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HomeMy WebLinkAbout07-6836CHARLES F. ACRI, FREDA F. ACRI : IN THE COURT OF COMMON PLEAS OF and MARIANN ACRI STAYKOV, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2007- ?3 (P AARON L. POTTEIGER and DONNA M. CIVIL ACTION - LAW POTTEIGER, husband and wife, Defendants JURY TRIAL DEMANDED PRAECIPE FOR WRITS OF SUMMONS I TO THE PROTHONOTARY: Please issue Writs of Summons upon Defendants Aaron L. Potteiger and Donna M. Potteiger located at 204 Ridge Hill Road, Mechanicsburg, PA 17050. SNELBAKER & BRENNEMAN, P. C. Date: November 13, 2007 I? BY: Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 Attorney ID No. 47077 (717) 697-8528 Attorneys for Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Staykov TO: Aaron L. Potteiger and Donna M. Potteiger YOU ARE HEREBY NOTIFIED that Charles F. Acri, Freda F. Acri and Mariann Acri Staykov have commenced an action against you. CURTIS R. LONG, PROTHONOTARY LAW OFFICES Date: November 13, 2007 _ SNELBAKER 8C By BRENNEMAN, P.C. O? r? SHERIFF'S RETURN - REGULAR CASE NO: 2007-06836 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ACRI CHARLES F ET AL VS POTTEIGER AARON L ET AL WILLIAM CLINE , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon POTTEIGER AARON L DEFENDANT the at 1650:00 HOURS, on the 20th day of November-, 2007 at 204 RIDGE HILL ROAD MECHANICSBURG, PA 17050 by handing to DONNA POTTEIGER WIFE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Postage Surcharge ?a Sworn and Subscibed to before me this So Answers: 18.00 5.76 .58 10.00 R. Thomas Kline .00 34.34 11/21/2007 SNELBAKER & BRENNEMAN By: day Deputy Sheriff 0 f A. D. SHERIFF'S RETURN - REGULAR 'C*E NO: 2007-06836 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ACRI CHARLES F ET AL VS POTTEIGER AARON L ET AL WILLIAM CLINE Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon POTTEIGER DONNA M the DEFENDANT , at 1650:00 HOURS, on the 20th day of November-, 2007 at 204 RIDGE HILL ROAD MECHANICSBURG, PA 17050 DONNA POTTEIGER by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 Sworn and Subscibed to before me this day 16.00 So Answers: R. Thomas Kline 'Deputy Sheriff 11j21/2007 SNELBAKER & BRENNEMAN By. _- of A. D. CHARLES F. ACRI, FREDA F. ACRI IN THE COURT OF COMMON PLEAS OF and MARIANN ACRI STAYKOV, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 2007- 6836 AARON L. POTTEIGER and DONNA M. CIVIL ACTION - LAW POTTEIGER, husband and wife, Defendants JURY TRIAL DEMANDED NOTICE 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 written appearance personally or by attorney and filing in writing with a 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 entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013-3302 (717) 249-3166 SNELBAKER & BRENNEMAN, P. C. By: Attorneys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN, P.C. HARLES F. ACRI, FREDA F. ACRI IN THE COURT OF COMMON PLEAS OF id MARIANN ACRI STAYKOV, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : NO. 2007- 6836 I L. POTTEIGER and DONNA M. CIVIL ACTION - LAW GER, husband and wife, Defendants JURY TRIAL DEMANDED COMPLAINT Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Staykov, by their attorneys, 'Snelbaker & Brenneman, P. C., submit this Complaint as follows: Background. 1. Plaintiffs Charles F. Acri and Freda F. Acri, husband and wife, are adult individuals iding at 354 North Locust Point Road, Mechanicsburg, Pennsylvania. 2. Plaintiff Mariann Acri Staykov is an adult individual residing at 350 North Locust Point Road, Mechanicsburg, Pennsylvania. 3. Defendants Aaron L. Potteiger and Donna M. Potteiger, husband and wife, are adult ndividuals residing at 204 Ridge Hill Road, Mechanicsburg, Pennsylvania. 4. Defendants are the owners of a certain tract or parcel of land improved with their residence at 204 Ridge Hill Road, Mechanicsburg, which property they acquired by a deed recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book Volume 28 "Q", Page 312 (the "Property"). 5. Plaintiffs Charles F. Acri and Freda F. Acri are the owners of a certain tract or parcel >f land improved with their residence at 354 North Locust Point Road, Mechanicsburg, which LAW OFFICES SNELBAKER & BRENNEMAN, P.C. they acquired by deed recorded in the Office of the Recorder of Deeds in and for land County, Pennsylvania in Deed Book 36 "Q, Page 939 (the "Acri Property") 6. A portion of the Acri Property borders the western boundary of the Defendants' 7. The Property when acquired by the Defendants was subject to a twenty-foot wide ght-of-way running from Ridge Hill Road northward through Defendant's Property consistent and along the western boundary of Defendants' Property. The foregoing right-of-way was in the deed to Defendants' Property as well as depicted on the recorded subdivision cited in that deed. 8. The right-of-way presently existing on Defendants' Property as described in Paragraph , above, was created in 1864. 9. In 2004, Plaintiffs Charles F. Acri and Freda F. Acri agreed to give to their daughter, Plaintiff Mariann Acri Staykov (then Mariann Acri) a lot from the Acri Property so that their daughter could construct a house. 10. Due to the topography of the Acri Property and the location of existing water and ity service in the area of the Acri Property, the Plaintiffs determined that the best and most ible location for the lot to be given to Mariann Acri Staykov would be at the southeastern corner of the Acri Property adjoining the western boundary of the Defendants' Property and the -of-way described above. 11. Plaintiff Freda F. Acri and Defendant Aaron L. Potteiger have known each other their childhood. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 2 12. In October or November 2004, Plaintiffs Mariann Acri Staykov and Freda F. Acri with Defendants at Defendants' residence for purposes of discussing Plaintiffs' intention of a portion of the Acri Property adjoining Defendants' Property to Mariann Acri Staykov. 13. At the time of the meeting made reference to in Paragraph 12, above, Plaintiffs Freda Acri and Mariann Acri Staykov explained to the Defendants that access across the Defendants' was needed in order to reach the piece of land that was going to be given to Mariann for construction of her residence. 14. At the time of the meeting made reference to in Paragraph 12, above, Plaintiffs Freda Acri and Mariann Acri Staykov explained to the Defendants that the access across the Property would be in the same location as the lane (the right-of-way) passing along western boundary of Defendants' Property. 