J-A18025-14



                               2014 PA Super 226

D. SCOTT HAAN AND PATRICE AMITY                  IN THE SUPERIOR COURT OF
HAAN                                                   PENNSYLVANIA

                          Appellant

                     v.

JOHN A. WELLS, JOHN WELLS, JR., AND
WILLIAM WELLS

                          Appellee                    No. 1895 MDA 2013


          Appeal from the Judgment Entered on October 11, 2013
           In the Court of Common Pleas of Lackawanna County
                    Civil Division at No.: 2011-CV-6813


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

OPINION BY WECHT, J.:                              FILED OCTOBER 08, 2014

      D. Scott Haan and Patrice Amity Haan (“the Haans”) appeal the trial

court’s October 11, 2013 order.       In that order, the trial court denied the

Haans’ motion for post-trial relief and entered final judgments on the

matter. We affirm.

      In a memorandum opinion issued in support of the denial of the

Haans’ post-trial motions, the trial court set forth the factual and procedural

history of this case as follows:

      [Appellants], D. Scott Haan and Patrice Amity Haan (“the
      Haans”), and [Appellees], John A. Wells, Jr., and his wife, Susan
      A. Wells (“the Wells”), are the owners of contiguous rural
      properties in Newton Township and Ransom Township, whose
      chains of title are traceable to the James Davis Warrant and the
      Stephen King Warrant that were conveyed by William Penn in
      the last 1700’s. (Transcript of Proceeding (“T.P.”) on 1/7/13 at
      pp. 98-99, 101; T.P. 2/27/13 at pp. 18, 21, 22, 25-27, 34-35,
J-A18025-14


     37-38, 40-41, 51; Plaintiffs’ Exhibit Nos. 1-5, 11; Defendants’
     Exhibit Nos. D1A-D1E).     The Haans commenced this action
     against the Wells seeking to enjoin them from entering or
     encroaching upon two parcels that their surveyor, George Dunda
     (“Dunda”),    identified as Encroachment Area #1              and
     Encroachment Area #2 on his survey. (T.P. 1/7/13 at pp. 69-
     70, 73, 89, 100, 103-105, 108; Plaintiffs’ Exhibit Nos. 6, 19).
     Although mislabeled as new matter rather than a counterclaim,
     the Wells also requested affirmative relief via a trespass claim,
     and sought to compel the Haans to remove a gate barrier and
     signs that they erected on separate land which is designated as
     Parcel #2 on the survey prepared by John M. Hennemuth
     (“Hennemuth”). (Docket Entry No. 3 at ¶¶13-20, T.P. 1/7/13 at
     pp. 132, 135-37; Plaintiffs’ Exhibit Nos. 18, 24; Defendants’
     Exhibit Nos. D2A-G).

     Encroachment Area #1 and Encroachment Area #2 are relevant
     to the Haans’ direct claim, whereas Parcel No. 1 and Parcel No. 2
     are pertinent only to the Wells’ counterclaim.         The parties’
     surveyors both agreed that due to discrepancies in the metes
     and bounds descriptions contained in the original deeds for the
     James Davis Warrant and Stephen King Warrant, the boundaries
     of the land conveyed in those two Warrants overlap and create
     areas of “interference” that were first identified in a survey that
     Dunning Engineering Company conducted for the American
     Telephone and Telegraph Company (“AT&T”) in 1953. (T.P.
     1/7/13 at pp. 92-93; T.P. 2/27/13 at pp. 25-27, 33-35, 37-38,
     40-41, 51). The survey calculations by Dunda and Hennemuth
     relating to that area of interference differ by 795 feet. (T.P.
     1/7/13 at pp. 88-89).

     In connection with the Haans’ direct claim, Dunda prepared a
     survey designating Encroachment Area #1 as reflecting the
     23.41 acre encroachment involving the Stephen King Warrant,
     and Encroachment Area #2 as depicting the 5.18 acre
     encroachment implicating the John King Warrant. (Id. at pp.
     89, 103-105; Plaintiffs’ Exhibit Nos. 6-7).           Conversely,
     Hennemuth’s survey focuses upon Parcel No. 1 (97.74 acres)
     and Parcel No. 2 (116.46 acres) which were conveyed to the
     Wells family by Andrew Walukus (“Walukus”) on November 18,
     1920 and July 2, 1924. (T.P. 2/27/13 at pp. 27-28, 53, 86-87;
     Plaintiffs’ Exhibit Nos. 9-18, 24). Dunda’s survey does not
     address the Wells’ counterclaim regarding Parcel No. 2, and the
     Haans’ counsel conceded at trial that Dunda “didn’t . . . give any


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     opinion whatsoever as to the property being claimed by Wells” in
     the counterclaim. (T.P. 1/7/13 at p. 119).

