Zimmerman, W. v. Zimmerman, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM HARRY ZIMMERMAN, : IN THE SUPERIOR COURT OF
PATRICIA ZIMMERMAN AND MARY : PENNSYLVANIA
NAN KERSTETTER :
:
:
v. :
:
:
THOMAS JOSEPH ZIMMERMAN, : No. 1069 WDA 2020
TIMOTHY LEE ZIMMERMAN AND :
ELIZABETH ANNE PLOUFFE :
:
Appellants :
Appeal from the Judgment Entered October 6, 2020
In the Court of Common Pleas of Clearfield County Civil Division at
No(s): 2018-2100-CD
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: September 9, 2021
Thomas Joseph Zimmerman (“Thomas”), Timothy Lee Zimmerman
(“Timothy”) and Elizabeth Anne Plouffe (“Plouffe”) (collectively, “Defendants”)
appeal from the Judgment partitioning in kind certain real property between
them and William Harry Zimmerman (“William”), Patricia Zimmerman
(“Patricia”) and Mary Nan Kerstetter (“Kerstetter”) (collectively, “Plaintiffs”).1
We affirm.
On December 9, 1960, Harry Zimmerman and Donna Zimmerman
(“Mrs. Zimmerman”) (collectively, “the Zimmermans”) acquired by deed
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1 Thomas, Timothy, Plouffe, William and Kerstetter are hereinafter referred to
as “the Zimmerman siblings.”
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certain real property in Clearfield County, Pennsylvania (“the Property”).2 By
a deed dated November 19, 1986, the Zimmermans conveyed the Property to
themselves, using a survey of the Property to determine its boundaries.3
The Property is divided by State Route 879. One portion, which is
comprised of 71.5 acres, has on it a house and outbuildings (“the House
Parcel”). The remaining portion, which is comprised of 86.6 acres, has on it
a barn (“the Barn Parcel”).
Although Mrs. Zimmerman survived her husband, she passed away on
October 11, 2008. Mrs. Zimmerman’s Will provided that the Zimmerman
siblings could purchase the property from her Estate for an agreed-upon price.
The Zimmerman siblings agreed to purchase the property for $35,318.96
each, for a total of $176,594.80. By separate deeds on or about December
31, 2009, the coexecutors of Mrs. Zimmerman’s Estate conveyed undivided
one-fifth interests in the Property to each of the Zimmerman siblings.
Thereafter, William added his wife, Patricia, as a joint owner of his one-fifth
interest.
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2 The deed is recorded in Clearfield County Deed Book Volume 487, at page
29. Of note, a portion of the Property, comprised of 120.78 acres, is situated
in Girard Township. The remaining 19 acres of the Property is partially
situated in Covington Township, Pennsylvania.
3 This deed is recorded in Clearfield County Deed Book Volume 1132, at page
10.
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In 2009, Defendants and Kerstetter created D&H Manor, LLC (“D&H”),
a Pennsylvania limited liability company, to manage the Property. On the
advice of their attorney, William and Patricia elected not to join D&H.
Consequently, William and Patricia have not been included in discussions
regarding the management of the Property. Further, the Zimmerman siblings
were unable to agree as to the use and management of the Property.
In December 2018, Plaintiffs filed a Complaint for an equitable partition
of the Property. See Complaint, 12/14/18. Plaintiffs further sought payment
for expenses they incurred that were necessary to maintain the Property. Id.,
¶¶ 30-31. Defendants filed an Answer denying that the Property could be
“physically divided in a manner that is fair and will not prejudice the rights of
some or all of the parties [].” Answer and New Matter, 1/31/18, ¶ 26.
Plaintiffs and Defendants agreed that the fair market value of the Property
was appraised at $284,000, and that the Property is 149.63 acres in size.
