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COUNTY ALLEGHENY v. MERRIT CONSTRUCTION COMPANY (05/20/82)

submitted: May 20, 1982.

COUNTY OF ALLEGHENY, APPELLANT
v.
MERRIT CONSTRUCTION COMPANY, INC. A CORPORATION AND GEORGETOWN DEVELOPMENT COMPANY, INC., A CORPORATION V. MOON TOWNSHIP MUNICIPAL AUTHORITY



No. 774 Pittsburgh, 1981, APPEAL FROM THE ORDER & JUDGMENT ENTERED JULY 21, 1981 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL ACTION NO. GD80-10750

COUNSEL

Howard M. Louik, County Solicitor, Pittsburgh, for appellant.

Louis Anstandig, Pittsburgh, for appellees.

Rowley, Cirillo*fn* and Van der Voort, JJ.

Author: Cirillo

[ 309 Pa. Super. Page 2]

This is an appeal from the order of the Court of Common Pleas of Allegheny County, dated July 21, 1981, granting

[ 309 Pa. Super. Page 3]

Judgment on the pleadings in favor of the defendants-appellees on the grounds that plaintiff-appellant's action was barred by the statute of limitations. We affirm.

The appellant, County of Allegheny (hereinafter "County") is and was at all times relevant to this lawsuit, the owner of a right of way known as "Spring Run Road Extension" (hereinafter "the road") located in Moon Township, Allegheny County, Pennsylvania. The appellees, Merrit Construction Company, Inc. (hereinafter "Merrit") and Georgetown Development Company, Inc. (hereinafter "Georgetown") are the owners of 40.18 acres of real property, a portion of which lies adjacent to the road. In the course of the construction of a residential development, the appellees, Merrit and Georgetown excavated portions of the hillside along this road. In March 1977, a landslide occurred which caused loss of subjacent and lateral support. Subsequently, vehicular traffic was barred from use of the road because of the landslide. On January 27, 1978 an additional movement of the original landslide occurred causing further erosion of subjacent and lateral support. On June 29, 1978, the County awarded a contract for the repair and improvement of this area, which included restoring the lost support and construction of a crib wall on the appellee's property to prevent further landslides. Work began on the project on November 13, 1978. On May 6, 1980, the County filed this action to recover the reasonable and necessary cost of repair to the road. The appellees, Merrit and Georgetown and an additional defendant, Moon Township Sanitary Authority, filed Answers raising in New Matter the defense of statute of limitations as set forth at 42 Pa.C.S.A. § 5524(4).*fn1 The County was permitted to amend its Response to New Matter to allege a continuing trespass to real property.

[ 309 Pa. Super. Page 4]

Judgment on the pleadings is appropriate only where no material facts are in dispute. Penna. Assn. of State Mental Hospital Physicians, Inc. v. State Emp. Retirement Board, 484 Pa. 313, 399 A.2d 93 (1979); Nevling v. Natoli, 290 Pa. Super. 174, 434 A.2d 187 (1981). To succeed on a motion for judgment on the pleadings, the moving party's right to prevail must be so clear that a trial would be clearly a fruitless exercise. Keil v. Good, 467 Pa. 317, 356 A.2d 768 (1976); Nevling, supra; Pa.R.C.P. No. 1034, 42 Pa.C.S.A.*fn2

In its Amended Reply to Defendants' New Matter the appellant merely asserted the landslide constituted a "continuing trespass" and that the statute of limitations did not begin to run until cessation of the trespass on November 13, 1978, the date that the County began work on the project.

The concept of a "continuing trespass" is defined under the Restatement of Torts, § 161, ...


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