     The Haans established that they own 71 acres and 55 perches of
     property by virtue of a series of conveyances involving the
     Catherine Evans tract. (Plaintiffs’ Exhibit Nos. 1-5, 11). Dunda
     surveyed that property on behalf of the Haans. (T.P. 1/7/13 at
     pp. 74/84, 97-98), and concluded that Encroachment Area #1
     and Encroachment Area #2 are situated on the Haans’ land.
     (Id. at pp. 89, 103-105). [Appellee] John A. Wells, Jr. testified
     that he and other members of his family have hunted on
     Encroachment Area #1 and Encroachment Area #2. (Id. at pp.
     158-60). However, [Wells] admitted during his testimony that
     he does not claim ownership of that particular land. (Id. at pp.
     145-52). [Appellant] D. Scott Haan testified that he filed this
     suit in order to bar the Wells from continuing to trespass upon
     Encroachment Area #1 and Encroachment Area #2.

     The Wells’ trial evidence primarily focused upon Parcel No. 2 and
     the Haans’ trespass on that land. (T.P. 2/27/13 at pp. 131-140,
     143, 145, 149-151). John A. Wells, Jr., testified that he owns
     Parcel No. 2 and pays real estate taxes for that land. (Id. at pp.
     131, 145-46). Wells stated that he and his family have used
     Parcel No. 2 to hunt, ride all-terrain vehicles and pick berries,
     (Id. at pp. 131-132), but that Mr. Haan has now erected a gate
     blocking an access road and posted “private property” signs on
     that land without the Wells’ permission.1 (Id. at pp. 132-136,
     143). D. Scott Haan admitted during his testimony that he
     installed a gate barrier on the access road in Parcel No. 2, and
     also posted “private property” signs on that property. (T.P.
     1/7/13, pp. 109-114).
       1
          The signs which have been posted on trees located in
       Parcel No. 2 identify “Haan” as the landowner, and state:
       “POSTED: PRIVATE PROPERTY.           HUNTING, FISHING,
       TRAPPING OR TRESPASSING FOR ANY PURPOSE IS
       STRICTLY     FORBIDDEN.         VIOLATORS     WILL    BE
       PROSECUTED.” (Defendants’ Exhibit No. D2G).

     The Wells also presented the expert testimony of Hennemuth,
     who has been a licensed professional surveyor since 1976 and
     has conducted “many, many surveys” in Newton and Ransom
     Townships, including surveys of properties that are contiguous to
     the parties’ lands and which involve the James Davis Warrant,
     the Stephen King Warrant, the Methias Keppling Warrant, the


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J-A18025-14


     Adam Schrack Warrant, the William Smith Warrant, and the John
     King Warrant. (T.P. 2/27/13 at pp. 14-16, 18, 21-22, 114-115).
     Hennemuth opined that due to inaccuracies in the metes and
     bounds descriptions in the deeds for the James Davis Warrant
     and Stephen King Warrant, and the imprecision of early surveys
     of the rugged terrain comprising those Warrants, the boundaries
     of that land overlap and have created areas of “interference,”
     which are designated as Encroachment Area #1 and
     Encroachment Area #2 on the Dunda survey. (Id. at pp. 25-27,
     33-35, 37-38, 40-41, 51).

     Unlike Dunda, Hennemuth devoted most of his trial testimony to
     Parcel #2 where the Haans have erected a gate barrier and
     posted signs based upon their claim of ownership of that land.
     Hennemuth stated that the “vaguely written description” of the
     property that the Wells’ predecessor-in-title, Andrew Walukus,
     conveyed to the Wells family in 1920 and 1924 is attributable to
     an unreliable survey that was conducted with the Warrant Deed
     to James Davis on September 17, 1794. (Id. at pp. 61, 64-65).
     Those inaccuracies were later compounded by Lackawanna
     County’s conveyance of 312 acres to Andrew Walukus via a deed
     which contains no metes and bounds description. (Id. at pp. 85,
     87; Plaintiffs’ Exhibit No. 10). The dimensions of the parties’
     properties were further complicated by the flawed boundary line
     designation for Newton Township and Ransom Township, as
     reflected in the 1903 survey by George Stephenson. (T.P.
     2/27/13 at pp. 75-76, 80-81). As a consequence, boundaries
     indicated in the earlier deeds were “guesstimated” by “someone
     who had no idea” of the accurate dimensions since the
     descriptions contained in those deeds were not premised upon
     accurate surveys, or metes and bounds recitals, and did not
     “close mathematically.” (Id. at pp. 90-91, 94, 113).

     In formulating his professional opinions, Hennemuth reviewed
     the relevant deeds, prior land surveys, maps and tax assessment
     records, and conducted his own “field work” on the ground. (Id.
     at pp. 17-18). During the course of his survey of the land at
     issue, Hennemuth located concrete monuments, pins, and
     notched trees which he used to measure and plot accurate
     boundary lines and to calculate correct acreage for the property
     owned by the Wells. (Id. at pp. 19-23, 28). Hennemuth
     testified that the gate barrier situated on Parcel No. 2 is “well
     within the Wells’ property.” (Id. at p. 27). His conclusion that
     the Wells own Parcel No. 2 is corroborated by the 1953 Dunning
     survey, as well as by the pertinent tax maps and the

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J-A18025-14


     Lackawanna County tax assessment records memorializing the
     Wells’ payment of property taxes for Parcel No. 2. (Id. at pp.
     28-29, 45, 88-89, 93-96, 112-113, 117; Defendants’ Exhibit No.
     3).