The matter proceeded to a bench trial. At the conclusion of the trial,
the trial court directed Plaintiffs and Defendants to submit proposed findings
of fact and conclusions of law. Although the Plaintiffs filed Proposed Findings
of Fact and Conclusions of Law (the “Proposed Findings and Conclusions”), no
filing by Defendants appears of record. On February 10, 2020, the trial court
entered an Opinion and Order adopting Plaintiffs’ Proposed Findings and
Conclusions. See Trial Court Opinion, 2/10/20, at 1 (adopting Plaintiffs’
Finding and Conclusions). In accordance with the Proposed Findings and
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Conclusions, the trial court directed that Plaintiffs receive the Barn Parcel and
Defendants receive the House Parcel. See id. at 2. The trial court specifically
determined that an in-kind partition of the Property could made without
prejudice to the parties, and without “spoiling the whole.” Id. at 2. The trial
court valued the House Parcel, which was awarded to Defendants, at
$142,000. Trial Court Order, 2/10/20, at 3, ¶ 1. The trial court awarded the
Barn Parcel, which it valued at $142,000, to Plaintiffs. Id. at 3, ¶ 2. The trial
court directed that contributions of labor and services provided by William and
Kerstetter “shall comprise the owelty to equalize the purpart4 values awarded
to each sibling.”5 Trial Court Opinion, 2/10/20, at 2.
Defendants timely filed post-trial Motions on February 20, 2020. On
March 11, 2020, the trial court scheduled argument for March 20, 2020.
However, on March 16, 2020, the Pennsylvania Supreme Court declared “a
general, statewide judicial emergency until April 14, 2020, on account of
COVID-19.” Supreme Court of Pennsylvania No. 531 Judicial Administration
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4 A “purpart” is defined as a “share of an estate formerly held in common; a
part in a division.” Bernstein v. Sherman, 902 A.2d 1276, 1278 (Pa. Super.
2006) (citing BLACK’S LAW DICTIONARY 1249 (7th ed. 1999)).
5 “Owelty” has been defined as “1. Equality as achieved by a compensatory
sum of money given after an exchange of parcels of land having different
values or after an unequal partition of real property. 2. The sum of money so
paid.” Id. at 1279 n.3 (citations omitted); see also Pa.R.C.P. 1562 (setting
forth Part II partition action procedural rule regarding real estate not capable
of a proportionate division).
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Docket, Order, 3/16/20, at 1. The Order authorized the president judges in
the individual judicial districts to, inter alia, “suspend time calculations for the
purposes of time computation relevant to court cases … as well as time
deadlines[.]” Id. at 2. The Supreme Court extended and expanded the scope
of the judicial emergency in several supplemental Orders, directing that
the emergency shall cease on June 1, 2020. Supreme Court of Pennsylvania
Nos. 531 & 532 Judicial Administration Docket, Order, 5/27/20.
On June 30, 2020, Defendants filed a Praecipe for entry of judgment. 6
Thereafter, Defendants filed a Notice of Appeal, which was docketed at 693
WDA 2020. However, because a portion of the Rule 227.4 timeframe took
place during the judicial emergency, on August 17, 2020, this Court entered
an Order quashing the appeal, without prejudice, and permitting the trial court
to rule on Defendants’ post-trial Motions on or before September 21, 2020.
See Zimmerman et al. v. Zimmerman et al., 603 WDA 2020 (Pa. Super.
filed August 17, 2020) (order). When the trial court failed to act upon this
Court’s Order within the specified time frame, the post-trial Motions were
deemed denied. See Morningstar v. Hoban, 819 A.2d 1191, 1195 (Pa.
Super. 2003) (explaining that post-trial motions are “denied by operation of
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6 There is no indication of record or on the docket of a hearing on Defendants’
post-trial Motions or an order disposing of the Motions. Apparently,
Defendants filed the Praecipe pursuant to Pa.R.C.P. 227.4(1)(b), which
provides that the prothonotary may enter judgment when the trial court does
not enter an order disposing of post-trial motions within 120 days of their
filing. See Pa.R.C.P. 227.4(1)(b).
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law at the expiration of the 120-day period” following their filing pursuant to
Pa.R.C.P. 227.4).
Defendants filed a Praecipe for entry of judgment on October 6, 2020.
Thereafter, Defendants timely filed a Notice of Appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. The trial court filed its Pa.R.A.P. 1925(a) Opinion on January 18,
2021.
Defendants present the following claims for our review:
1. Whether [the Property,] which is the subject of the action[,] is
capable of division in kind without prejudice?
2. Whether credible and admissible evidence was presented as to the
market value of each parcel sufficient to support a finding as to
such market value?
3. Whether credible and admissible evidence was presented
sufficient to support a determination that the contributions and
maintenance made by Plaintiffs were necessary and substantial?
Brief for Appellants at 5 (numerical emphasis omitted).
