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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SLICE & HOOK ENTERPRISES, INC. AND              IN THE SUPERIOR COURT OF
PUTTS AND DIVOTS, L.P.,                               PENNSYLVANIA

                         Appellants

                    v.

DEBORAH MCGONIGAL,

                         Appellee                   No. 3494 EDA 2013



            Appeal from the Order Entered November 13, 2013
              In the Court of Common Pleas of Bucks County
                  Domestic Relations at No(s): 11-04043


PUTTS & DIVOTS, L.P. AND SLICE &                IN THE SUPERIOR COURT OF
HOOK ENTERPRISES, INC., D/B/A                         PENNSYLVANIA
FAIRWAYS

                         Appellees

                    v.

DEBORAH MCGONIGAL,

                         Appellant                    No. 20 EDA 2014


            Appeal from the Order Entered November 13, 2013
              In the Court of Common Pleas of Bucks County
               Domestic Relations at No(s): 2011-04043-34

BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 23, 2015

      In these consolidated appeals, Appellants, Slice & Hook Enterprises,

Inc. (Slice & Hook) and Putts & Divots, L.P. (Putts & Divots), appeal from an

order entered on November 13, 2013 that granted a new trial as to all

*Retired Justice specially assigned to the Superior Court.
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claims and that denied Appellants’ motion for judgment notwithstanding the

verdict (JNOV) as to the unjust enrichment claim filed by Appellee/Cross-

Appellant,    Deborah      McGonigal     (McGonigal).   In   addition,   McGonigal

cross-appeals from the trial court’s November 13, 2013 order to the extent

that order denied her request for JNOV as to Appellants’ prescriptive

easement claim. After careful review, we affirm.1

       Putts & Divots is the fee simple owner of real property located in

Warrington Township, Bucks County, Pennsylvania, known as the Fairways

Golf Course. Slice & Hook operates the Fairways Golf Course and Country

Club, a public golf course, pursuant to a lease agreement with Putts &

Divots.

       The Fairways Golf Course was constructed in the late 1960s.

Originally, it consisted of seven separate parcels, known as Parcels A-1

through A-7.      On May 30, 1985, the owner of the Fairways Golf Course

conveyed it to Perch Hankin.              Around that same time, Perch Hankin

subdivided a .92-acre parcel out of Parcel A-5 and created a new parcel

known as Parcel D. Parcel D included the area upon which the men’s and
____________________________________________


1
  On August 28, 2014, Appellants moved to quash McGonigal’s cross-appeal
on grounds that her brief to this Court violated several appellate rules.
Specifically, Appellants assert that McGonigal: 1) filed and served her brief
in an untimely manner (Pa.R.A.P. 2188); 2) failed to comply with word limits
(Pa.R.A.P. 2135); 3) impermissibly included argument within her statement
of the case (Pa.R.A.P. 2117); and, 4) failed to properly develop issues raised
on appeal (Pa.R.a.P. 2119). As these alleged violations have not hampered
our review of McGonigal’s claims, we deny Appellants’ motion to quash.



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women’s tee boxes for the fifth hole of the Fairways Golf Course were

located.

      By deed dated June 28, 1985, Perch Hankin conveyed Parcel D to a

builder, Sal Paone, Inc. (Paone). Although there was no written easement

agreement, the Fairways Golf Course continued to use the rear of Parcel D

for the fifth hole tee boxes.    Paone improved Parcel D by constructing a

single family home on the property. Thereafter, on August 29, 1989, Paone

conveyed the improved property to Joseph Sink and Carolyn M. Sink (Sinks).

The Fairways Golf Course continued to use the rear of Parcel D for the fifth

hole tee boxes during the Sinks’ ownership of the property.

      In May 1990, Perch Hankin sold the Fairways Golf Course property to

his son, Mark Hankin. Again, the Fairways Golf Course continued to use the

rear of Parcel D for tee boxes. A few years later, in 1993, Mark Hankin sold

the golf course to Putts & Divots. Thereafter, Putts & Divots continued to

use the rear of Parcel D for the fifth hole tee boxes.

