Snook v. Eckley

47 Pa. D. & C.2d 233, 1969 Pa. Dist. & Cnty. Dec. LEXIS 259
CourtPennsylvania Court of Common Pleas, Mifflin County
DecidedJuly 16, 1969
Docketno. 17
StatusPublished

This text of 47 Pa. D. & C.2d 233 (Snook v. Eckley) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Mifflin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snook v. Eckley, 47 Pa. D. & C.2d 233, 1969 Pa. Dist. & Cnty. Dec. LEXIS 259 (Pa. Super. Ct. 1969).

Opinion

LEHMAN, P. J.,

Defendants’ preliminary objections to plaintiffs’ complaint in ejectment consist of motions to strike off the complaint, for a more specific pleading and for judgment for defendants. The motions, in essence, are based upon three contentions: 1. Insufficient description of the property in question; 2. failure to serve the husband defendant; and 3. the claim for mesne profits is insufficiently pleaded.

The complaint alleges that plaintiffs are the owners in fee of three tracts of land in Yeagertown, Mifflin County, Pa., having thereon erected two dwelling houses known as 221 South Main Street and 221 South Main Street, Rear; that said tracts of land were [234]*234deeded to them on August 26, 1968, by the Russell National Bank, executor under the Last Will and Testament of Clarence M. Havice, deceased, and are recorded in Deed Book 179, page 708; that they reside at 221 South Main Street and that defendants are occupying the house in the rear of said premises, known as 221 South Main Street, rear, without right; that possession has been demanded but defendants have refused to deliver up possession of the same. In a separate count plaintiffs seek mesne profits for unlawful detention.

From the description of the three tracts of land, it would appear that plaintiffs claim title to and the right to possession of a slightly irregular rectangular parcel of land having about 125 feet frontage and about 211.5 feet deep. There is nothing in the deed description to indicate any fence, hedge or other means of separation of the dwelling house on the front of the property from the dwelling house in the rear of said property. There is nothing in the description of the land to indicate the size of either dwelling or its location on the property.

Pennsylvania Rule of Civil Procedure 1054(a) states: “(t)he plaintiff shall describe the land in his complaint.” Counsel for defendants contends that plaintiffs have failed to comply with this rule: (1) that the only legal description of the land appearing as exhibit “A,” attached to the complaint, is the description of the entire three tracts of land and that not all of said land is in dispute, and (2) that the words, “house in the rear of said premises, known as 221 South Main Street, Rear” do not describe sufficiently the land in dispute.

The description of land in ejectment may not include land as to which no dispute is alleged. Where only a portion of plaintiffs’ land is in dispute, it is important that such portion be definitely fixed by the [235]*235party claiming title thereto: Seitz v. Pennsylvania Railroad Co., 272 Pa. 84, 88, 116 Atl. 57; Skillman v. Magill, 98 Pa. Superior Ct. 72, 76; Narzisi v. Allentown-Bethlehem Gas Co., 32 Northamp. 41, 43; 13 Standard Pa. Pract. §90, p. 486; 8 Anderson Pa. Civ. Pract. §2832.

In a somewhat analogous case, it was held that failure to describe a swimming pool area by boundaries, landmarks or other means, where it was on and adjacent to a portion of a lake, required a more specific complaint: Edgewood Amusement Co. v. Shamokin and Trevorton Bus Line Co., 35 Northumb. 135, 139.

“A description of land is adequate if it uses (1) metes and bounds, (2) reference to adjoining property, or (3) landmarks.” If the court can give judgment and if the sheriff can deliver possession, the description is sufficient: Flynn v. Rodkey, 192 Pa. Superior Ct. 56, 60, 62, 159 A. 2d 265, 267, 268; Skillman v. Magill, supra; Goodrich-Amram §1054(a)-1.

