author: FIKE, S.J.,

text:
    In the Matter of a Private Road for O’Reilly

      C.P. of Allegheny County,
    No. 04-2972.

      William P. Bresnahan and William P. Bresnahan, II, for petitioner

      Kevin P Allen, for respondent
    March 5, 2013
   FIKE, S.J.,

MEMORANDUM

This litigation commenced with the filing by Timothy R O’Reilly (“petitioner”) of a “petition for the appointment of a board of viewers pursuant to 36 P.S. section 2731, et seq.”, requesting that a private road be laid out and opened across land of adjoining property owners to provide access to petitioner’s landlocked property.

The case is now before this court on remand from the Commonwealth Court with direction to develop an evidentiaiy record so that findings of fact can be made to provide the basis for a decision whether the opening of a private road pursuant to the legislation known as the Private Road Act, 1836, June 13, P.L. 551, §11, as amended, 36 P.S. §2731, et seq., entitled “Proceedings To Open Private Roads” (“act”), under the circumstances presented by the instant petition, would constitute an unconstitutional taking of private property in violation of the Fifth Amendment to the United States Constitution and Article I, Sections 1 and 10 of the Pennsylvania Constitution.

A brief summary of the history of the case will provide a background that might be helpful in understanding the present procedural posture of the proceedings and the task now assigned to this court as a trial court.

Petitioner is the owner of two parcels of land that became landlocked as a result of the Commonwealth’s condemnation of a portion of the tracts of which the two parcels were a part, for the purpose of constructing the interstate highway designated Interstate 79. Respondent, Hickory on the Green Homeowners Association (“Hickory on the Green”), is a corporation that serves as a homeowners association for residents of the Hickory on the Green subdivision. At the time the petition was filed, the respondent, Mary Lou Sorbara (“Sorbara”) owned a parcel of land lying between petitioner’s landlocked property and land of the Hickory on the Green subdivision. Sorbara’s land is now owned by Mark Polk. The remaining respondents are property owners in the Hickory on the Green subdivision. Petitioner seeks to have a road established across the Sorbara (now Polk) property, to the Hickory on the Green subdivision property, thence continuing across the subdivision property to the cul de sac on a public road known as Clubview Drive in the subdivision.

The filing of the petition elicited preliminary objections from Hickory on the Green and the individual respondents. The preliminary objections included the contention that the act is unconstitutional, and that, consequently, if the petition were granted, the opening of the private road easement requested by petitioner would be unconstitutional as taking respondents’ property for a private, rather than public, purpose and use.

This court determined that, under then controlling appellate authority, the act was not unconstitutional; that, therefore, if the prerequisites established in the act were met, opening oftheproposedroadpursuanttotheprovisions of the act would not constitute an unconstitutional taking; and that, therefore, the preliminary objection based on respondents’ constitutional challenge should be overruled. Interlocutory appeal to Commonwealth Court ensued.

Upon appeal, the Commonwealth Court affirmed in a divided en banc opinion. In re: Opening a Private Road for the Benefit of O’Reilly, 954 A.2d 57 (Pa. Cmwlth. 2008). The maj ority concluded that applicable precedent required such a result; that even under traditional takings analysis, “a public purpose is served by allowing the laying out of roads over the lands of another” for access to landlocked property, id. at 72; that, because of historical imposition of an incorporeal burden on all land of six percent for construction of roads, laying out of a road under the act was not a taking, but an obligation imposed on all landowners to allow for the construction of private roads in the manner determined by their elected representatives; and that historically, private roads laid out to provide ingress and egress had been considered a necessary part of the Commonwealth’s road system.

Respondents appealed to the Supreme Court, which, in a divided opinion, vacated the Commonwealth court’s decision and remanded the case to the Commonwealth Court for further review. In re: Opening a Private road for the Benefit of O’Reilly, 607 Pa. 280, 5 A.3d 246 (2010). The Supreme Court did not declare the act facially unconstitutional. However, the court’s majority disagreed with the reasoning upon which the Commonwealth Court’s constitutional analysis was based; rejected its reliance on the concept of an historical incorporeal burden alleged to have been imposed on all landowners in the Commonwealth; and dismissed petitioner’s argument that, since establishment of a private road under the act is not governed by the Eminent Domain Code, opening of the requested road would not constitute a taking at all, but, rather, a valid exercise of the police power. The majority opinion, also, rejected the suggestion that the purpose served by the act is analogous to the doctrine of implied easement by necessity, pointing out that the element of severance by a common owner that gives rise to the implication of consent in a case of easement by necessity is lacking in the instant case. Id, 607 Pa. at 258, 5 A.3d at 301.

The Supreme Court majority explained that, although not governed by the Eminent Domain Code, creation of a road under the act’s provisions must be evaluated by the same strict standards as an exercise of the power of eminent domain by a government agency. Therefore, to satisfy the requirement that a taking serve a public purpose, “the public must be the primary and paramount beneficiary of the taking.” Id. at 299, 5 A.3d at 258. The court concluded that the Commonwealth Court’s majority opinion had not analyzed the purpose of the taking by the proper standard. Consequently, the court vacated the Commonwealth Court’s decision, and determined that remand to the Commonwealth Court was necessary, explaining:

Perhaps the most compelling assertions advanced by Appellee lie in the purported interrelation between the Commonwealth’s initial exercise of its eminent domain power to construct an interstate highway-which apparently isolated Appellee’s property from access to public roads-and Appellee’s subsequent invocation of the PRA [Act] to restore access. In light of the course this appeal has taken, however, potentially relevant details (for example, whether Appellee’s use of the PRA to restore access to the property was contemplated at the time the Commonwealth removed it, and whether Appellee acted with reasonable promptitude such that the two takings reasonably might be regarded as an interconnected course of events) are not well developed before this court. Accordingly, we will return the matter to the Commonwealth Court to consider this and any remaining matters which have been raised and preserved for judicial review and which may bear on whether the public is fairly regarded as the primary and paramount beneficiary.
We have concluded that the court of original appellate jurisdiction has the responsibility, in the first instance, to review appellants’ preserved and colorable arguments, and any decision to affirm the taking of their property should be closely reasoned...

607 Pa. at 300-01, 5 A.3d at 258-59.

Upon remand, the Commonwealth Court concluded that there was not enough information in the record to allow a determination of whether the public would be the primaiy and paramount beneficiary of the taking:

There are a number of reasons for this: this case is before us on appeal from preliminary objections, so there is no factual record; the parties’ pleadings did not specifically address the standard that our Supreme Court has now made clear applies; and there is nothing in the pleadings relating to the issue of the highway condemnation raised by our Supreme Court.
We therefore will remand this case to the court of common pleas to hold a hearing, make findings of fact, and consider these issues. At this hearing, the court should consider not only evidence presented by the parties about the alleged highway taking that caused the parcel at issue to become landlocked, but also any other evidence relevant to determining who the primary and paramount beneficiary of the proposed taking would be.

In re: Opening A Private Road for the Benefit of O’Reilly, 22 A.3d 291, 297 (Pa. Cmwlth. 2011).

In a footnote, the Commonwealth Court added the following guidance to the trial court:

In addition, if it becomes necessary for the pleadings to be amended for this issue to be fully considered, such amendments should be allowed. We believe this is appropriate in light of the fact that the Act has long been held constitutional and, more to the point, our Supreme Court’s opinion in this case was the first to suggest a case by case analysis of public purpose with respect to the opening of a private road.

Id. at 297 n.6. [Emphasis in original].

Petitioner subsequently filed an amended petition, to which respondents filed preliminary objections, again questioning the constitutionality of the act and the opening of the road requested in the amended petition. A period of discovery ensued, including depositions of petitioner and of James Broadbent, a former Pennsylvania Department of Transportation employee, and production of documents surrounding the condemnation of property that had occurred in the 1960s for the purpose of construction of Interstate 79, including documents relating to the condemnation of portions of the tracts of which petitioner’s present landlocked parcels were a part. Hearing pursuant to the Commonwealth Court’s remand was held on January 10, 2013. Respondents presented testimony from a homeowner in the Hickory on the Green subdivision and testimony from petitioner, and introduced petitioner’s deposition and various documents into evidence. In addition, the parties submitted a Stipulation of Facts.

FINDINGS

The parties stipulated to the following facts.

1. Petitioner is Timothy P. O’Reilly (“O’Reilly”) who resides at 3340 Washington Pike, in the Township of South Fayette, Bridge ville, PA, County of Allegheny and Commonwealth of Pennsylvania.

2. Petitioner owns certain property in South Fayette Township, Allegheny County, Commonwealth of Pennsylvania. Said property was acquired by petitioner by way of two transactions: the first transaction was a deed from Marcella O’Reilly, et al., dated December 31, 1973; the second transaction was a deed from the estate of Joseph G. Corless, dated October 24, 1986.

3. The properties which were the subject of these two transactions are located side-by-side and were severed in part by the Commonwealth of Pennsylvania, then Department of Highways, by the recording of a plan with the Office of the Recorder of Deeds of Allegheny County, Pennsylvania, entitled “Drawings for Establishment of Limited Access Highway and Condemnation of Right-of-Way and Prohibition of the Erection and Maintenance of Outdoor Advertising Devices” (the plan”) on the 19th day of December 1963. The condemnation was for the purpose of construction of Interstate 79. Petitioner was not the owner of the subject property in 1963, but became a successor in interest in the 1973 and 1986 acquisitions abovementioned. A copy of the plan is attached hereto as exhibit “A”.