      McGonigal purchased and moved into the home on Parcel D in August

2005. Putts & Divots continued its use of the property. McGonigal began to

complain about golf balls striking her house in the Spring of 2006. She took

no immediate action, however, because Joseph Lightkep, one of the partners

in Putts & Divots, told her that the golf course had a written right to use

Parcel D for the tee boxes.     Nevertheless, in November 2010, McGonigal

erected a temporary fence across the tee boxes that precluded golfers or

anyone else from accessing the tee boxes or cart paths on the property.

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      In response, Appellants, on May 5, 2011, filed a declaratory judgment

complaint in the Court of Common Pleas of Bucks County and moved for a

preliminary injunction to remove the fence.         Appellants’ complaint and

motion for preliminary injunction asserted prescriptive easement rights to

use the tee boxes.    On June 8, 2011, the trial court issued a preliminary

injunction (amended as of June 13, 2011) directing McGonigal to remove the

fence.   McGonigal complied with the court’s order and Appellants resumed

their use of the tee boxes.        McGonigal appealed the order granting

Appellants’ request for injunctive relief and this Court ultimately affirmed in

an unpublished memorandum issued on October 1, 2012. Putts & Divots

v. McGonigal, 62 A.3d 446 (Pa. Super. 2012) (unpublished memorandum).

      On June 27, 2011, McGonogal filed an answer, new matter, and

counterclaims in response to Appellants’ complaint. McGonigal requested a

jury trial (to the extent available) and alleged the following counterclaims

against Appellants:   1) trespass; 2) conversion; 3) unjust enrichment; 4)

waste; 5) nuisance; 6) ejectment; 7) quiet title; 8) declaratory relief; 9)

violation   of   easement   (in   the    alternative);   and,   10)   fraudulent

misrepresentation.

      A jury trial commenced on October 15, 2012 and concluded on

October 24, 2012. The jury returned a verdict in favor of Putts & Divots on

its claim seeking a declaration that it established a prescriptive easement to




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use the rear of Parcel D for the tee boxes.2        The jury found in favor of

McGonigal on her counterclaims of trespass and unjust enrichment,

awarding $5,000.00 in damages on the trespass claim and $100,000.00 on

the counterclaim for unjust enrichment. The jury rejected the remainder of

McGonigal’s claims that fell within its providence to decide, including

violation of easement, nuisance, and fraudulent misrepresentation.3

       Both sides filed post-trial motions after the jury returned its verdict.

Appellants filed a post-trial motion seeking entry of a JNOV as to McGonigal’s

unjust enrichment claim.          McGonigal raised numerous post-trial claims,

including, among other things, a motion for JNOV on Appellants’ prescriptive

easement claim. In the alternative, McGonigal requested a new trial on all

claims against all parties (except her unjust enrichment and trespass

counterclaims) based upon various errors that allegedly occurred at trial.

       On November 13, 2013, the trial court granted a new trial on all claims

against all parties and denied all other post-trial motions.       In denying

Appellants’ motion for JNOV on McGonigal’s unjust enrichment claim, the

trial court identified a fundamental conflict in the jury’s award of both a

____________________________________________


2
  Under a stipulation reached by the parties, Putts & Divots, as the owner of
the dominant tenement, was the appropriate plaintiff on that cause of
action.
3
 McGonigal withdrew her claims for declaratory judgment, waste, quiet title,
and conversion. Additionally, the parties agreed that the trial court would
decide McGonigal’s ejectment counterclaim, if necessary.



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prescriptive easement (in favor of Appellants) and a recovery for unjust

enrichment (in favor of McGonigal). Moreover, in support of its decision to

order a new trial on all claims, the court cited the inconsistency of the jury’s

verdict together with its opinion that confusion over the complex claims in

the case contributed to the factfinder’s determinations.

        Both Appellants and McGonigal timely appealed from the trial court’s

November 13, 2013 order.4           After the parties filed concise statements of

errors complained of on appeal, the trial court issued its Pa.R.A.P. 1925(b)

opinion on February 3, 2014.

