The opinion
Dissenting Opinion by
Judge Mencer:
I respectfully dissent. I view the lower court’s order of December 30, 1970, directing Upper Merion Township (Township) to (1) hold a hearing to re *310 ceive new evidence; (2) reconsider the 1961 application, including the promulgation of findings of fact and conclusions of law, and (3) return the matter, after hearing and reconsideration, to the Court of Common Pleas, to be an interlocutory order and not appealable. Therefore, I believe that we should consider the Township’s preliminary objections which alleged laches as a defense to the bill of review, and challenged (1) the right of Nicholas Urbano to bring a bill of review in equity without the prosecution of the exceptions filed in 1961 and (2) the right of Nicholas Urbano to reopen a judgment against Roland Urbano.
My examination of the record and the unusual procedural aspects of this ease convinces me that the Township’s preliminary objections should have been sustained and the appellee’s bill of review should have been dismissed.
However, more basic and controlling is that a bill of review could not be used to set aside or strike off a judgment at law. Frantz v. City of Philadelphia, 333 Pa. 220 , 3 A. 2d 917 (1939). A bill of review was always limited to an action in equity.
This is not simply a procedural nicety but rather involves jurisdiction, the absence of which is fatal to litigation at whatever stage of the proceedings it is recognized. See: In re Estate of Pozzuolo, 433 Pa. 185 , 249 A. 2d 540 (1969).