MOTIONS
§ 35.54. Motions as to complaint.
A respondent may file with his answer a motion that the allegations in the complaint be made more definite and certain, the motion to point out the defects complained of and details desired. A respondent may also file with his answer a motion to dismiss a complaint because of lack of legal sufficiency appearing on the face of the complaint.
Notes of Decisions It was permissible for the Department of Community Affairs to dismiss the petitioners’ complaint as a matter of law, because the school district’s response contained affidavits which clearly refuted the petitioner’s allegations and as a result of the petitioners’ failure to respond to the school district’s affidavits, no genuine issue of material fact remained. Property Owners, Residents and/or Taxpayers of Pleasant Valley School District v. Department of Community Affairs, 552 A.2d 769 (Pa. Cmwlth. 1989).
Where no material facts were in dispute, it was proper for the presiding officer to decide a motion to dismiss after briefs and oral arguments and without an evidentiary hearing under this section. Mellinger v. Department of Community Affairs, 533 A.2d 1119 (Pa. Cmwlth. 1987).
Cross References This section cited in 12 Pa. Code § 11.11 (relating to motions); 34 Pa. Code § 111.14 (relating to motions to quash); 34 Pa. Code § 111.15 (relating to no other pleadings allowed); 34 Pa. Code § 131.3 (relating to waiver and modification of rules); 34 Pa. Code § 131.24 (relating to recusal of judge); 34 Pa. Code § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings); 34 Pa. Code § 131.36 (relating to joinder); 34 Pa. Code § 131.53b (relating to bifurcation and motions for disposition of a petition); 34 Pa. Code § 131.101 (relating to briefs, findings of fact and close of record); 34 Pa. Code § 131.112 (relating to correction or amendment of decision); 34 Pa. Code § 131.121 (relating to penalty proceedings initiated by a party); 37 Pa. Code § 197.40 (relating to preliminary motions); 52 Pa. Code § 5.101 (relating to preliminary objections); 52 Pa. Code § 1005.71 (relating to motions); 55 Pa. Code § 41.131 (relating to motions in general); and 61 Pa. Code § 703.2 (relating to petition content).
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