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Home My WebLink About03-0057 YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITT~.N APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. yOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE EI~I'ERED AGAINST YOU BY TI{E COURT WITHOUT FURT.H. ER NOTICE FOR ANY MONEY CLAIMED IN THE CO~4~'LAINT OR ~OR ANY OTHER CLAIN OR RELIEF REQUESTED BY THE PLAINTIFF. YOU ~AY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YO~3. ~ YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER' AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH [~ELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CtlV~ERLAND OOUNTY BAR ASSOCIATION 2 LIBERTY AVENUE/-~ Court of Common Pleas Cumberland County PA t Courthouse Square Carlisle, PA January 3, 2003 Joseph A. Rosi, Plaintiff (v) Upper Allen Township - Co-Defendant Ronald J. Briggs - Co-Defendant Complaint The Plaintiff, Joseph A. Rosi, resides at 929 Emily Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055 The Co-Defendant, Upper Allen Township, is located at 100 Gettysburg Pike, Cumberland County, Mechanicsburg, Pennsylvania 17055 o The Co-Defendant, Ronald J. Briggs, resides at 927 Emily Drive, Mechanicsburg, Pennsylvania 17055 Mr. Briggs constructed a 125 foot driveway in 1984 on the common boundary line of the Plaintiff's and the Briggs property. The aforesaid driveway is and was in violation of the Township Ordinance No. 329, adopted October 21, 1982, in effect at the time of the driveway construction; and by all subsequent Ordinances. The driveway adversely affected Plaintiff's rights of reasonable privacy and the full enjoyment of ordinary backyard activities. 7. Plaintiff's backyard boundaries are Paul Circle, a neighbor's front yard and the common property line with Mr. Briggs. 8. Plaintiff constructed a wood fence in 1984 to ameliorate the adverse affects of the driveway to Plaintiff's property. 9. Plaintiff replaced the original wood fence with a vinyl fence in the summer of 2001. The original fence had fallen into disrepair· 10.The Plaintiff seeks $4,500.00 as the cost incurred for the wood and vinyl fence. 11. Numerous efforts, by the Plaintiff, to obtain relief of any measure, have been thwarted by both defendants. Wherefore, Plaintiff Joseph A. Rosi, respectfully asks for judgment against the defendants for $4,500.00. The Court is to determine the degree of culpability of each defendant. Respectfully submitted, ~~j~s~ep~nS~, ~) om' Plaintiff · Rosi 929 Emily Drive Mechanicsburg, PA 17055 717-766-6660 2 SHERIFF'S RETURN - REGULAR CAgE NO: 2003-00057 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROSI JOSEPH A VS UPPER ALLEN TOWNSHIP ET AL VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon UPPER ALLEN TOWNSHIP the DEFENDANT at 100 GETTYSBURG PIKE , at 1610:00 HOURS, on the 8th day of January MECHANICSBURG, PA 17055 LOU FAZEKAS, TOWNSHIP MANAGER by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE , 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this /~ day of ~~ 2673.5 A.D. ! 'Proftionotary' So Answers: R. Thomas Kline 01/09/2003 JOSEPH ROSI By: Dep~t~-Sheri f f ~ SHERIFF'S RETURN - REGULAR CASE NO: 2003-00057 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROSI JOSEPH A VS UPPER ALLEN TOWNSHIP ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BRIGGS ROANLD J the DEFENDANT , at 1626:00 HOURS, on the 8th day of January at 927 EMILY DRIVE MECHANICSBURG, PA 17055 by handing to RONALD BRIGGS a true and attested copy of COMPLAINT & NOTICE together with , 2003 and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6 00 8 28 00 10 00 00 24 28 Sworn and Subscribed to before me this /3~ day of / [Srothonotary~ ~ - So Answers: · Tho a 01/09/2003 /~ ~ / JOSEPH ROSI //~/ ,,~/ Deputy Sheriff ORIGINAL JOSEPH A. ROSl, Plaintiff UPPER ALLEN TOWNSHIP and RONALD J. BRIGGS, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 03-57 CIVIL TERM CIVIL ACTION - LAW Defendants PRELIMINARY OBJECTIONS OF DEFENDANT, RONALD J. BRIGGS Motion to Strike Plaintiff's Complaint Plaintiff's Complaint fails to conform to law in that it is not verified. Demurrer Plaintiff's Complaint is legally insufficient in that it fai!s to state a claim upon which relief may be granted. TUCKER ARENSBERG & SWARTZ Lge C. Swartz ~ I.D. No. 07258 "--.