        Appellants’ brief raises the following questions for our consideration:

        Did the [t]rial [c]ourt abuse its discretion when it ordered a new
        trial of all claims on the grounds that the verdicts on Putts &
        Divots’ [p]rescriptive [e]asement claim and McGonigal’s [u]njust
        [e]nrichment counterclaim were inherently inconsistent and/or
        because the jury was confused, where Putts & Divots used the
        property in the absence of any vested easements rights for ten
        months after McGonigal purchase[d] it?

        Did the [t]rial [c]ourt abuse its discretion when it denied
        Appellants’ [p]ost-[t]rial [m]otion for JNOV as to McGonigal’s
        [u]njust [e]nrichment counterclaim where McGonigal did not
        introduce any evidence, let alone sufficient value of the
        competent evidence to sustain a verdict, as to the reasonable
        benefit she alleges was conferred upon Appellants?

        Did the [t]rial [c]ourt abuse its discretion when it denied
        Appellants’ [p]ost-[t]rial [m]otion for JNOV where McGonigal’s
        counterclaim for [u]njust [e]nrichment is barred by the
        applicable four-year statute of limitations?
____________________________________________


4
    This Court subsequently consolidated the appeals.




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Appellants’ Brief at 5.5

       McGonigal’s brief raises the following cross-appeal claim:

       Whether the [trial c]ourt committed an abuse of discretion when
       it denied McGonigal’s [m]otion for JNOV on [Putts & Divots’]
       claim for prescriptive easement?

McGonigal’s Brief at 7.

       Appellants’ first claim challenges the trial court’s November 13, 2013

order to the extent it granted a new trial.          Our Supreme Court has

elaborated at some length on the standard and scope of review that applies

when a litigant challenges an order granting a new trial.

       Trial courts have broad discretion to grant or deny a new trial.
       The grant of a new trial is an effective instrumentality for
       seeking and achieving justice in those instances where the
       original trial, because of taint, unfairness or error, produces
       something other than a just and fair result, which, after all, is
       the primary goal of all legal proceedings. Although all new trial
       orders are subject to appellate review, it is well-established law
       that, absent a clear abuse of discretion by the trial court,
       appellate courts must not interfere with the trial court's authority
       to grant or deny a new trial.

       [W]hen analyzing a decision by a trial court to grant or deny a
       new trial, the proper standard of review, ultimately, is whether
       the trial court abused its discretion.

       Each review of a challenge to a new trial order must begin with
       an analysis of the underlying conduct or omission by the trial
       court that formed the basis for the motion. There is a two-step
       process that a trial court must follow when responding to a
       request for new trial. First, the trial court must decide whether
____________________________________________


5
  We have reordered Appellants’ claims to facilitate a more logical discussion
of the issues.



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     one or more mistakes occurred at trial. These mistakes might
     involve factual, legal, or discretionary matters. Second, if the
     trial court concludes that a mistake (or mistakes) occurred, it
     must determine whether the mistake was a sufficient basis for
     granting a new trial. The harmless error doctrine underlies
     every decision to grant or deny a new trial. A new trial is not
     warranted merely because some irregularity occurred during the
     trial or another trial judge would have ruled differently; the
     moving party must demonstrate to the trial court that he or she
     has suffered prejudice from the mistake.

     To review the two-step process of the trial court for granting or
     denying a new trial, the appellate court must also undertake a
     dual-pronged analysis. A review of a denial of a new trial
     requires the same analysis as a review of a grant. First, the
     appellate court must examine the decision of the trial court that
     a mistake occurred.

     At this first stage, the appellate court must apply the correct
     scope of review, based on the rationale given by the trial court.
     There are two possible scopes of review to apply when appellate
     courts are determining the propriety of an order granting or
     denying a new trial. There is a narrow scope of review: where
     the trial court articulates a single mistake (or a finite set of
     mistakes), the appellate court's review is limited in scope to the
     stated reason, and the appellate court must review that reason
     under the appropriate standard.

     [Conversely,] [i]f the trial court leaves open the possibility that
     reasons additional to those specifically mentioned might warrant
     a new trial, or orders a new trial ‘in the interests of justice,’ the
     appellate court applies a broad scope of review, examining the
     entire record for any reason sufficient to justify a new trial.