15. At the time of the meeting made reference to in Paragraph 12, above, Plaintiffs Freda . Acri and Mariann Acri Staykov explained to Defendants that there would be a need to extend ilities underground through the same area as the access lane in order to provide utility service the land for the house to be constructed by Mariann. 16. At the time of the meeting made reference to in Paragraph 12, above, Defendant )n L. Potteiger stated his son was in the excavation business and could excavate the ground put in the underground electric, sewer and water lines through the access lane. 17. At the time of the meeting made reference to in Paragraph 12, above, Defendants sated that they had no problem with access to the land to be given to Mariann being across Property and they were fine with underground utilities being installed. 18. At the time of the meeting made reference to in Paragraph 12, above, Plaintiffs Freda LAW OFFICES SNELBAKER & F. Acri and Mariann Acri Staykov advised the Defendants that Defendants' permission for the BRENNEMAN, P.C. ?1 ess to the land across Defendants' Property was the first step in the process of ultimately iving a piece of the Acri Property to Mariann. 19. At the time of the meeting made reference to in Paragraph 12, above, Plaintiffs Freda Acri and Mariann Acri Staykov advised the Defendants that Silver Spring Township would be in the process whereby a part of the Acri Property would be given to Mariann. 20. Commencing in December 2004, Plaintiff engaged and used the services of Hartman Associates, Inc. to survey the Acri Property and prepare the subdivision plan creating the lot be given to Mariann for approval by Silver Spring Township. 21. On July 26, 2006, the Silver Spring Township Board of Supervisors approved the subdivision plan creating the lot to be given to Mariann, subject to, inter alia, an access -of-way agreement being reviewed by the Silver Spring Township Solicitor for access across the Defendants' Property to the lot created for Mariann. 22. On September 25, 2006, Plaintiff Mariann Acri Staykov personally delivered to the right-of-way access agreement (the "agreement") that had been prepared by attorney. Plaintiff Staykov at the time of delivering the agreement advised the Defendants to have their (Defendants') attorney review the agreement and that she would pay for Defendants' attorney's fees in that regard. The Defendants advised that they would look at the and call Plaintiff Staykov. 23. After the delivery of the agreement to Defendants as described in Paragraph 23, Plaintiff Staykov on September 27, 2006 called Defendant Aaron L. Potteiger and advised him that she had neglected to inform him when they met two days ago, that Silver Spring ownship had approved the subdivision plan for the Acri Property. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 4 24. During the conversation with Defendant Aaron L. Potteiger as described in 23, above, Defendant Potteiger suggested that Defendants were not going to give across Defendants' Property and that they (Defendants) would call Plaintiff Staykov after returned from vacation. 25. In October 2006 after not having heard back from Defendants, Plaintiff Freda F. Acri isited with Defendants, who advised Plaintiff Freda F. Acri that they had changed their minds were not interested in giving access across their property. 26. Defendants have failed and refused to give access to Plaintiffs across Defendants' after repeated requests and demands to do so. COUNTI Detrimental Reliance/Promissory Estoppel. 27. The averments of Paragraphs I through 26, inclusive, above, are incorporated by reference herein. 28. Plaintiffs reasonably relied upon Defendants' promise and agreement to grant access over Defendants' Property. 29. Defendants reasonably expected, based on their meeting with Plaintiffs Freda F. Acri and Mariann Acri Staykov, that their promise and agreement would induce Plaintiffs to proceed with the process necessary to ultimately give a lot of the Acri Property land to Plaintiff Staykov. 30. Defendants' promise and agreement induced Plaintiffs to proceed with the surveying, engineering and legal services necessary to obtain the subdivision of the Acri Property to create the lot to be given to Plaintiff Staykov. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 5 31. In May 2006 as part of Plaintiffs' proceeding to subdivide the Acri Property, efforts undertaken to clear brush in the area of the right-of-way on Defendants' Property and on the Property for purposes of conducting perculation and probe tests on the lot to be given to Staykov. 32. During the time that brush was being cleared, Defendant Aaron L. Potteiger spoke to man clearing the brush and advised him that he (Defendant Potteiger) had a relative that a backhoe or excavation business, gave the man clearing the brush the relative's s card and advised him that he may need the relative's services. 33. Plaintiffs took all actions reasonably necessary to create and give a part of the Acri y to Plaintiff Staykov in reliance on the promise and agreement of the Defendants. 34. Plaintiffs have expended $36,439.66 in legal and engineering fees in reliance upon ants' promise and agreement in ultimately obtaining subdivision plan approval to give a of the Acri Property to Plaintiff Staykov. 35. Plaintiff cannot derive and have not derived any benefit in subdividing the Acri y since the final subdivision plan cannot be recorded unless a right-of-way agreement is by Defendants, which Defendants have refused to do. WHEREFORE, Plaintiffs request this Court to enter judgment in their favor and against in the amount of $36,439.66 together with interest and costs of this action. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 6 COT TNT TT Fraud. 36. The averments of Paragraphs 1 through 35, inclusive, above, are incorporated by herein. 37. Up to and including the meeting held on September 25, 2006 where the agreement delivered to Defendants, Defendants at no time stated or suggested in any way that they not in favor of giving an access over the Defendants' Property or would not in fact give access. 38. On September 27, 2006, two days after the agreement was delivered to Defendants, efendant Aaron Potteiger made the following statements to Plaintiff Staykov: a. It may take him years to sign the agreement; b. He didn't want the Plaintiffs driving by his bedroom window; and c. He didn't know what kind of people the Plaintiffs were. When asked why he never mentioned such matters earlier, and why he would let the Plaintiff proceed for years and then to change his mind, Defendant Potteiger responded by indicating that "it wasn't his problem." Defendant Potteiger then said "you are in the game now girl" and ended the conversation by hanging up. 39. Defendants knew the proximity of the access across Defendants' Property to all bedrooms in the Defendants' house at the time of the meeting made reference to in Paragraph 12, above. 