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HomeMy WebLinkAbout2005-2555 Civil PAMELA A. HOLLIDAY,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KELLI C. CHESTNUT, BRIAN K. DEITRICH, SCOTT 1. P A WELK and TOWNSHIP OF DICKINSON BOARD OF : SUPERVISORS, Defendants NO. 05-2555 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT DICKINSON TOWNSHIP BOARD OF SUPERVISORS BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., February 13, 2006. In this civil case a landowner has sued a municipality, among others, as a result of the alleged impassability of a road shown on an approved subdivision plan. 1 In this regard, Plaintiff claims that the municipality breached a statutory duty to require security for improvement of the road as a condition for subdivision approval. 2 For disposition at this time are preliminary objections to the complaint in the nature of a demurrer filed by Defendant municipality. The demurrer is based upon the contention that the road in question was intended to be private as opposed to public and thus not encompassed by the statute in question.3 F or the reasons stated in this opinion, the demurrer will be denied. 1 Complaint, ~~17-27, 39, filed May 18,2005 (hereinafter CompI. ~. 2 CompI. ~~ 18-20,22,53-61. 3 Preliminary Objections of Defendant, Township of Dickinson Board of Supervisors to Plaintiffs Complaint, ~~9-13, filed August 10,2005. STATEMENT OF FACTS The pertinent facts averred in Plaintiff s complaint may be summarized as follows: Plaintiff is Pamela A. Holiday, an adult individual who owns an improved lot at 103 Lesli Lane in Dickinson Township, Cumberland County, Pennsylvania.4 This lot appears as Lot 18 on a final subdivision plan approved by Defendant Dickinson Township in July of 1994.5 The lot is accessed by a road shown on the plan as Lesli Lane.6 In approving the plan, Defendant township did not require security from the subdivider for improvement of the road.7 As a consequence of that and of the actions of other defendants the road is impassable. 8 The plan describes the road as a "50' Private Right-of-Way Leslie Lane.,,9 Notations accompanying the plan contain these statements: 50' PRIVATE RIGHT-OF-WAY CONDITIONS THE 50' PRIVATE OF RIGHT OF WAY SHALL BE MAINTAINED AND REPAIRED BY THE OWNER OR TENANTS OF LOT 17, 18 AND 19. SAID MAINTENANCE AND REPAIRS SHALL INCLUDE ROAD BED REPAIR, ICE AND SNOW REMOVAL, AND UPKEEP OF THE DRAINAGE FACILITIES. IF IN THE FUTURE THE PRIVATE RIGHT-OF-WAY IS OFFERED FOR DEDICATION TO DICKINSON AND PENN TOWNSHIP THE FOLLOWING STIPULATIONS SHALL BE MET: 1. THAT THE ROAD SHALL BE IN A GOOD STATE OF REPAIR AS CERTIFIED BY THE ENGINEER, OR THAT THE OWNERS OF THE LOTS ALONG IT AGREE TO INCLUDE WITH THE OFFER OF DEDICATION SUFFICIENT MONEY, AS ESTIMATED BY THE ENGINEER, TO PAVE AND/OR RESTORE THE PAVING TO MEET THE STANDARDS OF DICKINSON AND PENN TOWNSHIP SUBDIVISION AND LAND DEVELOPMENT ORDINANCE. 2. THAT AN OFFER TO DEDICATE THE ROAD SHALL BE MADE ONLY FOR THE ROAD AS A WHOLE. 4 CompI. ~ 1. 5 CompI. ~~ 6-8. 6 CompI. ~ 11. 7 CompI. ~~ 17-20, 22. 8 CompI. ~~ 17, 23-27, 37-40. 9 CompI. ~ 11. 2 3. THAT AN AGREEMENT TO OFFER THE ROAD FOR DEDICATION BY TWO OR THREE OWNERS OF THE LOTS SHALL BE BINDING ON THE OWNER OF THE REMAINING LOT. 4. ALL LOCAL PUBLIC STREET REQUIREMENTS IN EFFECT AT THE TIME DEDICATION SHALL BE SATISFIED. THESE REQUIREMENTS SHALL INCLUDE BUT NOT LIMITED TO: CARTWAY WIDTH, SHOULDER CONSTRUCTION, DRAINAGE FACILITIES, AND PAVEMENT. THE EXPENSE FOR MEETING THESE REQUIREMENTS SHALL BE BORN EQUALLY BY THE LOT OWNERS.lO * * * * THE 50' PRIVATE RIGHT-OF-WAY MUST BE A DEEDED PART OF LOT 19.11 DISCUSSION In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a pleading, the court "must accept all material facts set forth in the [pleading,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that" the position challenged by the demurrer can not prevail. Id at 489, 653 A.2d at 621. If any lingering doubt remains as to whether to sustain the demurrer, "this doubt should be resolved in favor of [the nonmoving party]." Presbyterian Medical Center v. Budd, 2003 P A Super. 