concurring and dissenting:
I agree with the excellent analysis as well as the conclusion reached by the learned author of the majority opinion that the Bituminous Mine Subsidence and Land Conservation Act of 1966, Act of April 27, 1966, P.L. 31, § 1 et seq., as amended, 52 P.S. § 1406.10, imposed a duty upon Republic Steel to provide appellants with notice of their intent to recommence mining operations at least six months prior to commencing operations beneath appellants’ property. See 25 Pa.Code § 89.144. I also join in that portion of the majority opinion which concludes that appellants’ complaint stated a cause of action under the Act of July 2, 1937, P.L. 2787, § 1, 52 P.S. § 1407.
I am unable, however, due to the procedural posture of this case, to join in that portion of the majority opinion which deals with the constitutionality of either the 1937 Act or the 1966 Act.
The procedure of preliminary objections is not, however, the proper method of issuing a constitutional challenge, see Stein v. Richardson, 302 Pa.Super. 124, 139-141, 448 A.2d 558, 566 (1982), since the use of preliminary objections is restricted by Pa.R.C.P. 1017 to the following quite specific applications:
*119RULE 1017. Pleadings Allowed
(a) ....
(b) Preliminary objections are available to any party and are limited to
(1) a petition raising a question of jurisdiction or venue or attacking the form or service of a writ of summons;
(2) a motion to strike off a pleading because of lack of conformity to law or rule of court or because of scandalous or impertinent matter;
(3) a motion for a more specific pleading;
(4) a demurrer, which may include the bar of a nonwaivable statute of limitations or frauds which bars or destroys the right of action and the applicability of which appears on the face of the complaint or counterclaim; and
(5) a petition raising the defense of lack of capacity to sue, pendency of a prior action, nonjoinder of a necessary party or misjoinder of a cause of action.
Rather, the challenge of appellees to the constitutionality of the 1937 and 1966 Acts was required to be raised in New Matter, pursuant to Pa.R.C.P. 1030 and 1045(b). See Barber v. Lynch, 275 Pa.Super. 333, 335-339, 418 A.2d 749, 750-751 (1980).
It also seems that even had appellees pleaded the constitutional issues as New Matter, those issues should not now be the subject of our review since it is well settled that constitutional issues should not be decided unless absolutely necessary to the resolution of the issue before the court. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983). Since the issue we are called upon to decide is the propriety of the summary judgment and we are of one mind that the entry of the summary judgment must be reversed, the issue before us has been resolved. As a result, we need not here address the constitutionality of the challenged acts and I would refrain from so doing.