Thebes v. Hazen

7 Pa. D. & C.5th 376
CourtPennsylvania Court of Common Pleas, Perry County
DecidedFebruary 24, 2009
Docketno. EJ 2008-15
StatusPublished

This text of 7 Pa. D. & C.5th 376 (Thebes v. Hazen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Perry County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thebes v. Hazen, 7 Pa. D. & C.5th 376 (Pa. Super. Ct. 2009).

Opinion

KISTLER, J.,

Presently before this court are preliminary objections filed by Douglas A. [378]*378Thebes (defendant). Defendant raises preliminary objections to Frederick D. Thebes’ (plaintiff) claim for ejectment and fair rental value, lost profits and other damages to the premises for the time the defendants have been in possession of the property. After having reviewed the briefs submitted concerning these preliminary objections, the defendant’s objections are hereby granted in part and denied in part, for the following reasons.

DISCUSSION

The determination of preliminary objections is governed pursuant to Pa.R.C.P. 1028. This rule provides that preliminary objections may be filed by any party to any pleading for: failure of a pleading to conform to a rule of court, insufficient specificity in a pleading, and legal insufficiency of a pleading. These rules are made applicable to an action in ejectment by Pa.R.C.P. 1051.

I. Failure To Conform to Rule of Court — Pa.R.C.P. 1028(a)(2) — Pa.R.C.P 1054

Pa.RC.P. 1028(a)(2) provides for the assertion of a preliminary objection where a pleading fails to conform to law or rule of court. Defendant’s first preliminary objection alleges that plaintiff has failed to provide in the complaint the specific averments of an action in ejectment required by Pa.R.C.P. 1054 which states:

“(a) The plaintiff shall describe the land in the complaint.
“(b) A party shall set forth in the complaint or answer an abstract of the title upon which the party relies at least [379]*379from the common source of the adverse titles of the parties.”

Defendant contends that the plaintiff has failed to provide an adequate description of the property at issue. Defendant argues that a general description of the land is insufficient and that the complaint must provide a specific identifiable description of the alleged breached portion of the land in metes and bounds. In support of this argument, defendant relies on Snook v. Eckley, 47 D.&C.2d 233 (1969) from Perry County in which the esteemed court found that the complaint’s description of the property was insufficient where the complaint provided a general description of the entire three tracts of land, to which the action in ejectment pertained to only a portion of said lands. The Snook court applied the test used in Flynn v. Rodkey, 192 Pa. Super. 56, 60, 159 A.2d 265, 267 (1960) which states, “In an ejectment action to determine the boundary between adjoining properties, a description of land is adequate if it uses (1) metes and bounds, (2) reference to adjoining property, or (3) landmarks.”

Interestingly, a careful reading of exhibit A to the complaint reveals that the description of the land provides references to adjoining properties and landmarks. “Tract 1 — Bounded on the north by lands now or formerly of Joshua Stone and William G. Zelger & Sons, on the east by land now or formerly of Allen Groff. . . .” “Tract 2 — Bounded on the north by Public Road leading from New Bloomfield to Cold Storage____” “Tract 3 — A small tract of land containing five acres, more or less, at the southwest comer of the Kopenhaver property____” “Tract 4 — Beginning at a point in the center of LR 50005 at [380]*380comer of lands now or formerly Ernest L. Kretzing; thence along other lands now or formerly of Kretzing in a Southerly direction, a distance of 850 feet, more or less to a stone; . . . These are legal descriptions from the most recent deed. Therefore, even if this court was to apply the requirements illustrated in Snook and Flynn to the immediate case, the court is satisfied that plaintiff has provided an adequate description of the property at issue. To require more would compel plaintiff to survey his property, which is not supported by existing case law.

However, the court does not find that the requirements illustrated in the aforementioned cases need to be applied to the present action. In those cases, the action was for ejectment to determine a boundary line between adjacent landowners. In the present case there is no boundary dispute as plaintiff alleges that he is the rightful owner of all the property at issue. Still, the question remains as to what description is necessary to fulfill the requirements of Pa.R.C.P. 1054(a). In Hawn v. Norris and Brown, 4 Binn 77 (1811) our Supreme Court discussed the act of assembly of 1806, which abolished the old requirements for an action in ejectment. The old action in ejectment required the writ of ejectment to state courses and distances in the description of the land. Although not speaking directly to the modern action in ejectment, the Supreme Court’s decision is nonetheless instructive on the issue before this court. “What is a description under the act? If the legislature had meant a draft, they would have said so. The word is vague, but it would seem to mean not a draft, but some convenient notice of the claim, which might inform the defendant what was to be tried.”

[381]*381In view of this guidance, this court determines that the plaintiff did not need to describe the property at issue using metes and bounds. Reference to adjoining properties or landmarks where there is no dispute as to the boundaries of the property is adequate. Although the plaintiff provided such a description in the deed attached to the complaint, this court would find that the general description contained on the face of the complaint was a sufficient description of the property.

The remaining issue in regards to Pa.R.C.R 1054 is whether plaintiff has set forth in the complaint an abstract of title. Plaintiff maintains that the following statement contained in the complaint satisfies the requirement for setting forth an abstract of title:

“Defendants Tara Dawn Hazen and Douglas A. Thebes have no ownership interest or any other legal right to the aforesaid real estate. The abstract of title required by Rule 1054 is that the plaintiff has had, since June 2003, the sole and exclusive right of possession of the real estate and there is no common source of adverse title in the defendants.”

The court determines that plaintiff’s statement fails to satisfy the requirement that a party set forth in the complaint an abstract of title. “An abstract of title is simply a compilation in an abridged form of [a] record of [a] vendor’s title; it is a summary of the most important parts of the deeds and other instruments comprising the evidences of title, arranged in [a] chronological order, and intended to show the original source and incidents of title.” Busin v. Whiting, 369 Pa. Super. 563, 566, 535 A.2d 1078, 1080 (1987) (citing 77 Am.Jur.2d Vendor and Purchaser §259) (reversed on other grounds). The court [382]*382determines that paragraph four of the complaint is insufficient to act as an abstract of title as it does no more than set a date to when the plaintiff allegedly gained exclusive right of possession.

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Lerner v. Lerner
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Flynn v. RODKEY
159 A.2d 265 (Superior Court of Pennsylvania, 1960)
Alpha Tau Omega Fraternity v. University of Pennsylvania
464 A.2d 1349 (Supreme Court of Pennsylvania, 1983)
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Busin v. Whiting
535 A.2d 1078 (Superior Court of Pennsylvania, 1987)

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Bluebook (online)
7 Pa. D. & C.5th 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thebes-v-hazen-pactcomplperry-2009.