4. Respondent, Hickory on the Green Homeowners Association (“HOG”), is a Homeowners Association and is the owner of certain land located at the end of Clubview Drive in the Township of South Fayette, County of Allegheny. Said land is shown on exhibit “B” which is attached hereto. There is no actual private road across the HOG property although exhibit “B” includes a reference to a “Private Road”.

5. A fifty (50’) foot public road known as Clubview Drive terminates at the westerly boundary of the HOG property. The fifty (50’) foot public road known as Clubview Drive was constructed in the 1990’s and was accepted as a public street by South Fayette Township in 2001.

6. Respondent, Mary Lou Sorbara (“Sorbara”), was the owner of that certain property adjacent to the easterly boundary of HOG’s property. Said property is now owned by Mark Polk. It is also depicted on exhibit “B” which is attached hereto. The property of Sorbara was acquired from Helen Sabo. The Sabo family owned that property at the time of the 1-79 condemnations.

7. Petitioner has two pieces of property after the condemnation which have frontage on Fairview Lane and Washington Pike. They are used for the purpose of farming and his residence. In addition, petitioner has two pieces of property after the condemnation which have no access to a public road. They are vacant and unused.

8. Petitioner’s two parcels of real estate without public road access abut the easterly boundary of the Sorbara property, as is depicted on exhibit “B”, which is attached hereto.

9. No property owner at the time of the original 1-79 condemnation case is now available to testify concerning facts, actions or intentions of the condemnor nor [sic] condemnees.

10. After the conclusion of the 1-79 condemnations by the Commonwealth, petitioner determined there was no access from a public road to the two severed parcels. From August 25, 1999 through November 7, 2000, petitioner requested access to Clubview Drive by building a road across the property owned by HOG. On December 5, 2001, petitioner’s request was denied.

11. Petitioner did not attempt to invoke the Private Road Act until over forty years after the 1-79 condemnations and three years after the township’s acceptance of Clubview Drive as a public street.

In addition, we make the following findings.

12. The landlocked parcels for which petitioner is requesting access became landlocked because of the 1963 condemnation by the Commonwealth of portions of the larger tracts of which the presently landlocked parcels were a part, for the purpose of construction of Interstate 79.

13. The fact that the condemnation caused the subject parcels to be landlocked, and the resulting diminution in the market value of the landlocked parcels, were taken into account in calculating the compensation that the Commonwealth paid the then owners of the land.

14. Petitioner’s predecessors in title who owned the subject parcels at the time of the condemnation, were compensated for the fact that the parcels had become landlocked, by the Commonwealth’s payment to those owners of an amount almost equaling the amount that was paid for land that was actually taken by the condemnation.

15. There is no evidence that, at the time of the subject condemnations, either the Commonwealth or the affected landowners, including those landowners whose ‘property had become landlocked, contemplated use of the act to gain access to the parcels that had become landlocked by the condemnation.

16. Petitioner was not aware when he acquired the subject landlocked parcels, and has not subsequently become aware, of any arrangement or agreement among the parties to the condemnation of land for construction of Interstate 79 that access to the subject landlocked parcels was to be obtained by use of the act.

16. Petitioner knew that the subject parcels were landlocked when he acquired them.

17. Neither Hickory on the Green nor Clubview Drive existed when the Commonwealth of Pennsylvania exercised its eminent domain power to condemn land for the construction of Interstate 79 in the early 1960’s.

18. Petitioner’s predecessors in title who owned the subject properties at the time of the subject condemnation, each signed a deed of release and quitclaim that released the Commonwealth and PennDOT from all claims related to the taking, including any claims “through or by reason of the deprivation of the right of access, egress and ingress to and from said section of highway.”

19. It was impractical to attempt establishment of a private road for access to the petitioner’s two parcels until construction of Clubview Drive in the Hickory on the Green subdivision

20. If access is not established, the subject two parcels of land will remain unused and undeveloped.

21. Petitioner did not present evidence of any specific use, development or enterprise that he intended for the subject parcels, in the event the proposed access road were to be built.

DISCUSSION

As noted at the outset, the Supreme Court included in its remand a direction to consider in more detail the relevance of the Commonwealth’s condemnation of land for the construction of Interstate 79, whether petitioner’s use of the act was contemplated at the time of the condemnation in 1963, and whether petitioner “acted with reasonable promptitude such that the two takings reasonably might be regarded as an interconnected course of events....”. In re: Opening a Private Road for the Benefit of O’Reilly, 607 Pa. at 300, 5 A.3d at 258. The Commonwealth Court’s remand included the direction to hold a hearing and make findings of fact on these issues, and, also, to consider any other evidence relevant to determining who the primary and paramount beneficiary of the proposed taking would be.

There is no question that the 1963 condemnation of land for the construction of Interstate 79 is related to petitioner’s present proceedings to establish a private access road under the act’s provisions. The condemnation and construction of the Interstate highway caused the subject parcels to be landlocked. However, that simple cause and effect relationship does not constitute the “interconnection” or “interrelationship” contemplated by the Supreme Court as providing evidence of a public purpose of the opening of petitioner’s requested private road. More is needed than simply cause and effect. If merely cause and effect were sufficient, there would be no need to undertake the inquiry directed by the Supreme Court. Overarching the inquiry is the Supreme Court’s direction that the basic test to be met is whether “the public is to be the primary and paramount beneficiary” of the opening of petitioner’s requested road, Id., 607 Pa. at 299, 5 A.3d at 258, and it is in this context that the issue of “interconnection” or “interrelationship” must be addressed.

Pursuant to the Supreme Court’s direction, in order to conclude that the benefit to the public from construction of Interstate 79 is justification for a finding that the public is the primary and paramount beneficiary of the opening of the presently requested private road, the two takings must be “interconnected”, and important to that determination will be the answer to the question of whether, as part of the condemnation process, the parties to the condemnation contemplated use of the act as a remedy. In addition, the Supreme Court suggested that the timing of the request for access would be a significant factor in resolving that issue.

There is no evidence that petitioner’s predecessors in title, the Commonwealth, or any party involved with the 1963 condemnations contemplated use of the act to restore access to the landlocked parcels. There is no evidence of any agreement or arrangement between the Commonwealth and the owners of the severed tracts envisioning use of the act for access. Petitioner was not aware when he acquired the subject parcels in 1973 and 1986, and has not subsequently become aware, of any arrangement or agreement among the parties to the condemnation, that access to the landlocked parcels was to be obtained by use of the act.

We note that perhaps at the time condemnation was effected, the Commonwealth could have elected to condemn additional land to allow construction of an access road to serve those landowners whose properties were severed. However, whether construction of such an access road was a realistic or practical possibility or not, the Commonwealth chose instead to compensate petitioner’s predecessors and those similarly situated by the payment of an amount of money that accounted for the diminution in value caused by the severance. If such an access road had been built at the time Interstate 79 was constructed, although obj ection could have been made, strong argument would have supported the Commonwealth’s decision to establish access rather than to pay compensation. However, as the condemnation proceeded, payment of compensation served as a substitute for access, and made establishment of access unnecessary to effect completion of the Interstate.

Although the Supreme Court suggested that a relevant factor might be whether the request for a private road was made with “reasonable promptitude”, we have determined that, under the circumstances presented here, and in the context of considering the issue of “interconnection” or “interrelationship”, whether the timing of the filing of the petition under the act was “reasonable” is not a relevant test. The issue is the constitutionality of the proposed taking, resolution of which, in turn, will depend upon whether the public will be the primary and paramount beneficiary. In this context, the filing would be “reasonable” whether filed immediately after the condemnation, or 40 years later.

However, aside from any issue of “reasonableness”, the timing of the filing of the petition might be relevant on the question of possible interrelation between the condemnation and the request for opening of a private road to gain access to parcels of land that became landlocked as a result of the condemnation. The filing of a petition under the act immediately, or a short time, after the condemnation, might provide some evidence that use of the act was contemplated at the time of the condemnation, and consequently, some evidence that the condemnation and request for relief under the act were related. In actuality, the fact that a petition was not filed until 2004 is consistent with a conclusion that use of the act was not contemplated at the time of the condemnation and that the two events are not interconnected in the manner deemed by the Supreme Court to be necessary to support a finding that the primary benefit to be gained from establishment of the requested road, is the safer, more convenient travel, and promotion of commerce, that was provided by construction of Interstate 79. The record contains insufficient evidence upon which to base a finding that the parties contemplated use of the act in connection with the condemnation plans, and, consequently, insufficient evidence upon which to base a finding of “interconnection” in the sense contemplated by the Supreme Court that the requested road’s present primary and paramount benefit is the safer, more convenient travel for the motoring public, and enhancement of development, that was provided by the construction of Interstate 79.

Consequently, although, without the construction of Interstate 79, there would be no need for the requested access road, and although severing of the tracts of petitioner’s predecessors in title appears to have been reasonably necessary to provide the public with the benefit of faster, safer and more convenient travel by motor vehicle, and promotion of commercial progress along the Interstate corridor, the present inquiry must be whether opening of the requested road now will primarily benefit the public at large.

