Belansky, A. v. Zabelski, W. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
ANDREW M. BELANSKY, TRUSTEE, ON : IN THE SUPERIOR COURT OF
BEHALF OF THE ANDREW M. BELANSKY : PENNSYLVANIA
AND PATRICIA E. BELANSKY :
REVOCABLE TRUST AGREEMENT, :
:
Appellee :
v. :
:
WALTER ZABELSKI AND PATRICIA :
GLADOWSKI, :
:
Appellants : No. 1462 WDA 2017
Appeal from the Order Entered September 15, 2017
in the Court of Common Pleas of Venango County
Civil Division at No(s): C.D. No. 809-2015
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 6, 2018
Walter Zabelski and Patricia Gladowski (Appellants) appeal from the
September 15, 2017 order entered after a non-jury trial where the trial court
concluded that Andrew M. Belansky, Trustee on behalf of the Andrew M.
Belansky and Patricia E. Belansky Revocable Trust Agreement, was awarded
a five-foot portion of Appellants’ property based upon the doctrine of
consentable lines. We quash this appeal.
By way of background, this is a dispute between members of the
Belansky family.1 Aurel purchased a quarter-acre plot of land, with 50-feet
1Relevant to this matter, this family consists of four brothers, Aurel, Michael
Thomas, Vincent, and Andrew, and one sister, Ella. Ella was married to
Walter Zabel (at some point, Zabel changed his last name from Zabelski to
*Retired Senior Judge assigned to the Superior Court.
J-S30031-18
of riverfront access on the Allegheny River in Venango County (Belansky
property). The Belansky property was directly south of and adjacent to a
quarter-acre riverfront plot owned by Walter Zabel (Zabel property). Zabel
died in 1965, and the Zabel property was then owned by Ella.
In 1958, Aurel, Michael Thomas, Vincent, and Andrew built a cabin on
the Belansky property. In the 1960s, Aurel purchased a boat and work was
done to re-grade the Belansky property to permit easier access to the river.
Believing a row of hedges planted by a previous owner marked the southern
boundary line of the Belansky property, the brothers measured 45 feet north
to create the path for the boat access. Thus, at that point, the Belansky
brothers believed that the boat launch was located entirely on the Belansky
property, immediately south of the Zabel property line. At some point, Aurel
added Andrew, Vincent, and Michael Thomas to the deed for the Belansky
property. In 2002, Aurel died, and left his share of the Belansky property to
Zabelski. When Vincent died, he left his share to Michael Thomas, and when
Michael Thomas died, he left his share to Andrew. Thus, at that point,
Andrew had a three-quarters interest in the Belansky property and Zabelski
had a quarter interest in the Belansky property.
Meanwhile, in 2008, Andrew purchased the Zabel property from Ella.
After litigation, however, it was determined that Andrew had purchased only
Zabel). They had two children, Walter Zabelski and Patricia Gladowski,
Appellants herein.
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a one-third interest in the Zabel property from Ella. Ella’s two children,
Appellants, each owned a one-third interest in the Zabel property as well. A
partition action ensued, which resulted in Andrew transferring his one-third
interest in the Zabel property to Appellants and Zabelski transferring his
quarter interest in the Belansky property to Andrew.
In 2015, Andrew hired Gary Stover to survey the Belansky property.
At that point, Andrew learned that the Belansky property ended five-feet
south of where he had believed it to end, and therefore the boat launch and
a driveway were entirely on the Zabel property. Thus, on June 30, 2015,
Belansky filed the instant action. In the complaint, Belansky asserted a right
to the boat launch by prescriptive easement, adverse possession, and
consentable lines, and requested the trial court re-draw the property line
such that the boat launch would be solely on the Belansky property. See
First Amended Complaint, 6/21/2016. After the close of pleadings, a non-
jury trial was scheduled for March 24, 2017. At that trial, the court heard
testimony from Andrew, Appellants, and Patricia’s husband, David
Gladowski.
On September 15, 2017, the trial court issued findings of fact and
conclusions of law. The trial court found that “the property line has been
consented to over a period in excess of twenty-one (21) years and that said
property line is five (5) feet north of the line as established by the survey.”
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Order, 9/15/2017. Thus, the trial court found in favor of Andrew and the
Belansky family trust with respect to the quiet title action.
On October 6, 2017, Appellants filed a notice of appeal from this order.
Both Appellants and the trial court complied with Pa.R.A.P. 1925.
Before we reach the issues presented by Appellants on appeal, we
consider whether Appellants have filed a notice of appeal from an appealable
order. “[T]his Court has the power to inquire at any time, sua sponte,
whether an order is appealable.” Bloome v. Alan, 154 A.3d 1271, 1273 (Pa.
Super. 2017) (quoting Estate of Considine v. Wachovia Bank, 966 A.2d
1148, 1151 (Pa. Super. 2009)).