-3 111 N. Front St., P.O. Box 889 Harrisburg, PA 17108 Telephone: 717/234-4121 Facsimile: 717/232-6802 ATTORNEYS FOR DEFENDANT, RONALD J. BRIGGS 55919.1 CERTIFICATE OF SERVICE AND NOW, this '~. sA day of January, 2003, I, LEE C. SWARTZ, of the law firm of Tucker Arensberg & Swartz, attorneys for the Defendant, Ronald J. Briggs, hereby certify that I have this day served the within Preliminary Objections by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: Mr. Joseph A. Rosi 929 Emily Drive Mechanicsburg, PA 17055 William E. Miller, Jr., Esquire Miller & Associates 1822 Market Street Camp Hill, PA 17011 Lee ~C. Swartz' ~ 55919.1 JOSEPH A. ROSI, Plaintiff UPPER ALLEN TOWNSHIP and RONALD J. BRIGGS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-57 PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned attorneys on behalf of Defendant UPPER ALLEN TOWNSHIP in the above-captioned matter. Dated: 22 January 2003 MILLER & ASSOCIATES, PC William E. Miller, Jr., E.s~ire I.D. # 07220 1822 Market St Camp Hill, PA 17011-4824 (717) 737-9210 Marrone, Esquire I.D. # 48182 1822 Market Street Camp Hill, PA 17011-4824 (717) 737-9210 JOSEPH A. ROSI, Mo Plaintiff UPPER ALLEN TOWNSHIP and RONALD J. BRIGGS Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-57 CERTIFICATE OF SERVICE I, Anthony E. Marrone, Esquire, attorney for Defendant Upper Allen Township, hereby certify that I have caused a true and correct copy of the Defendant Upper Allen Township's Preliminary Objections to Plaintiff's Complaint and Praecipe to Enter Appearance to be served by first class mail, postage prepaid, on the date set forth below, upon the following entity/individuals: O Joseph A. Rosi 929 Emily Drive Mechanicsburg, PA 17055 Plaintiff Lee C. Swartz, Esquire Tucker Arensberg & Swartz 111 North Front Street P.O. Box 889 Harrisburg, PA 17108-0889 Attorney for Defendant Ronald J. Briggs Aritho n y~.~'M a r~ro% s~q u i re Dated: 22 January 2003 JOSEPH A. ROSI, Plaintiff UPPER ALLEN TOWNSHIP and RONALD J. BRIGGS Defendants · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-57 DEFENDANT UPPER ALLEN TOWNSHIP'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOW COMES Defendant UPPER ALLEN TOWNSHIP, by and through its attorneys, MILLER & ASSOCIATES, PC, and files these Preliminary Objections to PlaintifFs Complaint pursuant to Pa. R.C.P. 1028 as follows: PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO PA. R.C.P. 1024 1. Plaintiff filed a Complaint against the Defendants in this matter, alleging, inter alia, he suffered damages as a result of the alleged placement of a driveway by Defendant Ronald J. Briggs in violation of the ordinances of Defendant Upper Allen Township. A true and correct copy of Plaintiff's Complaint is attached as Exhibit "A." 2. The copy of the Complaint served on Defendant Upper Allen Township did not contain a Verification. 3. Pa. R.C·P. 1024(a) requires that: Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified ... 4. Under Pa. R.C.P. 1028(a)(2), a party may preliminarily object by way of a motion to strike off a pleading because of lack of conformity to law or rule of court. 5. The PlaintifFs Complaint is not properly verified as required of a pleading under Rule 1024(a) and must be stricken. WHEREFORE, Defendant, UPPER ALLEN TOWNSHIP, requests this Court grant its preliminary objection raising Plaintiff's failure to conform to Pa. R.C.P. 1024 and strike PlaintifFs Complaint. forth herein. PRELIMINARY OBJECTION RAISING INSUFFICIENT SPECIFICITY IN THE COMPLAINT Defendant repeats and reiterates Paragraphs 1 through 5 as if fully set 7. The PlaintifFs Complaint alleges in Paragraph 3: That the aforesaid driveway is and was in violation of the Township Ordinance No. 329, adopted October 21, 1982, in effect at the time of the driveway construction; and by all subsequent Ordinances. 