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HomeMy WebLinkAbout2007-4436 CivilDAVID T. HOANG, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW JOHN EBY, Defendant : No. 2007-4436 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE OLER, J.1 OPINION and ORDER OF COURT OLER, J., February 21, 2008. In this civil action, a pro se plaintiff has filed a handwritten amended complaint against a municipal sewage enforcement officer. For disposition at this time are preliminary objections filed by the defendant, requesting that the amended complaint be stricken or dismissed. The matter was listed for argument by the plaintiff, who then failed to file a brief. For the reasons stated in this opinion, plaintiff's amended complaint will be stricken. STATEMENT OF FACTS Following the dismissal of his action by a magisterial district judge, Plaintiff filed an appeal to this court in the case of David T. Hoang v. John Eby.2 Ultimately, a handwritten amended complaint was filed by Plaintiff stating the following: To whom which concern We have six complaint against Mr. John Eby We are David Hoang and Nancy Hoang resident at 3507 Simpson Ferry Rd Camp hill PA 17011. We lived at Cumberland County 25 years ago. We have a criminal suit v/s John Eby. 1. Count one: Lie under oath: ' Guido and Ebert, JJ., did not participate in the consideration or disposition of this case. 2 Plaintiff's Notice of Appeal, filed July 26, 2007. Mr John Eby Lie to public hearing and all of town ship Commissioner on May/2007. exhibit 1. 2. Count two: illegal trespassing and inspection: my name is David Hoang, owner of Asian American market. On Oct/2006. Mr John Eby don't call me before, don't send the letter or menage let me know. Mr John Eby come to my propriety as in home business (Asian American Market at 3507 simpson Ferry Rd. When I see him at my land. I ask him what you want? He said he want to inspection on the store and parking. I told him why you don't call me before. So he back out. I don't know why he come to my propriety. I call to Township try to talk to manager. I don't get him. I talk to Mr. David Alsland, he said he don't know why John Eby want to do like that. John Eby can not inspection every where he want. He is illegal trespassing without notice the owner and illegal inspection without schedule his phone 938.1535. 3. Count three: Harrassement and over power. On Nov/2006. Nancy Hoang set up a yard sale in front of my house. Mr. John Eby call to Miss Nancy Hoang harrassement her and tell her have to closed a yard sale. So Nancy Hoang was scare and closed the yard sale 1/2 day on Sat. Don't set up yard sale on Sunday. I don't know why John Eby call Nancy Hoang and set off her yard sale. Please. Some one explain to us. Why resident can not set up the yard sale in front of their house only one time a year. I know township code, state law and federal law do not have a code or the regulation to shut off yard sale from the resident. Why John Eby try to do his own Law. John Eby harassed Nancy repeatedly by many ways from one years ago. John Eby don't answer her phone, don't answer her complaint that. She requested during 2 months. etc. . . John Eby want harassed her repeatedly because he did not like minority or try acting as discrimination? Please. Send one to investigated him and you understand why?. 4. Count four: illegal advice. When we have a misunderstood between tenant and landlord. He advice the tenant don't pay the rent and advice tenant take picture give to him then play game with Nancy Hoang in the future. John Eby is not lawyer, he work for township. He can't only help another side tenent and harrassement another side (landlord). Public worker. Have to be fair with people. Count 5: Harrassement 1- PE: (Penn Engineer) Mr. Matt Marcgule p. 236.2266 (717) 453.1410 cell) 2- Free Flow: Mr chuck 774.4571 3 - Plumbing Mr: Bill. 4- Mr Scott. 1.888.873.9157 Drain and Ceptic doctor p. 731.9300 5- Mr Paul: Ass. Product 697.8312 6- Dillsburg Septic 8.432.9704. When we call professional work for us to inspected the house John Eby harrassent them so they don't come to work for us. Make us hard time When Dick Stewart call to Dillsburg septic and get up appointment. come to check the house. John Eby try to tell them don't come to 2 inpected. You can call Dick Stewart attorney 761.4540 (717) he will explain better than I write here this case is obstruction justice: harrassement the withness Count 6: Discrimination or make a new Law: Nancy apply to turn the house 3503 and 3505 to be come in home business. John Eby told the commissioner: the house have a cesspole or septic tank can not be turn to in home business. Question. Could you tell John Eby use the township code. Go to closed all of house have septic and cesspole. It is a lot of them. Will be close and move out the house. If that is the law I think we have to closed 1,000 business in the Cumberland County. including turnpike 17. too. Interchanges use septic tank too. If the house 3503 have a problem. But the house 3505 don't have a problem about septic tank (cesspole). why John Eby turn down application for both house? Question with no answer. Exactly John Eby is discrimination us because we are minority. He don't like us. He is criminal mischief harassment and retaliation against us and a witness. Conclusion. Please send someone to investigate and bring him go to court. to answer our questions or we have to call state and federal agency come to check this harrassent case. or discrimination case? Respectfully thank David Hoang *John Eby kick the tenant out and force us have to follow his decision he is over power over judge by illegal advice and criminal advice intend to do retaliation to our family or discrimination against us. created the damage our property and our income total estimated 9.600.00 For 8 month no rent (1200 x 8.). plus court cost and Lawyer fee over 15,000.00 So. we request he have to pay 15.000.00 for our lost income. Sincerely Thank David Hoang' Attached to the amended complaint, and apparently intended to constitute "exhibit 1," was a copy of Plaintiff's complaint in the office of the magisterial district judge in which he claimed damages of "more than $7,500.00," based upon the following allegation: Mr. John Eby is over power, over judge by illegal advice and criminal advice because he mistake or intent to do for retaliation kick out the tenant harrass Mrs. Nancy Hoang. Therefore, created the damage our property and our income.4 ' Plaintiff's [amended] complaint, filed August 8, 2007. 