40. Defendants knew or knew of the Plaintiffs as neighbors for years prior to the meeting made reference to in Paragraph 12, above. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 7 41. Defendants at no time mentioned that they or others parked in the right-of-way until after Defendant refused to sign the Agreement. 42. For the reasons described above, it is believed Defendants made their promise and to allow access across Defendants' Property with no intention of keeping their ise or abiding by their agreement at the time they were made. 43. For the reasons set forth above, Defendants' statements made during the meeting reference to in Paragraph 12, above, were statements of intention that did not, when made, their true state of mind. 44. For the reasons set forth above, Defendants' statements made during the meeting reference to in Paragraph 12, above, were misrepresentations known to be such by them fraudulent. WHEREFORE, Plaintiffs request this Court to enter judgment in their favor and against in the amount of $36,439.66 together with interest and costs of this action. Snelbaker & Brenneman, P. C. January 14, 2008 By: Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 Attorney #47077 (717)697-8528 Attorneys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 8 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 904 relating to unsworn falsification to authorities. Charles F. Acri January 14, 2008 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section relating to unsworn falsification to authorities. ??? I-)-. Freda F. Acri January 14, 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 904 relating to unsworn falsification to authorities. Mariann Acri Staykov January 14, 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, a true and correct copy of the foregoing Complaint served upon the persons and in the indicated below: FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS: Aaron L. Potteiger Donna M. Potteiger 204 Ridge Hill Road Mechanicsburg, PA 17055 SNELBAKER & BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Staykov : January 14, 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. {..? " ns ?? r r ' c? - ... ?-- i .i.: ""3 r ?_. tom" Y ?.s.? "1 w "<4 CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2007-6836 AARON L. POTTEIGER and DONNA CIVIL ACTION -- LAW M. POTTEIGER, Defendants NOTICE TO PLEAD TO: Charles F. Acri, Freda F. Acri and Mariann Acri Staykov You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. LLP Date: February 4, 2008 Susan J Smith PA ID 62531 Tiff y M. Cartwright PA ID 88189 3009 Market Street Camp Hill, PA 17011 (717)-763-1650 (717)-763-1651 (fax) Counsel for Aaron L and Donna M. Potteiger, Defendants CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2007-6836 AARON L. POTTEIGER and DONNA M. POTTEIGER, Defendants CIVIL ACTION -- LAW DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW COME Aaron L. and Donna M. Potteiger, Defendants (collectively, "Potteigers"), by and through their attorneys Smith Cartwright, LLP and file these Preliminary Objections to Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028. In support thereof, Potteigers aver as follows: 1. BACKGROUND 1. Plaintiffs Charles F. and Freda A. Acri own and occupy a 55.966-acre parcel of land located at 354 North Locust Point Road, Mechanicsburg, Pennsylvania ("Acri Property"). Complaint ¶1, 5 2. Access to the Acri Property is provided via Locust Point Road, which borders the western edge of the Acri Property for approximately 1750 feet. 3. The Acri Property borders the western side of the Potteigers' Property, located at 204 Ridge Hill Road, Mechanicsburg ("Potteiger Property"). Complaint ¶ 2, 4, 6 4. The shared border between the Acri and Potteiger Properties runs approximately 280 feet. 5. The Potteiger Property includes a twenty-foot wide right-of-way ("Right-of- Way") running from Ridge Hill Road northward along the western side of the Potteiger's residence. 6. The Right-of-Way lies along the western side of the Potteiger's residence, approximately 8 feet from the edge of the residence. This side of the Potteigers' residence includes their kitchen, living room and master bedroom. For several years following Christmas, the Potteigers planted pine trees along the western side of the residence. These trees encroach on the Right-of-Way. 7. The Potteigers purchased their home in 1979. During their nearly three decade- long ownership of their residence, the Potteigers have taken no notable actions to improve or maintain the Right-of-Way for access. 8. The Right-of-Way continues through the Potteiger Property to a parcel owned by Soo Nam and Ran Hyang Pak and runs to their benefit. 9. The Right-of-Way borders the Acri property. Complaint ¶ 7. 10. From 1979 when the Potteigers purchased their residence until October or November 2004, the Plaintiffs and the Potteigers had no notable contact. 11. On a day in October or November, 2004, Freda A. Acri ("Mrs. Acri") and Mariann Acri Staykov ("Mrs. Staykov", then Ms. Acril) knocked on the kitchen door of the Potteigers' residence. Mrs. Acri's and Mrs. Staykov's appearance at the Potteigers' door was unexpected and unfamiliar. Mrs. Acri and her daughter Plaintiff Mrs. Staykov introduced themselves and requested that they be let in to speak with the Potteigers. The Potteigers allowed Mrs. Acri and Mrs. Staykov into their home ("2004 Kitchen Conversation"). 1 Plaintiff Mrs. Staykov was not married at the time of her contacts with the Potteigers averred in this pleading. For ease of reading, Mrs. Staykov will be identified hereafter only by her married name. 2 12. Upon entering the home, Mrs. Acri advised the Potteigers that she and Mr. Acri were considering giving Mrs. Staykov a portion of the Acri Property. Mrs. Acri did not specify what portion of the Acri Property would be given to Mrs. Staykov. 13. During the conversation with the Potteigers, Mrs. Acri asked the Potteigers whether it would be possible to utilize the Right-of-Way for access to the portion of the Acri Property to be given to Mrs. Staykov. 14. Mrs. Acri failed to elaborate regarding the utilization of the Right-of-Way in terms of the frequency or type (vehicular or pedestrian) of access, or any improvements to be done to the right-of-way, including removal of the longstanding pine trees on the Potteiger Property. 