     Although the Haans did not offer any expert testimony to rebut
     Hennemuth’s conclusions regarding Parcel No. 2, (T.P. 1/7/13 at
     p. 119), Mr. Haan introduced his own lay testimony in opposition
     to the Wells’ claim of ownership of Parcel No. 2. Mr. Haan
     claimed that he acquired Parcel No. 2 at a tax sale, and later
     litigated a quiet title action involving ownership of that property.
     (T.P. 1/7/13 at pp. 123-125). However, he conceded that he did
     not name the Wells as parties in that quiet title action, nor did
     he serve them with any quiet title filings. (Id. at p. 125). More
     importantly, the Haans did not introduce a single document from
     the quiet title proceeding reflecting the boundaries, acreage or
     location of the land that they purportedly purchased at the tax
     sale. (Docket Entry No. 19 at pp. 4-5, 10-11).

     After the parties filed their proposed findings of fact and
     conclusions of law on May 28, 2013, and June 11, 2013, (Docket
     Entry Nos. 17-18), a non-jury decision was issued on June 19,
     2013. (Docket Entry No. 19). A verdict was entered in favor of
     the Haans with regard to their trespass claim based upon the
     finding that the Haans possess “title and ownership of
     Encroachment Areas #1 and #2,” and “that the Wells have
     entered Encroachment Areas #1 and #2, albeit based upon the
     mistaken belief that the land was not owned by the Haans.” (Id.
     at p. 9). As a result, it was determined that “[b]y virtue of the
     Wells’ unprivileged and intentional intrusion upon Encroachment
     Areas #1 and #2, they are liable to the Haans for trespass and
     will be enjoined from any further unauthorized entry upon that
     property.” (Id. at pp. 9, 12).

     With respect to the Wells’ trespass claim relating to Parcel No. 2,
     the Wells “presented credible testimony and documentary proof
     by John M. Hennemuth establishing the Wells’ ownership of
     Parcel #2,” including “the Dunning survey that was prepared for
     AT&T on December 1, 1953, [which] clearly identifies the Wells
     as the owners of the portion of Parcel #2 which is at issue.” (Id.
     at p. 10) (citing T.P. 2/27/13 at pp. 94-96; Plaintiffs’ Exhibit
     Nos. 18, 24; Defendants’ Exhibit No. 3). The Haans’ assertion
     “that they acquired a portion of Parcel #2 via a tax sale and
     subsequent quiet title action” was rejected since “the record
     [wa]s devoid of the requisite proof of that purported acquisition”

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     in that “[no] exhibits were admitted into evidence establishing
     the details of that alleged tax sale or the scope of the quiet title
     action.” (Docket Entry No. 19 at pp. 10-11). Because “[t]he
     credible evidence established the Wells’ ownership and right to
     immediate possession of the relevant portion of Parcel #2,” the
     Haans were “directed to immediately remove the gate in
     question, which is identified in Defendants’ Exhibits Nos. D-2E
     and D-2F, as well as all signs which have been posted on said
     property by the Haans.” (Id. at pp. 11, 13).

     On June 25, 2013, the Haans’ trial counsel withdrew as counsel
     for the Haans, (Docket Entry No. 20), and their current counsel
     entered his appearance on July 1, 2013. (Docket Entry No. 21).
     On that same date, the Haans filed their [] motion for post-trial
     relief. (Docket Entry No. 22). The Wells [did] not file a post-
     trial motion challenging the non-jury verdict in favor of the
     Haans as to their claim involving Encroachment Area #1 and
     Encroachment Area #2.

     The Haans advance[d] four arguments in support of their
     request for judgment non obstante verdicto (JNOV) with regard
     to paragraph 4 of the non-jury decision. First, the contend[ed]
     that any determination of the Wells’ ownership of Parcel No. 2
     was improper since the Wells raised that issue in new matter,
     rather than a counterclaim. (Docket Entry No. 24 at pp. 11-13.)
     Second, the Haans attack[ed] the expert opinions of Hennemuth
     on the grounds that those opinions allegedly lacked the requisite
     factual basis in that they were contrary to the chains of title and
     pertinent tax records, and conflicted with the verdict finding that
     the Haans are the owners of the Evans tract. (Id. at pp. 13-21).
     Third, the Haans maintain[ed] that the conclusion that the Wells
     are owners of Parcel No. 2 is contrary to “the weight of the
     competent evidence” establishing the Haans’ ownership of that
     land.    (Id. at 21-22).     Last, the Haans contend[ed] that
     paragraph 4 of the non-jury verdict constitutes a “collateral
     attack” on the earlier quiet title determination secured by the
     Haans. (Id. at pp. 22-23).

     The Wells assert[ed] that their “mislabeling of a properly
     asserted counterclaim as New Matter” was appropriately “treated
     as a de minimus defect,” particularly since the Haans “were well
     aware” of the Wells’ claim of ownership of Parcel No. 2 and their
     trial counsel actively defended against that claim. (Docket Entry
     No. 25 at p. 3). The Wells submit[ed] that Hennemuth’s expert
     opinions were properly based upon his “vast experience in

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       surveying, especially with regard to the Wells’ property and
       surrounding properties” in Newton Township and Ransom
       Township, and the conclusions contained in the 1953 Dunning
       survey. (Id.). The Wells posit[ed] that Mr. Haan’s “misleading
       testimony regarding the quiet title action provides no
       substantiation to the [Haans’] claim of ownership” of Parcel No.
       2. (Id.). Additionally, the Wells argue[d] that “[t]here is no
       cloud on the title to Parcel No. 2” inasmuch as the Haans’ earlier
       quiet title proceeding “was directed to land that had no
       relationship to the Wells’ conveyances or to Parcel No. 2.” (Id.).

