Joseph P. Kreiser and Heidi Kreiser, v.  Elisha P. Shirk and Ashley Shirk

Joseph P. Kreiser and Heidi Kreiser, v.  Elisha P. Shirk and Ashley Shirk

Civil Action-Law-Encroachment of Property-Placement of Fence-Ejectment-Motion for Amendment of Pleading-Pa.R.C.P. Rule 1033-Liberal Allowance-Discretion of the Court-Surprise-Prejudice

Joseph P. Kreiser and Heidi Kreiser (“Plaintiffs”) filed a Complaint on August 27, 2021 in Trespass and Breach of Contract alleging that a fence installed by Elisha P. and Ashley Shirk (“Defendants”) encroached upon their property and redirected the flow of stormwater and debris, causing significant property damage.  Following an Answer on October 26, 2021 and filing of an Amended Complaint on December 20, 2022, Plaintiffs filed a Motion to Amend their Complaint on February 22, 2024 to add an action in Ejectment. 

1.  Pa.R.C.P. Rule 1033(a) provides that a party by consent of the adverse party or leave of court at any time may change the form of the action or otherwise amend a pleading, which may aver transactions or occurrences that have happened before or after the filing of the original pleading even if they give rise to a new cause of action or defense.

2.  Amendments to pleadings are to be permitted liberally except where surprise or prejudice to the other party will result. 

3.  It is within the discretion of the court to allow an amendment even after a judgment and award have been made from which an appeal has been taken.

4.  Ejectment is an action filed by a plaintiff who does not possess land, but has the right to possess it, against a defendant with actual possession. 

5.  Where the parties would be required to relitigate their claims and defenses at a trial de novo regardless of whether a claim in Ejectment is added once Plaintiffs appealed the decision of the Board of Arbitrators and Defendants have not established that the amendment would expose them to undue surprise or prejudice, Plaintiff will be permitted to amend their Amended Complaint to add a cause of action in Ejectment.

L.C.C.C.P. No. 2021-01052, Opinion by John C. Tylwalk, President Judge, September 18, 2024.   

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

JOSEPH P. KREISER AND                          :           NO. 2021-01052

HEIDI KREISER,                                          :

                        Plaintiffs                                 :

                                                                        :

            v.                                                         :

                                                                        :

ELISHA P. SHIRK AND                              :

ASHLEY SHIRK,                                          :

                        Defendants                             :

                                                            ORDER OF COURT

            AND NOW, this 18^th  day of September, 2024, upon consideration of Plaintiffs’ Motion to File Amended Complaint and Defendants’ Response thereto, it is hereby Ordered that said Motion is GRANTED.  Plaintiffs are granted leave to file an amended pleading in accordance with the Opinion accompanying this Order within twenty (20) days of the entry of this Order.

                                                                        BY THE COURT:

                                                                        __________________________, P.J.

                                                                        JOHN C. TYLWALK

JCT/jah

Cc:  Scott Grenoble, Esquire/Buzgon Davis Law Offices

       Heather Eggert, Esquire/Henry & Beaver LLP

       Judith Huber, Esquire/Law Clerk

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

JOSEPH P. KREISER AND                          :           NO. 2021-01052

HEIDI KREISER,                                          :

                        Plaintiffs                                 :

                                                                        :

            v.                                                         :

                                                                        :

ELISHA P. SHIRK AND                              :

ASHLEY SHIRK,                                          :

                        Defendants                             :

APPEARANCES:

SCOTT GRENOBLE, ESQUIRE              FOR PLAINTIFFS

BUZGON DAVIS LAW OFFICES

HEATHER EGGERT, ESQUIRE             FOR DEFENDANTS

HENRY & BEAVER LLP

OPINION, TYLWALK, P.J., SEPTEMBER 18, 2024.

            This matter involves a property dispute between neighbors over a fence installed by Defendants.  Plaintiffs allege that the fence extends over and encroaches on their property and has redirected the flow of stormwater and debris which has caused significant damage to their property.  On August 27, 2021, Plaintiffs filed a Complaint setting forth causes of action in Trespass and Breach of Contract seeking money damages and removal of the fence.  Defendants filed their Answer and New Matter on October 26, 2021. 

