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HomeMy WebLinkAbout2005-2320 Civil KENNETH CRAMER PENNY A. CRAMER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. BEV CLENDENNING NO. 2005 - 2320 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS BEFORE BAYLEY. P.J.. GUIDO. J. MEMORANDUM OPINION AND ORDER Defendant has filed preliminary objections in the nature of a demurrer to Plaintiff s complaint. Our standard of review is clear: "all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true. . . ". Vosk v. Encompass Ins. Co., 851 A.2d 162, 164 (Pa.Super 2004). Furthermore, "(w)here a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." (citation omitted). Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (19996). In the instant case, there is not even the slightest scintilla of doubt. Therefore, the demurrer will be sustained. The facts as pleaded by plaintiff may be summarized as follows. The parties live on contiguous parcels of real estate in Southampton Township. 1 Plaintiff complained to the township zoning officer that defendant's shed was "illegally within the side-yard setback."2 The Township Zoning officer met with plaintiffs, examined the boundary markers between the properties, made measurements and concluded that plaintiffs were 1 Complaint, paragraph 3. 2 Complaint, paragraph 6. NO. 2005 - 2320 CIVIL TERM correct.3 He advised defendant that her shed was in violation of the township set back requirements.4 Defendant responded that she could not verify the allegations because plaintiffs had "seen fit to remove or cover" the boundary markers.5 The zoning officer then refused to take any enforcement action until a survey was completed to confirm the location of the boundary line.6 Plaintiffs paid for a survey which set the boundary line in the exact location they had previously asserted? Defendant then removed her shed.8 Plaintiffs seek to recover the $275 cost of the survey. They base their claim upon defendant's "intentional and/or negligent misrepresentation" that "plaintiffs had covered or moved the legal boundary markers. . . ".9 The above allegations do not provide a basis for recovery. It does not matter who "covered or moved" the boundary markers. It does not even matter whether they were "covered or moved". Plaintiffs wanted the township to force defendant to move her shed. Before she was required to incur the expense involved in relocating the shed, both she and the township had every right to insist upon a survey to be certain that it was, in fact, in violation of the setback requirement. 10 Therefore, the defendant's demurrer will be sustained." 11 3 Complaint, paragraphs 8 & 9. 4 Complaint, paragraph 9. 5 Complaint, paragraph 10. 6 Complaint, paragraph 11. 7 Complaint, paragraph 13. 8 Complaint, paragraph 14. 9 Complaint, paragraph 15. 10 This is especially true in light of the fact that the set back requirement was only 5 feet. (See Complaint, paragraph 5). Since there was no allegation that the shed was on plaintiffs' property, it is not unreasonable to conclude that only a few feet were at issue. For the township to require a survey before taking action was entirely reasonable under those circumstances. 11 Plaintiffs also assert that the demurrer should be dismissed because it was untimely filed. The complaint was filed on May 25,2005. Defendant's counsel entered his appearance on June 27,2005. The preliminary objections were filed on September 1, 2005. This delay cannot be said to be so unreasonable as to require the dismissal of valid preliminary objections. 2 NO. 2005 - 2320 CIVIL TERM AND NOW, this ORDER OF COURT day of MARCH, 2006, Defendant's Preliminary Obj ections in the nature of a demurrer are SUSTAINED and the complaint is DISMISSED. Michael A. Scherer, Esquire F or the Plaintiffs Marcus A. McKnight, III, Esquire F or the Defendants :sld 3 By the Court, Edward E. Guido, 1.