Remaining for resolution, then, is the question of whether, even if not interconnected with the 1963 condemnation and construction of Interstate 79, the public otherwise can be considered the “primary and paramount beneficiary” of the opening of the proposed private road.

As suggested in note 7 to our October 26,2007 opinion, In the Matter of Opening a Private Roadfor the Benefit of O’Reilly, No. 04-2972, slip op. at 20, n. 7 (C.R Allegheny, Oct. 26, 2007), and as discussed in Justice Newman’s dissenting opinion in In re: Forrester, 836 A.2d 102 (Pa. 2003), and in the dissenting opinion expressed by Justice Eakin in the present case, opening of a road to provide access to landlocked property pursuant to the provisions of, and meeting the requirements established in, the act, can serve a significant public purpose (as well as conferring significant benefits to the petitioning landowner), by unlocking access to the resources of landlocked property. However, as expressed in the Supreme Court majority opinion directing remand, that general public benefit, even if significant, is not sufficient. To meet the constitutional standard, the public must be the “primary and paramount beneficiary” of the taking.

In the instant case, the evidence of public benefit consists of petitioner’s generalized indication of intent to use the subjectparcels for someproductive purpose, and the general benefit to the public that results from the opening of land to productive use, as described supra, and in petitioner’s deposition and hearing testimony. However, the Supreme Court majority opinion in the instant case indicates that the general benefit to the public is insufficient. Petitioner’s generalized expression of intended use provides no additional evidence of public benefit. In the analysis of “interconnection” or “interrelationship” discussed, supra, we concluded that the 1963 condemnation of land for the purpose of construction of the Interstate, cannot provide the basis for a finding that the public would be the primary and paramount beneficiary of the opening of petitioner’s requested road.

Consequently, although we find that the public at large would derive a benefit from the opening of the proposed private road that might equal the benefit conferred upon the petitioner, the evidence does not support a finding that the public would be the “primary and paramount” beneficiary. Consequently, our order will sustain respondents’ preliminary objection challenging the constitutionality of the proposed taking, and, for that reason, will dismiss the petition for the appointment of a board of viewers pursuant to 36 P.S. section 2731, et seq. Respondents’ other preliminary objections will be sustained and overruled as expressed in our October 26, 2007 opinion and order.

CONCLUSIONS

1. There is no evidence that any of the parties involved in the 1963 condemnation of the land of petitioner’s predecessors in title contemplated use of the act to restore access to the parcels of land that became landlocked by the condemnation of land for construction of Interstate 79.

2. Petitioner was not aware when he acquired the subject landlocked parcels, and has not subsequently become aware, of any arrangement or agreement among, or expression by, the parties to the condemnation of land for construction of Interstate 79 that access to the subject landlocked parcels was to be obtained by use of the act.

3. The condemnation and taking of land of petitioner’s predecessors in title for the purpose of construction of Interstate 79 is interconnected with the present petition for opening of a private road, only in the sense that the condemnation of land of petitioner’s predecessors in title for the construction of Interstate 79 caused the parcels owned by petitioner that are the subject of these proceedings, to become landlocked.

4. The taking effected by the condemnation of land of petitioner’s predecessors in title for the construction of Interstate 79 and the taking proposed by the present petition to open a private road, do not constitute an interconnected or interrelated course of events that would support a conclusion that the opening of petitioner’s proposed private road can be considered as serving the public purpose and interest that was served by the condemnation and taking of land for the construction of Interstate 79.

5. Under the United States and Pennsylvania Constitutions, private property can only be taken to serve a public purpose, and to satisfy this obligation, the public must be the primary and paramount beneficiary. In re: Opening a Private road for the Benefit of O’Reilly, 607 Pa. at 299, 5 A.3d at 258.

6. Opening of the proposed road would serve a public purpose and would be of benefit to the public at large, by providing access to presently inaccessible resources, the opportunity for development of the land, and enhancement of tax revenues.

7. Opening of the proposed private road would be of benefit to petitioner, by providing the opportunity for development of the previously landlocked parcels, and by increasing the land’s value and marketability.

8. The evidence of record does not support a finding that the public would be the primary and paramount beneficiary of the opening of the road proposed by petitioner.

ORDER

Now, this 5th day of March, 2013, upon remand, after hearing, receipt of briefs and further argument from counsel, and consideration of the respondents’ preliminary objections to the amended petition for the appointment of a board of viewers pursuant to 36 RS. section 2731, et seq.,

It is ordered that the preliminary objections are sustained in part and overruled in part as follows:

I. The preliminary objection based on untimely service is overruled.

II. The preliminary objection alleging violation of procedural due process is overruled.

III. The preliminary objection that the Petition for Appointment of a board of Viewers improperly seeks to grant an adjoining property owner permission to use the proposed road is sustained, and the request that the adjoining property owner be granted access to the road is stricken.

IV. The preliminary objection alleging that the opening of the proposed road under the Private Road Act, Act of 1836, June 13, P.L. 551, §11, as amended, 36 P.S. §2731, et seq., is unconstitutional, is sustained, and the petition is dismissed.

      . Although attached to the original stipulation of facts, the exhibits referred to in the stipulation are not attached to this memorandum, since unnecessary to our analysis, and since attachment, therefore, would, unnecessarily encumber the record.

      . From the exhibits attached to the stipulation and other maps admitted into evidence, it appears that the boundary between the Hickory on the Green property and the Sorbara, formerly Sabo, now Polk, property, would actually be the easterly boundary of the Hickory on the Green property. It, also, appears that Clubview Drive does not extend all the way to the easterly boundary of the Hickory on the Green property, but ends in a cul de sac approximately 600 feet from that easterly boundary.

      . It is solely interconnectedness with the condemnation that is at issue pursuant to the Supreme Court’s and Commomnwealth Court’s remands, and the “reasonableness” of the timing of the petition was raised by the Supreme Court’s majority opinion only in that context. If we were to consider the issue as having been raised otherwise, traditional pleading practice would suggest the impropriety of raising such a defense at this stage of the case. However, if the timeliness issue were to be examined, the contention that the petition is not vulnerable to limitations or laches objection appears to have merit. The remedy is provided by statute. Petitioner’s analogy to the concept of “continuing wrong” is apt. So long as the subject parcel is landlocked, the landowner may seek relief under the act. In addition, petitioner’s testimony describing the impracticality of construction of an access road prior to the construction of Clubview Drive; the fact that Clubview Drive was constructed in the 1990’s; that from August 25,1999 through November 7,2000, petitioner requested access to Clubview Drive; that Clubview Drive was opened as a public street only in 2001; and that petitioner’s request was denied on December 5, 2001; militate against the suggestion that petitioner failed to act with reasonable promptitude by filing his petition in 2004.

      . Although, as a refinement of the analogy to an easement by necessity, it could be argued that the Commonwealth’s severance of the tracts of which the subject landlocked parcels were a part raises an implication that an easement will be required across adjoining property, similar to the doctrine of easement by necessity, lacking is the element of severance by a common owner deemed important by the Supreme Court majority, as noted, supra, p.4. Also, as discussed, supra, p. 11, if mere cause and effect were sufficient to show the required “interconnection”, the Supreme Court would have so concluded, and remand and the present inquiry would have been rendered unnecessary.

      . Perhaps, at the time the act was passed, by establishing a procedure separate from eminent domain, the Legislature recognized as obvious the public interest served by promoting development and recovery of resources on then large unused and landlocked tracts of land. Perhaps times have changed to the extent that the public interest that prompted passage of the act is now not as evident, or, in fact, the need has so diminished in significance because of population growth and density, development of land, and, in some cases, the desire to protect land from development, that the public purpose that might have been obvious at the time the act was passed, is no longer apparent, and that relief should not be granted absent proof of special circumstances showing some specific benefit to be derived by the public from a specific proposed use.


source: Caselaw Access Project

author: WILLIAMSON, /.,

license: Public Domain

text:
    Petrini v. Nemeth

      C.P. of Monroe County,
    No. 9797 CIVIL 2012.

      Kenneth R. Petrini, for plaintiff.

      Jeffrey G. Velander, for defendant.
    March 13, 2013
   WILLIAMSON, /.,

Plaintiff commenced this action by filing a complaint on November 26, 2012. Defendant filed preliminary objections to the complaint, and on December 21, 2012, plaintiff filed an amended complaint. Defendant filed the instant preliminary objections to the amended complaint on January 9,2013, and abrief in support thereof onFebruary 22,2013. Plaintiff filed a brief in opposition to defendant’s preliminary objections on March 1, 2013. Oral argument was heard on March 4,2013. We are now ready to dispose of the preliminary objections.

In his amended complaint, plaintiff alleges that he had an interpersonal relationship with the defendant from November 10, 2002 until February 20, 2011, which included a period of marriage from December 2003 until March 2006. For two years after their divorce, plaintiff paid defendant support in the amount of $2500 per month as part of their divorce settlement. Plaintiff further alleges that he and defendant began their most recent relationship in November 2009 which lasted until Februaiy 20, 2011. On or about December 8, 2010, defendant called plaintiff just before noon and asked him for further financial support, which plaintiff agreed to provide in recognition of an ongoing relationship. Plaintiff alleges that he conditioned the assistance upon the two of them remaining in a relationship. On or about December 10,2010, plaintiff delivered defendant a check of $30,000, and told her that he was giving her the check because plaintiffs support to defendant in their post-nuptial agreement had been $2,500 per month, and he was willing to continue that as long as they were together. The $30,000 was meant to cover 2011’s monthly payments. Plaintiff alleges that defendant did not object to the conditions or terms of the check. After February 20, 2011, defendant ceased all contact with plaintiff.