       Oral argument on the Haans’ post-trial motion was conducted on
       August 16, 2013. (Docket Entry No. 23). Following the Haans’
       submission of a letter brief on August 26, 2013, (Docket Entry
       No. 26), their post-trial motion became ripe for disposition. [The
       court concluded that] the Haans’ post-trial arguments were
       waived since they were not properly preserved during trial.
       Nevertheless, in the interest of finality, [the trial court reviewed
       the merits of those claims, and found them to be without
       merit.].

Trial Court Opinion (“T.C.O.”), 10/11/2013, at 2-9.

       On October 23, 2013, the Haans filed a timely notice of appeal. The

following day, the trial court directed the Haans to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                 On

November 4, 2013, the Haans timely complied.1

       The Haans submit the following five claims for our review:

       A. Did the lower court commit a manifest abuse of discretion or
          error of law in concluding that by not requesting a non-suit
          after [the Wells’] case or a directed verdict at the conclusion
____________________________________________


1
      The trial court did not file an opinion pursuant to Pa.R.A.P. 1925(a).
Nonetheless, the court extensively discussed its rulings and the bases for
those rulings, including those that the Haans contest herein, in its opinion
authored in support of its denial of the Haans’ post-trial motions. Thus, the
lack of a Rule 1925(a) opinion does not hinder our review in any way.



                                           -7-
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         of the trial, [the Haans] waived any right to argue on appeal
         that the Court’s finding was against the weight of the
         evidence?

      B. Did the lower court commit a manifest abuse of discretion or
         error of law in concluding that by not moving to strike the
         testimony of [the Wells’] surveyor after the conclusion of his
         testimony, [the Haans’] trial counsel waived any right to
         argue on appeal that the opinion of the surveyor was not
         supported by the facts of record?

      C. Did the lower court commit a manifest abuse of discretion or
         error of law in finding that the testimony of the surveyor was
         sufficient to support [the Wells’] claim of ownership to Parcel
         [No.] 2 when his conclusion was contrary to the record and
         when his conclusion was based solely on his experience as a
         surveyor, not on the record facts?

      D. Did the lower court commit a manifest abuse of discretion or
         error of law in concluding that [the Wells] presented sufficient
         evidence to support their claim of ownership of Parcel [No.]
         2?

      E. Did the lower court commit a manifest abuse of discretion or
         error of law in deciding that it could accept a part of the
         expert’s survey which it believes supports [the Wells’] claims
         but reject other parts of that same survey which rebutted
         [the Wells’] claims, when the survey is an integrated
         document?

Brief for the Haans at 4.

      Although the Haans present five distinct questions in their statement

of the questions presented, they present only two broad arguments in the

argument section of their brief.     The first argument addresses the trial

court’s waiver decisions.    The second addresses the merits of Haans’

challenge to the evidence relied upon by the trial court. Thus, we first must

consider whether any, or all, of the Haans’ claims are waived for the

purposes of this appeal.      In its opinion denying the Haans’ post-trial


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motions, the trial court concluded, inter alia, that the Haans had waived any

purported challenges to the sufficiency of the evidence because they had not

moved the court for a directed verdict at any relevant time. See T.C.O. at

12 (“By neglecting to properly move for a directed verdict pursuant to

Pa.R.C.P. 226(b), the Haans waived their right to secure judgment in their

favor under Pa.R.C.P. 227.1(a)(2).”) Additionally, the court found that the

Haans had waived their challenge to the expert witness Hennemuth’s

testimony as being without a factual basis because the Haans did not

specifically object to Hennemuth’s testimony on that particular basis at trial.

Id. at 18-19 (“[T]he Haans did not object to any opinion testimony by

Hennemuth on the basis that it lacked factual support, as required by

Pa.R.E. 702. Nor did the Haans present a motion in limine or a motion to

strike Hennemuth’s opinions for that reason.      Indeed, the Haans did not

assert any objection at trial to the opinion testimony of Hennemuth.”

(emphasis in original)). We begin with the trial court’s conclusion that the

Haans waived their right to challenge the sufficiency of the evidence.

      In this case, the question of whether the Haans have waived certain

challenges before this Court is dependent upon whether the claims challenge

the sufficiency of the evidence or the weight of the evidence. After the non-

jury trial, the Haans filed a post-trial motion for JNOV, in which they alleged

that the trial court’s conclusion that the Wells are owners of Parcel No. 2 is

contrary to “the weight of the competent evidence.” See Plaintiff’s Motion

for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1 (“JNOV Motion”), 7/1/2013,

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at 5 ¶ 37. Additionally, the Haans averred that the trial court’s conclusion

with regard to Parcel No. 2 was not “supported by the competent evidence

at trial.” Id. at ¶ 36. Thus, it is clear that the Haans, in their JNOV Motion,

challenged both the sufficiency and the weight of the evidence underlying

the trial court’s decision.   Each of challenges carries its own preservation

requirements.

