HomeMy WebLinkAbout2005-2320 Civil (2)
KENNETH CRAMER : IN THE COURT OF COMMON PLEAS OF
PENNY A. CRAMER : CUMBERLAND COUNTY, PENNSYLVANIA
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V.:
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BEV CLENDENNING : NO. 2005 – 2320 CIVIL TERM
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: CIVIL ACTION – LAW
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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
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on contiguous parcels of real estate in Southampton Township. Plaintiff complained to
the township zoning officer that defendant’s shed was “illegally within the side-yard
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setback.” The Township Zoning officer met with plaintiffs, examined the boundary
markers between the properties, made measurements and concluded that plaintiffs were
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Complaint, paragraph 3.
2
Complaint, paragraph 6.
NO. 2005 – 2320 CIVIL TERM
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correct. He advised defendant that her shed was in violation of the township set back
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requirements. Defendant responded that she could not verify the allegations because
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plaintiffs had “seen fit to remove or cover” the boundary markers. The zoning officer
then refused to take any enforcement action until a survey was completed to confirm the
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location of the boundary line. Plaintiffs paid for a survey which set the boundary line in
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the exact location they had previously asserted. Defendant then removed her shed.
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
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or moved the legal boundary markers. . . ”.
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The above allegations do not provide a basis for recovery. It does not matter
whether
“covered or moved” the boundary markers. It does not even matter 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,
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in violation of the setback requirement. Therefore, the defendant’s demurrer will be
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sustained.”
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Complaint, paragraphs 8 & 9.
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Complaint, paragraph 9.
5
Complaint, paragraph 10.
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Complaint, paragraph 11.
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Complaint, paragraph 13.
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Complaint, paragraph 14.
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Complaint, paragraph 15.
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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.
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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.
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NO. 2005 – 2320 CIVIL TERM
ORDER OF COURT
AND NOW, this ________ day of MARCH, 2006, Defendant’s Preliminary
Objections in the nature of a demurrer are SUSTAINED and the complaint is
DISMISSED.
By the Court,
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Edward E. Guido, J.
Michael A. Scherer, Esquire
For the Plaintiffs
Marcus A. McKnight, III, Esquire
For the Defendants
:sld
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