15. At no time during the 2004 Kitchen Conversation between the Potteigers, Mrs. Acri and Mrs. Staykov did Mrs. Acri or Mrs. Staykov discuss the possibility that the Right-of- Way would be used to place underground utilities. 16. At no time during the 2004 Kitchen Conversation between the Potteigers, Mrs. Acri and Mrs. Staykov did Mrs. Acri or Mrs. Staykov discuss the amount or type of consideration that would be paid in exchange for use of the Right-of-Way. 17. The Potteigers responded to Mrs. Acri that "we do not think there will be a problem." 18. For almost two years subsequent to the 2004 Kitchen Conversation, the Potteigers had no contact with and received no communications from Plaintiffs. 19. In the spring of 2006, Mr. Potteiger approached a man who appeared to be clearing brush on the western edge of the Potteiger Property. The man, who identified himself as Mr. Staykov and Mrs. Staykov's then fiancee, informed Mr. Potteiger that he was clearing area on the Acri Property to conduct percolation and probe testing for a sand mound septic system. Because Mrs. Potteiger's son installed septic systems, Mr. Potteiger informed Mr. Staykov of his son's services. During the brief conversation, Mr. Staykov did not state anything regarding the Acris' intention to subdivide the Acri Property or to use the Right-of-Way. 20. The first contact with Plaintiffs subsequent to the 2004 Kitchen Conversation occurred later in 2006 when Mrs. Staykov and Mr. Staykov appeared at the Potteiger Property. At that time, Mrs. Staykov handed Mrs. Potteiger a document entitled "Easement Agreement" and insisted that the Potteigers sign it immediately. 21. The proposed Easement Agreement included several terms with blanks to be filled in and stated a consideration in the amount of $1.00. 22. The Potteigers advised Mr. and Mrs. Staykov that there was a problem and they would not sign the Easement Agreement. The Potteigers advised Mrs. Staykov and Mr. Staykov that they would not convey an easement to the Plaintiffs for use of the Right-of-Way. 23. The next contact between Plaintiffs and Defendants occurred on September 27, 2006, when Mrs. Staykov made three telephone calls to the Potteigers insisting that the Potteigers convey an easement to her for the benefit of vehicular access. Both Mr. and Mrs. Potteiger refused Mrs. Staykov's demand. 24. John Clark, an engineer for Hartman & Associates retained by the Acris, also called the Potteigers three times on the evening of September 27, 2006, insisting that the Potteigers convey an easement for use of the Right-of-Way. Both Mr. and Mrs. Potteiger informed Mr. Clark that the Potteigers would not convey an easement. Mr. Clark became belligerent and stated to Mrs. Potteiger "you will not keep a development out of there." 4 25. After the telephone conversations with Mrs. Staykov and Mr. Clark, Mrs. Acri pulled up to the Potteiger Property in her car and asked Mr. Potteiger, who was present in the yard, whether he had changed his mind regarding the easement. Mr. Potteiger stated, "no." 26. Upon information and belief, between the conversations among the parties that occurred in April 2006 and September 2006, Plaintiffs knowingly misrepresented to Silver Spring Township that the Potteigers would convey an easement to Mr. and Mrs. Acri for the benefit of the subdivided parcel to be given to Mrs. Staykov. 27. Until October 2007, the Potteigers had no knowledge of the proceedings before Silver Spring Township in which the Acris sought to obtain municipal approval for the subdivision of the Acri Property into two parcels, including a parcel for Ms. Staykov. 28. On January 14, 2008, Plaintiffs filed a Complaint against the Potteigers alleging two claims: (1) Promissory Estoppel; and (2) Fraud. 29. Both claims should be dismissed for failure to state a claim for the reasons that follow. II. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 30. Paragraphs 1 through 29 are incorporated as if fully set forth herein. 31. A claim of promissory estoppel requires three elements: (1) the promisor made a promise that he should have reasonably expected would induce action or forbearance by the promisee; (2) the promisee took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. GMHAssocs., Inc. v. Prudential Realty Group, 752 A.2d 889, 904 (Pa. Super. 2000). 32. The terms of an offer or "promise" must be definite in order to be enforceable under the theory of promissory estoppel, for without such terms the Court has no basis on which to fashion a remedy. See, e.g., Devlin v. Philadelphia, 862 A.2d 1234, 1244 n.9 (Pa. 2004). 33. The Complaint alleges that at the meeting in October or November of 2004, "Defendants indicated that they had no problem with access to the land" "and they were fine with underground utilities being installed." Complaint ¶ 17 34. Assuming the statements contained in Complaint ¶ 17 occurred, such statements by the Potteigers do not constitute a "promise" that can be enforced through a claim of promissory estoppel. The statements do not promise to convey an interest in land. Moreover, the Complaint fails to identify or plead any terms of the alleged "promise" to convey an easement, such as the easement's scope, duration, termination or expiration, or the amount or type of consideration to be exchanged. 35. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. III. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 36. Paragraphs 1 through 35 are incorporated as if fully set forth herein. 37. A claim of promissory estoppel is a creature of contract law whereby equity enforces an offer or promise even though consideration that is normally required for a valid contract is lacking. Matarazzo v. Millers Mut. Group, Inc., 927 A.2d 689, 692 (Pa. Cmwlth. 6 2007). Accordingly, the principles of contract law (other than regarding consideration) apply to a claim of promissory estoppel. 38. It is black letter law that an offer expires by the passage of a "reasonable amount of time." Vaskie v. West American Ins. Co., 556 A.2d 436 (Pa. Super. 1989). 39. A "reasonable amount of time" can be decided as a matter of law where the time taken is so clearly reasonable or unreasonable that there can be no question of doubt as to the proper answer to the question. Boyd v. Merchants and Farmers Peanut Co., 25 Pa. Super. 199 (Pa. Super. 1904) 40. More than 17 months passed between the conversation in October or November of 2004 between Mrs. Acri, Mrs. Staykov and the Potteigers and April 2006 when Mr. and Mrs. Staykov appeared at the Potteigers home with the proposed Easement Agreement. VERIFY! 