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HomeMy WebLinkAbout94-4453 Civil LawKINGSBURY ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : GREGORY G. ANDERSON, : NO. 94-4453 CIVIL TERM Defendant : IN EJECTMENT IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO NEWMATTER AND COUNTERCLAIM BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this Z~day of February, 1995, upon consideration of Plaintiff's Preliminary Objections to New Matter and Counterclaim, and for the reasons stated in the accompanying Opinion, paragraphs 30, 31 and 32 of Defendant's new matter are stricken for failure to conform to rule of court, and Defendant is given 20 days within which to replead these items. In all other respects, the preliminary objections are DENIED. BY THE COURT, J~sl~y Oler,~r~, ~J~ff~ ' Andrew C. Sheely, Esq. 1 West Main Street Shiremanstown, PA 17011 Attorney for Plaintiff Floyd M. Baturin, Esq. Madelaine N. Baturin, Esq. 717 North Second Street Harrisburg, PA 17102 Attorneys for Defendant Gregory G. Anderson Lot No. 35 Kingsbury Mobile Home Park 5169 East Trindle Road Mechanicsburg, PA 17055 Defendant :rc KINGSBURY ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : GREGORY G. ANDERSON, : NO. 94-4453 CIVIL TERM Defendant : IN EJECTMENT IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO NEW MATTERAND COUNTERCLAIM BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This case in ejectment arises out of an allegedly wrongful continuation of possession of a lot in a mobile home park by Defendant. For disposition at this time are preliminary objections of Plaintiff to Defendant's new matter and counterclaim. The preliminary objections consist of a motion to strike or dismiss for lack of conformity to rule of court,~ a motion for a more specific pleading,2 and a demurrer.3 The motion to strike or dismiss is based upon the failure of various paragraphs of Defendant's new matter to be confined to a single material fact,4 and/or to be in concise and summary form,5 and the failure of certain paragraphs in Defendant's counterclaim to be specific.6 The motion for a more specific pleading is based See Pa. R.C.P. 1028(a)(2). See Pa. R.C.P. 1028(a)(3). See Pa. R.C.P. 1028(a)(4). See Pa. R.C.P. 1022. See Pa. R.C.P. 1019(a). See Pa. R.C.P. 1019. NO. 94-4453 CIVIL TERM on a failure of various paragraphs in Defendant's new matter to contain sufficient factual averments to permit a proper response, an absence of dates in the new matter and counterclaim, and a lack of itemization of damages in the counterclaim. The general demurrer is based on an alleged failure of the counterclaim "to set forth facts which support a cause of action against Plaintiff."7 Among the paragraphs in Defendant's Answer to Amended COmplaint with New Matter and Counterclaim are the following: 30. During the month of February 1994, weather conditions were extreme and there was an abundance of snow. Nonetheless, it was Plaintiff's obligation and responsibility to have the roadways in and to the mobile home park promptly and properly cleared for all the residents. The Plaintiff had failed to do so, and was neglectful in removing and clearing the snow from the roadways and paths which made same impassable for days and, therefore, Defendant was prohibited from leaving the mobile home park and was unable to get to his place of employment for a total of four (4) days which resulted in lost wages. In addition, no mail delivery or pickup was possible for this time period. 31. Defendant did not construct an addition onto his mobile home. After the severe weather conditions of the winter of 1994, Defendant's mobile home was damaged and, in an attempt to repair the damage, Defendant merely repaired his property by replacing the damaged front steps to include a small porch area. Defendant was unaware that he needed prior approval by Plaintiff in order to repair his property. Subsequently Defendant has on several occasions requested that Plaintiff 7 Plaintiff's Preliminary Objections to New Matter and Counterclaim, paragraph 10. 2 NO. 94-4453 CIVIL TERM prepare in writing a list of what is acceptable and not acceptable for mobile home owners when altering their property, this request has been ignored by the Plaintiff. Further, Defendant had in fact personally gone to the Hampden Township Borough Office to see if a building permit was necessary for the repair he wanted to make on his mobile home and he was advised that because his repair was not a permanent structure or over the cost of $500.00 it was not necessary for him to obtain a building permit. In addition, there is nothing in writing in the Mobile Home Park Rules and Regulations stating that mobile home owners need to obtain building permits from Hampden Township. Defendant had been informed by an agent or principal of the Plaintiff, Russell Goodling, that the sides of the area which Defendant had rebuilt must be removed and Defendant has done so. 32. On or about June 22, 1994, Counsel for Defendant was notified by a typewritten letter signed by an agent for Plaintiff that Mr. Goodling had asked that no more construction be done on the Defendant's mobile home. Defendant has complied with this request. In the same letter, Defendant's counsel was informed that Defendant's unit lacked the proper skirting, yet previously, Defendant had been notified that the owners of the mobile home park were requesting that new skirting be installed. However, Defendant's skirting was approved by Plaintiff by noting in writing "skirting OK". In regards to the skirting Plaintiff has not provided the residents of the mobile home park with a written copy of the Rules and Regulations concerning the skirting issue. 