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HomeMy WebLinkAbout98-3219 EquitySTEPHEN and MARIETTA KUZIW, and RAYMOND and ROSEMARY RUDICH, Plaintiffs VS. HAUBERT HOMES, INC. and S & A CUSTOM BUILT HOMES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-3219 EQUITY CIVIL ACTION - IN EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY AND HESS. JJ. ORDER AND NOW, this /Z '~ day of November, 1998, the preliminary objections of the defendant to the plaintiffs' first amended complaint are DENIED. BY THE COURT, John F. King, Esquire For the Plaimiffs David A. Fitzsimons, Esquire For the Defendants r~ess,~jj./~ :rim STEPHEN and MARIETTA KUZIW, and RAYMOND and ROSEMARY RUDICH, Plaintiffs VS. HAUBERT HOMES, INC. and S & A CUSTOM BUILT HOMES, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-3219 EQUITY CIVIL ACTION - IN EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE'BAYLEY AND HESS, JJ. OPINION AND ORDER This case is before us on the defendant's preliminary objections to the plaintiffs' first amended compliant. The defendant alleges that the plaintiffs' complaint in equity is not proper because it admits of an adequate remedy at law. The plaintiffs, Stephen and Marietta Kuziw and Raymond and Rosemary Rudich, allege that the defendant, Haubert Homes, Inc. (formerly S&A Custom Built Homes), wrongfully built a drainage swale along the length of their backyards on or about June 19, 1998. After the plaintiffs complained about this trespass, the defendant unsuccessfully attempted to repair the damage. The plaintiffs then filed their original complaint in equity against the defendant on July 9, 1998. The defendant filed preliminary objections to the plaintiffs' complaint on the basis that this case is not properly before a court of equity because the complaint alleged both legal and equitable remedies. In response, the plaintiffs filed an amended complaint asking this court to order the defendant to repair the damage to their properties. The plaintiffs request inter alia that the 98-3219 EQUITY also Staffaroini v. City of Scranton, 153 Pa. Cmmwlth. 188, 620 A.2d 676 (1993). The plaintiffs have pled that the defendant's conduct has resulted in a pooling of water in their backyards that prevents their properties from being fully utilized. We find that the plaintiffs have pled sufficient facts to allow this case to proceed before a court of equity, since these damages may not be able to be fully remedied by a court of law. Accordingly, the defendant's preliminary objections to the plaintiffs' first amended complaint are overruled and the request for dismissal of this case is denied. AND NOW, this ORDER day of November, 1998, the preliminary obi ections of the defendant to the plaintiffs' first amended complaint are DENIED. BY THE cOURT, John F. King, Esquire For the Plaintiffs David A. Fitzsimons, Esquire For the Defendants :rlm 98-3219 EQUITY defendant be ordered to remove the drainage swale from their properties and regrade and reseed their properties. The defendant contends that this would be a great hardship and injustice, since they would incur considerable expense to move the drainage swale only a few feet away. Moreover, the defendant contends that the plaintiffs have pled that the legal remedy of damages would be sufficient. In the case sub judice, the defendant claims that the plaintiffs' amended complaint in equity should be stricken because it suggests an adequate remedy at law. The plaintiffs' complaint does state that they "have suffered a loss to the value of their property." Plaintiffs' Amended Complaint, para. 21. The defendant reasons that this suggests the plaintiffs have an adequate remedy at law that could be remedied by damages in the amount of the loss of value to their properties. However, the plaintiffs' ultimate request is that the defendant be ordered to repair the damage to their properties because "rain water does not properly drain from the rear yards owned by the Kuziws and Rudiches, therefore resulting in a pooling of water in their rear yards." Id~ at para. 19. The plaintiffs also contend that this does not allow them to "fully and properly utilize their own real property." Id._~. at para. 20. It should be noted that "[lit is not sufficient that a party to an equity action may have some remedy at law, the remedy at law must be an adequate one, and the mere existence of a legal remedy will not oust equitable jurisdiction." Beech v. Ragnar Bensom Inc., 402 Pa. Super. 449, 454, 587 A.2d 335,338 (1991) (citing 14 Standard PA Practice 2d Section 79:21)). Moreover, a request, in the alternative for monetary damages will not, in any event, defeat an equity action. Id._~. See also Puleo v. Thomas, 425 Pa. Super. 285,624 A.2d 1075 (1993). See 2