     Even under a narrow scope of review, the appellate court might
     still need to examine the entire record to determine if there is
     support for any of the reasons provided by the trial court.

     The appropriate standard of review also controls this initial layer
     of analysis. If the mistake involved a discretionary act, the
     appellate court will review for an abuse of discretion. If the
     mistake concerned an error of law, the court will scrutinize for
     legal error. If there were no mistakes at trial, the appellate
     court must reverse a decision by the trial court to grant a new

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      trial because the trial court cannot order a new trial where no
      error of law or abuse of discretion occurred.

      If the appellate court agrees with the determination of the trial
      court that a mistake occurred, it proceeds to the second level of
      analysis. The appellate court must then determine whether the
      trial court abused its discretion in ruling on the request for a new
      trial. Discretion must be exercised on the foundation of reason.
      An abuse of discretion exists when the trial court has rendered a
      judgment that is manifestly unreasonable, arbitrary, or
      capricious, has failed to apply the law, or was motivated by
      partiality, prejudice, bias, or ill will. A finding by an appellate
      court that it would have reached a different result than the trial
      court does not constitute a finding of an abuse of discretion.
      Where the record adequately supports the trial court's reasons
      and factual basis, the court did not abuse its discretion.

      When determining whether the trial court abused its discretion,
      the appellate court must confine itself to the scope of review, as
      set forth in our preceding discussion. If the trial court has
      provided specific reasons for its ruling on a request for a new
      trial, and it is clear that the decision of the trial court is based
      exclusively on those reasons, applying a narrow scope of review,
      the appellate court may reverse the trial court's decision only if it
      finds no basis on the record to support any of those reasons. As
      a practical matter, a trial court's reference to a finite set of
      reasons is generally treated as conclusive proof that it would not
      have ordered a new trial on any other basis. Alternatively,
      where the trial court leaves open the possibility that there were
      reasons to grant or deny a new trial other than those it expressly
      offered, or the trial court justifies its decision on the “interests of
      justice,” an appellate court must apply a broad scope of review
      and affirm if it can glean any valid reason from the record.

Harman, ex rel. Harman v. Borah, 756 A.2d 1116-1124 (Pa. 2000)

(internal citations and certain internal quotations omitted).

      In this case, the trial court identified a single rationale for its decision

to order a new trial. Specifically, the trial court “found that there was such a

clear error of law that [the result was tainted]. There was a clear and basic


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and fundamental conflict in the award of both a prescriptive easement and

unjust enrichment that a new trial had to be granted.      Those two awards

could not legitimately co-exist under the undisputed aspects of the trial.”

Trial Court Opinion, 2/3/14, at 12. Because the trial court expressed only

one reason for ordering a new trial, we confine the scope of our review to

the designated basis for the court’s ruling.

      Appellants do not dispute that the predominant and competing legal

themes in this case (Putts & Divots’ prescriptive easement and McGonigal’s

claim for unjust enrichment) are, in large part, doctrinally incompatible. Put

differently, Appellants nowhere challenge the underlying premise of the trial

court’s conclusion, i.e. that the holder of a prescriptive easement cannot be

held liable under a theory of unjust enrichment after the easement vested.

Instead, Appellants argue that the trial court abused its discretion in

granting a new trial because the jury’s verdict conceivably can be reconciled

with the evidence introduced at trial:

      Here, the trial court correctly noted that “it was just and
      equitable for Putts & Divots to benefit from the hostile use of the
      tee box so long as it had the prescriptive right to do so. . . .”
      [Trial Court Opinion, 2/3/14, at 13]. In other words, there was
      nothing unlawful or unjust about Putts & Divots’ use of Parcel D
      after it had established its prescriptive easement rights to use
      the property. The fatal flaw of the trial court’s finding that the
      jury made a mistake was its failure to consider that, as a matter
      of law, it takes 21 years for such rights to vest, and unless and
      until such rights have vested, there is nothing to preclude a
      determination or finding that use of another’s property is unjust
      or inequitable.