41. The passage of almost a year and a half with the Acris making no contact with the Potteigers is "so clearly unreasonable" as to find the Potteigers' "promise," if any, expired. 42. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained, and Count I dismissed for failure to state a claim upon which relief may be granted. IV. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 43. Paragraphs 1 through 42 are incorporated as if fully set forth herein. 44. An offer expires when an offeree makes a counter-offer. An acceptance of an offer which changes the material terms of the offer is not an acceptance, but a counter-offer which terminates the original offer. GMHAssocs., 752 A.2d at 899. 7 45. Even if the 2004 Kitchen Conversation between the Potteigers and the Acris as described in ¶ 17 of the Complaint and ¶¶ 11-17 herein constitutes a "promise," such promise was revoked in April 2006 when the Acris made a counter-offer by revealing, for the first time, the material terms of the proposed easement. GMHAssocs., 752 A.2d at 899. 46. When the Potteigers refused to convey an easement right-of-way on the terms then proposed by the Acris and Staykovs, the Potteigers rejected the Acris' and Staykovs' counter-offer. Id. 47. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. V. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 48. Paragraphs 1 through 47 are incorporated as if fully set forth herein. 49. Because a claim of promissory estoppel is in derogation of the Statute of Frauds, the law requires that a plaintiff demonstrate that "injustice can be avoided only by enforcement of the promise." 50. Demonstration of the "injustice" element requires a showing that a plaintiff has no alternatives available to it for receiving the benefits of the alleged bargain other than enforcement of the promise. Burns v. Baumgardner, 449 A.2d 590, 594-95 (Pa. Super. 1982) 51. The Plaintiffs do not allege that subdividing the Acri Property is rendered impossible without an easement being granted by the Potteigers. 8 52. The Complaint pleads that the location of the to-be-subdivided parcel was chosen because it was the "best and most feasible location." Complaint ¶ 10. Accordingly, Plaintiffs admit through the Complaint that other alternatives exist for subdividing the parcel, accessing the subdivided parcel, and running utilities to the subdivided parcel. 53. The Complaint fails to plead that no alternatives exist for subdividing a parcel for Ms. Staykov and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. VI. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR FRAUD (COUNT 11) 54. Paragraphs 1 through 53 are incorporated as if fully set forth herein. 55. A claim of fraud requires a showing that: (1) the defendant made a misrepresentation that is material to the transaction at hand; (2) the misrepresentation was made with knowledge of the statement's falsity or with reckless disregard as to whether it was true or false; (3) the defendant made the misrepresentation with the intent of inducing reliance; (4) the plaintiff justifiably relied upon the misrepresentation; and (5) the resulting injury was proximately caused by the reliance. Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1005 (Pa. Cmwlth. 1997). 56. The elements of fraud must be plead with particularity. Pa. R.C.P.1019(b). 57. A promise to do something in the future is not actionable in fraud. Shoemaker, 700 A.2d at 1006. 58. The "misrepresentation" alleged in the Complaint is the "promise" to convey, in the indeterminate future, an easement to the Acris for the benefit of the subdivided parcel. 9 59. Accordingly, the Complaint fails to state a claim for fraud upon which relief can be granted. WHEREFORE, Defendants request that a demurrer to Count II be sustained and Count II be dismissed for failure to state a claim upon which relief may be granted. Dated: February 4, 2008 Respectfully Submitted, LLP A ID J. Titfan? M. Cartwright PA ID 88189 3009 Market Street Camp Hill, PA 17011 (717)-763-1650 (717)-763-1651 (fax) Counsel for Aaron L and Donna M. Potteiger, Defendants 10 VERIFICATION I, Aaron L. Potteiger, verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: b Aaron L. Potteiger VERIFICATION I, Donna M. Potteiger, verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: 4--X?J; Donna M. Potteiger CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by 1st-Class Mail: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 Attorneys for Plaintiffs Date: February 4, 2008 e fir" r . rrl ''- [57 rT1 C 7 ? n i -Tj T CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, Plaintiffs V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2007- 6836 AARON L. POTTEIGER and DONNA M. CIVIL ACTION - LAW POTTEIGER, husband and wife, Defendants JURY TRIAL DEMANDED PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' PRELIMINARY OBJECTIONS Plaintiffs, by their attorneys Snelbaker & Brenneman, P. C., submit these Preliminary (Objections to Defendants' Preliminary Objections as follows: 1. This action was initiated by Plaintiffs by praecipe for writ of summons filed November 13, 2007. 2. On January 14, 2008, Plaintiffs filed and served a Complaint in this action asserting claims against Defendants in the nature of detrimental reliance, promissory estoppel and fraud. 3. On February 5, 2008, Defendants served upon Plaintiffs Defendants' Preliminary Objections to Complaint (the "Preliminary Objections") a true and correct copy of which is attached hereto and incorporated by reference herein as "Exhibit A". 4. The Preliminary Objections filed by Defendants purport to raise five different bases for demurrers to Counts I and II of Plaintiffs' Complaint and indicate no other bases upon which the Preliminary Objections have been raised. (See Preliminary Objections, Counts II through VI.) LAW OFFICES SNELBAKER & BRENNEMAN, P.C. Motion to Strike Pursuant to Pa R C P 1029(a)(2) 5. In the "Background" portion of Defendants' Preliminary Objections, Defendants set 29 paragraphs, only three of which cite to paragraphs in Plaintiffs Complaint and only two which recite either procedural matters of record or conclusions of law. (See Preliminary ections, Paragraphs 1, 3, 9, 28 and 29.) 6. The remaining 24 Paragraphs of the "Background" of Defendants' Preliminary jections contain statements of purported fact and in many instances multiple statements of fact that are either contrary to the averments in the Complaint and not of record or additional facts not of record in this proceeding. 7. Defendants incorporate by reference all paragraphs of the "Background" portion of Preliminary Objections in each demurrer they raise. (See Preliminary Objecitons, (Paragraph 30, 36, 43, 48 and 54.) 