Partition is an equitable remedy. Marchetti v. Karpowick, 667 A.2d
724, 727 (Pa. Super. 1995). This Court’s scope of appellate review in equity
matters is narrow and is limited to determining whether findings of fact are
supported by competent evidence, whether an error of law has been
committed or whether there has been a manifest abuse of
discretion. Hercules v. Jones, 609 A.2d 837, 839 (Pa. Super. 1992). “[T]rial
courts have broad equitable powers to effectuate justice and we will find an
abuse of discretion only if the trial court has misapplied the law or failed to
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follow proper legal procedures.” Nicholson v. Johnston, 855 A.2d 97, 102
(Pa. Super. 2004).
Further, we are mindful of the following:
Partition of real property is governed by the Rules of Civil
Procedure. See Pa.R.C.P. 1551-75[.] … [Reviewing a partition
order is] a question concerning interpretation of these Rules, and
thus is a question of law. Therefore, our standard of review is de
novo. LaRue v. McGuire, 885 A.2d 549, 553 (Pa. Super.
2005). Further, “[p]artition is a possessory action; its purpose
and effect being to give to each of a number of joint owners the
possession [to which] he is entitled ... of his share in severalty. It
is an adversary action[,] and its proceedings are compulsory. The
rule is that the right to partition is an incident of a tenancy in
common, and an absolute right.” Lombardo v. DeMarco, … 504
A.2d 1256, 1260 ([Pa. Super.] 1985) (quotation and citations
omitted).
Bernstein, 902 A.2d at 1278.
Pennsylvania Rules of Civil Procedure 1560 and 1561 provide, in
relevant part, as follows:
Rule 1560. Property Capable of Division without Prejudice
If division can be made without prejudice to or spoiling the whole,
the property shall be divided as follows:
(a) into as many purparts as there are parties entitled thereto,
the purparts being proportionate in value to the interests of the
parties;
(b) if it cannot be divided as provided in Subdivision (a), then into
as many purparts as there are parties entitled thereto, without
regard to proportionate value;
(c) if it cannot be divided as provided in Subdivisions (a) or (b),
then into such number of purparts as shall be most advantageous
and convenient without regard to the number of parties.
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Rule 1561. Property Capable of Proportionate Division.
Award
Property divided under Rule 1560(a) shall be awarded to the
parties according to their respective interests….
Pa.R.C.P. 1560-1561.
Defendants combine their first two claims in the Argument section of
their appellate brief. Accordingly, we will address them together.
Defendants argue that the trial court erred in ordering an in-kind
partition of the Property, where Plaintiffs had failed to establish the value of
each proposed parcel. See Brief for Appellants at 12-13. In particular,
Defendants challenge the admissibility of Kerstetter’s testimony regarding the
acreage and value of the two parcels. Id. at 11-12. Defendants point out
that Kerstetter was not qualified as an expert. Id. at 12. According to
Defendants, “the testimony of [] Kerstetter as to her calculation of the acreage
contained within the two parcels should have been precluded by the
application of [Pa.R.E.] 701[,] and it was error for the court to allow it.” Id.
Further, Defendants assert that there was no evidence establishing
Kerstetter’s expertise in the area of subdivision of real property, or regarding
local subdivision ordinances. Id. at 13. Thus, Defendants argue, Kerstetter’s
testimony regarding the soil conditions, food plots for wildlife, and the planting
of trees have no relevance in the calculation of the fair market value of the
parcels. Id. at 13-14. Further, Defendants point out that Plaintiffs’ appraisal
makes no mention of such items. Id. Because Plaintiffs failed to obtain
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appraisals for each parcel, Defendants assert that the trial court erred in
granting an in-kind partition of the Property. Id. at 14.
Plaintiffs counter that Pennsylvania Rule of Civil Procedure 1560 “begins
with the presumption that a property should be physically divided if such
division does not prejudice the whole.” Brief for Appellees at 10. Plaintiffs
argue that the trial court’s decision is based upon substantial evidence that
the property (1) is a very large farm parcel with diverse positive features at
various locations throughout the property, and (2) is naturally divided by
Pennsylvania State Route 879, which allows for easy physical division. Id.
Further, Plaintiffs argue that the evidence established that there is excellent
road access to both the House Parcel and the Barn Parcel. Id. Plaintiffs
further assert that the evidence established the total acreage of the Property.
