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Home My WebLink About93-0241 Civil EARL R. MORRISON and : IN THE COURT OF COMMON PLEAS OF SANDRA L. MORRISON, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : CIVIL ACTION - LAW ROBERT H. KALBACH, JR. and : RICHARD C. KALBACH, : Defendants : NO. 241 CIVIL 1993 IN RE: DEFENDANTS, PRELIMINARY OBJECTION BEFORE SHEELY p.j. HOFFER and OLER Jj. ORDER OF COURT AND NOW, this Z ~ ~ day of September, 1994, upon careful consideration of Defendants, preliminary objection to Plaintiffs, complaint, as well as the briefs and oral arguments presented on the matter, Defendants, preliminary objection is DENIED. BY THE COURT, Arthur T. McDermott, Esq. 50 E. High Street Carlisle, PA 17013 Attorney for Plaintiffs John A. Gill, Esq. 2931 N. Front Street Harrisburg, PA 17110 Attorney for Defendants EARL R. MORRISON and : IN THE COURT OF COMMON PLEAS OF SANDRA L. MORRISON, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. : CIVIL ACTION - LAW ROBERT H. KALBACH, JR. and : RICHARD C. KALBACH, : Defendants : NO. 241 CIVIL 1993 IN RE: DEFENDANTS, PRELIMINARY OBJECTION BEFORE SHEELY, p.j., HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. The present case arises out of an allegedly wrongful interference with access to Plaintiffs, land. For disposition at this time is Defendants, preliminary objection to Plaintiffs' complaint for declaratory judgment. The preliminary objection is based on dismissal of a prior action brought by Plaintiffs for inactivity under Pennsylvania Rule of Judicial Administration 1901 (termination of inactive cases). For the reasons stated in this Opinion, the preliminary objection will be denied. Statement of Facts Plaintiffs commenced the present action on January 25, 1993, by the filing of a complaint at law for "trespass to land." The gravamen of the complaint was that Plaintiffs, right of access, acquired by prescription, across Defendants, land had been physically interfered with by Defendants, predecessors in title, and continued to be blocked. An answer with new matter was filed by Defendants on June 10, 1993, and a reply to Defendants' new matter was filed by Plaintiffs. NO. 241 CIVIL 1993 A pretrial conference was held on January 4, 1994. At that time, the Court noted that "[i]t appears that a prior action by the Plaintiffs for equitable relief may have been purged for lack of activity."~ It was further provided in the pretrial conference order as follows: By agreement of counsel, this case is continued generally to enable counsel to determine whether the matter may be resolved amicably, and to permit Plaintiffs to decide whether they wish to amend the complaint to bring the action in equity.2 On March 15, 1994, Plaintiffs filed a new complaint at law for "declaratory judgment." The allegations of this complaint were the same as the first, with additional averments that a prior equity action brought by Defendants against Plaintiffs, predecessors had been resolved by the cession to Defendants of an "alternate easement," and that Defendants were denying that access as well. On April 15, 1994, Defendants filed a preliminary objection to Plaintiffs, new complaint, reading as follows: 1. Plaintiffs have instituted the within action for declaratory judgment to determine if a prescriptive easement exists affording Plaintiff a right of ingress and egress to Defendants, property. 2. Plaintiffs instituted an action involving ~he same matter previously against Defendants predecessor in title, John P. Hall ~ Order of Court, In re: Pretrial Conference, January 5, 1994, at 1. ~ Id. 2 NO. 241 CIVIL 1993 and Sherry Hall, Docket No. 35 Equity 1985, C.P. Cumberland. 3. The Equity Action was purged on October 29, 1991, for inactivity. 4. Given the fact that the previous action was purged, Plaintiffs cannot now maintain an action against a Successor in Title for the same subject matter of a suit which was previously purged. WHEREFORE, Defendants respectfully request that Plaintiffs, Complaint be dismissed.3 Plaintiffs, on June 8, 1994, filed a response to the preliminary objection, admitting the first three averments and denying the fourth as a conclusion of law. No further record has been provided to the Court for disposition of the preliminary objection. Statement of Law Preliminary objections -- standard of review. "Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases which are clear and free from doubt." Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). ~. Under Pennsylvania Rule of Civil Procedure 1028(a), "[p]reliminary objections ... are limited to the following grounds: - 3 Defendants, Preliminary Objections to Plaintiffs Complaint. ' NO. 241 CIVIL 1993 (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form of service of a writ of summons or a complaint; (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer); and (5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; and (6) pendency of a prior action or agreement for alternative dispute resolution. On the other hand, "[a]ll affirmative defenses ... [are to] be pleaded in a responsive pleading under the heading 'New Matter'." Pa. R.C.P. 1030. ~eactivation of cases dismissed under Pa. R.J.A. 190]. The proper method for reactivation of an action terminated pursuant to Pennsylvania Rule of Judicial Administration 1901 for inactivity is through a petition to reactivate. See Martin v. Grandview Hospital, 373 Pa. Super. 369, 541A.2d 361 (1988). The burden upon the proponent of reactivation is not insubstantial: [The Superior] Court has adopted an "open judgment" standard for reactivation of complaints which were terminated for unreasonable inactivity; the petitioner must show good cause why the case should be reactivated. International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977). In 4 NO. 241 CIVIL 1993 order to meet this "good cause" requirement, the petitioner must show that: (1) the petition for reactivation is timely filed; (2) the inactivity is reasonably explained or legitimately excused; and (3) facts constituting a meritorious cause of action are alleged. Tessier v. Pietrangelo, 361 Pa. Super. 210, 522 A.2d 88 (1987); Haefner v. Sprague, 343 Pa. Super. 342, 494 A.2d 1115 (1985); International Telephone and Telegraph Corp. v. Philadelphia Electric co., supra. I~d. at 373, 541 A.2d at 362-63. Judicial notice. "[A] court may not ordinarily take judicial notice of the records in another case even though the case arose in the same court and the contents of the records are known to the court." Packel & Poulin, Pennsylvania Evidence S201.2, at 40 (1987). Effect of raisinq affirmative defense as prel~m~nar~ ~. "A party who improperly raises an affirmative defense by way of a preliminary objection, is not precluded from properly raising these defenses and then filing a motion for summary judgment... Shughart, Pennsylvania Civil Practice S8.6, at 131 (2d ed. 1993) ADDlication of Law to Facts Although it seems clear that the present action may be subject to dismissal for failure to follow proper reactivation procedures, if it is, in fact, duplicative of one terminated for inactivity, a number of factors militate against a granting of Defendants, preliminary objection. First, the basis of the objection-- 5 NO. 241 CIVIL 1993 termination of a prior action under Pa. R.J.A. 1901--is not among the authorized grounds for a preliminary objection. Second, this ground is appropriately categorized as an affirmative defense, analogous to res judicata and collateral estoppel, and is properly to be pleaded as new matter. Third, the record as presently existing is inadequate for the purpose of adjudicating the issue raised and an attempt by the Court to construct a record sua sponte through the device of judicial notice does not appear advisable. Finally, no prejudice will accrue to the Defendants from a dismissal of the preliminary objection because a vehicle exists for consideration of the issue at a later pretrial stage, upon a more complete record. For these reasons, the following Order will be entered: ~RDER OF COURT AND NOW, this Z~ day of September, 1994, upon careful consideration of Defendants, preliminary objection to Plaintiffs, complaint, as well as the briefs and oral arguments presented on the matter, Defendants, preliminary objection is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Arthur T. McDermott, Esq. 50 E. High Street Carlisle, PA 17013 Attorney for Plaintiffs NO. 241 CIVIL 1993 John A. Gill, Esq. 2931 N. Front Street Harrisburg, PA 17110 Attorney for Defendants