      Pursuant to Pa.R.C.P. 227.1, “after trial and upon written Motion for

Post-Trial Relief,” a trial court may:

      (1)   order a new trial as to all or any of the issues; or

      (2)   direct the entry of judgment in favor of any party; or

      (3)   remove a nonsuit; or

      (4)   affirm, modify or change the decision; or

      (5)   enter any other appropriate order.

Pa.R.C.P. 227.1(a). However, a trial court may only grant such relief if the

“grounds therefore . . . were raised in pre-trial proceedings or by motion,

objection, point for charge, request for findings of fact or conclusions of law,

offer of proof or other appropriate method at trial.” Pa.R.C.P. 227.1(b)(1).

One method for preserving issues at trial is by moving for a directed verdict.

Pursuant to Pa.R.C.P. 226, “[a]t the close of all evidence, the trial court may

direct a verdict upon the oral or written motion of any party.”

Pa.R.C.P. 226(b) (emphasis added).

      Regarding the Haans’ sufficiency challenge, our review of the record

demonstrates that the Haans did not raise such a claim by oral or written


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motion with the trial court either for a nonsuit or a directed verdict.      In

Bennyhoff v. Pappert, 790 A.2d 313 (Pa. Super. 2001), we set forth the

following with regard to preserving a sufficiency claim:

      Pursuant to Pa.R.C.P. 230.1(c), a trial court may enter a non-
      suit in favor of any or all [] defendants, if, at the close of the
      plaintiff’s case against all defendants, the plaintiff has failed to
      establish a right to relief. “A motion for compulsory nonsuit
      allows a defendant to test the sufficiency of a plaintiff’s
      evidence.” Harnish v. School District of Philadelphia, 732
      A.2d 596, 598 (Pa. 1999). A sufficiency of the evidence claim
      may also be raised through a motion for a directed verdict.
      Lear, Inc. v. Eddy, 749 A.2d 971 (Pa. Super. 2000).

Bennyhoff, 790 A.2d at 371 (citation modified). Because the appellant in

Bennyhoff failed to request either a nonsuit or a directed verdict, we

concluded that the appellant’s sufficiency challenge was waived. Id.

      In Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943 (Pa.

Super. 2009) (en banc), an en banc panel of this Court noted that the

appellants in an asbestos case had preserved a challenge to the sufficiency

of the evidence by making an oral motion for a directed verdict at the close

of the evidence.       Id. at 951 n.3 (citing Hayes v. Donohue Designer

Kitchen Inc., 818 A.2d 1287, 1291 n.4 (Pa. Super. 2003) (stating “cases

indicate that in order to preserve the right to request a JNOV post-trial[,] a

litigant must first request a binding charge to the jury or move for a directed

verdict at trial.”).

      Finally, our Commonwealth Court has recognized, and adopted, this

Court’s adherence to the principle that sufficiency challenges must first be


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raised before the trial court by a motion for a directed verdict.2     In Com.

Dept. of Gen. Servs. v. U.S. Mineral Prods. Co., 927 A.2d 717 (Pa.

Cmwlth. 2007), the Commonwealth Court, citing Bennyhoff and Thomas

Jefferson Univ. v. Wapner, 903 A.2d 565, 570 (Pa. Super. 2006),3

explained that “our Superior Court requires a motion for directed verdict

during trial as a prerequisite to a post-trial motion for JNOV based on the

state of the evidence.”         U.S. Mineral Prods., 927 A.2d at 725.       The

Commonwealth Court adopted our approach “[b]ecause this approach has

the salutary effect of submitting the issue to the trial judge for initial

evaluation during trial, when the proofs are still fresh, and is consistent with

past practice and with the current rule governing post-trial practice.”     Id.

Consequently, the Commonwealth Court limited its appellate review in that

case to the appellants’ challenge to the weight of the evidence, and found

any challenges to the sufficiency of the evidence to be waived. Id.

       Hence, it is clear that, in order to preserve a challenge to the

sufficiency of the evidence, the Haans first were required in this non-jury
____________________________________________


2
      We note that “[t]his Court is not bound by decisions of the
Commonwealth Court.       However, such decisions provide persuasive
authority, and we may turn to our colleagues on the Commonwealth Court
for guidance when appropriate.” Petow v. Warehime, 996 A.2d 1083,
1088 n.1 (Pa. Super. 2010) (citations omitted).
3
       In Thomas Jefferson, we explained, as we did in Hayes, that
“[c]ases indicate that in order to preserve the right to request a JNOV post-
trial, a litigant must first request a binding charge to the jury or move for
directed verdict at trial.” 903 A.2d at 570.



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trial to move either for a nonsuit or a directed verdict. See Youst v. Keck's

Food Serv., Inc., 94 A.3d 1057, 1071 (Pa. Super. 2014). The Haans did

not do so.    Consequently, any of the Haans’ challenges purporting to

challenge the sufficiency of the evidence offered to prove the Wells’

ownership of Parcel No. 2 are waived.