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         In this case, the clock for prescriptive easement started ticking
         on or about June 28, 1985, the first day when the servient
         tenement (Parcel D) and the dominant tenement [(the golf
         course)] became owned by different entities (Sal Paone and
         Perch Hankin, respectively). The overwhelming evidence at trial
         was that, thereafter, the [golf course] continuously used and
         maintained the tee boxes in the same location through to the
         date of trial. As a result, there was more than ample evidence in
         the record to support that Putts & Divots’ had established
         prescriptive easement rights to continue to use the rear of Parcel
         D for the tee boxes as of June 28, 2006, 21 years later. Until
         that time, however, Putts & Divots did not, as a matter of law,
         have any prescriptive easement rights. Thus, there is nothing
         prohibiting a concurrent finding by the jury that any use of
         Parcel D from August 1, 2005 – when [McGonigal] purchased
         Parcel D and moved into her new residence – until June 28,
         2006, was unjust, inequitable, or otherwise unlawful. Indeed,
         given the facts of this case and the applicable law on which the
         jury was charged, these finding are perfectly harmonious. To
         conclude otherwise, would require a complete disregard for the
         record and the applicable law.

Appellants’ Brief at 36-37 (footnotes, emphasis and record citations

omitted).

         Appellants’ contention merits no relief from the order directing a new

trial.   Applying Harman, we find first that the trial court committed legal

error in failing to properly instruct the jury, particularly as to the interplay

between the doctrines of prescriptive easement and unjust enrichment. We

agree with the trial court that this error caused confusion amongst the jurors

and tainted the verdict that they returned.        Consequently, for the reasons

that follow, we discern no abuse of discretion in the trial court November 13,

2013 order.

         It is well settled that an inadequate jury instruction may amount
         to reversible error if it has a tendency to mislead the jury or if it

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      omits material, which is basic and fundamental. Although a trial
      court need not use the specific language requested by a party,
      its words must sufficiently and fully convey the rules of law
      applicable to the case.

    Further, an error in a jury instruction is sufficient grounds for a
    new trial, if the charge as a whole is inadequate or not clear or
    has a tendency to mislead or confuse rather than clarify a
    material issue.
Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002) (internal

citations and quotations omitted), appeal denied, 819 A.2d 547 (Pa. 2003).

      Although the trial court instructed the jury as to the legal elements for

a prescriptive easement and a claim of unjust enrichment, the court

neglected to instruct the jury as to the interplay between these doctrines,

which constituted a basic and fundamental omission. To illustrate, the court

did not instruct the jury that McGonigal could only assert an unjust

enrichment claim prior to the date when Putts & Divots acquired its

prescriptive easement rights.    Thus, the court never explained to the jury

that if Putts & Divots acquired a restrictive easement, the theory of unjust

enrichment was no longer available to McGonigal as an avenue of recovery.

By omitting such instructions, the trial court failed to fully inform the jury of

the rules applicable in this case.

      Having determined that the trial court erred in formulating its

instructions to the jury, we now consider whether it abused its discretion in

ordering a new trial.   Appellants argue that a new trial was inappropriate

since it is possible to reconcile the jury’s verdict with the applicable law and

the evidence introduced at trial.    However, the jury completed a lengthy

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questionnaire setting forth its findings and nothing in that form enabled the

court or the parties to verify the period during which Putts & Divots acquired

its prescriptive rights or to identify the timespan when Appellants were

unjustly enriched through their use of Parcel D. Without such confirmatory

information, Appellants’ claim that the verdict can conceivably be reconciled

with the evidence introduced at trial is unsupported. Instead, we conclude

that the trial court’s determination that juror confusion led the factfinder to

reach a compromise verdict appears far more plausible given the complex

claims presented in this case. Under the applicable standard of review, we

must affirm where we find any basis in the record to support the trial court’s

new trial order.      Thus, we conclude that Appellants’ first claim merits no

relief.

          Our decision to affirm the trial court’s order granting a new trial as to

all claims obviates the need to consider the parties’ remaining claims, in

which Appellants assert that they were entitled to JNOV on McGonigal’s

unjust enrichment claim and McGonigal claims she was entitled to JNOV on

Putts & Divots’ prescriptive easement claim. Hence, we decline to address

these additional claims and remand this case for further proceedings.

          Order affirmed. Motion to quash denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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