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Home My WebLink About05-2320 COMMCfNWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL fROM JUDICIAL DISTRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. ~ - d3J () tad NOTICE OF APPEAL ,c, led .sklos Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. NAME Of APPELLANT KENNETH AND PENNY CRAMER MAG. 015T. NO. OR NAME Of DJ. 09-3-01 AOORES5 Of AI'PfUANT CITY STATE ZIPCOOE 263 NEIL ROAD DATE OF JOOGMENT SHIPPENSBURG PA 17257 IN THE CASE OF (Plaintiff) (Defendant) 04 06 05 QAIMNQ KENNETH & PENNY CRAMER ~GN ING cvB 78 05 LT 19 This block will be ~gned ONLY when this notation is required under Po. R.CPJ.P. No. 1008&. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment lor possession in this cose Signature of Prothonotary or Deputy If appellant was CLAIMANT (see Pa. Re.p.J.P. No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa. HC.P.J.P. No. 1001 (7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To ProthOflOtary Enter rule upon , appellee{s), to file a complaint in this appeal Name of appellee( s) (Common Pleos No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To Name of appellee( s) ,oppellee(s). ( 1) Yoo ore notified thot 0 rule is hereby entered upon you to file a complaint in this oppeal within twenty (20) doys ofter the date 01 service of this rute upon you by personal service or by certified or registered mail (2) ff you do not file 0 complaint within this time, 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOu. (3) The date of service of this rule if service was by moil is the date of moiling. Date: ,19_. Signature of Prothonotary or Deputy AOPC 312-84 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filing the nolice 0/ appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I hereby swear or affirm that I served o a copy of the Notice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date of service) .19_. 0 by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,19 n by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto. o and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on .19_ 0 by personal service 0 by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF ,19_ Signature of official before whom affidavit was made Tifle of official My commission expires on .19_. ~ ~ ~. '<:: ~ ~. \IS -- Ii> \fJ ~ \' v\ v-,\ , l ~ \' ~ ~ ~~ \:\ ". ~ ~ '~ ~B ~ ~ ~ l( '" . ~ k . a~ ~ ~\ ~ ~ ~ "" Signature of affiant f'0 C':) = <J' :v. ~ I c..n o -.-. 1.-.-. flli";;;' 0""'111 '~b\.? (:~(~) .T'....r; (~?tTc; "< i11 ~~ .~ :~ -'t.} - _.- (;-! o \.0 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CtIMBERLAlIID 09-3-01 NOTICE OF JUDGMENTfTRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS 'cRAMER, XEJlfRETB " PERRY I 263 NEIL ROAD SBIPPBRSBURG, PA 17257 L --! Mag. Disl. No MDJ Name: Hon HAROLD I!:. BJDlDBR Adde"" 3 5 W ORANGB ST SBIPPBHSBURG, PA VS. T""ho", (717) 532-7676 17257-0361 DEFENDANT: 'cLJDlDBJIIRIRG, 269 NEIL RD SBIPPBRSBURG, L Docket No.: CV-0000078-05 Date Filed: 3/07/05 NAME and ADDRESS BEY I PA 17257 --! . XEJlfRETB " PERRY CRAMER 263 nIL ROAD SBIPPBRSBURG, PA 17257 THIS IS TO NOTIFY YOU THAT: Judgment: o Judgment was entered for: CLBlIIDBJIIRIRG, BEY DISMISSIm W/O PREJUDICE DBP 001 (Name) o Judgment was entered against: (Name) in the amount of $ on: (Date of Judgment) o Defendants are jointly and severally liable. o Damages will be assessed on: (Date & Time) O Amount of Judgment Subject to Attachment/42 Pa.C.S. 98127 $ o Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ .00 Judgment Costs $ .00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ Ii] This case dismissed without prejudice. ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MA Y BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MA Y FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. ;J-(ro5 Date JI~ 1- ~ , Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date , Magisterial District Judge My commission expires first Monday of January, 2006 SEAL AOPC 315-05 DATI!: PRIRTBD: 4/07/05 4:17:36 PM ~ , ~ PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of se(Vlce MUST BE FILED WITHIN TEN (10) DA YS AFTER filing Ihe nollce of appeal. Ch,ec.' applicable boxes) COMMONWEALTH OF PENNSYLVANIA Cumberland COUNTY OF ; 5S AFFI DA VIT: I hereby swear or affirm that I served 1'9 a copy of the Notice