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BARRY AND SONJA KUPPEL v. LESTER AUMAN (08/07/87)

filed: August 7, 1987.

BARRY AND SONJA KUPPEL, ROBERT MUSSER AND LAWRENCE H. WEAVER
v.
LESTER AUMAN, APPELLANT. APPEAL OF RICHARD AUMAN



APPEAL FROM THE JUDGMENT ENTERED NOVEMBER 26, 1986 IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, CIVIL NO. 80-2863.

COUNSEL

Robert D. O'Connor, Jr., Lock Haven, for appellant.

James N. Bryant, State College, for appellees.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Cirillo

[ 365 Pa. Super. Page 176]

This is an appeal of an order of the Court of Common Pleas of Centre County denying appellant Richard Auman's

[ 365 Pa. Super. Page 177]

    petition to vacate court orders issued on November 4, 1983 and October 30, 1984. We reverse and remand.

Plaintiff-appellees filed a suit in equity against defendant-appellant's father, seeking a right-of-way across appellant's land. The trial court entered a decree nisi on September 21, 1982, stating that a right-of-way was to be established in accordance with the agreement of the parties. On December 13, 1982, the trial court entered an order defining the right-of-way as an existing road across appellant's property. On December 20, 1982, the appellant filed exceptions. On January 4, 1983, a suggestion of death was filed, and appellant's son Richard Auman, was substituted.

On November 4, 1983, the court issued a further order giving the plaintiff the right of ingress, egress and regress over the lands in question. Exceptions were then filed to this order. On January 19, 1984, the exceptions were dismissed. On October 30, 1984, pursuant to a petition for contempt filed by the plaintiffs, the court ordered appellant to remove all obstacles from the right of way granted to the plaintiffs. Appellant was also enjoined from any future obstruction of the right of way.

On December 6, 1984, appellant Auman praeciped for entry of judgment of the January 19, 1984 order dismissing his exceptions. Final judgment was entered on December 6 and Auman appealed to this court on December 21, 1984. On April 6, 1986, a panel of this court reversed and remanded, holding that the trial court's order was not supported by the record, 356 Pa. Super. 610, 512 A.2d 729.

Upon remand, at Auman's request, the trial court appointed a Board of View to determine the issue. Appellant then filed a petition to vacate the orders of November, 1983 and October, 1984 on the grounds that the Court of Common Pleas lacked subject matter jurisdiction to issue those orders. Auman claims that under the applicable statute, only a Board of View may resolve this matter. See 36 Pa.S. ยง 2731 et seq.

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition ...


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