39. The Plaintiff had failed to have the roadways in and to the mobile home park promptly and properly cleared for all the residents and was neglectful in removing and clearing the snow from the roadways and paths which made same impassable for days and, therefore, Defendant was prohibited from leaving the mobile home park and was unable to 3 NO. 94-4453 CIVIL TERM get to his place of employment for a total of four (4) days which resulted in lost wages of approximately Three Hundred ($300.00) Dollars. Oral argument was held on Plaintiff's preliminary objections on Wednesday, February 1, 1995. No brief was submitted on behalf of Defendant, nor did he appear in person or through counsel.8 DISCUSSION Motion to strike or dismiss. Under Pennsylvania Rule of Civil Procedure 1022, each paragraph of a pleading is to "contain as far as practicable only one material allegation." Under Rule 1019(a) "[t]he material facts on which a cause of action or defense is based [are to] be stated in a concise and summary form." Where a pleading is not in conformity with such rules, it is subject to a preliminary objection. Pennsylvania Rule of Civil Procedure 1028(a)(2). In the present case, paragraphs 30, 31 and 32 of Defendant's new matter clearly are not in conformity with rule of court and Plaintiff's preliminary objection as to them will be sustained. Generally, a motion to strike will not be permitted to serve as a substitute for a motion for a more specific pleading. 2 Goodrich-Amram 2d ~1017(b):12, at 256 (1991). For this reason, Defendant's counterclaim will not be stricken on grounds of lack of specificity. 8 A motion to withdraw had been filed by Defendant's counsel prior to argument. 4 NO. 94-4453 CIVIL TERM Motion for a more specific pleading. It has been said that a motion for a more specific pleading is designed "to insure that an adverse party's right and ability to answer and defend will not be unduly impaired by a pleader's vagueness in stating the grounds of his or her suit." 5 Standard Pennsylvania Practice §25:57, at 167 (1993). "In general, when a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more specific pleading; the opponent should seek discovery if he or she needs more information .... " 2 Goodrich-Amram 2d §1017(b):24, at 268 (1991). Under Pennsylvania Rule of Civil Procedure 1019(f), "[a]verments of time, place and items of special damage [are to] be specifically stated." A claim should, of course, be sufficiently specific with regard to time as to allow a determination of whether a statute of limitations may be implicated. 2 Goodrich-Amram 2d §1019(f):2, at 341 (1991). In the present case, a review of Defendant's new matter and counterclaim leads the Court to conclude that the pleading is sufficiently specific with respect to time, damages and other averments therein to permit an adequate reply on the part of Plaintiff and to advise Plaintiff of the issues to be met. It is believed that an ascertainment of further specifics may be properly relegated to the discovery process. 5 NO. 94-4453 CIVIL TERM Demurrer. With respect to a demurrer, it has been said that "[a] demurrer admits all well-pleaded material facts in the pleading which it attacks, as well as all inferences which may reasonably be deduced therefrom." International Association of Firefighters v. Loftus, 80 Pa. Commw. 329, 333, 471A.2d 605, 607 (1984). "Preliminary objections in the nature of a demurrer ... will be sustained only when it appears with certainty that the law permits no recovery under the facts pled, and any doubts in the determination should be resolved by overruling the objections." Paone v. City of Scranton, 9 Pa. D. & C.4th 115, 117 (Montgomery Co. 1991); see Department of Transportation v. Bethlehem Steel Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). "[A] demurrer will not be sustained on the ground that a pleading is not sufficiently specific .... " 2 Goodrich-Amram 2d §1017(b):27, at 272 (1991). And, "[i]f any part of a pleading states a sufficient cause of action, the demurrer to the pleading must be overruled." 2 Anderson, Pennsylvania Civil Practice §1017.180, at 579 (1976). On the other hand, "[t]he want of definite allegations essential to a cause of action renders a complaint subject to demurrer." 29 P.L.E. Pleading §123, at 433 (1960). In the present case, Defendant's three hundred dollar counterclaim alleges damages in the form of lost wages as a result of Plaintiff's breach of an obligation to keep roadways within its mobile home park passable. Although it may be that Defendant will NO. 94-4453 CIVIL TERM be unable to prove that he was owed such a duty, or that the damages claimed were reasonably foreseeable, inter alia, it can not be said at this stage with certainty that as a matter of law no recovery is possible. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~day of February, 1995, upon consideration of Plaintiff's Preliminary Objections to New Matter and Counterclaim, and for the reasons stated in the accompanying Opinion, paragraphs 30, 31 and 32 of Defendant's new matter are stricken for failure to conform to rule of court, and Defendant is given 20 days within which to replead these items. In all other respects, the preliminary objections are DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew C. Sheely, Esq. 1 West Main Street Shiremanstown, PA 17011 Attorney for Plaintiff Floyd M. Baturin, Esq. Madelaine N. Baturin, Esq. 717 North Second Street Harrisburg, PA 17102 Attorneys for Defendant NO. 94-4453 CIVIL TERM Gregory G. Anderson Lot No. 35 Kingsbury Mobile Home Park 5169 East Trindle Road Mechanicsburg, PA 17055 Defendant :rc