      However, the same cannot be said for any challenges to the weight of

the evidence. As the Haans aptly point out in their brief, see Brief for the

Haans at 14, a litigant is not required to file a motion for a directed verdict

to preserve a challenge to the weight of the evidence. Indeed, our Supreme

Court has explicitly recognized that “a claim challenging the weight of the

evidence is not the type of claim that must be raised before the jury is

discharged. Rather, it is a claim which, by definition, ripens only after the

verdict, and it is properly preserved so long as it is raised in timely post-

verdict motions.”    Criswell v. King, 834 A.2d 505, 512 (Pa. 2003).

Instantly, the Haans raised a challenge to the weight of the evidence in their

JNOV Motion, and, therefore, have preserved that claim for appellate review.

      In sum, if the challenges presented to this Court by the Haans are

sufficiency challenges, they are waived.      On the other hand, if they are

weight challenges, they are preserved.       Upon review of the details of the

arguments presented in the Haans’ brief, we conclude that the Haans are

advancing a challenge to the weight of the evidence.

      After addressing the trial court’s waiver findings, the Haans address

the merits of their claim.   In the heading preceding their argument, the

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Haans state that the trial court’s decision “was not supported by the weight

of the evidence,” and that the trial court’s factual determinations “were

erroneous, arbitrary and capricious.” Brief for the Haans at 21. Moreover,

the Haans attack the trial court’s credibility determinations, and cite cases

addressing determinations that are “contrary to the evidence.”      Id. at 21

(citing Glen Alden Coal v. Schuylkill Cty., 27 A.2d 239, 244 (Pa. 1942)).

       The Haans conclude their introductory paragraph by submitting that

“this case is one in which the lower court’s decision was flagrantly contrary

to the evidence and, as a result, an injustice has been done to the Haans.” 4

Brief for the Haans at 22. The Haans argue that the trial court should not

have credited the testimony of either the Wells or Hennemuth, because they

each testified without factual support to render their testimony credible. Id.

at 22-23. Also, the Haans argue that the trial court erred by crediting Mr.

____________________________________________


4
      We are reminded of the famous exchange between the jurisprudential
titans Justice Oliver Wendell Holmes, Jr., and Judge Learned Hand. Hand
recounted as follows:

       I remember once I was with [Justice Holmes]; it was a Saturday
       when the Court was to confer. It was before we had a motor
       car, and we jogged along in an old coupé. When we got down to
       the Capitol, I wanted to provoke a response, so as he walked off,
       I said to him: “Well, sir, goodbye. Do justice!” He turned quite
       sharply and he said: “Come here. Come here.” I answered:
       “Oh, I know, I know.” He replied: “That is not my job. My job is
       to play the game according to the rules.”

Learned Hand, A Personal Confession, in The Spirit of Liberty 302, 306-07
(Irving Dilliard ed., 3d ed. 1960).



                                          - 14 -
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Wells’ testimony regarding the sale of portions of the contested lands over

the testimony of Mr. Haan and over the details of the survey upon which the

trial court actually relied. Id. at 24. Finally, the Haans argue that the trial

court committed an abuse of discretion by relying upon, and presumably

crediting for evidentiary purposes, portions of the Hennemuth survey, and

disregarding other portions of the same survey. Id. at 25. These and other

indicia throughout the argument section of the Haans’ brief demonstrate that

the Haans are challenging the weight of the evidence. As such, and for the

reasons set forth above, this claim is preserved for purposes of this appeal.

      Before we address the merits of the Haans’ weight claim, we must

address the Haans’ argument that the trial court erred by concluding that

they waived their claim that Hennemuth’s expert opinion lacked a factual

basis. However, upon close inspection of the Haans’ brief and argument, it

is clear that they are not challenging either the admissibility of Hennemuth’s

expert opinion or his qualifications to testify as an expert. Rather, the Haans

are contending that, because Hennemuth’s opinion was not supported by a

factual basis, the trial court should not have relied upon that opinion in

reaching its verdict.   In other words, the Haans’ argument with regard to

Hennemuth is part and parcel of their weight challenge, a challenge that we

have already concluded has been preserved.           Thus, we consider the

argument accordingly.

      Our standards of review for considering motions for JNOV and claims

implicating the weight of the evidence are well-settled.

                                    - 15 -
J-A18025-14


      A JNOV can be entered upon two bases: (1) where the movant is
      entitled to judgment as a matter of law; and/or, (2) the evidence
      was such that no two reasonable minds could disagree that the
      verdict should have been rendered for the movant.           When
      reviewing a trial court’s denial of a motion for JNOV, we must
      consider all of the evidence admitted to decide if there was
      sufficient competent evidence to sustain the verdict. In so
      doing, we must also view this evidence in the light most
      favorable to the verdict winner, giving the victorious party the
      benefit of every reasonable inference arising from the evidence
      and rejecting all unfavorable testimony and inference.
      Concerning any questions of law, our scope of review is plenary.
      Concerning questions of credibility and weight accorded the
      evidence at trial, we will not substitute our judgment for that of
      the finder of fact. If any basis exists upon which the [court]
      could have properly made its award, then we must affirm the
      trial court’s denial of the motion for JNOV. A JNOV should be
      entered only in a clear case.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citation omitted).