Id. at 10-11. Plaintiffs rely upon the appraisal conducted by Sonja Flanagan
(“the Flanagan Appraisal”), of Provost Real Estate Appraisers, which included
numerous photographs depicting the rural nature of the Property, its bisection
by State Route 879, and the improvements on the Property. Id. at 11.
Plaintiffs also direct our attention to additional exhibits, including aerial maps
depicting the physical attributes of the Property. Id. at 11-12. Finally,
Plaintiffs direct our attention to the testimony of Kerstetter. Id. at 12.
According to Plaintiffs, they presented evidence of Kerstetter’s personal
knowledge of the Property, including its acreage and soil conditions. Id. at
13.
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In essence, Defendants challenge the admissibility of Kerstetter’s
testimony regarding the size and attributes of each parcel, and the trial court’s
reliance on her testimony in determining that an in-kind partition may be
effectuated without prejudice to, or spoiling of the Property. “[A] trial court
has broad discretion with regard to the admissibility of
evidence....” Schuenemann v. Dreemz, LLC, 34 A.3d 94, 102 (Pa. Super.
2011). “To constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or [unduly] prejudicial to the complaining
party.” Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa. Super.
2002).
Additionally, “this Court has stated that we will respect a trial court’s
findings with regard to the credibility and weight of the evidence unless the
appellant can show that the court’s determination was manifestly erroneous,
arbitrary and capricious or flagrantly contrary to the evidence.” Gutteridge
v. J3 Energy Grp., Inc., 165 A.3d 908, 914 (Pa. Super. 2017) (en banc)
(citation omitted). Further, we reiterate that,
[i]n a non-jury trial, the factfinder is free to believe all, part, or
none of the evidence, and the Superior Court will not disturb the
trial court’s credibility determinations. Assessments of credibility
and conflicts in evidence are for the trial court to resolve; this
Court is not permitted to reexamine the weight and credibility
determinations or substitute our judgments for those of the
factfinder. The test is not whether this Court would have reached
the same result on the evidence presented, but rather, after due
consideration of the evidence the trial court found credible,
whether the trial court could have reasonably reached its
conclusion.
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Id. at 916 (internal citations and quotation marks omitted).
Pursuant to Pennsylvania Rule of Evidence 602, “[a] witness may testify
to a matter only if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Evidence to prove personal
knowledge may consist of the witness’s own testimony….” Pa.R.E. 602.
Moreover, Pennsylvania Rule of Evidence 701 provides as follows:
If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701. By contrast, Rule 702 provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702.
Generally, an “owner is competent to testify to the value of his property
… since [s]he has at least a general knowledge of what [s]he owns.” Sgarlat
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Estate v. Commonwealth, 158 A.2d 541, 545 (Pa. 1960); see also Glanski
v. Ervine, 409 A.2d 425, 431 (Pa. Super. 1979). As this Court has explained,
“[t]he real owner is deemed qualified, by reason of h[er] relation as owner, to
give estimates of the value of what [s]he owns, regardless of h[er] knowledge
of property values, and the weight of such evidence is for the [fact-
finder].” Guntrum v. Citicorp Tr. Bank, 196 A.3d 643, 648-49 (Pa. Super.
2018) (citation omitted).
At trial, Kerstetter testified that she has lived on the Property since she
was five years old, when her parents acquired the Property. N.T., 11/15/19,
at 8. Further, Kerstetter acknowledged that she owns a one-fifth, undivided
interest in the Property. Id.Kerstetter stated that she has reviewed the deed to the Property and
aerial photographs. Id. at 9. Kerstetter testified that she is employed as a
soil conservationist for the United States Department of Agriculture. Id. at
15. According to Kerstetter, her employment includes mapping and
calculating acreages of real property. Id. Kerstetter calculated the acreages
of the Property and the respective parcels using digitizing software that traces
the boundaries of the parcels. Id. at 16. According to Kerstetter, she uses
the same software as part of her employment. Id. Kerstetter testified that
she calculated the House Parcel to be 71.5 acres in size, and the Barn Parcel
to be 86.6 acres in size. Id. at 14, 26.
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More importantly, Kerstetter stated that she lived at, and grew up on
the Property. Id. at 18. From aerial photographs, Kerstetter described the
various features of the Property, including the tillable acreage, the wooded
acreage, and the stream running across the Property. Id. at 17-23.
Kerstetter also described the acres of the Property amenable to subdivision,
in her personal opinion, as they have access to utilities and the highway. Id.
at 23. In particular, Kerstetter described the differences between the quality
and quantity of the two parcels. Id. at 26-27.