According to Appellants, this Court has jurisdiction pursuant to
Pa.R.A.P. 341(a), which governs final orders, and provides that “an appeal
may be taken as of right from any final order of a government unit or trial
court.” Id.; Appellants’ Brief at 1. However, after a non-jury trial, an appeal
lies not from the decision of the trial court, but from a judgment entered
after the disposition of post-trial motions. See Johnston the Florist, Inc.
v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (“[A]n
appeal to this Court can only lie from judgments entered subsequent to the
trial court’s disposition of any post-verdict motions.”).
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Here, Appellants have appealed the decision of the trial court, not a
judgment2 or even an order denying post-trial motions.3 Thus, Appellants
have not filed a notice of appeal from an appealable order, and we must
quash this appeal. See Johnston the Florist, 657 A.2d at 515 n.2 (“[T]he
appropriate remedy upon the failure to enter judgment would ordinarily be
to quash the appeal.”).
We recognize that Appellants argue that they did not receive proper
notice of the September 15, 2017 decision. See Appellants’ Brief at 17-19;
Letter to this Court in Response to Rule to Show Cause, 11/22/2017. They
are correct in that regard.4 Nonetheless, even if Appellants had received
2 A review of the certified record reveals that neither Belansky nor
Appellants have filed a praecipe for entry of judgment.
3 “Although an appeal from an order denying post-trial motions is
interlocutory, see Pa.R.A.P. 301(a), (c), (d), note; Johnston the Florist, []
657 A.2d at 514, where … judgment is subsequently entered, the appeal is
‘treated as filed after such entry and on the date thereof.’ Pa.R.A.P. 905(a).”
K.H. v. J.R., 826 A.2d 863, 871-72 (Pa. 2003).
4 We agree with Appellants that the trial court decision was not entered in
compliance with Pa.R.C.P. 236, which governs notice provisions. Instantly,
Appellants received notice of the September 15, 2017 decision via facsimile
transmission. See Notice of Appeal, 10/6/2017, at 1. Pa.R.C.P. 236(d)
governs when the Prothonotary may provide notice via facsimile.
The prothonotary may give the notice required by subdivision (a)
or notice of other matters by facsimile transmission or other
electronic means if the party to whom the notice is to be given
or the party’s attorney has filed a written request for such
method of notification or has included a facsimile or other
electronic address on a prior legal paper filed in the
action.
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proper notice of the September 15, 2017 decision and filed the instant notice
of appeal, we would still quash the appeal because the order being appealed
from is not an appealable order.5
Pa.R.C.P. 236(d).
Here, counsel for Appellants did not begin including a fax number on
cover sheets until the filing of the notice of appeal on October 6, 2017,
which is after the September 15, 2017 decision. Although Appellants
received several prior court orders in this case via facsimile transmission,
see Order, 1/11/2017 (scheduling non-jury trial); Order, 3/24/2017
(scheduling viewing); Order, 3/27/2017 (directing parties to file post-trial
briefs), we are constrained to agree with Appellants that sending this
decision by facsimile was not in technical compliance with Pa.R.C.P. 236.
5 We also observe that this appeal is further complicated by the fact
Appellants filed post-trial motions after they filed a notice of appeal. Post-
trial motions must be filed within 10 days of the filing of a decision in a non-
jury trial. See Pa.R.C.P. 227.1(c)(2). Here, the decision was filed on
September 15, 2017, and Appellants filed post-trial motions on October 23,
2017, well beyond the 10-day window and after the filing of a notice of
appeal. On November 14, 2017, the trial court issued an opinion stating,
inter alia, that it was deprived of jurisdiction to rule on these post-trial
motions pursuant to Pa.R.A.P. 1701(a), which provides that “after an appeal
is taken …, the trial court … may no longer proceed further in the matter.”
Trial Court Opinion, 11/14/2017, at 5. We must point out that the trial
court’s conclusion was correct, but for a different reason. Rule 1701(b)(6)
permits a trial court to “[p]roceed further in any matter in which a non-
appealable interlocutory order has been entered, notwithstanding the filing
of a notice of appeal.” As we concluded, supra, Appellant appealed from a
non-appealable interlocutory order. Nevertheless, where a trial court
declines to address the merits of issues raised in an untimely-filed post-trial
motion, those issues are waived and not preserved for review. See Kennel
v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002).
Furthermore, Appellants recognize that without the filing of timely
post-trial motions, they have not preserved any issues for review.
Appellants’ Brief at 22; see Krystal Dev. Corp. v. Rose, 704 A.2d 1102,
1103 (Pa. Super. 1997). Again, they ask us to excuse the late filing of their
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2018
post-trial motions because of the aforementioned Rule 236 violations.
However, at this juncture, due to the jurisdictional issues with this appeal, it
is best for Appellants to proceed by filing with the trial court a motion for
leave of court to file post-trial motions nunc pro tunc. See Lenhart v. Cigna
Companies, 824 A.2d 1193, 1198 (Pa. Super. 2003) (holding “the decision
to allow the filing of post-trial motions nunc pro tunc is vested in the sound
discretion of the trial court”).
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