In count I of the amended complaint, plaintiff alleges that the defendant failed to meet an essential condition of a conditional gift and/or failed to do what was required to vest an incomplete gift. In count II, plaintiff alleges that defendant breached her consideration of her contract with plaintiff when she unilaterally terminated their relationship. In count III, plaintiff alleges that defendant fraudulently obtained funds from plaintiff. In count IV, plaintiff alleges that he has been unable to retrieve certain items that were left at defendant’s residence because she unilaterally and without notice terminated the relationship and will not respond to his attempts at communication.

The defendant’s preliminary objections are pled as follows:

1. Demurrer for legal insufficiency as to count I of the amended complaint.
2. Motion for a more specific complaint as to counts I and II of the amended complaint.
3. Demurrer for Legal Insufficiency as to entire Amended Complaint for Illegality Purpose.
4. Motion for a more specific Complaint as to Count III of the Amended Complaint.

DISCUSSION

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Worth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

1. Demurrer for Insufficiency of Pleading Pursuant to Pa.R.C.P. 1028(a)(4)

Defendant’s first preliminary objection is couched in the language of a demurrer for insufficiency of pleading. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994). Sometimes, the standard of review for a demurrer is understood in terms of a prima facie case. Weber v. Bell Telephone Company, 203 A.2d 554, 556 (Pa. 1964).

Simply put, defendant asserts that count I of the amended complaint does not set forth a cause of action because the mere providing of a gift by one person to another with the hope of currying favor with that person, in the absence of a specific promise to marry, does not constitute a conditional gift which is recoverable by the donor. Plaintiff specifically pled, in paragraph 9 of the amended complaint, “[pjlaintiff responded that he would help, not in order to curry favor for anything additional, but in recognition of an ongoing relationship.” (Amended compl. f9)(emphasis added). Furthermore, this court is unaware of any legal precedent which indicates conditional gifts can only be made in contemplation of marriage.

In count I of the amended complaint, plaintiff alleges that he made a conditional gift in the form of a $30,000 check to defendant with the condition being their continued relationship. In paragraph 10 of the amended complaint, plaintiff alleges, “[p]laintiff did not ask Defendant to change their then-current relationship in order to provide assistance, instead merely conditioning the assistance upon them remaining in their then-current status.” (Amended compl. fl0)(emphasis added). Also, in paragraph 16 of the amended complaint, plaintiff alleges “[p]laintiff told Defendant that he was willing to provide her with $2500 in assistance per month while they were together.” (Amended compl. ‘¡[lóXemphasis added). In paragraphs 17 and 18 of the amended complaint, plaintiff alleges that defendant did not object to the conditions and acknowledged the conditions by cashing the check. In paragraphs 26 and 28 of the amended complaint, plaintiff alleges that their relationship ended in February, and that plaintiff continued throughout 2011 to attempt to retain the relationship, but his attempts were refuted.

Accepting these allegations as true, we find that plaintiff has pled that the condition of the $30,000 gift was that plaintiff and defendant remain in a relationship. Plaintiff has also pled that the defendant failed to meet the essential condition of the gift when she ended the relationship. In order for demurrer to be sustained, it must be clear on the face of the amended complaint that the law will not permit the recovery sought. Therefore, defendant’s first preliminary objection is overruled.

II. Motion for a More Specific Complaint Pursuant to Pa.R.C.P. 1028(a)(3)

Defendant’s second preliminary objection asks this court to dismiss plaintiff’s amended complaint for lack of specificity, or in the alternative, direct plaintiff to file an amended complaint which specifically avers statements and actions which plaintiff contends comprise the “relationship” between plaintiff and defendant.

The pertinent question, under Pa.R.C.P. 1028(a)(3), is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense,” or “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sough so that he may know without question upon what grounds to make his defense.” Ammlung v. City of Chester, 302 A.2d 491, 498 n.36 (Pa. Super. 1973) (quoting 1 Goodrich-Amram §1017(b)-9).

Defendant argues that in order to defend this action, she must know precisely what plaintiff’s ideas are with respect to their “relationship”, and asks that the plaintiff set forth the specifics of their relationship from November 2009, until May 2011. Plaintiff argues that the amended complaint clearly defines the “relationship” in paragraphs 38 and 39 as a non-intimate, exclusive relationship.

Counts I and II of the amended complaint allege a failure to meet a condition and a breach of contract. The condition and the contract both require the plaintiff and defendant to be in a relationship. It is not clear on the face of the amended complaint, however, just exactly what that relationship entails. “Clarity is particularly important where an oral contract is alleged.” Pennsy Supply, Inc. v. American Ash Recylcing Corp., 895 A.2d 595, 600 (Pa. Super. 2006). In order for the defendant to be able to properly defend this action, she must know what plaintiff means by “relationship.” Paragraphs 38 and 39 of the amended complaint are barely enlightening in this regard. Paragraph 38 states, “[d]efendant’s consideration for the contract was her continuation of their then-current, non-intimate relationship.” (Amended compl. ¶38). Paragraph 39 is even less informative, because it merely states, “[s] uch a contract is not against public policy as it was not a contract for sexual services, plaintiff and defendant not having been intimate for over a year at the time of the contract.” (Amended compl. ¶39). A non-intimate relationship has many different connotations. Therefore, defendant’s second preliminary objection is sustained. Plaintiff shall amend his amended complaint to let Defendant know what he considered to be the requirements of the “relationship”, so that defendant will be able to respond to his claims. Defendant’s second preliminary objection is sustained.

III. Demurrer for Insufficiency of Pleading Pursuant to Pa.R.C.P. 1028(a)(4)

Defendant’s third preliminary objection seeks to dismiss the amended complaint due to illegal purpose. Defendant argues that plaintiff implies in the amended complaint that plaintiff considered the payment to defendant to be in exchange for her being physically intimate with him. Obviously, such a condition or contract would be unenforceable.

Illegality of a contract is an affirmative defense which shall be pleaded by way of new matter, and cannot be raised by way of preliminary objections. DeAngelis v. Laughlin, 258 A.2d 615 (Pa. 1969). It is premature for defendant to raise illegality at this stage. Therefore, defendant’s third preliminary objection is overruled.

IV. Motion for a More Specific Complaint Pursuant to Pa.R.C.P. 1028(a)(3)

Defendant’s fourth preliminary objection asks the court to dismiss count III, or in the alternative, direct the plaintiff to file an amended complaint which specifically avers the statements and actions which plaintiff contends constitutes fraudulent conduct on the part of the defendant.

Pa. R.C.P. 1019(b) requires all claims of fraud to be plead with specificity. “Fraud must be averred with particularity by the following elements: (1) a misrepresentation; (2) a fraudulent utterance of it; (3) the maker’s intent that the recipient be induced thereby to act; (4) the recipient’s justifiable reliance on the misrepresentation; and (5) damage to the recipient proximately caused.” Selvin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992). In this case, plaintiff has averred the necessary elements with specificity.

Plaintiff avers the necessary elements of fraud in paragraphs 50 through 53.

5 0. At the time defendant accepted money from plaintiff in December 2010, defendant, by her actions and words in seeking funds from plaintiff, in light of her prior statements regarding assistance, and in her silence in the face of plaintiff’s statements, misled plaintiff into believing plaintiff and defendant were in a long-term and exclusive relationship and capitalized on that fact to extract funds for [sic] plaintiff.
51. Defendant knew at the time she asked for money in December 2010 that she intended to terminate her relationship with plaintiff.
52. Defendant concealed the truth of her intent to terminate her relationship with plaintiff from plaintiff in order to defraud him and to induce him to provide her with funds.
53. As a result of defendant’s fraud, plaintiff delivered a check for $30,000 to plaintiff on or about December 10, 2010.

Amended compl. ¶50-53).

The facts alleged by the plaintiff, in regards to the defendant’s fraudulent conduct, are pled with the required amount of specificity. As a result, defendant’s fourth preliminary objection is overruled.

ORDER

And now, March 12, 2013, after consideration of the preliminary objections of defendant, and following oral argument, it is ordered as follows:

1. Defendant’s first and third preliminary objections in the nature of demurrers are overruled.

2. Defendant’s second preliminary objection in the nature of a motion for a more specific complaint is sustained.

3. Defendant’s fourth preliminary obj ection in the nature of a motion for a more specific complaint is overruled.

4. Plaintiff shall have 20 days in which to file an amended complaint.

      . Plaintiff’s amended complaint lists two count Ill’s. For the purposes of this opinion, we will refer to the second as count IV.

      . Defendant’s brief also seeks a demurrer as to count II, but does not plead the same in her preliminary objections. Therefore, a demurrer as to count II will not be discussed in this opinion.

      . We note that the plaintiff prepaid a full year of payments for 2011 by paying $30,000 on December 10,2010.

      . Defendant’s preliminary objections to the amended complaint refer to count II as alleging fraud, even though defendant’s brief properly refers to count III as alleging fraud.


author: BERNSTEIN, J.,

text:
    Schriner v. Latsha, Davis, Yohe & McKenna, P.C.