4 Attachment, Plaintiff's amended complaint, filed August 8, 2007. 3 Defendant filed preliminary objections to Plaintiff's amended complaint on October 9, 2007.5 These were in the form of (1) a motion to strike the pleading for failure to conform to Pennsylvania Rule of Civil Procedure 1019(a) (material facts on which cause of action based to be stated in concise and summary form), as permitted by Pennsylvania Rule of Civil Procedure 1028(a)(2) (failure of pleading to conform to law or rule of court as permissible basis for preliminary objection), and (2) a demurrer, as permitted by Pennsylvania Rule of Civil Procedure 1028(a)(4) (legal insufficiency of pleading as permissible basis for preliminary objection).6 Defendant submitted a brief in support of his preliminary objections.' As noted, Plaintiff did not submit a brief in opposition to the preliminary objections. DISCUSSION Motion to strike. "The purpose of [Pennsylvania Rule of Civil Procedure 1019(a)] is to require the pleader to disclose the `material facts' sufficient to enable the adverse party to prepare his case." Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 224, 282 A.2d 335, 339 (1971). "The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action." Commonwealth ex rel. Pappert v. Tap Pharmaceutical Products, Inc., 868 A.2d 624, 635 (Pa. Commw. 2005). With respect to Defendant's motion to strike, Defendant argues that "Plaintiffs Amended Complaint does not comply with the requirements of Rule 1019(a), Pennsylvania Rules of Civil Procedure, in that it merely contains s Defendant's Preliminary Objections to Plaintiff's Amended Complaint Pursuant to Rule 1028(a)(2) and Rule 1028(a)(4), Pennsylvania Rules of Civil Procedure, filed October 9, 2007. 6 Id. Brief in Support of Defendant's Preliminary Objections to Plaintiff's Amended Complaint Pursuant to Rule 1028(a)(2) and Rule 1028(a)(4), Pennsylvania Rules of Civil Procedure, submitted November 9, 2007. 11 conclusory allegations and does not set forth material facts upon which Plaintiff's claims or causes of action are based."g Demurrer. With respect to Defendant's demurrer, several factors are relevant to the issue of whether Plaintiff's pleading can be fairly read as demonstrating a cognizable claim for relief. First, to the extent that the complaint seeks a remedy for an erroneous action by Defendant in his capacity as a sewage enforcement officer, the proper procedure to be followed is set forth in the Pennsylvania Sewage Facilities Act.9 Second, as a general rule a municipal employee is subject to immunity from tort actions arising out of deficiencies in the performance of his or her duties, under the Political Subdivision Tort Claims Act.10 Third, Pennsylvania does not, as a general rule, recognize a common law tort of "harassment." Sobel v. Wingard, 366 Pa. Super. 482, 487, 531 A.2d 520, 523 (1987); DeAngelo v. Fortney, 357 Pa. Super. 127, 132, 515 A.2d 594, 596 (1986). Finally, again as a general rule, statements made under oath in an adjudicatory context are not actionable in tort in Pennsylvania. Marino v. Fava, 2006 PA Super 374, ¶6, 915 A.2d 121, 124; Pawlowski v. Smorto, 403 Pa. Super. 71, 80, 588 A.2d 36, 41 (1991). Conclusion. In the present case, in view of the paucity of legal substance to Plaintiffs amended complaint, in combination with severe deficiencies in the expression of material facts that would enable Defendant to prepare his case, the court is satisfied that Defendant's motion to strike the amended complaint is meritorious. For this reason, the following order will be entered. ORDER OF COURT AND NOW, this 21st day of February, 2008, upon consideration of Defendant's preliminary objections to Plaintiffs amended complaint, and for the s Id. at 11. 9 Act of January 24, 1966, P.L. (1965) 1535, §16, as amended, 35 P.S. §750.16(a). 10 Act of October 5, 1980, P.L. 693, §2210, 42 Pa. C.S. §8545. E reasons stated in the accompanying opinion, the preliminary objection in the form of a motion to strike the amended complaint is granted and Plaintiff's amended complaint is stricken. David J. Hoang 3507 Simpson Ferry Road Camp Hill, PA 17011 Plaintiff, pro Se James D. Young, Esq. 225 Market Street Suite 304 Harrisburg, PA 17108-1245 Attorney for Defendant 0 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. DAVID T. HOANG, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW JOHN EBY, Defendant : No. 2007-4436 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE OLER, J. ORDER OF COURT AND NOW, this 21st day of February, 2008, upon consideration of Defendant's preliminary objections to Plaintiff's amended complaint, and for the reasons stated in the accompanying opinion, the preliminary objection in the form of a motion to strike the amended complaint is granted and Plaintiff's amended complaint is stricken. BY THE COURT, J. Wesley Oler, Jr., J. David J. Hoang 3507 Simpson Ferry Road Camp Hill, PA 17011 Plaintiff, pro Se James D. Young, Esq. 225 Market Street Suite 304 Harrisburg, PA 17108-1245 Attorney for Defendant