Dennis, J. v. Palman, J.

J. A25012/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JAMES N. DENNIS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 467 MDA 2016
JOHN L. PALMAN AND :
SHERRY I. PALMAN :
Appeal from the Judgment Entered May 6, 2016,
in the Court of Common Pleas of York County
Civil Division at No. 2014-SU-000667-04
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 24, 2017
James N. Dennis appeals from the May 6, 2016 judgment entered in
favor of appellees, John L. Palman and Sherry I. Palman, in this ejectment
action. After careful review, we affirm.
The trial court set forth the relevant “findings of fact” of this case as
follows:
1. [Appellant] is the owner of lot 13 on a Plan of
Lots of “Hilltop” in Shrewsbury Township, York
County being named and numbered as
379 Hilltop Court, New Freedom, Pennsylvania
17349. [Appellant] and his former wife
originally became owners of the property by
deed recorded in York County Deed Book 67-V
beginning at page 637.
* Former Justice specially assigned to the Superior Court.
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2. [Appellees] are owners of the property known
as lot 14 on a Plan of Lots of “Hilltop” in
Shrewsbury Township, York County being
named and numbered as 347 Hilltop Court,
New Freedom, Pennsylvania 17349 pursuant to
the deed dated August 1, 1976 and recorded in
York County deed book 69-1 beginning on
page 472.
3. In 1986 [appellees] installed a swimming pool
on their property and a lattice wooden fence.
4. In 2001 [appellees] removed the lattice
wooden fence and installed a vinyl fence with
an increased perimeter from the wooden fence.
The vinyl fence was installed closer to
[appellant’s] property line than was the
wooden lattice fence.
5. In 2007 [appellant] put up a wooden fence on
his property.
6. [Appellant] applied for a building permit for the
wooden fence from Shrewsbury Township
indicating that the fence would be two feet
from the property line.
7. When [appellees] put up the new vinyl fence
[appellant] told [appellees] he believed that
the fence was on the property line.
8. [Appellant] planted two pine trees at the
corner of his property in order to establish the
property line shortly after he moved to the
property in 1975.
9. [Appellant] told [appellees] the property line
was the two pine trees.
10. Both [appellant] and [appellees] treated the
property line as being indicated by the two
pine trees.
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11. [Appellant] told [appellees] he put the wooden
fence installed in 2007 one foot inside
[appellant’s] property line.
12. [Appellant] and [appellees] both treated the
pine trees as being the property line.
13. [Appellees] maintained the land up to the pine
trees.
14. [Appellant] raised no issue with regard to the
disputed property line until approximately
2013 and [appellant] then had the property
surveyed.
15. The [trial c]ourt determined that [t]he
testimony of [appellee,] John L. Palman
[(“appellee Palman”),] was credible.
Trial court opinion, 12/22/15 at 1-3.1
On February 27, 2014, appellant filed an ejectment action against
appellees, alleging that the vinyl fence they installed in 2001 encroached
upon his property and requesting that the trial court compel them to remove
the fence. (See Complaint Upon an Action in Ejectment, 2/27/14 at 5,
¶¶ 12-14.) On March 17, 2014, appellees filed an answer and new matter
averring, inter alia, that “[a] common boundary line between [the parties’]
properties has been established by the doctrine of consentable line.”
(Answer to Complaint with New Matter, 3/17/14 at 6, ¶ 24.) Appellant filed
a reply on April 4, 2014. On November 23, 2015, the parties proceeded to a
1
We note that the trial court’s December 22, 2015 opinion does not contain
pagination. For ease of discussion, we have assigned each page a
corresponding page number.
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bench trial before the Honorable Steven P. Linebaugh. Thereafter, on
December 22, 2015, the trial court entered an order establishing the
common boundary line between the parties’ respective properties as the
“line running through the center of [the] two pine trees” in question. (Trial
court order, 12/22/15 at ¶ 1.) This order was accompanied by a
comprehensive, four-page opinion wherein the trial court held that “[t]he
doctrine of consentable line has been established by [appellees].” (Trial
court opinion, 12/22/15 at 3.)