      Appellate 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.
      Because the trial judge has had the opportunity to hear and see
      the evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the trial
      judge when reviewing a trial court’s determination that the
      verdict is against the weight of the evidence. One of the least
      assailable reasons for granting or denying a new trial is the
      lower court’s conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice.

In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013) (citing

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). “The factfinder

is free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses.” Samuel-Bassett v. Kia Motors Am., Inc., 34


                                    - 16 -
J-A18025-14



A.3d 1, 39        (Pa.   2011).   The    trial court may award a judgment

notwithstanding the verdict or a new trial “only when the jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice. In determining

whether this standard has been met, appellate review is limited to whether

the trial judge’s discretion was properly exercised, and relief will only be

granted where the facts and inferences of record disclose a palpable abuse

of discretion.”     Id. (citing Commonwealth v. Cousar, 928 A.2d 1025,

1035-36 (Pa. 2007)).        When a fact finder’s verdict is “so opposed to the

demonstrative facts that looking at the verdict, the mind stands baffled, the

intellect searches in vain for cause and effect, and reason rebels against the

bizarre and erratic conclusion, it can be said that the verdict is shocking.

Farelli v. Marko, 502 A.2d 1293, 1295 (Pa. Super. 1985) (quoting Green

v. Johnson, 227 A.2d 644, 644, 645 (Pa. 1967)).

      In the trial court’s opinion denying the Haans’ post-trial motions, the

trial court detailed at length the factual and legal bases for its verdict, as

well as its credibility findings with regard to Hennemuth, a finding that the

Haans challenge directly. The trial court explained as follows:

      On July 13, 1992, Parcel No. 1 and Parcel No. 2 were conveyed
      to [] John A. Wells, Jr., and his wife, Susan A. Wells. (Plaintiffs’
      Exhibit No. 9; Defendants’ Exhibit No. D1A). Parcel No. 1 is
      described as being “situate in Ransom Township,” beginning in
      the easterly corner “of the James Davis Warranty Tract of land
      which said tract of land was surveyed in pursuance of a warrant
      dated the 17th day of September 1794,” and [c]ontaining One
      Hundred (100) acres of land, more or less.” (Id. at p.2). The
      deed dated July 13, 1992, states that Parcel No. 1 excludes the
      following five prior conveyances that had been made from Parcel


                                        - 17 -
J-A18025-14


     No. 1: (1) an unquantified parcel that Warren P. Wells and Ella
     E. Wells conveyed to Lackawanna County and the
     Commonwealth of Pennsylvania on June 19, 1924; (2) a one
     acre parcel conveyed to John Bird; (3) a one acre parcel
     conveyed to George Bird; (4) one and one-half acres of land
     conveyed to Gwilym Niles; and (5) two and one-half acres of
     land on which the prior grantors’ “dwelling house” was located.
     (Id. at pp. 2-3). Parcel No. 2 is identified as “situate partly in
     the Ransom Township and partly in the Newsome Township,”
     consisting of “212 acres of land of the James Davis Warrant
     Tract,” and comprising the same property that Lackawanna
     County conveyed to Andrew Walukus on May 25, 1908
     “excepting One Hundred (100) acres of the aforesaid tract which
     was heretofore conveyed by the said Andrew Walukus to W.P.
     Wells, by deed dated November 18, 1921.” (Id. at p. 2). The
     Walukus-Wells conveyance on November 18, 1921, references
     the earlier conveyance of Parcel No. 1 “containing One Hundred
     (100) acres of land more or less.” (Defendants’ Exhibit No.
     D1F).

     The acreage identified in the pertinent deeds reflects that Parcel
     No. 1 contains “One Hundred (100) acres of land, more or less,”
     excluding the six aggregate acres conveyed to John Bird, George
     Bird and Gwilym Niles and containing the prior grantors’ home,
     and that Parcel No. 2 consists of One Hundred Twelve (112)
     acres. The boundaries and dimensions of Parcel No. 1 and
     Parcel No. 2 are only described in courses and distances.
     (Plantiffs’ Exhibit No. 9 at pp. 2-3; Defendants’ Exhibit No. D1A
     and pp. 2-3). Hennemuth’s survey depicts Parcel No. 1 as
     comprising 93.46 acres and Parcel No. 2 consisting of 116.46
     acres. (Plaintiffs’ Exhibit No. 18).

     “Where the calls for the location of boundaries to land are
     inconsistent, other things being equal, resort is to be had first to
     natural objects or landmarks, next to artificial monuments, then
     to adjacent boundaries (which are considered a sort of
     monument), and thereafter to courses and distances.” Doman
     v. Brogan, 592 A.2d 104, 110 (Pa. 1991). As a general rule,
     “where there is conflict between courses and distances or quality
     of land and natural or artificial monuments, the monuments
     prevail.” Jedlicka v. Clemmer, 677 A.2d 1232, 1234 (Pa.
     Super. 1996). Thus, the courses and distances must yield to
     monuments on the ground, and parol evidence as to the
     existence of such monuments is admissible. Penna. Elec. Co.
     v. Waltman, 670 A.2d 1165, 1170-71 (Pa. Super. 1995).