      David W. Knauer, for plaintiff

      Edwin A.D. Schwartz, Lauren M. Burnette, Aaron E. Moore and Ronald M. Metcho, II, for defendants.
    April 4, 2013
   BERNSTEIN, J.,

Plaintiffs are asserting a professional liability claim against defendants that stems from a toxic-tort case litigated in Dauphin County. On August 28, 2012, plaintiffs Michael and Robin Shriner filed a third amended complaint with the Philadelphia Court of Common Pleas. Defendants Latsha, Davis, Yohe, and McKenna, P.C., Kevin McKenna, Esq. and Mark Morford, Esq. filed preliminary objections. Defendants’ objection to venue pursuant to Pa.R.C.P. 1028(a)(1) was sustained and the case was transferred to Dauphin County where defendants’ other preliminary objections may be properly ruled on. Plaintiffs have timely appealed the trial court’s order sustaining defendant’s objection to venue.

Plaintiffs live in Dauphin County, Pennsylvania. All transactions and occurrences giving rise to plaintiffs’ claims against defendants occurred in Dauphin County. the subject property of the underlying action is located at 824 Mohn Street in Dauphin County; the underlying litigation, docket no. 2004 CV 5200, took place in Dauphin County; the underlying Dauphin County action was recently revived on July 12th 2012 by the filing of a petition to intervene and a motion to strike judgment in Dauphin County. Defendant Latsha, Davis, Yohe, & McKenna, P.C. (“Latsha”) is a Pennsylvania corporation whose principal place of business is in Chester County. Defendants were served in Cumberland County. The only connection to Philadelphia is that defendants Morgan and McKenna of the law firm of Latsha, Davis, Yohe, & McKenna, P.C. are practicing attorneys who have previously represented clients in the United States District Court for the Eastern District of Pennsylvania and in the Philadelphia County Court of Common Pleas.

An action may only be brought in a county in which the individual may be served, the cause of action arose, or where an occurrence took place out of which the cause of action arose. In a tort action, for the purposes of establishing venue, the cause of action arises where the injury is inflicted. For purposes of venue, and action against a corporation may only be brought the county where its registered office or principal place of business is located, a county where it regularly conducts business, the county where the cause of action arose, a county where a transaction or occurrence took place out of which the cause of action arose, or a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

All occurrences and transactions giving rise to the alleged malpractice took place in Dauphin County. The subject property of the underlying action is located in Dauphin County. The underlying litigation took place in Dauphin County. The fact that attorneys in defendant’s firm may have previously litigated claims in Philadelphia County or that defendants have practiced in the Eastern District is not regularly conducting business in Philadelphia for the purposes of venue.

First, the Latshe firm became involved in representation not as the result of affirmative efforts to promote their business in Philadelphia County, but only after being requested by other clients to commence litigation in Philadelphia County, the location of the Eastern District federal courthouse. More importantly, by representing a client in Dauphin County it was not foreseeable that they would be hauled into court in Philadelphia County. See Sawtelle v. Farrell, 70 F.3d 1381, 1392 (1st Cir. 1995) (The mere existence of an attorney-client relationship, unaccompanied by other sufficient contacts with the forum, does not confer personal jurisdiction over the Defendant in the forum; more is required.); Ahrens & DeAngeli, P.L.L.C. v. Flinn, 318 S.W.3d 474, 484 (Tex. App. 2010); Wartsila NSD N. Am., Inc. v. Hill Int’l, Inc., 269 F. Supp. 2d 547, 556 (D.N.J. 2003); Trinity Industries, Inc. v. Myers & Associates, Ltd., 41 F.3 d 229, 231 (5th Cir. 1995) (observing the “bare existence of an attorney-client relationship is not sufficient” to justify exercising personal jurisdiction over a non-resident attorney).

Defendants’ principal place of business is outside Philadelphia County. No defendant was served in Philadelphia County.

For the reasons stated above, the court appropriately determined that defendant’s preliminary objection to venue should be affirmed and the case transferred to Dauphin County.

      . ¶ 12 Plaintiff’s third amended complaint

      . Plaintiff’s admissions, ¶ 1 plaintiffs’ response to preliminary objections.

      . Plaintiffs’ admissions, ¶¶ 1, 2, 12 and 13 of plaintiffs’ response to preliminary objections.

      . Plaintiff’s admissions, ¶ 12 plaintiff’s response to preliminary objections. See also plaintiff’s complaint ¶¶ 5, 7.

      . Plaintiffs’ admissions, ¶¶ 1, 2, 12, and 13 of plaintiffs’ response to preliminary objections

      . See exhibits “C”, “D”, and “E” of defendant’s preliminary objections

      . ¶ 18 of plaintiff’s complaint

      . Defendant’s admissions, ¶ 11 of defendant’s preliminary objections

      . Defendant’s admissions, ¶¶ 17, 18 of defendant’s preliminary objections. ¶¶ 5, 7, 9 of plaintiff’s third amended complaint

      . Pa.R.C.P. 1006(a)

      . Kring v. Univ. of Pittsburgh, 829 A.2d 673, 677 (Pa. Super. Ct. 2003)

      . Pa. R. Civ. P. 2179(a)

      . Plaintiff’s claim that the defendants “could” have been served in Philadelphia while representing clients is irrelevant for purposes of venue; they were not served in Philadelphia County.


text:
    Phillip v. Bracey’s Supermarket, Inc.

      C.P. of Monroe County,
    No. 7215 CV 2009.

      Jerome P. Foley, for plaintiff

      Jody A. Mooney, for defendants
    April. 5, 2013
   WILLIAMSON, /.,

This matter comes before us on a motion for summary judgment filed by Bracey’s Supermarket, Inc., Bracey’s Mount Pocono, Inc., Pocono Village Mall, Inc., and William G. Bracey (hereafter, “defendants”), requesting Joan Phillip’s (hereafter, “plaintiff’) amended complaint be dismissed because plaintiff cannot recover as a matter of law.

Plaintiff commenced this action by filing a complaint on August 3, 2009 and an amended complaint on September 15, 2009. In her amended complaint, plaintiff alleges that she slipped and fell at Bracey’s Supermarket, 301 Route 940, Mount Pocono, PA. Defendants filed their answer with new matter on December 7, 2009. The pleadings are now closed and the discovery deadline expired on January 15, 2013, per the court’s scheduling order. On February 14, 2013, defendants filed the motion for summary judgment and brief in support thereof that is currently before this court. On March 25, 2013, plaintiff filed her answer to the motion for summary judgment, and on April 1, 2013, filed a brief in opposition to defendants’ motion for summary judgment. Oral argument was held April 1, 2013. We are now ready to dispose of defendants’ motion summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, butmust set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters. Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951).

In the case now before the court, the defendant argues that there are no genuine issues of material fact and requests that the court grant summary judgment in its favor. Defendant alleges that (1) the crack in the sidewalk was a trivial defect, (2) the plaintiff has failed to support the allegations of her amended complaint, and (3) the plaintiff’s injury was the result of her own negligence.

The facts of this case, as viewed in the light most favorable to the plaintiff, are as follows:

Plaintiff and her significant other of 36 years, Stanley Locke, went to the Bracey’s shopping mall on August 10, 2007 to do some shopping. In her deposition, plaintiff testified that she intended to go to the grocery store, but forgot her eyeglasses in the vehicle she shared with Mr. Locke. [N/T Joan Phillip dep., 3/10/11, p. 13, 14, 19]. Plaintiff was walking back to the vehicle to get her glasses, but was unable to find the vehicle, because there were “a lot of gray cars in the parking lot.” Id. at 19. Unable to locate the vehicle, plaintiff started walking towards the hardware store where Locke was shopping. Id. Plaintiff testified that she fell when her toe hit a crack in the sidewalk causing her to trip. Plaintiff did not recall if she saw the crack before she tripped, nor was she able to describe its appearance, location or size. Id. at 12, 24, 25. Locke did not see plaintiff fall. [N/T Stanley Locke dep., 3/10/11, p. 10]. However, plaintiff allegedly fell in front of the Blockbuster Video store. When Locke arrived where the plaintiff fell, he did not notice any condition on the sidewalk that caused him concern. Id. at 26. However, Locke testified that he went back to the area later that same day and saw a crack in the sidewalk, measuring approximately “1 1/2 inches in width, 3 feet in length, with a 1/2 inch raised lip.” Id. at 31. Locke identified a photograph, labeled exhibit “1” during deposition as the crack at issue. Defendant asserts the photograph identified does not match Locke’s description.

I. Trivial Defect

Defendants argue that the defect in the sidewalk that caused plaintiff’s fall, which Locke described as 1 1/2 inches in width, 3 feet in length, with a 1/2 inch raised lip, is a trivial defect and, as such, one for which they are not liable. Plaintiff argues that the defect is not trivial as a matter of law and, therefore, the defendants’ negligence should be determined by a jury.