Appellant filed a motion for post-trial relief, which was denied by the
trial court on February 26, 2016. On March 21, 2016, appellant filed a
notice of appeal. On March 29, 2016, the trial court directed appellant to file
a concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed his timely Rule 1925(b) statement on
April 18, 2016. Thereafter, on April 20, 2016, the trial court filed a
Rule 1925(a) opinion indicating that its December 22, 2015 opinion and
order adequately disposed of all of appellant’s issues. (Rule 1925(a)
opinion, 4/20/16 at 2.)
On May 2, 2016, this court entered an order indicating that “final
judgment has not been entered on the trial court docket as required by
Pa.R.A.P. 301[.]” (Per curiam order, 5/2/16.) We directed appellant to
praecipe the trial court to enter final judgment and file with the Prothonotary
a certified copy of the trial court docket reflecting the entry of said
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judgment. (Id.) On May 6, 2016, judgment was entered in favor of
appellees.2
Appellant raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred as a matter of
law in determining that both parties recognized
and acted as if the property line was
established by the pine trees[?]
2. Whether a finding that the parties recognized
and acted as if a property line was established
by the pine trees was against the weight of the
evidence established at trial[?]
3. Whether the [trial c]ourt erred as a matter of
law in determining that [appellees] presented
sufficient evidence to prove a consentable
line[?]
Appellant’s brief at 4. The record reflects that appellant has presented these
issues in a slightly different order in the “Argument” section of his appellate
brief. (See appellant’s brief at 9-19.) Thus, we will address each issue
accordingly.
2
Appellant’s March 21, 2016 notice of appeal indicated that he was
appealing from the February 26, 2016 order denying his motion for post-trial
relief. However, an appeal from an order denying post-trial motions is
interlocutory. See Pa.R.A.P. 301(a), (c), and (d). Following appellant’s
compliance with Rule 301, his notice of appeal was treated as filed after the
entry of judgment. See Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof[]”); Keystone Dedicated Logistics, LLC v. JGB Enterprises,
Inc., 77 A.3d 1, 3 (Pa.Super. 2013) (stating, “even though the appeal was
filed prior to the entry of judgment, it is clear that jurisdiction in appellate
courts may be perfected after an appeal notice has been filed upon the
docketing of a final judgment[]”).
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Preliminarily, we note that
[o]ur appellate role in cases arising from non-jury
trial verdicts is to determine whether the findings of
the trial court are supported by competent evidence
and whether the trial court committed error in any
application of the law. The findings of fact of the
trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the
evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its
findings of fact are not supported by competent
evidence in the record or if its findings are premised
on an error of law. However, [where] the issue . . .
concerns a question of law, our scope of review is
plenary.
Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564
(Pa.Super. 2009) (citations omitted).
We begin by addressing appellant’s claims that the trial court erred in
concluding that the boundary line between the parties’ respective properties
was established by the doctrine of consentable line. (Appellant’s brief at 9.)
The doctrine of consentable line is a rule of
repose for the purpose of quieting title and
discouraging confusing and vexatious litigation.
There are two ways in which a boundary may be
established through consentable line: (1) by dispute
and compromise, or (2) by recognition and
acquiescence. As the en banc court explained in
Niles [v. Fall Creek Hunting Club, Inc., 545 A.2d
926, 930 (Pa.Super. 1988) (en banc)], the doctrine
of consentable line is a separate and distinct theory
from that of traditional adverse possession, although
both involve a twenty-one year statute of limitation.
Under the doctrine of consentable line,
[i]f adjoining landowners occupy their
respective premises up to a certain line[,]
which they mutually recognize and acquiesce
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in for the period of time prescribed by the
statute of limitations, they are precluded from
claiming that the boundary line thus
recognized and acquiesced in is not the true
one.
