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Joseph Mackey and Ida Mackey v. Township of Cass

October 31, 2012

JOSEPH MACKEY AND IDA MACKEY, PLAINTIFFS
v.
TOWNSHIP OF CASS, JAMES D. THOMAS, MICHAEL KULPCAVAGE, AND JOHN W. WALATIS, DEFENDANTS



The opinion of the court was delivered by: (Judge Munley)

MEMORANDUM

Before the court for disposition is defendants' motion to dismiss Counts I-IV and VI-VII of plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 6). This motion has been fully briefed and is ripe for disposition.

Background

This case arises from Plaintiffs Joseph Mackey*fn1 and Ida Mackey's (hereinafter "plaintiffs") real and personal property dispute with the defendants over property located within the Township of Cass, Schuylkill County, Pennsylvania. (Doc. 1-2, Ex. 1, Compl. (hereinafter "Compl.")). Defendants James D. Thomas, Michael Kulpcavage and John W. Walatis are named as defendants in their official capacity as Cass Township supervisors (Id.) Defendant Thomas is also joined as a defendant in this action in his individual capacity. (Id.)

Plaintiffs own real property in Cass Township. (Id. ¶ 1). Plaintiffs' property is identified as Tax Parcel I.D. Number 05-13-0034.0000 and recorded in the Schuylkill County Recorder of Deeds at Deed Book 1257, page 521. (Id.) Plaintiffs' mailing address is 41 Green Avenue, Pottsville, Pennsylvania. (Id.) Plaintiffs purchased their real property on June 15, 1978 and have continuously resided on their property from June 15, 1978 until the present. (Id. ¶ 5).

The specific real property at issue in this case begins at the southwesterly corner of plaintiffs' property and continues along the southeasterly boundary for a distance of eighty-six feet to a width of approximately twenty feet (hereinafter "property extension"). (Id. ¶ 8). This property extension is not included in plaintiffs' deed. Plaintiffs allege to have used the property extension exclusively, openly, publicly, continuously and adversely to all others from June 15, 1978 until February 14, 2012. (Id. ¶¶ 11-13, 15, 22-35). In addition, plaintiffs added fill to the property extension. (Id. ¶ 13). The fill built up the property extension's bank creating more room for parking. (Id. ¶¶ 9, 13).

On September 22, 2010, Defendant Thomas mailed a letter to plaintiffs. (Id. ¶ 16; Doc. 10-1, Ex. A, letter dated Sept. 22, 2010). Defendant Thomas' letter informed plaintiffs of a request, in the form of a petition from residents of Green Avenue and Shady Lane, to construct a road from the end of Green Avenue to Shady Lane. (Doc. 10-1, Ex. A, letter dated Sept. 22, 2012).

Over a year later on December 4, 2011, plaintiffs constructed a shed to store personal property. (Compl. ¶ 17). Plaintiffs located the shed partially on the property extension and partially on plaintiffs' deeded property. (Id.)

On January 6, 2012, Defendant Township of Cass filed a declaration of taking (hereinafter "declaration") in the Court of Common Pleas of Schuylkill County, Pennsylvania. (Doc. 10-1, Ex. A, declaration of taking). The declaration was authorized by a May 26, 2011 resolution of the Cass Township Supervisors and by the Pennsylvania Eminent Domain Code, 26 PA. CONS. STAT. ANN. §§ 101-1106. (Id. ¶ 2). The township sought to condemn the property for the purposes of extending Green Avenue to Shady Lane. (Id. ¶ 5). Although the proposed extension of Green Avenue to Shady Lane would be constructed directly through plaintiffs' property extension, the plaintiffs were not a party to the declaration. (Id. ¶ 4).

Additionally, on January 6, 2012, Defendant Brennan mailed a letter to plaintiffs. (Compl. ¶ 18; Doc. 10-2, Ex. B, letter dated Jan. 6, 2012). Defendant Brennan's letter directed plaintiffs to immediately remove the shed from the property extension or "we will take appropriate action." (Doc. 10-2, Ex. B, letter dated Jan. 6, 2012).

On February 8, 2012, Defendant Kuklinski mailed a letter to plaintiffs. (Compl. ¶ 20; Doc. 10-3, Ex. C, letter dated Feb. 8, 2012). Defendant Kuklinski's letter placed plaintiffs on formal notice that plaintiffs' shed was violating the township code. (Doc. 10-3, Ex. C, letter dated Feb. 8, 2012). The letter directed plaintiffs to remove their shed within seventy-two hours. (Id.) Plaintiffs were threatened with fines for violating the township code if the shed was not removed within seventy-two hours. (Id.) Finally, Defendant Kuklinski's letter placed plaintiffs on notice that they would be responsible for any and all costs of the shed's removal incurred by the township if the shed was not removed within the time limit. (Id.)

On February 14, 2012, plaintiffs witnessed Defendant Thomas, Defendant Kulpcavage, Mr. Anthony Kuklinski and an additional unidentified man loading plaintiffs' shed onto a flatbed truck. (Compl. ¶ 22). Plaintiffs requested defendants transfer the shed onto plaintiffs' deeded property. (Id. ¶ 24). Although Defendant Kuklinski indicated he was willing to leave the shed on plaintiffs' property, plaintiffs aver Defendant Thomas insisted on removing the shed to a tow yard. (Id. ¶ 25). After the shed was moved onto the flatbed truck, Defendant Kuklinski advised plaintiffs they could not retrieve their shed without a police escort. (Id. ¶ 29).

On February 18, 2012, plaintiffs were able to inspect their shed with a police escort. (Id. ¶¶ 42-43). Plaintiffs aver their shed was damaged because the door would not close properly. (Id. ¶ 43). Plaintiffs observed a number of the shed's items were broken. (Id.)

The Township of Cass began constructing a roadway from the end of Green Avenue to Shady Lane on June 28, 2012. (Id. ΒΆ 48). The construction went through ...


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