When considering an injury resulting from purported negligent maintenance of a landowner’s property, a court may look to the alleged defect in determining the viability of a plaintiff’s case. Davis v. Potter, 17 A.2d 338 (Pa. 1941). However, “there is no definite or mathematical rule that determines when a defect is trivial; instead, the case must be determined on the individual act.” Mull v. Ickes, 994 A.2d 1137, 1140 (Pa. Super. 2010) citing Breskin v. 535 Fifth Avenue, 113 A.2d 316, 318 (Pa. 1955). “While the focus in determining whether a defect is trivial must be based on the specific facts of... [the] case, our inquiry is aided by prior decisions.” Id. at 1141.

Defendants rely on German v. McKeesport City, 8 A.2d 437 (Pa. Super. 1939), Bosack v. Pittsburg Railways Co., 189 A.2d 877 (Pa. 1963), and Cline v. Statler, 34 Pa. D. & C. 4th 289 (Pa. C.P. 1997), affirmed 726 A.2d 1073 (Pa. Super. 1998) to support their argument that the crack was a trivial defect. As a matter of law, an elevation, depression, or irregularity may be so trivial that courts are bound to hold that there was no negligence in permitting such depression or irregularity to exist. Bosack, 189 A.2d at 880.

In German, a pedestrian’s heel sank into a gap in the sidewalk approximately one to 1 to 1 1/2 inches deep. German, 8 A.2d at 439. The Superior Court held that the defect was not significant enough to impose liability on the landowner. Id. The Superior Court reasoned:

The law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevennesses, etc., as the floors of buildings. A reasonably safe condition is all that is necessary our climate, with its rain and snow, freezing and melting, frost and thaw, with their effects on exposed surfaces, including sidewalks, makes impossible the perfection of evenness to be expected in buildings and covered places. The roots of trees planted along sidewalks-there were none in this instance, it is true-cause irregularities which, however, do not require remedying or repair until the break or imperfection is so great as to be patently dangerous. Such irregularities and unevennesses are especially frequent and likely to occur where the sidewalk and curb join or abut, by reason of the curb loosening or separating from the sidewalk and the accumulation of dampness there; but to impose liability on the property owner of the city they must be so large and unusual as to appear dangerous to the ordinary pedestrian and everyday passerby. A difference or discrepancy of an inch and a half between the levels of two abutting curbstones was held not to impose liability: McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747. And such a variation- 11/2 inches- between the adjoining ends of flagstones in a street crossing is not evidence of negligence.

Id. at 440-41 (citation omitted).

In Bosack, the Pennsylvania Supreme Court considered a claim of negligence where the plaintiff fell due to a one to two inch depression between cobblestones. Bosack, 189 A.2d at 881. The court cited numerous decisions of prior cases, including German, where variations equal to or in excess of one to 2 inches in width or depth were not considered defects and entered judgment in favor of the defendants. Id. Furthermore, the court also deemed it unnecessary to consider questions of notice or irregularity. Id.

In Cline v. Statler, the plaintiff claimed that she tripped over a raised portion of a public sidewalk which was elevated two to three inches higher than the level of the adjoining block. Cline, 34 Pa. D. & C. 4th at 290. The trial court granted summary judgment holding that landowners are not subject to liability for conditions that are so trivial in nature that they cannot be actionable as a matter of law. Id. at 291.

Other appellate courts have found that sidewalk defects the same or greater in depth and overall size than at issue here were insufficient to impose liability as a matter of law. See Magennis v. City of Pittsburgh, 42 A.2d 449 (Pa. 1945) (discussing a 1 1/2 inch depression that was twelve-by-fifteen feet); Foster v. Borough of W. View, 195 A. 82 (Pa. 1937) (discussing depressed unpaved area adjacent to sidewalk which was two feet long and two to four inches below the level of the sidewalk); Harrison v. City of Pittsburgh, 44 A.2d 273 (Pa. 1945) (discussing manhole cover projecting two inches above the sidewalk).

Plaintiff argues that the photographs of the shopping center’s sidewalks that she attached to her brief as exhibit “A”, show the defect was not trivial, and that the condition ofthe entirety of the sidewalks shows a conscious disregard for the safety of patrons. Plaintiff contends that viewing these photographs in the light most favorable to her should result in the court determining that the condition of the sidewalk is a matter for the jury. We disagree.

After reviewing the facts in a light most favorable to the plaintiff, the 1 1/2 inches in width, 3 feet in length, and 11/2 inch raised lip crack in the sidewalk does not rise to the level of liability for the defendants. Our determination that the crack in the sidewalk is trivial is made on an individualized basis, guided by, but not governed by, previous decisions. As asserted by the Supreme and Superior Court in Davis and German, supra, landowners are held to a standard to maintain their properties in a reasonably safe condition. To hold landowners liable for a minor change in the elevation of a sidewalk, such as a 1/2 inch raised lip which is 1 1/2 inches in width, would be unreasonable. Such a gap or crack can occur due to numerous conditions outside of aproperty owner’s control, including freezing and thawing. This is especially so in Mount Pocono, Pennsylvania, which is at a high elevation, and the location of the shopping center in question. It is unreasonable to expect a perfectly level walking surface on a sidewalk in the Poconos. As in German, this court will not impose liability unless defects are so large or unusual as to appear dangerous. The photographs presented by both parties do not show a large or unusual defect that appears dangerous. Even assuming the location where the plaintiff fell, was in the pictures identified by plaintiff and Locke, including exhibit “1”, the condition complained of is trivial and de minimis. For the reasons mentioned above, we cannot impose liability for a trivial defect. Therefore, we enter the following order.

ORDER

And now, this 5 th day of April, 2013, upon consideration of defendants’jotion for summary judgment, the same is granted. Plaintiff’s suit is dismissed.

      . Reference to the testimony from Joan Phillip’s deposition will be referred to as [“N/T Joan Phillip dep., 3/10/11, p._.”]

      . The premises consisted of a shopping mall/strip mall comprised of various businesses.

      . Reference to the testimony from Stanley Locke’s deposition will be referred to as [“N/T Stanley Locke dep., 3/10/11, p._.”]


author: WILLIAMSON, J.,

text:
    Cronlund v. Leavitt

      C.P. of Monroe County,
    No. 2721.

      Kimberly Fedrigon, for plaintiffs

      Marshall E. Anders, for defendants

      April 10, 2013
   WILLIAMSON, J.,

This matter comes before the court on plaintiffs’ motion for injunctive relief and damages regarding a property line dispute. We previously issued an opinion and order dated September 23, 2012, denying plaintiffs’ request for a preliminary injunction following a hearing held August 1, 2012. The defendants filed a timely motion for reconsideration requesting this court enter a final order as to the underlying merits of the suit. A rule was issued to show cause why this court should not reconsider its September 23, 2012 opinion and order. The plaintiffs filed a response indicating no objection to a final order on the merits of the case. No stipulation was filed by the parties. However, at argument scheduled on the motion, both parties agreed the prior ruling that only addressed the preliminary injunction should be modified, and requested the court rule on the merits of the underlying complaint and counterclaim and issue a final order in this matter. This court granted the request by order dated April 1, 2013. This opinion and order follows.

Plaintiffs allege they were entitled to an injunction and damages to prevent a trespass, as they would suffer an irreparable harm and injury without the requested relief. Specifically, the plaintiffs requested an order directing defendants to refrain from entering onto plaintiffs’ real property and cutting down trees and disturbing the landscape. The complaint alleged an action in trespass, continuing trespass, and permanent trespass. Plaintiffs also allege intentional infliction of emotional distress. The complaint sought equitable relief in the form of an injunction, and monetary damages.

PROCEDURAL BACKGROUND

This court, by the Honorable Linda Wallach Miller, initially set a hearing date on the motion for injunctive relief for May 16, 2011. The hearing was first continued to August 30, 2011, and again to September 26, 2011. The court, by order dated September 20, 2011 continued the hearing indefinitely, pending a ruling on defendants’ petition to file a pleading out of time. The parties also needed time to finalize a survey of the properties.

On December 16, 2011, plaintiffs filed a petition for a hearing stating the surveys were done. This court entered an order January 3,2012, scheduling a hearing for January 30,2012. At the time of the hearing on January 30,2012, it was determined that there were multiple issues outstanding that effected the case procedurally. The parties then agreed to cancel the hearing on the preliminary injunction and to hold it at a later time. This court, by order dated March 7, 2012, resolved all of the outstanding procedural matters, and on May 22,2012, plaintiffs filed a petition to schedule a hearing on the preliminary injunction matter. A hearing on the request for injunctive relief was scheduled for August 1,2012, and on that date, both parties appeared and provided testimony. The parties have agreed the evidence at that hearing is all of the evidence in this matter, and that this court should rule on the underlying merits of the complaint, and defendants’ counterclaim by final order.

FACTUAL BACKGROUND

The brief facts of this case are as follows: Plaintiffs Kenneth and Sue Cronlund own lot 764, Emerald Lakes in Tobyhanna Township, Monroe County, Pennsylvania. Defendants, Jeffrey and Stacey Leavitt own Lot 763, which is immediately adjacent to the plaintiffs’ lot. The plaintiffs allege that the defendants went onto their property and cut or damaged trees on their property, and continue to trespass on their lot. The plaintiffs also allege that the defendants have a boat dock that is too close to the plaintiffs’ property line, in violation of association rules and regulations.