of Appeal, Common Pleas No. 2005 - 2370 , upon the District Jestice designated therein on (date of service) Hi': y 10, 200,:;'9_, 0 by personal service 0 by (certifiedi (reglGlem'd) mall, sender's receipt attached hereto, and upon the appellee, (name) Bev Cl endenn i l.1G . on Hav 10, 200;;19 n by personal service ~ by (certified) (mgdM1lllll09 mail, sender's receipt attachecl hereto. o and further that J served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appeHee(s) to whom the Rule was addressed on ,19-----.0 by personal service 0 by (certi1ied) (registered) mail, sender's receipt attached hereto. SWORN (A~MED) AND SU SCRIBED BEFORE ME THIS _I () DAY OF , 1~ ~~ Signature of affiant My commission expires on ,19__ "', C::-,:) ..::;) ~rl o -n :.:;J -n CO/l/ii'J10!~\;yt:J\l:H .if ~.r-:,\ji\, .' ,-',_,:", r------- N,-~:--:---"-------'--~l I ' ,,,; ,,:,l.C.lndl,)e,,,; I Jennrfer b ur1dsay, Notary Public I Car1isle 8ora, Cumberland County r My CommisslOl1 Expires 1\101/_ 29, 2007 Membl':J, PI';r~~;,vivi3ni,; :~-~;~~,~:";-:-:~0~ :~otarie-~' c:; \", 5~2 ,"::::; I'.:l "" COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL FROM JUDICIAL DI5TRICT DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. / ~ NOTICE OF APPEAL r /".( '/<//'.'.- -,- '-Il,,-' Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the dole and in the case mentioned belew. NAME OF APP~U.ANT KENNftH UoID PElDO' CRAMER MAG DJ 1 NO. OR NAME Of D,J. 09-3-01 AOORESS Of APPEUANT CITY $fArE ZIP CODE 17257 263 NEIL ROAD DATE OF JUDGMENT SHIPPENSBURG PA IN THE CASE OF (PlaintIff J (Defendant) 04 06 05 OAIM NO KENNE'l'H &. PENNY CRAMER SIGNA ING CV D 78-05 IT 19 This black will be signed ONLY when this nota~on is required under Pa. R. 10088. This Notice of Appeal. when received by the District Justice, will operate as a SUPERSEDEAS to ,he judgment far possession in this case. Signature of Prothonotary or Deputy ff appellant was CLAIMANT (see Pa. R.CP.J.? No. 1001 (6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. PRAECIP.E10 I!I(TER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appel/ant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) In acUon before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAECIPE: To Prothonotary Enter rwe upon . oppellee{s), to file 0 complaint in this appeal Name of appe/tee( s) (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To rn .J] ser\j JJ []'"" - -~--~- U,S, Postal Service,,, CERTIFIED MAILM RECEIPT <, (Domestic Mail Only; No Insurance Coverage Provided) . app( U,S. Postal Service'M CERTIFIED MAIL" RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) ';;: r';J"Co""""...,,,,.,,,,"w.,,..,~,,..,,,. '""'"C>','.'."...."'.,~.."", ru L. .-'l ---~---T--......----- -,---------- Postage ~~ .D~2.1_ Certified fee ! ~...3D \ -----1 I. T5 _jl 0.,fj _.__ fatal Postage & Fees $1;,} ~ o "- a COI..D ed IT D'""' "I ';;: )FNru r'l r;;rorr.r'111'H-l.'"TiiI.li''r..'I'I'~'.lI''li.'I'I.''I'-l'BlriI'l.''' i, 1'I",j'J'fII"~I" , "" )^P "agl" ;f: D,Ql ~.,)O \, is ",i' ,~[ltk -'N<:' rn CJ n~CJ ~,~ CJ Return Receipf Fee (Endorsement Required) o Restrlcled Oelivef)/ Fea .-:=I (Endorsement ReQuired) IJl ru P05trl"m-r~ Jte 0 fT1 CJ CJ CJ . ,nli';p','I"et. >irm-' i1e1Ul"j'l.ecillf..Fe.,. {EnDorsement Re(Julrettl o Hestricteu Dative'y i"e,-, t"=I {Endorsement Aequired) l1'J ru "",ry TOlal PQstage {i, ,"..03S L~~1-p....1~_._. ~ ~ ;;~:"~Ya'~~~~~:~O'.~o'ia<'" -~=-'-'--l N. .....<........................._......_....1 iC';;-Sii,i,,:ziP+4. .... . 1.1 ffi \1tJ.~7 I ~:l..",,,.,.,._mlll_lIl~ ..,.~,..,.......,_~I"iI3I'R1TiiI...,.~J ~ CJ CJ "- NJPC 312-84 COURT FILE KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEV CLENDENING, Defendant 2005-2320 CIVIL TERM PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendant, BEV CLENDENING, in the above captioned case. By: I t, III, Esquire 60 est Pomfr reet Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for defendant Date: May 19, 2005 ---- KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW BEV CLENDENING, Defendant 2005-232 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Michael A. Scherer, Esq. O'Brien, Baric & Scherer 19 West South Street Carlisle, P A 17013 By: cKni quire 60 West P fret St t Carlisle, P A 17013 (717) 249-2353 Supreme Court J.D. No. 25476 Date: May 19, 2005 - ,~.\ "'.'