8. Defendants' Preliminary Objections improperly raise facts not of record and factual arguments. 9. Defendants' Preliminary Objections consist of little more than a lengthy assertion of additional purported facts not of record. 10. Defendants' Preliminary Objections constitute a flagrant and egregious example of a speaking demurrer. 11. Defendants' Preliminary Objections in the nature of a demurrer is improperly endorsed with a notice to plead. 12. For the reasons stated above, Defendants' Preliminary Objections fail to confirm to law. LAW OFFICES SNELBAKER & BRENNEMAN, P.C. 2 WHEREAS, Defendants request this Court to strike Defendants' Preliminary Objections to Pa.R.C.P. 1028(a)(2). SNELBAKER & BRENNEMAN, P. C. BY: 1// 4,-`"` Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 February 7, 2008 Attorneys for Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Staykov LAW OFFICES SNELBAKER & BRENNEMAN, P.C. CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, Plaintiffs V. AARON L. POTTEIGER and DONNA M. POTTEIGER, Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA NO. 2007-6836 CIVIL ACTION -- LAW NOTICE TO PLEAD TO: Charles F. Acri, Freda F. Acri and Mariann Acri Staykov You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. LLP Date: February 4, 2008 Susan J /Smith PA ID/62531 Tiff 4y M. Cartwright PA ID 88189 3009 Market Street Camp Hill, PA 17011 (717)-763-1650 (717)-763-1651 (fax) Counsel for Aaron L and Donna M Potteiger, Defendants EXHIBIT A CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. AARON L. POTTEIGER and DONNA M. POTTEIGER, NO. 2007-6836 CIVIL ACTION -- LAW Defendants DEFENDANTS' PRELIMINARY OBJECTIONS TO COMPLAINT AND NOW COME Aaron L. and Donna M. Potteiger, Defendants (collectively, "Potteigers"), by and through their attorneys Smith Cartwright, LLP and file these Preliminary Objections to Plaintiffs' Complaint pursuant to Pa. R.C.P. 1028. In support thereof, Potteigers aver as follows: 1. BACKGROUND 1. Plaintiffs Charles F. and Freda A. Acri own and occupy a 55.966-acre parcel of land located at 354 North Locust Point Road, Mechanicsburg, Pennsylvania ("Acri Property"). Complaint ¶1, 5 2. Access to the Acri Property is provided via Locust Point Road, which borders the western edge of the Acri Property for approximately 1750 feet. 3. The Acri Property borders the western side of the Potteigers' Property, located at 204 Ridge Hill Road, Mechanicsburg ("Potteiger Property"). Complaint 12, 4, 6 4. The shared border between the Acri and Potteiger Properties runs approximately 280 feet. 5. The Potteiger Property includes a twenty-foot wide right-of-way ("Right-of- Way") running from Ridge Hill Road northward along the western side of the Potteiger's residence. 6. The Right-of-Way lies along the western side of the Potteiger's residence, approximately 8 feet from the edge of the residence. This side of the Potteigers' residence includes their kitchen, living room and master bedroom. For several years following Christmas, the Potteigers planted pine trees along the western side of the residence. These trees encroach on the Right-of-Way. 7. The Potteigers purchased their home in 1979. During their nearly three decade- long ownership of their residence, the Potteigers have taken no notable actions to improve or maintain the Right-of-Way for access. 8. The Right-of-Way continues through the Potteiger Property to a parcel owned by Soo Nam and Ran Hyang Pak and runs to their benefit. 9. The Right-of-Way borders the Acri property. Complaint ¶ 7. 10. From 1979 when the Potteigers purchased their residence until October or November 2004, the Plaintiffs and the Potteigers had no notable contact. 11. On a day in October or November, 2004, Freda A. Acri ("Mrs. Acri") and Mariann Acri Staykov ("Mrs. Staykov", then Ms. Acrd) knocked on the kitchen door of the Potteigers' residence. Mrs. Acri's and Mrs. Staykov's appearance at the Potteigers' door was unexpected and unfamiliar. Mrs. Acri and her daughter Plaintiff Mrs. Staykov introduced themselves and requested that they be let in to speak with the Potteigers. The Potteigers allowed Mrs. Acri and Mrs. Staykov into their home ("2004 Kitchen Conversation"). ' Plaintiff Mrs. Staykov was not married at the time of her contacts with the Potteigers averred in this pleading. For ease of reading, Mrs. Staykov will be identified hereafter only by her married name. 2 12. Upon entering the home, Mrs. Acri advised the Potteigers that she and Mr. Acri were considering giving Mrs. Staykov a portion of the Acri Property. Mrs. Acri did not specify what portion of the Acri Property would be given to Mrs. Staykov. 13. During the conversation with the Potteigers, Mrs. Acri asked the Potteigers whether it would be possible to utilize the Right-of-Way for access to the portion of the Acri Property to be given to Mrs. Staykov. 14. Mrs. Acri failed to elaborate regarding the utilization of the Right-of-Way in terms of the frequency or type (vehicular or pedestrian) of access, or any improvements to be done to the right-of-way, including removal of the longstanding pine trees on the Potteiger Property. 15. At no time during the 2004 Kitchen Conversation between the Potteigers, Mrs. Acri and Mrs. Staykov did Mrs. Acri or Mrs. Staykov discuss the possibility that the Right-of- Way would be used to place underground utilities. 16. At no time during the 2004 Kitchen Conversation between the Potteigers, Mrs. Acri and Mrs. Staykov did Mrs. Acri or Mrs. Staykov discuss the amount or type of consideration that would be paid in exchange for use of the Right-of-Way. 17. The Potteigers responded to Mrs. Acri that "we do not think there will be a problem." 18. For almost two years subsequent to the 2004 Kitchen Conversation, the Potteigers had no contact with and received no communications from Plaintiffs. 19. In the spring of 2006, Mr. Potteiger approached a man who appeared to be clearing brush on the western edge of the Potteiger Property. The man, who identified himself as Mr. Staykov and Mrs. Staykov's then fiancee, informed Mr. Potteiger that he was clearing area on the Acri Property to conduct percolation and probe testing for a sand mound septic system. Because Mrs. Potteiger's son installed septic systems, Mr. Potteiger informed Mr. Staykov of his son's services. During the brief conversation, Mr. Staykov did not state anything regarding the Acris' intention to subdivide the Acri Property or to use the Right-of-Way. 20. The first contact with Plaintiffs subsequent to the 2004 Kitchen Conversation occurred later in 2006 when Mrs. Staykov and Mr. Staykov appeared at the Potteiger Property. At that time, Mrs. Staykov handed Mrs. Potteiger a document entitled "Easement Agreement" and insisted that the Potteigers sign it immediately. 