The defendants counter that the area of disturbance is not on the plaintiffs’ property. The defendants allege that the disturbed area is common area owned by the Emerald Lakes Association, Inc. (“Association”). The defendants also assert that the trespass claims are time-barred. Finally, the defendants claim the boat dock neither encroaches on plaintiffs’ land, nor is an enforceable violation of Association rules. Defendants’ counterclaim seeks damages, including attorney’s fees. The court will first address the defense that the claims are time-barred under the applicable statute of limitations, and the effect, if any, on this case.

APPLICATION OF STATUTE OF LIMITATIONS

The defendants assert that the plaintiffs’ complaint must be dismissed since it was filed outside the two year statute of limitations period. The plaintiffs’ complaint asserts that the defendants trespassed on their property and damaged a number of trees and shrubs that allegedly blocked the defendants’ view of the lake. An individual must commence a cause of action for a claim of trespass within two years of the date of the alleged trespass. 42 Pa. C.S.A. §5524(4). However, our courts have recognized two different types of trespass and have held that the time in which the statute of limitations begins to toll will differ depending on which trespass is alleged. A plaintiff can assert either a permanent trespass or a continuing trespass. Accordingly, the court must ascertain which type of trespass is being alleged before determining whether the statute of limitation has expired. In the matter before us, the plaintiffs assert both a continuing trespass and a permanent trespass.

The distinction between a continuing trespass and a permanent trespass is discussed in the Restatement (Second) ofTorts, which states a permanent trespass occurs when a person “... without privilege to do so, enters land of which another is in possession and destroys or removes a structure standing upon the land, or digs a well or makes some other excavation, or removes earth or some other substance from the land...” Restatement (Second) ofTorts §162, comment (e). The trespass is considered permanent rather than continuing when the individual’s conduct has procured a permanent injury to the land and redress for that permanent harm can be adequately obtained in a single action. Restatement (Second) ofTorts §162, comment (e). The two-year statute of limitations will run from the date of the permanent harm.

A continuing trespass involves multiple trespasses that result in separate and independent injuries. See Cassel-Hess v. Hoffer, 44 A.3d 80, 87 (Pa. Super. 2012). The statute of limitations does not start until all trespass is abated. Id. To ascertain whether a trespass is permanent or continuing, the court should consider the following factors: “1) the character of the structure or thing which produces the injury; 2) whether ‘the consequences of the [trespass/nuisance] will continue indefinitely’; and, 3) whether the ‘past and future damages’ may be predictably ascertained.” Cassel-Hess, at 87, citing, Sustrik v. Jones & Laughlin Steel Corp., 197 A.2d 44, 46-47 (Pa. 1964) and Graybill v. Providence Twp., 593 A.2d 1214, 1316-1317 (Pa. Cm with. 1991) (enbanc), aff’dper curiam, 618 A.2d 392 (Pa. 1993). The court should also look at the regularity of the harm that results from the alleged trespass to determine whether the harm occurred in one instance and remains to exist on the property or whether the harm happens frequently and predictably or only intermittently. Graybill, at 1316-1317.

In Cassel-Hess, the Superior Court compared the trespass involved in Beach Street Corp. v. A.P Const. Co., Inc., 658 A.2d 379 (Pa. Super. 1995), which constituted a permanent trespass, against the continuing trespass found in Graybill. After reviewing the facts from Beach Street Corp. and considering them in light of the factors provided for in Sustrik and Graybill, the Superior Court reaffirmed the holding in Beach Street Corp. and held that a permanent trespass occurred. Cassel-Hess, 87. In reaching that determination, the court highlighted the following facts: “the invasion occurred once and resulted in a permanent, visible change to the land; the ‘consequences’ of the trespass would continue indefinitely (until the trespass was abated); and all ‘past and future’ damages resulting from the trespass could have been immediately ascertained.” Id., citing, Sustrik at 46-47 and Graybill, at 1316-1317.

In contrast to the opinion in Beach Street Corp., the Commonwealth Court in Graybill concluded the actions taken by the defendant constituted a continuing trespass since the court could not determine whether the trespass would continue in the future and could not calculate the full amount of damages in a single action. Cassel-Hess, 87. In Graybill, the plaintiff alleged the flooding on his property was caused by a structure the defendant built on his property and that the flooding occurred less than ten times over a four year period. Since the Commonwealth Court found it “impossible to know exactly how many incidents of flooding would occur [or] the severity of them,” the court determined the flooding was a continuing trespass caused by the structure located on the defendant’s property. Graybill, at 1317-1318.

In the matter before this court, the plaintiffs are asserting that the defendants have “repeatedly entered upon Lot 764 without license or permission to do so and destroyed and/or damaged trees and shrubs on Plaintiffs’ property.” [Plaintiffs’ complaint, 3/25/11, ¶5.] Additionally, the plaintiffs aver that “Defendants have repeatedly and continuously acted to physically enter upon Plaintiffs’ property for the sole purpose of destruction of trees and shrubs, despite clear requests and directives to cease and desist.” [Plaintiffs’ complaint, 3/25/11, ¶8.] Finally, the plaintiffs allege that “Defendants continue to intentionally enter upon Plaintiffs’ Lot 764 without privilege, license or invitation to do so,” and “continue to defy any and all requests and demands to remove the items of trespass, or to discontinue the ongoing trespass.” [Plaintiffs’ complaint, 3/25/11, ¶¶10-11.]

However, the testimony at the hearing showed that most of the trees and shrubs removed or cut were on lands of the Association, and not on lands owned by the plaintiffs as will be addressed later in this opinion. The testimony also showed that the trees and shrubs removed or cut had stopped prior to the hearing. The cutting of trees and removal of shrubs is an incident that is over once it is done, and not a continuing trespass. The “continuing trespass” appeared limited to the upkeep of land and landscaping timbers placed on the property line of both lots which will be addressed below. We find, based upon the testimony, that at most, any damage to any trees and shrubs that were actually on the plaintiffs’ property was limited to removal of one shrub. This removal was a permanent trespass. Testimony showed the removal of the shrub on plaintiffs’ property occurred more than two (2) years prior to the filing of the complaint. As such, the removal of the shrub on plaintiffs’ property is time barred by the applicable statute of limitations. We find the other trees and shrubs that were disturbed were not on the plaintiffs’ lot as discussed below.

However, since the suit also involves a disagreement as to property lines and who owns the area of the alleged trespass, we must also address other matters. There are issues that could make this a continuing trespass with regard to the boat dock, and defendants’ coming onto the plaintiffs’ property, including allegations defendants were maintaining an area of plaintiffs’ land as well as placing landscape timbers on their land. There is also a dispute regarding damage to trees and shrubs near the lake.

It is pertinent to note that plaintiffs list their primary residence as being 145 Crest Road, Wrightstown, Pennsylvania and defendants’ primary residence as 3287 Harbor Point Road, Baldwin, New York 11510. Therefore, it is evident that neither party considers the properties located at the Emerald Lakes development a primary residence, rather, they consider the properties “vacation” or “seasonal” homes. We believe this is relevant since it is entirely possible that there are times when the plaintiffs are present on the Emerald Lakes property when the defendants are not present and vice versa. Thus, it may not become immediately evident when defendants may trespass or whether there is a resulting harm and what that harm is until the plaintiffs return to the property, or actually witness them on the property. This court can only be guided by the testimony at the hearing.

Plaintiffs have alleged the location of the boat dock is a continuing trespass. If it was on the plaintiffs’ property, it would be a continuing trespass, and thus not time barred. Plaintiffs have also alleged that defendants continue to come onto their property, including cutting grass and placing landscape timbers thereon. If proven, this would also be a continuing trespass and not time barred. Finally, plaintiffs claim ownership to or rights in the additional areas in which trees and shrubs were allegedly cut. All allegations will be discussed below.

INJUNCTIVE RELIEF - TRESPASS

The plaintiffs’ motion for injunctive relief remains an outstanding matter that was cancelled generally until a number of outstanding preliminary matters were concluded. Those preliminary matters are now resolved. The injunctive relief was sought to prohibit defendant from certain actions. Although plaintiffs’ petition for hearing did not specifically state it was a motion for injunctive relief, this court granted the petition on the belief that the hearing was to consider plaintiffs’ motion for injunctive relief. As stated previously, the plaintiffs ’ request for injunctive relief was effectively continued until the outstanding preliminary matters were concluded. Once those matters were ruled upon by this court, plaintiffs filed a petition for hearing. Accordingly, we find it appropriate to rule on plaintiffs’ request for injunctive relief at this time, together with the full merits of all matters raised in plaintiffs’ complaint and defendants’ counterclaim, as requested by the parties.

To grant injunctive relief, the court must find each of the following pre-requisites have been established:

1. A right to relief is clear;
2. There is urgent necessity to avoid injury which is not compensable by damages;
3. Greater injury will occur from denial of the relief rather than granting the relief.

Singleton vs. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003); Big Bass Lake Community Assoc. vs. Warran, 23 A.3d 619 (Pa. Cmwlth. 2011).

In the matter before us we are not satisfied that all of the prerequisite conditions have been met and find that the plaintiffs have failed to establish a clear right to relief. Plaintiffs assert that the defendants have continued to trespass onto their property and maintained a dock that is too close to their property that violates the Association’s rules and regulations. Based on the testimony presented during the hearing on August 1, 2012, we are not satisfied that the plaintiffs have established a trespass action against defendants.