On June 16, 2022, Plaintiffs filed a Motion to file an Amended Complaint seeking to allege an additional cause of action based on an alleged violation of the Declaration of Covenants and Easements for the development in which the parties’ properties are located.  By Order of Court entered November 14, 2022, we granted Plaintiffs’ Motion and directed that their amended pleading be filed within twenty (20) days.  Plaintiffs filed their Amended Complaint on December 20, 2022.  The matter proceeded to an arbitration conducted on January 16, 2024.  On that date, the Board of Arbitrators issued an award entering judgment for Plaintiffs in the amount of $2,500.00.  Plaintiffs filed a Notice of Appeal from the Award of the Board of Arbitrators on January 26, 2024. 

On February 22, 2024, Plaintiffs filed a Motion to File Amended Complaint seeking the Court’s permission to add a count in Ejectment.  The proposed Second Amended Complaint is attached to the Motion as Exhibit “A.”  Plaintiffs aver that allowing the addition of this count to the Complaint will alleviate the need for them to institute a separate suit in ejectment.  On February 27, 2024, we entered an Order issuing a Rule upon Defendants to show cause why Plaintiffs should not be permitted to file the amended pleading.  That Order indicated that Plaintiffs’ request would be decided pursuant to Pa.R.C.P. No. 206.7.

Defendants filed their Response to the Motion on March 15, 2024.  Defendants concede that Plaintiffs could have included a count in ejectment in their original Complaint or their Amended Complaint.  However, Defendants claim that they will be prejudiced because they offered to remove the fence and pay Plaintiffs the $2,500.00 in accordance with the award of Arbitrators.  Defendants complain that Plaintiffs are dragging this matter out, forcing Defendant to relitigate the claims and incur additional legal fees. 

Pursuant to Rule 206.7, after the issuance of a rule to show cause, the court may decide a petition on the basis of the petition and answer upon request of the petition “[i]f an answer is filed raising no disputed issues of material fact.”  Pa.R.C.P. No. 206.7(b).  The parties have indicated their desire for us to dispose of Plaintiffs’ request on the basis of Plaintiffs’ Motion and Defendants’ Response pursuant to Rule 206.7(b), and our review of those documents reveal that there are no disputed issues of material fact for resolution.

Rule 1033 provides, in part:

Rule 1033. Amendment

• A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.C.P. No. 1033(a). 

            Amendments are to be liberally permitted except where surprise or prejudice to the other party will result, or where the amendment is against a positive rule of law.  Burger v. Borough of Ingram, 697 A.2d 1037 (Pa. Commw. 1997).     There is no absolute limit on time when an amendment of a pleading can be made;  it is within discretion of trial court to allow an amendment even after a judgment and award has been made and an appeal taken therefrom.  Sullivan v. Allegheny Ford Truck Sales, Inc., 423 A.2d 1292 (Pa. Super. 1980).   Amendment of a complaint is not permitted to present a new cause of action where the statute of limitations has expired.  Blackwood, Inc. v. Reading Blue Mountain & Northern R. Co., 147 A.3d 594 (Pa. Super. 2016), appeal denied 165 A.3d 882 (Pa. 2017). 

            Ejectment is an action filed by a plaintiff, who does not possess the land but has the right to possess it, against a defendant who has actual possession.  Wells Fargo Bank, N.A. v. Long, 934 A.2d 76 (Pa. Super. 2007).  An action in ejectment cannot be maintained by the plaintiff unless he is out of possession, and he has a right to the possession of the property at the time of the commencement of the action.  Id.  In the proposed Second Amended Complaint, Plaintiffs aver that they are entitled to immediate possession as the title owners of the property on which Defendants’ fence is situated, thus indicating that they would be entitled to bring an action in ejectment. 

Defendants concede that Plaintiffs could have asserted this cause of action previously but complain that they now have to relitigate the claims which were presented during arbitration.  Pursuant to 42 Pa.C.S.A. §7361(d), any party may appeal an award of arbitrators for a trial de novo in the court.  Thus, the parties would be required to relitigate their respective claims and defenses at the trial de novo regardless of whether the count in ejectment is added.  Defendants have not established that the amendment will expose them to any undue surprise or prejudice.  For these reasons, we will grant Plaintiffs’ Motion to file their amended pleading.