Loading...
HomeMy WebLinkAbout97-6274 CivilSTERLING K. MOLL and ESTHER M. MOLL, Plaintiffs Vo BOROUGH OF WORMLEYSBURG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-6274 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT ,I AND NOW, this j[q ~t~ay of January, 2000, upon consideration of defendant's motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted with respect to acts or omissions of defendant occurring prior to July 31, defendant. Sterling K. Moll Esther M. Moll 518 North Second Street Wormleysburg, PA 17043 Plaintiffs, Pro Se 1987, the date of a general release executed by plaintiffs in favor of BY THE COURT, ~'W~sley Oler~., J. U ' Kenneth A. Rapp, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant STERLING K. MOLL and ESTHER M. MOLL, Plaintiffs BOROUGH OF WORMLEYSBURG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-6274 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, J., January 24, 2000. In this civil action, owners of real estate in a borough have, for the third time, sued the municipality for alleged harm to their property due to storm water. For disposition at this time is a motion for partial summary judgment filed by the municipality. The bases for Defendant's motion for partial summary judgment are (a) a release executed by Plaintiffs in 1987 and (b) the statute of limitations. The matter was argued on October 13, 1999. For the reasons stated in this opinion, Defendant's motion will be granted. STATEMENT OF FACTS For present purposes,~ the record in this case consists of plaintiffs' amended complaint, defendant's answer with new matter to the amended complaint, plaintiffs' reply to defendant's new matter, defendant's motion for partial summary judgment (with exhibits, including parts of a plaintiff's deposition and a copy of a certain release), and plaintiffs' answer to the motion for partial summary judgment.2 The record must be examined in the light most favorable to the nonmoving party, and all doubts as to the ~ See Pa. R.C.P. 1035.1 (record for purposes of motion for summary judgment). 2 Plaintiffs styled their answer to Defendant's motion for partial summary judgment "Plaintiffs' Motion To Deny Defendant's Motion for Partial Summary Judgment." existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 93-94, 674 A.2d 1038, 1041 (1996); see Moll v. Ambrose, 96-4053 Civil Term (Cumberland County December 3, 1999) (Bayley, J.). Plaintiffs commenced the present civil action at law on November 13, 1997.3 Their 98-paragraph, handwritten amended complaint consists of four counts: Count I recites a history, commencing in 1971, of storm water-related problems affecting plaintiffs' realty within the borough. Plaintiffs complain of deliberate acts, over a period of more than twenty-five (25) years, of denial of constitutional, civil, moral, and common sense rights[, which conduct] has brought hardship to the Moll family that can never be wiped away. The physical, emotional, and financial hardship all started with a simple request to correct a storm water problem at a cost of less than one thousand ($1,000) dollars, and has caused over twenty five (25) years of unconceivable damages to the mind, the body, of the entire Moll family.4 Damages "in excess of two hundred fifty thousand ($250,000) Dollars" are sought in count I of the amended complaint.5 Count II of plaintiffs' amended complaint includes the following averments: The Borough of Wormleysburg, with employees under direct supervision of Borough Council Member Paul E. Crow, in November, 1985, removed/damaged/relocated/covered with blacktop road material the comer property marker at the northwest comer of the Moll property, 521 North Third Street, when restructuring the street.6 The Borough has promised to properly relocate the comer marker and has not done so.7 Plaintiffs' complaint, filed November 13, 1997. Plaintiffs' amended complaint, paragraph 50. Plaintiffs' amended complaint, count I, ad damnum clause. Plaintiffs' amended complaint, paragraph 52. Plaintiffs' amended complaint, paragraph 53. 2 Reimbursement "for the cost of properly installing the Northwest comer marker at 521 North Third Street, Wormleysburg, by a qualified person of Plaintiffs choice" is sought in count II of the amended complaint.8 Count III of plaintiffs' amended complaint includes the following averments: The Borough of Wormleysburg has a document listed as a Deed of Easement and Right-of-Way across the land of Sterling H. Moll and Esther M. Moll, filed in the office of the Recorder Of Deeds of the County of Cumberland.9 Said Deed of Easement and Right-of-Way is stated to be located on parts of the lands known as 518 North Second Street and 521 North Third Street. l° The recorded easement is in the area where a storm drainage system was installed by the Borough in the winter of 1984-1985. ~ The Deed of Easement and Right-of-Way shows it to have been signed by Sterling H. Moll and Esther M. Moll, notarized on August 20, 1984, thereafter, revised on September 5, 1984.