Anindividualwillbeliablefortrespassifhe“intentionally enters land in the possession of the other, or causes a thing or a third person to do so...” Restatement (Second) of Torts §158. Accordingly, two things must be present in a trespass action: first, an individual must intentionally enter the land owned by another and, second, the individual alleging the occurrence of a trespass must own the land that was trespassed. Pursuant to the Restatement (Second) of Torts, a person will be in possession of land if he:

(a) is in occupancy of land with intent to control it, or
(b) has been but no longer is in occupancy of land with intent to control it, if, after he has ceased his occupancy without abandoning the land, no other person has obtained possession as stated in Clause (a), or
(c) he has the right as against all persons to immediate occupancy of land, if no other person is in possession as stated in Clauses (a) and (b).

Restatement (Second) of Torts § 157.

The plaintiffs assert that the defendants entered onto their property and cut down trees and shrubs. We have found that one shrub was removed from plaintiffs’ property, but it occurred more than two (2) years prior to filing of this suit and is thus time-barred. However, plaintiffs claim other areas have been disturbed and that defendants continue to come onto their land, so we will address this issue further. The defendants counter that property in which trees and shrubs were cut more recently is a “common area” owned by the Association. Defendants also contend that the area they mow, trim, and have landscape timbers on, is their property. During the hearing both parties presented testimony from a qualified expert land surveyor and both experts submitted their reports, which were drafted for purposes of determining the parties’ boundary lines.

The plaintiffs’ expert, Michael Kafkalas, testified that he surveyed the property line of Lot 763 and 764 on four separate occasions, three of which were for other parties, and not related to the matter between the two parties in this action. Mr. Kafkalas most recently conducted a property line survey for Lot No. 764 for the plaintiffs on June 22,2011. To perform the survey, Mr. Kafkalas relied on the metes and bounds set forth in the plaintiffs’ deed, which was admitted as plaintiffs’ exhibit 2. However, the deed references the metes and bounds for the property as being that which was set forth in the plot book recorded at vol. 23, p. 123 of the Monroe County Recorder of Deeds Office. Based on that plot book description, Mr. Kafkalas issued a survey report and created a map of the property line depicting the boundary lines of Lot No. 763 and Lot No. 764, which was admitted as plaintiffs’ exhibit 1. That map also depicted the area referred to by the defendants as the “common area,” (also referred to as the “green belt” in testimony). Although Mr. Kafkalas’s report stated that the damaged trees were observed on the plaintiffs’ lot, (Lot No. 764), the map indicates that the “damaged” trees were located in the “green belt” area, which was between the plaintiffs’ property line, and the edge of the lake. Mr. Kafkalas admitted the damaged area as shown on the survey map was outside the metes and bounds/plot book description of Lot 764 and was in fact on Association property. (At first, Mr. Kafkalas seemed to suggest the Lot 764 metes and bounds description went to the edge of the lake, but then agreed there is common area owned by the Association between the lot line for Lot 764 and the lake.) Mr. Kafkalas agreed the area of disturbance he saw was between the lot line and the lake as depicted on his survey map.

Additionally, the defendants presented their own expert, Barry Tompkins, who surveyed the property lines of Lot 763 forthe defendants in December of2011. Mr. Tompkins’ expert report was admitted as defendants’ exhibit 7 and the report mirrors Mr. Kafkalas’s in that it clearly depicts a “green belt” area that begins at the edge of the boundary lines of Lot No. 763 and Lot No. 764 and extends to the shoreline. Mr. Tompkins testified the “greenbelt” area is owned by the Association. Mr. Tompkins also testified that the damaged trees he observed were located in that “green belt’ area and were not located on the plaintiffs’ property. Finally, the plot book map at vol. 23, page 123 was admitted as defendants’ exhibit 5 which clearly shows a “green belt” area between the plaintiffs’ and defendants’ lots and the lake as depicted in both surveys. The testimony of both experts was convincing that the additional disturbance of trees and shrubs was in the “green belt.” Therefore, this court is not convinced that plaintiffs own the area where these trees were allegedly cut.

The plaintiff, Kenneth Cronlund, testified he believed areas outside of the “green belt”, and on his property, were disturbed by the defendants. This court finds the only instance that happened was the removal of a shrub more than two years prior to filing of the suit, and it is time barred. We also find that based upon the testimony of the surveyors, the area mowed and maintained by the defendants and the area in which the landscape timbers are placed, is on defendants’ lot, or right on the property line. Therefore, it is not a trespass onto plaintiffs’ land.

Mr. Cronlund also testified that he believed the “green belt” area was part of his property. He stated that his belief was based on the language in the deed he received when he purchased the home. Although he agreed that the area at issue was not included in the metes and bounds portion of the deed, he testified that the following language entitled him to use and maintain the property referred to as the “green belt” area between his lot and the lake:

“Together with the right to such lawful use of the land between the above described premises and the lake shore line of those bodies of water known as “Emerald Lakes,” which land lies within the confines of the extension of the boundary lines of any adjacent lots... as such use may be offered by Grantor, its successors or assigns including said Emerald Lakes Association, Inc., under the following terms and conditions:
(c) the proposed lawful use of such lands includes but is not limited to the right to clearing and landscaping and other uses to be prescribed by the Grantor, its successors and assigns including the said Emerald Lakes Association, Inc.”

During questioning on cross-examination, Mr. Cronlund agreed that the language does not specifically and explicitly state he has the “exclusive” right to the land between his property line and the lake. He stated he believed the ultimate purpose of the language was to grant him full rights to the property area in question, although admittedly, the “green belt” area between his property line and the lake shoreline is owned by the Association. We note the Emerald Lake Association, Inc. is not a party to this suit.

We do not agree with the plaintiffs’ interpretation of the deed. If the plaintiffs have exclusive right to the “green belt” area, the area would have been included in the metes and bounds description of the property. Since that particular area of property was not included in the metes and bounds portion of their deed, the plaintiffs do not have exclusive control over that area of property. Furthermore, there was no specific language in plaintiffs’ deed reserving such exclusive right or control to the plaintiffs. Thus, the plaintiffs are unable to establish that they possess the land where trees were cut as shown on the survey maps since the area in question was not conveyed to the plaintiffs in their deed. Furthermore, the court was not convinced of any encroachment or disturbance of land actually owned by the plaintiffs. Plaintiffs had a vague allegation that defendants continue to trespass over their property line onto their property. However, plaintiffs have not convinced this court of those facts. Consequently, we find that the plaintiffs have failed to establish an essential element of their claim in trespass: that plaintiffs possessed the land that incurred the trespass or that defendants actually trespassed on their lands. Since the plaintiffs cannot establish this element, we find that the plaintiffs have failed to establish the merit of their underlying claim for an injunction based upon Trespass.

The plaintiffs are also unable to prove an injury. Since the area in question is not owned by the plaintiffs, the plaintiffs cannot legally suffer harm. As a result, the plaintiffs are unable to sustain their burden to prove this element necessary for an injunction as well.

The plaintiffs have also asserted a trespass or encroachment of the defendants’ boat dock. However, there was no testimony that the defendants’ boat dock actually encroaches onto the plaintiffs’ property. The allegations of the complaint and at hearing, were that the boat dock is simply too close to the plaintiffs’ property line, in violation of the rules and regulations of the Association. The plaintiffs provided no proof of the Association rules and regulations, nor any right they may have to enforce a violation of Association rules and regulations. Therefore, the court cannot grant an injunction as to the defendants’ boat dock.

DAMAGES FOR TRESPASS

Since the plaintiffs were unable to show a trespass on their lands, no damages can be awarded. Furthermore, no testimony was put forth as to actual monetary damages incurred, and therefore, no damages can be awarded.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Plaintiffs failed to put forth any evidence as to emotional distress or damages resulting from same. Therefore, this claim will also be dismissed.

COUNTERCLAIM

Defendants have raised a counterclaim. Defendants asserted plaintiffs trespassed on their property (Lot 763), committed slander of title, and abuse of process. Defendants request damages, including attorney’s fees and costs.

We are constrained by the evidence presented, and while we rule in favor of the defendants on plaintiffs’ complaint, there was no showing that defendants are entitled to any further relief. There was no convincing evidence that plaintiffs trespassed on lands of the defendants. Furthermore, the parties each have surveys now confirming the boundary lines of their respective properties that are clear and without question. Therefore, there is no harm at this time, and no slander of title. Finally, we find that plaintiffs brought their suit in good faith, without knowledge of the actual property lines and areas of disturbance until after surveys were performed. Plaintiffs based their claims on a mistaken belief as to property boundaries and ownership rights in common area of an association. Therefore, we do not find that plaintiffs’ actions arise to the level of compensatory abuse of process. The counterclaim will be dismissed.

ORDER

And now, this 10th day of April, 2013, following a reconsideration of order granted April 1,2013, it is ordered and decreed as follows:

1. The opinion and order dated September 13, 2012 is hereby vacated;

2. On plaintiffs ’ request for inj unctive relief and damages for trespass and intentional infliction of emotional distress, we find in favor of the defendants on all counts.

3. On defendants’ counterclaim, we find in favor of the plaintiffs and the counterclaim is dismissed.

4. This shall serve as a final order and verdict in this matter.

      . We note that neither the complaint nor testimony supported any right of the plaintiffs to enforce rights of the Association for lands owned by the Association, including the “greenbelt” area.