Applying the foregoing test to the case at hand, we have no metes or bounds, no reference to adjoining property, and no landmarks. A house is not a landmark in the sense in which said word is used. Rather the word “landmark” means a monument or erection set up on the boundary line of two adjoining estates to fix said boundary: Collins v. Brittingham, 5 Boyce (Del.) 89, 90 Atl. 420; Words and Phrases, Perm. Ed., Vol. 24, p. 344; Black’s Law Dict., 4th Ed., p. 1022. There is no mention in plaintiffs’ complaint of land occupied by said house.

We are aware of the practical problems confronting plaintiffs. It would appear from the pleadings and argument that defendants were in possession of the rear dwelling when plaintiffs purchased the entire parcel. It is not easy and sometimes it is almost, if not impossible, to measure or survey an area of land occupied by persons who refuse to vacate and who may have a [236]*236claim to the right of possession. It is possible that the measurements of the rear house appear in the Tax Assessment Office. Whether defendants are occupying a curtilage in connection with the rear dwelling is a matter for plaintiffs to determine. If so, the land constituting the curtilage should be described. Since ejectment is concerned with title to land, the description of said land must be adequate. This defect can be cured by amendment of plaintiffs’ complaint: Narzisi v. Allentown-Bethlehem Gas Co., supra.

The second reason assigned in defendants’ preliminary objections is that husband defendant was not properly served with ■ plaintiffs’ complaint. Wife defendant was personally served by the sheriff with a true and attested copy of the complaint at defendants’ residence and at the same time and place service was made upon her husband defendant by handing wife defendant, an adult member of the family and residing with her husband, a second true and attested copy.

Counsel for defendants admits that service of husband defendant was proper if Pa. R. C. P. 1009(b)(2) (i) can be utilized in ejectment. He contends that no substituted service on a person at defendants’ residence is permitted by Pa. R. C. P. 1053.

Subsection (a) of the latter rule provides: “The writ, or the complaint if the action is commenced by complaint, shall be served by the sheriff upon the defendant and any person not named as a party who is found in possession of the land.” Subsection (b) relates to service upon a defendant in another county or outside the State. Subsection (c) deals with proof of service.

Pennsylvania Rule of Civil Procedure 1053(d) states that “If the defendant cannot be served as provided by subdivisions (a) or (b) of this rule, a copy of the writ or complaint shall be posted on the [237]*237most public part of the property and the defendant served by publication in such manner as the court by general rule or special order shall direct.”

Counsel for defendant relies upon Goodrich-Amram §1053(c)-l which states “if any defendant is not personally served either in the county, in another county, or outside the Commonwealth, the property must always be posted. No service on any other defendant, or on the person in possession, will be treated as a service upon him, or as an excuse for not posting the property.”

Counsel for defendants misinterprets the above quotation. Husband defendant was personally served. He was served by personal substituted service as provided for in Pa. R. C. P. 1009(b)(2)(i) which permits service of a writ or complaint by handing a copy at the residence of defendant to an adult member of the family with which he resides. Service upon the wife defendant personally by handing her a copy at her residence and upon husband defendant by handing a true and attested copy to wife defendant, an adult member of the family, at their residence was upheld in Atkins v. Flaherty, 189 Pa. Superior Ct. 550, 152 A. 2d 280.

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Related

Flynn v. RODKEY
159 A.2d 265 (Superior Court of Pennsylvania, 1960)
Skillman v. Magill
98 Pa. Super. 72 (Superior Court of Pennsylvania, 1929)
Seitz v. Pennsylvania Railroad
116 A. 57 (Supreme Court of Pennsylvania, 1922)
Atkins v. Flaherty
152 A.2d 280 (Superior Court of Pennsylvania, 1959)
Collins v. Brittingham
90 A. 420 (Superior Court of Delaware, 1914)

Cite This Page — Counsel Stack

Bluebook (online)
47 Pa. D. & C.2d 233, 1969 Pa. Dist. & Cnty. Dec. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snook-v-eckley-pactcomplmiffli-1969.