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HomeMy WebLinkAbout99-3659 civilH O i_... L 5 '~ J. R ~ ~1~)E R, Plaintiff V. STEPHEN S. CONNER, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · NO. 99-3659 CIVIL TERM DEFENDANT'S PRELIMINARY OBJECTIONS 'IN THE NATURE OF A DEMURRER BEFORE' HOFFER, P.J,, HESS, GUIDO, JJ. AND NOW, this ORDER OF COURT day of JANUARY, 2000, Defendant's Preliminary Objections are DENIED. By the Edward E. Guido, J. Richard E. Freebum, Esquire For the Plaintiff Charles A. Rector, Esquire For the Defendant .sld HOLLY J. RIDER, Plaintiff V. STEPHEN S. CONNER, Defendant · IN THE. (:(.)L~<I' OF COMMON PLEAS OF · ("UMBEI;,L,-kND COUNTY, PENNSYLVANIA : : : · NO. 99-3659 CIVIL TERM : : : : .IN RE.' DEFENDANT'S PRELIMINARY OBJECTIONS IN THE NAT[JRE OF A DEM[JRRER BEFORE' HOFFER, P.J., HESS, GU1DO, JJ. OPINI.ON AND ORDER OF COURT Plaintiff commenced this action by filing a five count complaint on June 16, 1999. Defendant filed preliminary objections in the nature of a demurrer to Counts I, II and III. In addition he filed a general demurrer to all counts of the complaint based upon an alleged contractual waiver of liability. Prior to the scheduled argument, the parties agreed to submit the matter on briefs. Defendant's brief only addresses the demurrer to Counts I and II of the complaint. Therefore, the other issues raised in his preliminary objections are deemed to have been abandoned.~ DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows' A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's fight to relief. For the purpose of testing the legal suffiCiency of the challenged pleading a preliminary objection in the nature of See Local Rule 210-7. 99-3659 CRIMINAL a demurrer admits as tree all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. o , o Since the sustaining of a demurrer results ina denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. (citations omitted). Allegheny County v. Commonwealth, 507 Pa. 360, 372 490 A.2d (1985). Viewing as true all well pleaded material facts in the complaint as well as all reasonable inferences, we are satisfied that the demurrer cannot be sustained. At all relevant times Plaintiff occupied her apartment pursuant to a lease with Peretsohn Properties.2 Peretsohn Properties is a general partnership. The Defendant was a partner and employee of Peretsohn Properties.3 Defendant broke into her apartment at a time when Plaintiff was not at home.4 The entry was not made for any lawful or legitimate purpose,s While in the apartment Defendant removed articles of Plaintiff's clothing and intentionally set a fire.6 As a result, the Defendant was convicted of arson and was sentenced to prison.? Defendant contends that he was Plaintiff's landlord and as such was entitled to enter her apartment. Therefore, he argues, Plaintiff cannot maintain the causes of action for trespass and invasion of privacy set forth in Counts I and II of the complaint. He bases his position on the following language contained in paragraph 12 of the lease' 12.' Right of Entry. Landlord, or any person authorized by Landlord, shall have the right to enter the Unit at reasonable times to inspect, replace appliances as needed, and, after notice of termination is given, to show Unit to 2 A copy of the lease was attached to the complaint as Exhibit A. 3 See Complaint para. 5. It is significant to note that the complaint does not allege that the Defendant was acting within the scope of his employment nor does it attempt to impose any liability upon Perestsohn Properties. 4 Complaint para. 8. s Complaint para. 8. 6 Complaint para. 9 and para. 10. 7 Complaint para. 11. The conviction was the result of a nolo contendere plea. 99-3659 CRIMINAl_. prospective Tenants. Landlord shall give Tenant(s) notice of his or their intention to enter, if possible. However, Tenant consent shall not be... necessar.x.., in ease of emergency... (emphasis in original) We are unpersuaded by Defendant's argument for several reasons. In the first instance, Peretsohn Properties, not Defendant, is the Landlord under the lease. Secondly, it can be inferred from the lease that consent to entry is necessary except in an emergency. The complaint alleges that the entry by Defendant was made by force and without consent. Finally, the right of entry is authorized for certain enumerated purposes, all of which are legitimate. The complaint specifically avers that the Defendant's entry was not for any legitimate or lawful purpose. Accepting as true the facts as pled, we cannot conclude that the complaint "clearly and without a doubt' fails to state a claim for trespass and/or invasion of privacy. Therefore, we will deny the Defendant's preliminary objections. ORDER OF COURT AND NOW, this 6TH day of JANUARY, 2000, Defendant's Preliminary Objections are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Richard E. Freebum, Esquire For the Plaintiff Charles A. Rector, Esquire For the Defendant 'sld