21. The proposed Easement Agreement included several terms with blanks to be filled in and stated a consideration in the amount of $1.00. 22. The Potteigers advised Mr. and Mrs. Staykov that there was a problem and they would not sign the Easement Agreement. The Potteigers advised Mrs. Staykov and Mr. Staykov that they would not convey an easement to the Plaintiffs for use of the Right-of-Way. 23. The next contact between Plaintiffs and Defendants occurred on September 27, 2006, when Mrs. Staykov made three telephone calls to the Potteigers insisting that the Potteigers convey an easement to her for the benefit of vehicular access. Both Mr. and Mrs. Potteiger refused Mrs. Staykov's demand. 24. John Clark, an engineer for Hartman & Associates retained by the Acris, also called the Potteigers three times on the evening of September 27, 2006, insisting that the Potteigers convey an easement for use of the Right-of-Way. Both Mr. and Mrs. Potteiger informed Mr. Clark that the Potteigers would not convey an easement. Mr. Clark became belligerent and stated to Mrs. Potteiger "you will not keep a development out of there." 4 25. After the telephone conversations with Mrs. Staykov and Mr. Clark, Mrs. Acri pulled up to the Potteiger Property in her car and asked Mr. Potteiger, who was present in the yard, whether he had changed his mind regarding the easement. Mr. Potteiger stated, "no." 26. Upon information and belief, between the conversations among the parties that occurred in April 2006 and September 2006, Plaintiffs knowingly misrepresented to Silver Spring Township that the Potteigers would convey an easement to Mr. and Mrs. Acri for the benefit of the subdivided parcel to be given to Mrs. Staykov. 27. Until October 2007, the Potteigers had no knowledge of the proceedings before Silver Spring Township in which the Acris sought to obtain municipal approval for the subdivision of the Acri Property into two parcels, including a parcel for Ms. Staykov. 28. On January 14, 2008, Plaintiffs filed a Complaint against the Potteigers alleging two claims: (1) Promissory Estoppel; and (2) Fraud. 29. Both claims should be dismissed for failure to state a claim for the reasons that follow. II. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT 1) 30. Paragraphs 1 through 29 are incorporated as if fully set forth herein. 31. A claim of promissory estoppel requires three elements: (1) the promisor made a promise that he should have reasonably expected would induce action or forbearance by the promisee; (2) the promisee took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. GMHAssocs., Inc. v. Prudential Realty Group, 752 A.2d 889, 904 (Pa. Super. 2000). 5 32. The terms of an offer or "promise" must be definite in order to be enforceable under the theory of promissory estoppel, for without such terms the Court has no basis on which to fashion a remedy. See, e.g., Devlin v. Philadelphia, 862 A.2d 1234, 1244 n.9 (Pa. 2004). 33. The Complaint alleges that at the meeting in October or November of 2004, "Defendants indicated that they had no problem with access to the land" "and they were fine with underground utilities being installed." Complaint ¶ 17 34. Assuming the statements contained in Complaint ¶ 17 occurred, such statements by the Potteigers do not constitute a "promise" that can be enforced through a claim of promissory estoppel. The statements do not promise to convey an interest in land. Moreover, the Complaint fails to identify or plead any terms of the alleged "promise" to convey an easement, such as the easement's scope, duration, termination or expiration, or the amount or type of consideration to be exchanged. 35. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. III. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 36. Paragraphs 1 through 35 are incorporated as if fully set forth herein. 37. A claim of promissory estoppel is a creature of contract law whereby equity enforces an offer or promise even though consideration that is normally required for a valid contract is lacking. Matarazzo v. Millers Mut. Group, Inc., 927 A.2d 689, 692 (Pa. Cmwlth. 6 2007). Accordingly, the principles of contract law (other than regarding consideration) apply to a claim of promissory estoppel. 38. It is black letter law that an offer expires by the passage of a "reasonable amount of time." Paskie v. West American Ins. Co., 556 A.2d 436 (Pa. Super. 1989). 39. A "reasonable amount of time" can be decided as a matter of law where the time taken is so clearly reasonable or unreasonable that there can be no question of doubt as to the proper answer to the question. Boyd v. Merchants and Farmers Peanut Co., 25 Pa. Super. 199 (Pa. Super. 1904) 40. More than 17 months passed between the conversation in October or November of 2004 between Mrs. Acri, Mrs. Staykov and the Potteigers and April 2006 when Mr. and Mrs. Staykov appeared at the Potteigers home with the proposed Easement Agreement. VERIFY! 41. The passage of almost a year and a half with the Acris making no contact with the Potteigers is "so clearly unreasonable" as to find the Potteigers' "promise," if any, expired. 42. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained, and Count I dismissed for failure to state a claim upon which relief may be granted. IV. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 43. Paragraphs 1 through 42 are incorporated as if fully set forth herein. 44. An offer expires when an offeree makes a counter-offer. An acceptance of an offer which changes the material terms of the offer is not an acceptance, but a counter-offer which terminates the original offer. GMHAssocs., 752 A.2d at 899. 7 45. Even if the 2004 Kitchen Conversation between the Potteigers and the Acris as described in ¶ 17 of the Complaint and ¶¶ 11-17 herein constitutes a "promise," such promise was revoked in April 2006 when the Acris made a counter-offer by revealing, for the first time, the material terms of the proposed easement. GMHAssocs., 752 A.2d at 899. 46. When the Potteigers refused to convey an easement right-of-way on the terms then proposed by the Acris and Staykovs, the Potteigers rejected the Acris' and Staykovs' counter-offer. Id. 47. Accordingly, the Complaint fails to plead an enforceable "promise" and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. V. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR PROMISSORY ESTOPPEL (COUNT I) 48. Paragraphs 1 through 47 are incorporated as if fully set forth herein. 