8. The aforementioned Paragraph 3 of Plaintiff's Complaint fails to set forth with sufficient specificity the nature of the violation of Township Ordinance 329. The Plaintiff's Complaint alleges in Paragraph 11: Numerous efforts, by the Plaintiff, to obtain relief of any measure, have been thwarted by both defendants. 10. The aforementioned Paragraph 11 of Plaintiff's Complaint fails to set forth with sufficient specificity how Plaintiff's efforts to obtain relief have been thwarted by Defendant Upper Allen Township. 11. Plaintiff's Complaint otherwise fails to plead with specificity how Defen- dant Upper Allen Township's actions have caused Plaintiff harm. 12. Plaintiff's Complaint lacks sufficient specificity to apprize Defendant Upper Allen Township of the issues to be litigated and to allow it to adequately prepare and assert defenses to Plaintiff's allegations. WHEREFORE, Defendant, UPPER ALLEN TOWNSHIP, requests this Court grant its preliminary objection raising insufficient specificity in Plaintiff's Complaint and strike PlaintifFs Complaint. PRELIMINARY OBJECTION RAISING FAILURE TO STATE A CLAIM (DEMURRER) 13. herein. Plaintiff repeats and reiterates Paragraphs 1 through 12 as if fully set forth 14. In his Complaint, Plaintiff appears to allege that Defendant Upper Allen Township has caused harm to Plaintiff by its failure to enforce Township Ordinance 329 and through actions which thwarted Plaintiff's efforts to obtain relief. 15. Defendant Upper Allen Township preliminarily objects to Plaintiff's Complaint on grounds that Plaintiff's claim is barred under the provisions of the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8541 et seq. 16. 42 Pa. C.S.A. §8541 provides that: Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person. 17. The exceptions to the governmental immunity as set forth in 42 Pa. C.S.A. §8541 are found in 42 Pa. C.S.A. § 8542. 18. The claim alleged in Plaintiff's Complaint does not fall within any of the exceptions to governmental immunity set forth in 42 Pa. C.S.A. § 8542. 19. Pennsylvania law is clear that a claim will not lie against a municipality unless it falls within one of the exceptions listed in 42 Pa. C.S.A. § 8542. WHEREFORE, Defendant, UPPER ALLEN TOWNSHIP, requests this Court grant their preliminary objection raising failure to state a claim (demurrer) and dismiss Plaintiff's Complaint. 20. herein. PRELIMINARY OBJECTION RAISING FAILURE TO STATE A CLAIM (DEMURRER) Plaintiff repeats and reiterates Paragraphs 1 through 19 as if fully set forth 21. The law is clear in Pennsylvania that a municipality is not liable for its alleged failure to enforce ordinances or regulations where the enactment of said ordinance is not compelled by the Commonwealth. 22. Defendant Upper Allen Township cannot be held liable for any failure to enforce Township Ordinance 329. WHEREFORE, Defendant, UPPER ALLEN TOWNSHIP, requests this Court grant their preliminary objection raising Plaintiff's failure to state a claim (demurrer) and dismiss PlaintifFs Complaint. MILLER & ASSOCIATES, PC Dated: 22 January 2003 By Anthony E. Marrone 1822 Market Street Camp Hill, PA 17011 Attorney ID #'s 07220, 48182 (717) 737-9210 Attorneys for Upper Allen Township JOSEPH A. ROSI, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-57 UPPER ALLEN TOWNSHIP and RONALD J. BRIGGS Defendants PRAECIPE TO DISCONTINUE ACTION TO: THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above-captioned matter as discontinued and withdrawn, with prejudice. Dated: ,~oseph A. Rosi, Plaintiff 929 Emily Drive Mechanicsburg, PA 17055 717-766-6660