Kerstetter testified that she has planted “a variety of different food plots
and stuff here [on the Property] to benefit the soils on the [P]roperty and to
benefit the pollinator habitat ….” Id. at 29. According to Kerstetter, the food
plots are planted on both the House Parcel and the Barn Parcel. Id.
Specifically, Kerstetter testified that she planted approximately five acres on
the Barn Parcel and three acres on the House Parcel. Id. at 30. Further,
Kerstetter and William planted approximately 200 trees on the Barn Parcel.
Id.
Kerstetter also testified that she created “custom soil research reports”
for the parcels. Id. at 32. According to Kerstetter, “that’s something anybody
can do” by using the Internet. Id. Kerstetter testified that in July 2018, she
mowed the fields on the Property. Id. at 40. In 2013, Kerstetter testified,
she seeded the Property, sprayed the House Parcel, and mowed fields on the
Property. Id. at 43. Every year, Kerstetter testified, she has cleared the
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Property of downed tree branches. Id. at 45. In fact, Kerstetter testified, she
had spent approximately 627 hours laboring at the Property. Id. at 48. Thus,
while Kerstetter used some of her expertise calculating the size of the parcels,
she also used her intimate knowledge of the Property, as owner, over many
years. In light of the foregoing, we cannot conclude that the admission of
Kerstetter’s testimony regarding the size of the parcels violated Pa.R.C.P. 701.
See Guntrum, 196 A.3d at 648-49.
The trial court determined that the Property could be partitioned in kind,
without prejudice to Plaintiffs or Defendants. See Trial Court Opinion,
2/10/20, at 1; Trial Court Opinion, 1/18/21, at 4. In so holding, the trial court
credited the testimony of Kerstetter, “as she spent much more time there than
the other siblings[.]”7 Trial Court Opinion, 2/10/20, at 5. Further, the trial
court relied upon Kerstetter’s testimony regarding the acreage of each parcel.
Id. It was solely within the province of the trial court to assess the credibility
of Kerstetter’s testimony and the weight to give it. See Mackay v. Mackay,
984 A.2d 529, 533 (Pa. Super. 2009) (stating that ”[w]hen the trial court sits
as fact[-]finder, the weight to be assigned the testimony of the witnesses is
within its exclusive province, as are credibility determinations, and the court
is free to choose to believe all, part, or none of the evidence presented.”
(citation and brackets omitted)).
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7 It does not appear that the trial court relied on Kerstetter as an expert, but
rather, on Kerstetter’s familiarity with the Property as an owner.
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In reviewing the trial court’s partitioning of the Property, and its reliance
on Kerstetter’s testimony, we are cognizant that the trial court had available
to it the Flanagan Appraisal. Plaintiffs’ Trial Exhibit P-7. According to the
Flanagan Appraisal, 30% of the Property is described as “One-Unit,” and 70%
is described as “Vacant.” Id. at 2 (unnumbered). The Flanagan Appraisal
calculated the total size of the Property to be 139.78 acres. Id.; see also id.
at 4 (unnumbered). Further, the Flanagan Appraisal noted that the Property
was not zoned, and the lack of zoning “offers no adverse [e]ffect on
marketability or market value.” Id.
The Flanagan Appraisal, using comparables and prior land sales, applied
a cost approach to value, which resulted in a value of $176,822, “or $177,000
rounded[,]” for the Property. Id. at 3 (unnumbered). However, the Flanagan
Appraisal opined that “[t]he cost approach is not considered to be applicable
or relevant and thus was not developed as depreciation would render this
approach unreliable.” Id. Ultimately, the Flanagan Appraisal determined the
fair market value of the Property to be $284,000. Id. at 1 (unnumbered).
The parties stipulated to the fair market value of the Property, as set forth in
the Flanagan Appraisal. N.T., 11/15/19, at 6.
The trial court additionally had available to it aerial photographs of the
Property, admitted into evidence as Plaintiffs’ Exhibits P-2 through P-6. See
N.T., 11/15/19, at 96 (wherein the aerial photographs were admitted into
evidence). Each Exhibit includes scale bars denoting 1000 feet. Another
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exhibit, Joint Exhibit 1, is a 1986 survey of the Property. See N.T., 11/15/19,
at 7 (wherein Joint Exhibit 1 is admitted into evidence). Joint Exhibit 1 notes
that one inch equals 400 feet on the survey. See Joint Exhibit 1.