323, ,-r6, 832 A.2d 1066, 1070 (2003). Under Section 509(a) of the Pennsylvania Municipalities Planning Code,12 it is provided as follows: No [subdivision or land development] plat shall be finally approved unless the streets shown on such plat have been improved to a mud-free or otherwise permanently passable condition, or improved as may be required by the subdivision and land development ordinance and any walkways, curbs, gutters, street lights, fire hydrants, shade trees, water mains, sanitary sewers, storm sewers and other improvements as may be required by the subdivision and land development ordinance have been installed in accordance with such ordinance. In lieu of the completion of any improvements required as a condition for the final approval of a plat, 10 CompI. ~ 12. 11 CompI. ~ 13. 12 Act of July 31,1968, P.L. 805, ~509, as amended, 53 P.S. ~10509(a). 3 including improvements or fees required pursuant to section 509(i) [of the act], the subdivision and land development ordinance shall provide for the deposit with the municipality of financial security in an amount sufficient to cover the costs of such improvements or common amenities including, but not limited to, roads, storm water detention and/or retention basins and other related drainage facilities, recreational facilities, open space improvements, or buffer or screen plantings which may be required. Failure of a municipality to proceed in accordance with this provision can support a cause of action by a landowner against it. See, e.g., Safford v. Board of Commissioners of Annville Township, 35 Pa. Commw. 631, 387 A.2d 177 (1978). Under the act, the term "street" includes "street, avenue, boulevard, road, highway, parkway, lane, alley, viaduct and any other ways used or intended to be used by vehicular traffic or pedestrians whether public or private. ,,13 Without suggesting that under no circumstances could a private easement be held to be beyond the scope of the above provisions, the court is of the view that it would be premature to summarily dispose of the issue in the present case on the basis of the limited factual record available. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 13th day of February, 2006, upon consideration of the preliminary objections in the nature of a demurrer filed by Defendant Township of Dickinson Board of Supervisors, and for the reasons stated in the accompanying opinion, the demurrer is denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 13 Id., ~107, as amended, 53 P.S. ~10107 (2005 Supp.) (emphases added). 4 Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, P A 17055 Attorney for Plaintiff E. Ralph Godfrey, Esq. 95 Alexander Spring Road Suite 3 Carlisle, P A 17013 Attorney for Defendant Kelli C. Chestnut James L. Goldsmith, Esq. 3631 North Front Street Harrisburg, P A 17110 Attorney for Defendants Brian K. Deitrich and Scott 1. Pawelk Mark T. Riley, Esq. 620 Freedom Business Center Suite 300 King of Prussia, P A 19406 Attorney for Defendant Township of Dickinson Board of Supervisors 5 6 PAMELA A. HOLLIDAY,: IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KELLI C. CHESTNUT, BRIAN K. DEITRICH, SCOTT 1. P A WELK and TOWNSHIP OF DICKINSON BOARD OF : SUPERVISORS, Defendants NO. 05-2555 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT DICKINSON TOWNSHIP BOARD OF SUPERVISORS BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 13th day of February, 2006, upon consideration of the preliminary objections in the nature of a demurrer filed by Defendant Township of Dickinson Board of Supervisors, and for the reasons stated in the accompanying opinion, the demurrer is denied. BY THE COURT, 1. Wesley Oler, Jr., 1. Andrew C. Sheely, Esq. 127 South Market Street P.O. Box 95 Mechanicsburg, P A 17055 Attorney for Plaintiff 8 E. Ralph Godfrey, Esq. 95 Alexander Spring Road Suite 3 Carlisle, P A 17013 Attorney for Defendant Kelli C. Chestnut James L. Goldsmith, Esq. 3631 North Front Street Harrisburg, P A 17110 Attorney for Defendants Brian K. Deitrich and Scott 1. Pawelk Mark T. Riley, Esq. 620 Freedom Business Center Suite 300 King of Prussia, P A 19406 Attorney for Defendant Township of Dickinson Board of Supervisors