                                    - 18 -
J-A18025-14


     The testimony of experienced surveyors, especially those familiar
     with the original monuments on the ground, “is extremely
     valuable in establishing the location of boundary lines.” Penna.
     Game Commission v. K.D. Miller Lumber Co., Inc., 656 A.2d
     6, 11 (Pa. Cmwlth. 1994); Will v. Pier, 134 A.2d 41, 44 (Pa.
     Super. 1957).       Hennemuth has extensive experience in
     conducting surveys relating to the various Warrants at issue in
     Newton and Ransom Townships, and relied upon that knowledge
     in conducting his survey and determining the Wells’ boundary
     lines which were unclear due to the “vaguely written description”
     of the land in the Walukus-Wells deeds that were based upon the
     1794 survey of the James Davis Warrant, the questionable
     designation of the Newton-Ransom boundary line in the 1903
     Stephenson survey, and the absence of any metes and bounds
     description for the 312 acres that Lackawanna County conveyed
     to Walukus on May 25, 1928. Consequently, in calculating the
     boundaries of the Wells’ land, Hennemuth reviewed relevant
     maps and deeds, earlier surveys, and pertinent tax assessment
     records, and conducted his own survey based upon concrete
     monuments, pins and notched trees from previous surveys.
     Based upon the totality of that investigation, he opined that the
     gate and signs installed by the Haans on Parcel No. 2 are “well
     within the Wells’ property.” (T.P., 2/27/13, at 27).

                               *     *      *

     Hennemuth’s opinions regarding the location of the boundaries
     were based upon his own survey and his analysis of the 1953
     Dunning survey, and as such, constituted competent and
     sufficient evidence of the Wells’ boundary lines.

                               *     *      *

     The Haans contend[ed] that Hennemuth’s conclusion concerning
     the Wells’ total acreage was not competent since Mr. Haan
     “testified that he reviewed all of the deeds relating to transfers
     made by the Wells family of properties acquired from Mr.
     Walukus and stated that the total acreage of all of these
     transfers amounted to 133.71 acres.” (Docket Entry No. 24 at
     p. 15; T.P. 2/27/13 at pp. 124-25). The Haans posit[ed] that as
     a result of that testimony, a finding should have been made that
     the Wells own less than one hundred (100) acres. (Docket Entry
     No. 24 at p. 15). However, in a bench trial, the trial judge “as
     factfinder, is free to believe all, part or none of the evidence
     presented and, therefore, assessments of credibility and conflicts


                                   - 19 -
J-A18025-14


      in evidence are for the trial court to resolve.” Turney Media
      Fuel, Inc. v. Toll Brothers, Inc., 725 A.2d 836, 841 (Pa.
      Super. 1999). Mr. Haans’ lay testimony regarding the Wells’
      purported conveyances, which was not supported by any
      corroborating deeds that were introduced into evidence, was
      contradicted by the testimony of John A. Wells, Jr., who stated
      that the Wells’ predecessors-in-interest sold “some, but not a
      real lot” of the land that the Wells family purchased from
      Walukus. (T.P., 1/7/13, at p. 146). [The trial court accepted]
      Mr. Wells’ testimony as more credible in that regard.

      The Haans also assert[ed] that Hennemuth’s expert opinion
      concerning the Wells’ ownership of Parcel NO. 2 cannot serve as
      the basis for [] the non-jury verdict since “D. Scott Haan
      testified that he was the owner of the 116.46 acres depicted as
      Parcel [No.] 2 on the Hennemuth survey, having acquired the
      lands by tax title.” (Docket Entry No. 24 at p. 21). As noted in
      the non-jury decision of June 19, 2013, the Haans did not
      introduce any documentary proof of “the details of that alleged
      tax sale or the scope of the quiet title action.” (Docket Entry No.
      19 at pp. 10-11). The only evidence presented in that respect
      was the bald and unsubstantiated claim of Mr. Haan. Once
      again, [the trial court resolved the] conflicts in the testimony of
      Hennemuth and Mr. Haan by finding that Hennemuth’s opinions
      were more credible and persuasive in establishing the ownership
      of Parcel No. 2.

T.C.O. at 20-25 (footnotes omitted; citations modified; some citations to the

record and to relevant case law omitted).

      We   have   reviewed     the   record    and   the   trial   court’s   thorough

consideration of the same, and we discern no abuse of discretion in the trial

court’s rejection of the Haans’ weight of the evidence claim.            As the trial

court noted, a fact-finder is permitted to accept all, part, or none of the

testimony, and it is within the fact-finder’s exclusive province to resolve

conflicts in that testimony.   See Samuel-Bassett, 34              A.3d at 39.   As is

indicated in the trial court’s above-quoted discussion, that court resolved the


                                      - 20 -
J-A18025-14



conflicts in the testimony and found Hennemuth’s expert opinion to be more

credible than that which conflicted with it.     Having reviewed the record

ourselves, we conclude that the court’s credibility determinations were

supported by the record.       Consequently, the court did not abuse its

discretion.

      As we noted earlier, the Haans have listed five claims for our review,

but the argument section of their brief presents only two broad questions.

We have resolved of those both questions. Thus, although we conclude that

the Haans did not waive the weight claim raised on the merits in their brief,

we also conclude that they are not entitled to relief on that claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




                                     - 21 -