~2 Plaintiffs aver they did not sign or agree to sign any such Deed Of Easement and Right-of-Way across their lands, and in particular, the document recorded in Cumberland County -- Book 300, Pp. 515, 516, 517, and 518, on November 13, 1984.13 It is not possible to have signed and notarized a document on August 20, 1984, that was revised on September 5, 1984.TM The document in question includes a plot plan certified by Herbert, Rowland & Grubic, Inc., Consulting Engineers, Harrisburg, Plaintiffs' amended Plaintiffs' amended ~0 Plaintiffs' amended il Plaintiffs' amended ~2 Plaintiffs' amended ~3 Plaintiffs' amended complaint, count II, ad damnum clause. complaint, paragraph 55. complaint, paragraph 56. complaint, paragraph 57. complaint, paragraph 58. complaint, paragraph 59. 14 Plaintiffs' amended complaint, paragraph 60. Pennsylvania, June 25, 1984, Revised Sept. 5, 1984, to be a plot plan of the Moll properties at 518 North Second Street and 521 North Third Street, Wormleysburg.~5 The certified drawing is incorrect in that the house at 518 North Second Street is incorrectly located, the garage on the rear of 518 North Second Street is not shown on the plan, the residence at 521 North Third Street is incorrectly located, and the ~6roperty lines of both properties along North Third Street are in error. The purpose for the disputed Deed of Eas[ment and Right-of- Way was to solve the storm water damages at the Moll properties.~? The storm water system never functioned as the Borough Engineer stated it should, and has caused continued damages to the Moll properties until the present time.~8 The Plaintiffs, for many years have not had full use of their properties due to storm water and storm water damages.~9 At this present time, the Borough is not acting on written and verbal requests to repair property damages and to correct the defective drainage system? The storm drainage system was improperly designed, improperly constructed, not maintained, and has caused more problems than it solved. It should never have been constructed? Relief in the form of an order directing the municipality "to immediately remove the storm drainage system off the Moll properties, and to install a storm drainage system elsewhere to drain the area" is requested in count III of the amended complaint.22 ~5 Plaintiffs' amended 16 Plaintiffs' amended 17 Plaintiffs' amended ~8 Plaintiffs' amended 19 Plaintiffs' amended 2o Plaintiffs' amended 2~ Plaintiffs' amended complaint, paragraph 61. complaint, paragraph 62. complaint, paragraph 63. complaint, paragraph 64. complaint, paragraph 65. complaint, paragraph 66. complaint, paragraph 67. 4 Count IV of the amended complaint avers that in January of 1997 Plaintiff Sterling Moll notified the municipal defendant "of damages to the Moll properties at 518 North Second Street and 521 North Third Street, including two (2) buildings and concrete pads.''23 The borough, according to the amended complaint, engaged an engineer, resulting in a report which, "though inaccurate, shows property damages to the Moll properties."24 Plaintiffs aver that a certain "concrete slab, which replaced the flexible bituminous concrete pavement, mentioned in the engineering report, was installed by the Borough as part of the 1984-85 Storm Water Drainage System," that a concrete slab was chosen by the borough over more expensive material, and that breakage had occurred to the slab as of the time of the engineer's inspection.25 In addition, according to plaintiffs, "the entire drainage system is flawed," as was "brought forth in the text of the transcript of Commonwealth v. Moll, No. 87 Criminal 1986 .... ,,26 Various inaccuracies with respect to the engineer's report are alleged.27 Plaintiffs' garage door became stuck due to settling in January of 1997,28 improper reconstruction of a street in 1995 exacerbated plaintiffs' stormwater problems,29 and the municipal defendant improperly failed to enforce curb and sidewalk requirements in connection 22 Plaintiffs' amended complaint, count III, ad damnum clause. 23 Plaintiffs' amended complaint, paragraph 69. 24 Plaintiffs' amended complaint, 25 Plaintiffs' amended complaint, paragraphs 70-75. paragraph 76. 26 Plaintiffs' amended complaint, paragraph 77. 27 See, e.g., Plaintiffs' amended complaint, paragraphs 80, 83. 28 Plaintiffs' amended complaint, paragraph 82, Exhibit 1 (engineer's report). 29 Plaintiffs' amended complaint, paragraph 91-93. with a certain 1979 subdivision plan,3° according to the complaint. Damages in excess of $40,000.00 are claimed in count IV of the amended complaint.31 Defendant's answer with new matter to plaintiffs' amended complaint includes, as an affirmative defense, release.32 The release in question, bearing a date of July 31, 1987, the signatures of plaintiffs as releasors, and the signature of their counsel as witness, reads as follows: GENERAL AND FINAL RELEASE In consideration of receipt of the sum of Two Thousand Five Hundred Dollars ($2,500.00) receipt of which is acknowledged by our signing of the document, and intending to be bound hereby, Sterling K. Moll and Esther M. Moll, his wife, do hereby jointly and severally, for themselves, their heirs, successors in interests and assigns, release and forever discharge the following named persons, firms and entities, and their