully should be filling.

The facts giving rise to Appellant's complaint are quite complex, as is the procedural history of the case. Suffice it to say that Appellant alleged that the Authority improperly enacted a resolution on November 9, 1981, appointing Louis Blass to Appellant's position on the board of Authority and declaring that Appellant's position had expired on January 5, 1981, when, in fact, his term would not expire until the first Monday in January of 1982. Appellant avers that this renders Blass' appointment a nullity. He commenced this action on June 4, 1982. The case went to trial before the Court of Common Pleas without a jury on January 19, 1984, and that Court rendered a verdict on March 9, 1984, against Appellant. The trial court justified its decision solely on the basis that Appellant's action was barred by laches; it reached no conclusions with respect to the merits of the case. None of the Appellees had at any time raised the equitable defense of laches, however. After considering Appellant's post-trial motions, which contested the trial court's action in raising the defense of laches sua sponte and its conduct when it interrogated Appellant, the Court concluded that its decision was correct. We disagree.*fn2

[ 96 Pa. Commw. Page 132]

After a careful review of the record, we hold that the trial court did not abuse its discretion in ...


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