49. Because a claim of promissory estoppel is in derogation of the Statute of Frauds, the law requires that a plaintiff demonstrate that "injustice can be avoided only by enforcement of the promise." 50. Demonstration of the "injustice" element requires a showing that a plaintiff has no alternatives available to it for receiving the benefits of the alleged bargain other than enforcement of the promise. Burns v. Baumgardner, 449 A.2d 590, 594-95 (Pa. Super. 1982) 51. The Plaintiffs do not allege that subdividing the Acri Property is rendered impossible without an easement being granted by the Potteigers. 8 52. The Complaint pleads that the location of the to-be-subdivided parcel was chosen because it was the "best and most feasible location." Complaint T 10. Accordingly, Plaintiffs admit through the Complaint that other alternatives exist for subdividing the parcel, accessing the subdivided parcel, and running utilities to the subdivided parcel. 53. The Complaint fails to plead that no alternatives exist for subdividing a parcel for Ms. Staykov and, therefore, it fails to state a claim upon which relief may be granted. WHEREFORE, Defendants request that a demurrer to Count I be sustained and Count I be dismissed for failure to state a claim upon which relief may be granted. Vl. DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION FOR FRAUD (COUNT II) 54. Paragraphs 1 through 53 are incorporated as if fully set forth herein. 55. A claim of fraud requires a showing that: (1) the defendant made a misrepresentation that is material to the transaction at hand; (2) the misrepresentation was made with knowledge of the statement's falsity or with reckless disregard as to whether it was true or false; (3) the defendant made the misrepresentation with the intent of inducing reliance; (4) the plaintiff justifiably relied upon the misrepresentation; and (5) the resulting injury was proximately caused by the reliance. Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1005 (Pa. Cmwlth. 1997). 56. The elements of fraud must be plead with particularity. Pa. R.C.P.1019(b). 57. A promise to do something in the future is not actionable in fraud. Shoemaker, 700 A.2d at 1006. 58. The "misrepresentation" alleged in the Complaint is the "promise" to convey, in the indeterminate future, an easement to the Acris for the benefit of the subdivided parcel. 9 59. Accordingly, the Complaint fails to state a claim for fraud upon which relief can be granted. WHEREFORE, Defendants request that a demurrer to Count II be sustained and Count II be dismissed for failure to state a claim upon which relief may be granted. Dated: February 4, 2008 Respectfully Submitted, LLP ?usan J. mith PA ID 2531 TiffanM. Cartwright PA ID 88189 3009 Market Street Camp Hill, PA 17011 (717)-763-1650 (717)-763-1651 (fax) Counsel for Aaron L and Donna M. Potteiger, Defendants 10 VERIFICATION I, Aaron L. Potteiger, verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: Q ?9) zzeo'?' ? Aaron L. Potteiger VERIFICATION I, Donna M. Potteiger, verify that the statements made in the foregoing pleading are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: CL"/ `'//ax Donna M. Potteiger CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by I't-Class Mail: Keith O. Brenneman, Esquire Snelbaker & Brenneman, P.C. 44 West Main Street Mechanicsburg, PA 17055 Attorneys for Plaintiffs Date: February 4, 2008 CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, a true and correct copy of the foregoing Preliminary Objections served upon the person in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Susan J. Smith, Esquire Smith Cartwright, LLP 3009 Market Street Camp Hill, PA 17011 By: Date: February 7, 2008 SNELBAKER & BRENNEMAN, P.C. Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Stakov LAW OFFICES SNELBAKER & BRENNEMAN, P.C. ? ? ? ? 4 ,?,_ ? ?? ` ? ? ? ?' r 7 ?`?"i ? -<:: : ,-_ r `??,?; , ., t , ' l =_;; ?t ' -- :" ??' ; { :? -?. ??? v c7 :?° PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) CHARLES F. ACRI, FREDA F. ACRI and MARIANN ACRI STAYKOV, Plaintiffs vs. AARON L. POTTEIGER and DONNA M. POTTEIGER, husband and wife, Defendants No. 2007-6836 Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs' Complaint and Plaintiffs' Preliminary Objections to Defendants' Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Keith 0. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (Name and Address) Susan J. Smith, Esquire, 3009 Market Street, Camp Hill, PA 17011 (b) for defendants: (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 27, 2008 Date: February 7, 2008 Signature Keith 0. Brenneman Print your name Plaintiffs Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. - c 7 Tt - Cj `? xy "C CHARLES F. ACRI, FREDA F. ACRI, AND MARIANN ACRI STAYKOV, PLAINTIFFS V. AARON L. POTTEIGER and DONNA M. POTTEIGER, HUSBAND AND WIFE DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-6836 CIVIL IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' PRELIMINARY OBJECTIONS AND DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this Td day of March, 2008, IT IS HEREBY ORDERED: (1) The Preliminary Objections of Plaintiffs', Charles F. Acri, Freda F. Acri, and Mariann Acri Staykov, to Defendants' Preliminary Objections are DISMISSED. (2) The Preliminary Objections of Defendants' Aaron L. and Donna M. Potteiger to Plaintiffs' Complaint are DISMISSED. By the Court, ? Keith O. Brenneman, Esquire Attorney for Plaintiffs ??Susan J. Smith, Esquire Tiffany M. Cartwright, Esquire Attorneys for Defendants bas 12da1ES /»atLC BUZ ix, rvu fir: r' CHARLES F. ACRI, FREDA F. ACRI IN THE COURT OF COMMON PLEAS OF and MARIANN ACRI STAYKOV, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. NO. 2007- 6836 AARON L. POTTEIGER and DONNA M. CIVIL ACTION -LAW POTTEIGER, husband and wife, Defendants JURY TRIAL DEMANDED PRAECIPE i !TO THE PROTHONOTARY: Please mark the above-captioned action discontinued and ended on your docket and indices. I i Date: March 7, 2008 SNELBAKER & BRENNEMAN, P. C. BY. Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs LAW OFFICES SNELBAKER & BRENNEMAN, P.C. •... CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, a true and correct copy of the foregoing Praecipe to be served upon the person and in the indicated below: FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Susan J. Smith, Esquire Tiffany Cartwright, Esquire Smith Cartwright, LLP 3009 Market Street Camp Hill, PA 17011 SNELBAKER & BRENNEMAN, P.C. By: Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Plaintiffs Charles F. Acri, Freda F. Acri and Mariann Acri Staykov jDate: March 7, 2008 LAW OFFICES SNELBAKER & BRENNEMAN, P.C. N