.' ~3 , " \_~) , , II KENNETH CRAMER PENNY A. CRAMER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-2320 CIVIL I Ii I' ,I " " il I' Ii II II i I I II I , I I I BEV CLENDENNING, Defendant 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 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 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 II - r KENNETH CRAMER PENNY A. CRAMER, Plaintiffs V. BEV CLENDENNING, Defendant I 'I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-2320 CIVIL CERTIFICATE OF SERVICE I hereby certify that on May 24, 2005, I, Michael A. Scherer, Esquire, of O'Brien, Baric & Scherer, did serve a copy of the Complaint, by first class U.S. mail, postage prepaid, to the party listed below, as follows: I I I II II I I I I Marcus A. McKnight, Esquire Law Offices of Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 Mi~r, Esquire ,\ c ,._c'~ -;-, - KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION. LAW .:lS: - :l.3'~~ !llll;;.e3Z CIVIL TERM BEV CLENDENING, Defendant PRAECIPE FOR ENTRY OF APPEARANCE To Curtis R. Long, Prothonotary: Please enter my appearance on behalf of the defendant, BEV CLENDENING, in the above captioned case. Respectfully submitted, By: Date: June 24, 2005 KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEV CLENDENING, Defendant 2005-232 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Michael A. Scherer, Esq. O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 By: Date: June 24, 2005 C) ~~; r-' C? C~} "'" '-' C.:: ,,"-.,~ N --' o -n .-\ :r:--n n1.'"-. cr: :;2,C::J .~~!\ (\) --'-r- :~j?'~ ~.t. '< -'(1 -,.~ ~-? (}. o - KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION. LAW BEV CLENDENING, Defendant 2005-2320 CIVIL TERM PRELIMINARY OBJECTIONS TO THE COMPLAINT IN THE FORM OF A DEMURRER AND NOW, this 1 st day of September 2005, comes the Defendant, Bev Clendening, by and through her attorneys, Irwin & McKnight, and makes the following Preliminary Objections to the Complaint of the Plaintiffs, Kenneth Cramer and Penny A. Cramer: I. The Defendant is Beverly Clendening who resides at 269 Neil Road, Shippensburg, Pennsylvania 17257. 2. The Plaintiffs filed a Complaint against the Defendants seeking the costs of a boundary survey, attorney fees, and the costs of suit. 3. The Complaint's averments of fact state that the Plaintiffs made a Complaint to Southampton Township in Cumberland County regarding the location of a shed on the Defendants' property. 4. The Plaintiffs, on their own, secured a boundary survey to determine the exact location of the boundary line. 5. Taken in its entirety, the Complaint fails to state any legal basis upon which the Defendant is liable for the relief sought by the Plaintiffs. There is no basis stated for the duty of the Defendant to pay for the boundary survey sought by the Plaintiffs. There is no stated legal basis for the payment of legal fees or for the payment of the costs incurred by the Plaintiffs. 6. The Defendant hereby demurrers to the Complaint on the basis that no sufficient basis is stated for the obligation of the Defendant to pay for the damages sought by the Plaintiffs. The Complaint should be dismissed by the Court. WHEREFORE, the Defendant, Bev Clendening, requests that this Court dismiss the Complaint of the Plaintiffs. Respectfully submitted, By: Esquire Date: September 1, 2005 2 KENNETH CRAMER and, PENNY CRAMER, his wife, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW BEV CLENDENING, Defendant 2005-2320 CIVIL TERM CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Praecipe for Entry of Appearance was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Michael A. Scherer, Esq. O'Brien, Baric & Scherer 19 West South Street Carlisle, PA 17013 IRWIN & McKNIGHT I By: Marcus \\. McKm II, Esquire 60 West Pomfret Street Carlisle, PA 17013 (717) 249-2353 Supreme Court J.D. No. 25476 Date: September 1, 2005 3 () 1"-' = 0 ~:~ C:';) c..r> '11 if> .-l CTl -.,.- -n -0 r.l F f"i~ , CJ - " :Ti -' () ", . ' ~' I ~ ::::1 SJ CO ..< PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next ArgI.J:nent CaJrt. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) KENNETH CRAMER and PENNY CRAMER, his wife, ( Plaintiff I vs. BEV CLENDENNING, ( Defendant I No. 2320 Civil Term :lj,~ 2005 1. State matter to be argued (Leo, plaintiff's Irotion for new trial. defendant's demurrer to canplaint, etc.): Defendant's Preliminary Objections To The Complaint In The Form Of A Demurrer 2. Identify counsel who will argue case: (b) for defendant: Address: Michael A. Scherer, Esquire O'Brien, Baric & Scherer 19 West South Street Carlisle, Pennsylvania 17013 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, Pennsylvania 17013 (al for plaintiff: J\ddress: 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argunent CaJrt Pate: October 20, 2005 Dated: September 8, 2005 Atto~~tiffS ,...., c:? r.:;J en C/O \-;"l \ OJ. :;:;"' -." '2 N _J - -------- . KENNETH CRAMER PENNY A. CRAMER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BEV CLENDENNING NO. 2005 - 2320 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY. P.J.. GUIDO. J. MEMORANDUM OPINION AND ORDER Defendant has filed preliminary objections in the nature of a demurrer to Plaintiff s complaint. Our standard of review is clear: "all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true.. .". Vosk v. Encompass Ins. Co., 851 A.2d 162, 164 (Pa.Super 2004). Furthennore, "(w)here a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." (citation omitted). Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149,1151 (19996). In the instant case, there is not even the slightest scintilla of doubt. Therefore, the demurrer will be sustained. The facts as pleaded by plaintiff may be summarized as follows. The parties live on contiguous parcels of real estate in Southampton Township.] Plaintiff complained to the township zoning officer that defendant's shed was "illegally within the side-yard setback.,,2 The Township Zoning officer met with plaintiffs, examined the boundary markers between the properties, made measurements and concluded that plaintiffs were I Complaint, paragraph 3, 2 Complaint, paragraph 6, . NO. 2005 - 2320 CIVIL TERM correct3 He advised defendant that her shed was in violation of the township set back requirements.4 Defendant responded that she could not verify the allegations because plaintiffs had "seen fit to remove or cover" the boundary markers.5 The zoning officer then refused to take any enforcement action until a survey was completed to confirm the location of the boundary line.6 Plaintiffs paid for a survey which set the boundary line in the exact location they had previously asserted7 Defendant then removed her shed.8 Plaintiffs seek to recover the $275 cost of the survey. They base their claim upon defendant's "intentional and/or negligent misrepresentation" that "plaintiffs had covered or moved the legal boundary markers. . . ".9 The above allegations do not provide a basis for recovery. It does not matter who "covered or moved" the boundary markers. It does not even matter whether they were "covered or moved". Plaintiffs wanted the township to force defendant to move her shed. Before she was required to incur the expense involved in relocating the shed, both she and the township had every right to insist upon a survey to be certain that it was, in fact, in violation of the setback requirement. 10 Therefore, the defendant's demurrer will be sustained." 11 3 Complaint, paragraphs 8 & 9. 4 Complaint, paragraph 9. 5 Complaint, paragraph 10. 6 Complaint, paragraph II. 7 Complaint, paragraph 13. 8 Complaint, paragraph 14. 9 Complaint, paragraph 15. 10 This is especially true in light of the fact that the set back requirement was only 5 feet. (See Complaint, paragraph 5). Since there was no allegation that the shed was on plaintiffs' property, it is not unreasonable to conclude that only a few feet were at issue. For the township to require a survey before taking action was entirely reasonable under those circumstances. 11 Plaintiffs also assert that the demurrer should be dismissed because it was untimely filed. The complaint was filed on May 25, 2005. Defendant's counsel entered his appearance on June 27, 2005. The preliminary objections were filed on September 1, 2005. This delay cannot be said to be so unreasonable as to require the dismissal of valid preliminary objections. 2 . NO. 2005 - 2320 CIVIL TERM ORDER OF COURT AND NOW, this 13~ day of MARCH, 2006, Defend:mt's Preliminary Objections in the nature of a demurrer are SUSTAINED and the complaint is DISMISSED. ~hael A. Scherer, Esquire For the Plaintiffs ~arcus A. McKnight, III, Esquire For the Defendants :sld 3 Edward E. Guido, J. r':.? H .I'! - ----