The establishment of a consentable line is not
a conveyance of land within the meaning of the
Statute of Frauds because no estate is thereby
created. Therefore such a line may be initiated by
oral agreement and proved by parol evidence.
Plauchak v. Boling, 653 A.2d 671, 675 (Pa.Super. 1995) (citation
formatting corrected; footnote and some citations omitted).
Appellant first contends that the pine trees in question, which were
planted on the corners of his property in 1976 and located 193 feet away
from each other, were legally insufficient, as a matter of law, to prove a
consentable line. (Appellant’s brief at 9-14.) In support of this claim,
appellant avers that “[t]here is no physical line in the manner of a fence or
hedge row[,]” and that “the distance between these two pine trees is too
great to clearly establish a property line as required by law.” (Id. at 12
(emphasis in original).) We disagree.
This court has continually recognized that under the doctrine of
consentable line, “it is not necessary that the boundary line be substantial.”
Jedlicka v. Clemmer, 677 A.2d 1232, 1235 (Pa.Super. 1996) (citation
omitted). Although the majority of cases in this Commonwealth that
address the doctrine of consentable line involve a dispute over the location
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of a fence or similar physical barrier,3 there is no specific requirement that a
consentable boundary line be marked by a fence. See Sorg v.
Cunningham, 687 A.2d 846, 849-850 (Pa.Super. 1997) (holding that the
evidence was sufficient to establish a consentable boundary line along row of
pine trees); Niles, 545 A.2d at 930-931 (holding that the evidence was
sufficient to establish that a survey line had become binding, consentable
boundary line between two adjoining landowners); Jedlicka, 677 A.2d at
1233-1235 (holding that the evidence was sufficient to establish a
consentable boundary marked with metal spikes and pins, an old rail fence,
rocks, and large maple trees). Accordingly, appellant’s contention that the
two pine trees in question were legally insufficient to prove a consentable
line is meritless.
Appellant next challenges the trial court’s determination that appellees
established a consentable line by recognition and acquiescence. Specifically,
appellant contends that there was insufficient evidence to support the trial
court’s determination “that the parties acquiesced to the property line being
established at the pine trees for a period of 21 years.” (Appellant’s brief at
14.) For the following reasons, we disagree.
3
See, e.g., Zeglin v. Gahagen, 812 A.2d 558, 559 (Pa. 2002) (fence and
hedge row); Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super. 1998),
appeal denied, 740 A.2d 233 (Pa. 1999) (fence); Schimp v. Allaman, 659
A.2d 1032, 1034 (Pa.Super. 1995) (fence); and Inn Le'Daerda, Inc. v.
Davis, 360 A.2d 209, 214-215 (Pa.Super. 1976) (fence).
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As discussed, the “the establishment of a boundary line by
acquiescence for the statutory period of twenty-one years has long been
recognized in Pennsylvania” to quiet title and discourage vexatious litigation.
Zeglin, 812 A.2d at 561; see also Corbin, 716 A.2d at 617.
In Moore v. Moore, 921 A.2d 1 (Pa.Super. 2007), appeal denied,
934 A.2d 1278 (Pa. 2007), a panel of this court set forth the requirements
for establishing a consentable line by acquiescence.
Acquiescence, in the context of a dispute over
real property, denotes passive conduct on the part of
the lawful owner consisting of failure on his part to
assert his paramount rights or interests against the
hostile claims of the adverse user. A determination
of consentable line by acquiescence requires a
finding 1) that each party has claimed the land
on his side of the line as his own and 2) that he
or she has occupied the land on his side of the
line for a continuous period of 21 years. . . .
[W]hen a consentable line is established, the land
behind such a line becomes the property of each
neighbor regardless of what the deed specifies. In
essence, each neighbor gains marketable title to that
land behind the line, some of which may not have
been theirs under their deeds.
Id. at 5 (citations and internal quotation marks omitted; emphasis added).