Thus, we discern no error or abuse of discretion by the trial court in
admitting Kerstetter’s testimony and relying on that testimony to effectuate
an in-kind partition of the Property. See Gutteridge, 165 A.3d at 914.
Further, the trial court’s determination that an in-kind partition of the Property
would not spoil the whole, or prejudice the parties, is supported by the
evidence of record. See Pa.R.C.P. 1560-1561. As such, we cannot grant
Defendants relief on their first two claims. See id.
In their third claim, Defendants challenge the trial court’s determination
of owelty. Brief for Appellants at 15. Defendants assert that Kerstetter’s
efforts did not constitute a “material enhancement to the value of the common
[P]roperty.” Id.
Pennsylvania Rule of Civil Procedure 1562 provides that “[s]ums
payable as owelty shall be secured and paid in such manner as the court shall
direct.” Pa.R.C.P. 1562.
In its Opinion, the trial court explained its decision as to owelty as
follows:
Evidence was presented by [] Kerstetter [] as to contributions and
maintenance of the [P]roperty, as she spent much more time
there than any of the [Zimmerman] siblings, although she never
excluded anyone from the [P]roperty. A detailed list is included
within Plaintiffs’ [Proposed Findings and Conclusions], which
outlines the contributions and labor effectuated by Kerstetter, and
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services provided by William []. Pursuant to Pennsylvania Rule of
Civil Procedure 1570, there will be no adjustments for credit as to
Kerstetter or William [], as the [trial court] has determined [that]
this amount shall comprise the owelty to equalize the purpart
values awarded to each sibling.
Trial Court Opinion, 2/10/20, at 2.
Our review of the Proposed Findings and Conclusions discloses that
Kerstetter rendered improvements to the Property, which included, inter alia,
the following: seeding, spraying the house to prevent infestation, cleaning
the porches with a pressure washer, placing “No Trespass” posters annually,
trimming tree limbs annually to facilitate mowing, revising a timber contract,
patching a tear in the barn roof, painting the porches of the house, mowing,
maintaining the alarm system, maintaining the mower, planting trees, etc.
See Proposed Findings and Conclusions at ¶ 46. At trial, Kerstetter testified
regarding these improvements. See, e.g., N.T., 11/15/19, at 38-41 (wherein
Kerstetter testified regarding her costs in mowing the fields, and how her
planting improved the soil conditions on the Property), 43 (wherein Kerstetter
testified regarding seeding and spraying performed on the Property), 44
(wherein Kerstetter testified regarding posting between 50 and 70 “No
Trespass” signs on the Property and trimming low-hanging limbs), 45
(wherein Kerstetter testified regarding her efforts to clean fallen limbs from
the Property and yearly trimming a walnut tree next to the house), 46
(wherein Kerstetter testified about placing four tree stands on the Property).
Kerstetter presented detailed records regarding the hours and charges for
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each of her activities to improve the Property. Id. at 47-49; see also Exhibit
P-10 (setting forth on a spreadsheet each activity undertaken by Kerstetter,
the date of the activity, and the hours to complete the activity to improve the
Property). Kerstetter valued her costs to improve the Property at $9,348.95.
Id. at 49.
Further, the Proposed Findings and Conclusions detail William’s efforts
to improve the Property. See Findings and Conclusions at ¶ 49. These efforts
included fixing the hot water heater, the bathtub, the house roof, the barn
roof, and the installation of gates. See id. William additionally painted the
front of the barn, inspected timber harvesting, as well as grass mowing in
2019. See id. At trial, William confirmed the detailed listing of his efforts to
improve the Property. See N.T., 11/15/19, at 79-82; see also Exhibit P-14
(depicting each activity undertaken by William to improve the Property, his
mileage, costs of equipment rental and the type of “job.”).
Thus, the trial court’s determination of owelty is supported in the record,
and we discern no abuse of discretion or error of law. See Nicholson, 855
A.2d at 102 (recognizing a trial court’s “broad equitable powers to effectuate
justice[,]” and explaining that this Court will find an abuse of discretion only
if “the trial court has misapplied the law or failed to follow proper legal
procedures.”). On this basis, we cannot grant Defendants relief on their third
claim. Accordingly, we affirm the Order of the trial court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2021
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