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HomeMy WebLinkAbout2012-3049 JOHN MCCREA, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PENN TOWNSHIP, BIG SPRING : SCHOOL DISTRICT, PAN CAL 954 : CENTERVILLE (UNIT) B LLC, : DEFENDANTS : 12-3049 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., January 24, 2013: -- Before the court is the appeal filed by Plaintiff, John McCrea. This appeal arises from this court’s sustaining of Preliminary Objections filed by Defendants and dismissing Plaintiff’s action for declaratory judgment. Subsequent to the court’s decision, Plaintiff filed the instant appeal. Plaintiff complains of the following matters on appeal: 1. The court erred when it sustained defendants’ preliminary objections and dismissed plaintiff’s amended complaint without affording plaintiff time to file an amended pleading averring facts which would validate his standing to seek a declaratory judgment overturning illegal and invalid legislative actions by both Penn Township and the Big Spring School District. 2. In considering defendants’ preliminary objections, the court was required to accept as true all well-pleaded averments in plaintiff’s amended complaint, as well as all reasonable inferences to be drawn from those averments. The court failed to do this. If the lower court had done what it was legally required to do, it would have dismissed defendants’ preliminary objections. 3. The court erred when it failed to find that plaintiff was sufficiently aggrieved by the illegal and invalid tax exemption ordinance of Penn Township and the illegal and invalid tax exemption resolution of Big Spring School District to seek a 12-3049 CIVIL TERM declaratory judgment overturning both the illegal ordinance and illegal resolution. 4. The court erred when it stated that plaintiff’s only remedy against the illegal and invalid actions of Penn Township and Big Spring School District was the political process and not the courts. 5. The court erred when it assumed throughout its November 9, 2012 opinion and Order that Penn Township and Big Spring School District had enacted and adopted a legal tax exemption ordinance and a legal tax exemption resolution when, contrary to this assumption, the ordinance and the resolution were facially and factually illegal and invalid, and plaintiff had in detail averred this illegality and invalidity in his amended complaint. Pl. Statement of Matters Complained of on Appeal, filed December 27, 2012. Upon review, the court finds that the issues complained of in Paragraphs 3 and 4 were adequately addressed in the previously filed opinion announcing the judgment of the court, filed November 9, 2012 and now herein incorporated. However, Plaintiff has raised three additional issues in Paragraphs 1, 2 and 5 that were not raised prior to this appeal. The court will address them now in the order presented. Plaintiff was afforded the opportunity to amend his complaint in response to Defendants’ preliminary objections as required per statute. Pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(1), after having been served with preliminary objections, a party has an opportunity to amend his pleading within 20 days of service. P. R.C. A IV P. 1028(c)(1). In the present case, Defendant Big Spring School District filed its preliminary objections on August 13, 2012, and Defendant Penn Township filed its preliminary objections on August 20, 2012. The court entered its order and opinion on November 9, 2012. Substantially more than twenty days passed between August 20 and November 9. Consequently, Plaintiff was provided the twenty days mandated by -2- 12-3049 CIVIL TERM the Pennsylvania Rules of Civil Procedure in which to amend his complaint in response to the preliminary objections. Furthermore, a party may amend its pleading if the other party consents or if granted leave of court. P.R.C.P. 1033. In the present case, the Plaintiff never A IV requested consent from the other party or leave of court to amend his complaint. Consequently, the court never provided leave for Plaintiff to amend his complaint. Even if Plaintiff had requested such relief, “where allowance of an amendment would … be a futile exercise,” the complaint may be properly dismissed without allowance for an amendment. Wiernik v. PHH US Mortgage Corp., 736 A.2d 616, 624 (Pa. Super. 1999). As noted in our earlier opinion, Plaintiff failed to aver sufficient facts to demonstrate that he is aggrieved. Furthermore, we see no way that Plaintiff can prop up the prospective, speculative facts he did aver to the point that our opinion would change. Thus, to allow a second amended complaint would be an exercise in futility. Additionally, contrary to Plaintiff’s contention, the court did accept as true the well-pleaded averments in Plaintiff’s amended complaint and the inferences that could be drawn therefrom. When considering a motion for demurrer based upon preliminary objections, “facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences as may be drawn from the facts.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999). However, the court is not required to accept as true Plaintiff’s legal conclusions, opinion, argumentative allegations, and unwarranted inferences from facts. See Wiernik, 736 A.2d at 619. Consequently, just as the court was not required to accept Plaintiff’s legal conclusion that he was aggrieved, we are not compelled to accept Plaintiff’s averments -3- 12-3049 CIVIL TERM and opinions that the tax exemption ordinance and resolution were facially and factually illegal. For all the reasons stated above, the Commonwealth Court should affirm this court in all respects. By the Court, __________________________ Albert H. Masland, J. John McCrea, Pro se Plaintiff Marcus A. McKnight, III, Esquire For Defendant, Penn Township Philip H. Spare, Esquire For Defendant, Big Spring School District Registered Agent Solutions Agent for PAN CAL 954 Centerville (Unit) B LLC -4-