Herein, our review of the record reveals sufficient evidence to support
the trial court’s determination that the boundary line in question had become
a binding consentable line by recognition and acquiescence. The trial court
determined that the “line running through the center of [the] two pine trees”
marked the common boundary between the parties’ respective properties.
(Trial court order, 12/22/15 at ¶ 1.) The record reflects that both parties
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claimed at least the land on their respective sides of the trees. At trial,
appellant acknowledged planting two pine trees at each corner of his
property “a few feet” from the line in 1976, and thereafter maintaining his
land. (Notes of testimony, 11/23/15 at 5-6.) The trial court found that both
parties exclusively maintained their property up to and not beyond said pine
trees. (See trial court opinion, 12/22/15 at 2, finding of fact no. 10 (stating
that, “both [parties] treated the property line as being indicated by the two
pine trees.”).)
We must now determine whether the land in question has been
occupied for a continuous period of 21 years. The record reflects that
appellant has owned his property for over 40 years, having purchased it in
1973. (Notes of testimony, 11/23/15 at 4.) Appellees, in turn, purchased
their property in August 1976. (Id. at 4, 39.) The record further indicates
that the two pine trees in question have existed near the parties’ common
boundary line since 1976. (Id. at 6.) According to appellee Palman, whom
the trial court found to be credible, he maintained and occupied the property
up to the pine trees since 1976. (Id. at 40; see also trial court opinion,
12/22/15 at 2, findings of fact nos. 9, 13, 15.) This maintenance primarily
included mowing, weeding, and mulching the area up to the tree line.
(Notes of testimony, 11/23/15 at 54, 56-57.) The trial court found that
appellant told appellees on multiple occasions that the common property
boundary line was marked by the two pine trees. (Trial court opinion,
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12/22/15 at 2, findings of fact nos. 7, 9; see also notes of testimony,
11/23/15 at 39-40, 69.) The trial court further found that appellant did not
dispute the boundary line until 2013, 37 years after he planted the pine
trees, by having the property surveyed and informing appellees that the
fence appellees installed in 2001 was one foot inside his property line. (Trial
court opinion, 12/22/15 at 2-3; findings of fact nos. 11, 14; notes of
testimony, 11/23/15 at 58.)
Based upon the credibility determinations made by the trial court,
which are supported in the record, as well as a careful review of the relevant
case law, we conclude that the trial court did not abuse its discretion in
determining the “line running through the center of [the] two pine trees”
marked the consentable boundary line between the parties’ respective
properties.
We now turn to appellant’s claim that the trial court’s determination
that “the parties recognized and acted as if a property line was established
by the pine trees is against the weight of the evidence.” (Appellant’s brief at
17-19.)
“[A]ppellate review of a weight claim is a review of the [trial court’s]
exercise of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.” Phillips v. Lock, 86 A.3d 906, 919
(Pa.Super. 2014) (citations omitted). This court has long recognized that
“[i]n a non-jury trial, the factfinder is free to believe all, part, or none of the
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evidence, and [this c]ourt will not disturb the trial court’s credibility
determinations.” Voracek v. Crown Castle USA Inc., 907 A.2d 1105,
1108 (Pa.Super. 2006). “The trial court’s findings are especially binding on
appeal, where they are based upon the credibility of the witnesses, unless it
appears that the court abused its discretion or that the court's findings lack
evidentiary support or that the court capriciously disbelieved the evidence.”
Shaffer v. O'Toole, 964 A.2d 420, 422-423 (Pa.Super. 2009), appeal
denied, 981 A.2d 220 (Pa. 2009) (brackets omitted).
Here, the trial court, sitting as fact-finder, specifically found the
testimony of appellee Palman credible, and elected not to believe appellant’s
version of the events. (See trial court opinion, 12/22/15 at 3, finding of fact
no. 15.) Contrary to appellant’s desire to have us do so, we are precluded
from reweighing the evidence and substituting our judgment for that of the
fact-finder. Accordingly, appellant’s weight claim must fail.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
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