employees, officers, agents, representatives, successors and predecessors in interest or office ("the Releasees"), of and from all claims which we now have, may have or have had against the Releasees, or any of them jointly or severally, whether such claims are known or not, disclosed or undisclosed, contingent or mature, arising from any matter whatsoever from the beginning of the world to the date of these presents. We know, understand and acknowledge by signing of this Release that no liability is or has been admitted by any of the Releasees; on the contrary, liability has been denied and the purpose of the payment and release is to conclude any and all claims or threats of claims by the undersigned against Releasees on any matter whatsoever, and thereby to secure peace. Releasees are: Borough of Wormleysburg, its employees, council members, agents, representatives, consultants, engineers and attorneys, whether past or present; 3o Plaintiffs' amended complaint, paragraphs 86-88. 3~ Plaintiffs' amended complaint, count IV, ad damnum clause. 32 Defendant's answer to plaintiffs' amended complaint with new matter, paragraph 100. 6 Robert Rowland and Herbert, Rowland & Grubic, its officers, principals, employees, insurers, agents, representatives, predecessors or successors; and ERIE INSURANCE EXCHANGE We have read this Release in its entirety; its legal effect has been explained to us by our present counsel, Peter B. Foster, Esq. At our request he has witnessed our signatures below. Finally, by our signatures below we direct Theodore Adler, Esq., to release to the Borough of Wormleysburg the sum of $1,500 retained in his escrow account in connection with an earlier settlement agreement. Said sum is to be delivered to James Johnson, Esq., counsel for the Borough of Wormleysburg immediately and without reduction or setoff. In WITNESS WHEREOF, we hereto set our hands this 31st day of July, 1987.33 Plaintiffs do not dispute their execution of this document, on approximately the date indicated? DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to jury. 33 Defendant's motion for partial summary judgment, exhibit "C." 34 Defendant's motion for partial summary judgment, exhibit "D," at 43-45 (deposition of Plaintiff Sterling K. Moll, July 2, 1998). 7 "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). "The purpose of [the second provision in the Rule] is obviously to protect a party against whom an essential allegation cannot be supported with evidence from the burden of going to trial in order to secure a resolution of the matter." Moritz v. Gluck, 48 Cumberland L.J. 1, 3 (1998), citingEaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997). Pennsylvania Rule of Civil Procedure 1035.3(a) provides as follows: The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidenCe in the record establishing the facts essential to the cause of action or defense which the motion sites as not having been produced.35 It is well settled that a valid release is a bar to further litigation of the matters which it covers, and that "the effect of a release must be determined from the ordinary meaning of its language." Wolbach v. Fay, 488 Pa. 239, 242, 412 A.2d 487, 488 (1980). In the absence of evidence of fraud or mutual mistake, a release will support the grant of a motion for summary judgment in favor of the party released. See id. In the present case, the record contains evidence of a general release, executed by plaintiffs, witnessed by their counsel and supported by consideration, which by its terms discharges any liability which may have accrued on the part of the municipal defendant to plaintiffs up to the date of the release. Plaintiffs have adduced no evidence of record which would warrant a finding that the release was invalid. 35 Pa. R.C.P. 1035.3(a) (emphasis added). 8 For this reason, defendant's motion for partial summary judgment, based upon the release,36 will be granted. ORDER OF COURT AND NOW, this 24th day of January, 2000, upon consideration of defendant's motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted with respect to acts or omissions of defendant occurring prior to July 31, 1987, the date of a general release executed by plaintiffs in favor of defendant. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Sterling K. Moll Esther M. Moll 518 North Second Street Wormleysburg, PA 17043 Plaintiffs, Pro Se 36 Defendant also argues that, "[s]hould the Court decide to not grant the Defendant's Motion for Partial Summary Judgment as a result of the Release executed by the Plaintiffs, the Defendant submits that the actions dating back to 1971 and 1985 are barred by the applicable statute of limitations." Defendant's brief in support of motion for partial summary judgment, at 9. Having granted defendant's motion on the basis of the release, the court will, as defendant suggests, forgo consideration of the effect of the applicable statute of limitations at this time, without prejudice to defendant's right to pursue this issue as plaintiffs' case becomes more focused with regard to post-release activity complained of. 9 Kenneth A. Rapp, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant 10