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George E. Podolak and Jacqueline v. Tobyhanna Township Board of Supervisors

February 23, 2012

GEORGE E. PODOLAK AND JACQUELINE A. PODOLAK, HIS WIFE, APPELLANTS
v.
TOBYHANNA TOWNSHIP BOARD OF SUPERVISORS, AND JOHN E. KERRICK, CHAIRMAN; HEIDI A. PICKARD, VICE CHAIRMAN; JAMIE B. KEENER, DONALD J. MOYER AND ANNE LAMBERTON, IN THEIR OFFICIAL CAPACITIES



The opinion of the court was delivered by: Judge McCULLOUGH

Submitted: August 12, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY

George E. Podolak and Jacqueline A. Podolak (the Podolaks) appeal the February 17, 2011, order of the Court of Common Pleas of Monroe County (trial court) sustaining the preliminary objections of the Tobyhanna Township Board of Supervisors; John E. Kerrick, Chairman; Heidi A. Pickard, Vice Chairman; Jamie B. Keener; Donald J. Moyer; and Anne Lamberton (collectively referred to as the Township) and dismissing with prejudice the Podolaks' complaint. For the reasons that follow, we reverse.

The Podolaks filed a complaint in equity on August 17, 2010, alleging that the Township failed to maintain a 293-foot stretch of Park Road (Road) adjacent to their property in Tobyhanna Township, Monroe County, Pennsylvania. The Podolaks claim that the Road had previously been maintained by the Township and was therefore a public road.*fn2 They requested that the Township resume administration, maintenance and repair of the Road, which had become overgrown and grassy. The Township filed preliminary objections on November 1, 2010, and the trial court permitted the Podolaks to file an amended complaint within twenty days.

On November 19, 2010, the Podolaks filed an amended complaint and included documentation in support of their claim that the Road was a public road. The Township filed preliminary objections to the amended complaint asserting that it should be dismissed for: 1) failure to exercise or exhaust a statutory remedy and for lack of jurisdiction; 2) legal insufficiency; 3) lack of specificity; 4) failure to join a necessary party; and 5) failure to comply with the rules of court and for legal insufficiency. Following oral argument on February 7, 2011, the trial court sustained each of the Township's preliminary objections and dismissed the Podolaks' amended complaint with prejudice. The Podolaks now appeal to this Court.

Initially, we note that appellate review of a trial court's order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error of law. Petty v. Hospital Service Association of Northeastern Pennsylvania, 967 A.2d 439, 443 n.7 (Pa. Cmwlth. 2009). In reviewing preliminary objections, all well pleaded relevant and material facts are to be considered as true, and preliminary objections shall only be sustained when they are free and clear from doubt. Id. Such review raises a question of law; thus, our standard of review is de novo and our scope of review is plenary. Id.

The first preliminary objection raised by the Township was failure to exercise or exhaust statutory remedy and lack of jurisdiction pursuant to Pa.R.C.P. No. 1028(a)(1) and (7). Section 2304 of the Second Class Township Code (Code),*fn3

states in relevant part:

(a) The board of supervisors may by ordinance enact, ordain, survey, lay out, open, widen, straighten, vacate and relay all roads and bridges and parts thereof which are located wholly or partially within the township.

(c) When any petition is presented to the board of supervisors requesting the board of supervisors to open or vacate a specific road in the township and the board of supervisors fails to act on the petition within sixty days, the petitioners may present their petition to the court of common pleas which shall proceed thereon under the act of June 13, 1836 (P.L. 551, No. 169), referred to as the General Road Law.*fn4 If the board of supervisors acts on the petition but denies the request of the petition, the board of supervisors shall notify the person designated in the petition of its denial. If the request of the petition is denied, the petitioners, or a majority of them, may within thirty days after receipt of the notice petition the court of common pleas for the appointment of viewers and proceedings shall be taken thereon under the General Road Law. 53 P.S. §67304. The trial court determined that the proper method for compelling a township to open and maintain a road is governed by section 2304 of the Code and that the Podolaks were required to pursue this statutory remedy. However, the Podolaks are not requesting that a road be "enact[ed], ordain[ed], survey[ed], la[id] out, open[ed], widen[ed], straighten[ed], vacate[d] [or] relay[ed]." Instead, they are asking the Township to maintain a road that the Podolaks have averred, in their amended complaint, is a public road. Considering all well pleaded facts as true, the remedy provided for in section 2304 of the Code is not applicable in this case, and the trial court erred in granting the preliminary objection pursuant to Pa.R.C.P. No. 1028(a)(1) and (7).

The second preliminary objection raised was a demurrer for legal sufficiency pursuant to Pa.R.C.P. No. 1028(a)(4).

In ruling on a demurrer, a court must accept as true all well-pleaded material allegations, as well as all inferences reasonably deduced therefrom. Moreover, in order to sustain a demurrer, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain the demurrer.

Glenn v. Horan, 765 A.2d 426, 430 (Pa. Cmwlth. 2001) (citation omitted). Further, the complaint need not cite evidence, but only those facts necessary for the defendant to prepare a defense. ...


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