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HomeMy WebLinkAbout98-480 civilJOSEPH A. TURRI, Plaintiff VS. JOHN F. POVILAITIS and SUSAN T. POVILAITIS, husband and wife, Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-48O CIVIL CIVIL ACTION- EJECTMENT IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS AND OLER, JJ... ORDER AND NOW, this day of May, 1999, the preliminary objections of the defendants are DENIED. BY THE COURT, Mark C. Duffle, Esquire For the Plaintiff Kevi, rt4/~. Hess, J. ,, / Ron Turo, Esquire For the Defendants :rim JOSEPH A. TURRI, Plaintiff VS. JOHN F. POVILAITIS and SUSAN T. POVILAITIS, husband and wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-480 CIVIL CIVIL ACTION- EJECTMENT IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS AND OLER, JJ. OPINION AND ORDER This case is before us on the defendants'preliminary objections in the nature of a demurrer to the plaintiff' s complaint. The plaintiff has brought actions for trespass and ejectment against the defendants in response to the defendants' construction of a fence across an alleyway which separates the rear of the defendants' and plaintiff's properties. In the trespass action, the plaintiff seeks damages in the amount of $35,000. The ejectment action seeks the removal of the fence in the alleyway. The defendants claim that the plaintiff' s complaint must fail because it does not allege any right to exclusive possession of the real property in dispute. The defendants also move to dismiss under the doctrine of laches. For the following reasons, the defendants' preliminary objections to the plaintiff' s complaint are denied. The plaintiff, Joseph A. Turri, initiated this action on January 27, 1998, following the construction, by the defendants, John F. Povilaitis and Susan T. Povilaitis, of a fence across a twelve-foot alleyway. The alleyway, which was provided for in a subdivision plan in the 1950s, separates the rear of the plaintiff' s and defendants' properties. The plaintiff resides at 201 Runson Road, Camp Hill, Pennsylvania. The defendants reside at 200 North 3rd Street, Camp 98-480 CIVIL Hill, Pennsylvania. It is accepted by both parties that the alley was set aside for dedication as a public road to the Borough of Camp Hill in 1955, but was never accepted by the Borough. See Preliminary Objections of Defendants, para. 3, and Plaintiff's Response to Defendants' Preliminary Objections, para. 3. The defendants have filed preliminary objections in the form of a demurrer to the plaintiff' s claims for ejectment and trespass pursuant to Pa.R.C.P. 1028 (a)(4). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible ... A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory." Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992). The defendants assert that the plaintiff's complaint is legally insufficient in that their claims for ejectment and trespass do not allege exclusive possession of the alleyway. The defendants also allege that the plaintiff claims a right to use the alleyway because of its public nature, and that the complaint must fail because the alleyway was never accepted by the Borough of Camp Hill for public use. "It is settled law in Pennsylvania that where the side of a street is called for as a boundary in a deed, the grantee take title in fee to the center of it, if the grantor had title to that extent, and did not expressly or by clear implication reserve it." Rahn v. Hess., 378 Pa. 264, 270, 106 A.2d 461,464 (1954). Additionally, when the public rights of use of an alley are lost by failure of a borough to accept dedication, "the purely private rights of easement of individual property owners in the plan of lots to use the alley or way is not extinguished." Riek v. Binnie, 352 98-480 CIVIL Pa. Super. 246, 249, 507 A.2d 865, 867 (1986) (citing Cohen v. Simpson Real Estate Corporation, 385 Pa. 352, 123 A.2d 715 (1956)). It is clear that any street, lane, or alley laid out by any person in a plot or plan of lots, which has never been opened to or used by the public for twenty-one years after the initial laying out of the same, may not thereafter be opened for public use or easement ... [h]owever, while the public easement or right of use in such lanes or alley is lost as the result of the passage of such time and lack of use, the purely private rights of easement of individual of property owners in the plan of lots to use the alley or way is not extinguished." Id... at 249, 507 A.2d at 866-67. When a plaintiff claims that a defendant has encroached upon an easement or right of way, an action in ejectment may be brought. See Williamstown Borough Authority v. Cooper, 404 Pa. Super. 516, 591 A.2d 711 n.4 (1991). That the plaintiff cannot recover in this action is by no means certain. The plaintiff asserts that they do not claim the right to use the alleyway because of its public nature. Rather, the plaintiff asserts they have gained private rights of use and an easement in the alleyway due to the fact that the alleyway was never accepted by the Borough of Camp Hill. If plaintiff prevails under the theory that they have title in fee to the center of the alley, a claim for ejectment and trespass could be maintained. Even if the plaintiff only proves they have an easement, the Williamstown case suggests actions for ejectment and trespass can be maintained. Additionally, the defendants claim that the plaintiff's complaint should be dismissed under the doctrine of laches. Laches determines whether "a party can be charged with lack of due diligence in failing to institute a claim." Williamstown at 521,591 A.2d at 714. It is well settled that a court will only find laches when the adverse party has been harmed or materially 98-480 CIVIL prejudiced by the delay in bringing suit. Id. at 521,522, 591 A.2d at 714. The defendants state that they have incurred expenses to construct the fence, and that it would be prejudicial to force them to remove it from the alleyway. They also assert that they understood that the property belonged to them since the time they acquired it in 1994, and that the plaintiff did not assert any claim or right to use the property at any time. The plaintiff, however, responds that he previously shared the alleyway with the defendants and their predecessors in title, at times storing boats, cars and other items in the alley. After the fence was built, the plaintiff delayed in filing suit in an attempt to resolve the conflict amicably. We are satisfied that the doctrine of laches has no application to the plaintiff's actions in this case. ORDER AND NOW, this day of May, 1999, the preliminary objections of the defendants are DENIED. BY THE COURT, Mark C. Duffle, Esquire For the Plaintiff 'A. Hess, J. Ron Turo, Esquire For the Defendants