J-A24033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDGAR AND MARIA GANTALAO,                 :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellants              :
                                          :
           v.                             :
                                          :
GERALD ROYER                              :           No. 129 WDA 2017

                   Appeal from the Order December 16, 2016
              in the Court of Common Pleas of Clearfield County,
                     Civil Division, No(s): 2011-2124 CD

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 22, 2017

      Edgar and Maria Gantalao (collectively “the Gantalaos”) appeal from

the Order denying their Motion for Post-Trial Relief, following a non-jury

verdict against them and in favor of Gerald Royer (“Royer”).1 We affirm.

      The trial court set forth the relevant underlying factual history as

follows:

      [The Gantalaos] moved into their home in the Treasure Lake
      Development in Sandy Township, Clearfield County, in 2002.
      Prior to March 1, 2011, the [Gantalaos] lived in their home
      without any problems or incidents. In September of 2009,
      [Royer] purchased the property adjacent to the [Gantalaos’]


1 The trial court’s docket reflects that on February 7, 2017, Judgment was
entered against the Gantalaos and in favor of Royer. Because the trial
court’s December 16, 2016 Order denying the Gantalaos’ Motion for Post-
Trial Relief was later reduced to judgment, and was the court’s final
pronouncement on the matter, it is properly appealable. See Johnston the
Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 513 (Pa. Super.
1995) (en banc) (holding that, although the appeal was taken from an order
denying post-trial relief, “jurisdiction in appellate courts may be perfected
after an appeal notice has been filed upon the docketing of a final
judgment.”).
J-A24033-17

     property. [Royer] subsequently built a spec[ulative] house on
     the property with the intention of reselling the improved
     property at a profit. During the construction of the spec house,
     [Royer] and/or [Royer’s] independent contractors intentionally
     and impermissibly intruded upon the [Gantalaos’] property and
     damaged the [Gantalaos’] drainage system by digging up the
     drainage pipe connected to the [Gantalaos’] house, intentionally
     cutting out an eight (8) foot section of pipe, and backfilling the
     hole. Upon backfilling the hole on top of the severed pipe, the
     severed pipe collapsed shut; thus, eliminating the possibility of
     draining water away from the [Gantalaos’] residence.

     The apparent objective for [Royer] and/or [Royer’s] independent
     contractors … to cut and remove a section of the [Gantalaos’]
     drainage pipe was to facilitate the installation of the drainage
     pipes to be connected to the new spec house, which were at the
     same level in the ground at the [Gantalaos’] drainage pipe. The
     removal of the section of the [Gantalaos’] drainage pipe,
     however, resulted in the lower level of the [Gantalaos’] home
     flooding. The ground water, with no way to properly drain,
     backed up inside the severed and blocked drainage pipe and
     spilled into the [Gantalaos’] finished basement.        In some
     instances, the water that had collected in the [Gantalaos’]
     basement was ankle deep.

     The flooding in the [Gantalaos’] basement ultimately caused
     extensive damage. The water had damaged all of the basement
     carpeting, as well as some of the furniture and other personal
     items that had been stored in the lower level of the [Gantalaos’]
     home. The flooding created a situation which required the
     [Gantalaos] to expend a significant amount of time and money
     on addressing and correcting the problem. The [Gantalaos] lived
     in their home while the basement was flooded for a period of
     approximately three (3) days before they were able to determine
     the source of the problem or a temporary fix. However, it was
     another three (3) months before the issue was entirely rectified.

Trial Court Opinion, 11/17/16, at 1-3.

     On December 20, 2011, the Gantalaos filed a Complaint against Royer,

alleging claims of trespass and negligence. Royer filed an Answer. The case

proceeded to a non-jury trial on October 18, 2016.      Thereafter, the trial


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court entered a verdict in favor of Royer. The Gantalaos filed a Motion for

Post-Trial Relief, which the trial court denied. The Gantalaos filed a Notice of

Appeal. Subsequently, Judgment was entered in favor of Royer and against

the Gantalaos.

      On appeal, the Gantalaos raise the following questions for our review:

      I.    Whether the [trial] court erred as a matter of law when it
            determined that [Royer] was not liable under a theory of
            intentional trespass to land committed by his independent
            contractor based upon a finding that [Royer] did not know
            of[] or direct the trespass, when the law of the
            Commonwealth related to trespass to land would expressly
            impose liability upon a trespassing defendant and/or his
            independent contractor whether or not the trespasser had
            actual knowledge that he was committing a trespass[?]

      II.   Whether the [trial] court erred as a matter of law when it
            determined that [Royer] was not liable under a theory of
            intentional trespass to land committed by his independent
            contractor based upon a finding that [Royer] did not know
            of or direct the trespass, when the independent contractor
            was acting for the commercial benefit of [Royer], [Royer]
            took the full benefit of the work done by his independent
            contractor while committing the trespass, and the evidence
            would indicate that the independent contractor knew, or
            should have known[,] that he was trespassing at the time
            he exposed and severed the [Gantalaos’] drainage pipe[?]

Brief for Appellants at 5 (some capitalization omitted).

             Our 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



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J-A24033-17

      on an error of law. However, where the issue concerns a
      question of law, our scope of review is plenary.

            The trial court’s conclusions of law on appeal originating
      from a non-jury trial are not binding on an appellate court
      because it is the appellate court’s duty to determine if the trial
      court correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664–

65 (Pa. Super. 2014) (citation, brackets and ellipses omitted).

      We will address the Gantalaos’ claims together.2          The Gantalaos

contend that the trial court erred as a matter of law in finding that Royer

was not liable for trespass. Brief for Appellants at 14, 19. The Gantalaos

argue that the fact that Royer did not know of, or direct the trespass is

irrelevant, as liability for trespass does not rely upon Royer’s actual

knowledge of the trespass. Id. at 14, 16-17, 18. The Gantalaos claim that

in the absence of any evidence, the trial court should have inferred that

Royer is answerable for the persons who committed the trespass. Id. at 18;

see also id. at 17-18 (asserting that the reasonable facts demonstrate that

Royer approved of the construction and accepted the benefit of selling the

property and, thus, is liable for trespassing), 19 (arguing that the trial court




2 As part of their second claim on appeal, see Brief for Appellants at 19, the
Gantalaos incorporate by reference the argument they set forth in their first
claim. It is well-settled that “[w]hen an appellant attempts to incorporate by
reference issues addressed elsewhere and fails to argue them in his brief,
the issues are waived.” Moses Taylor Hosp. v. White, 799 A.2d 802, 804
(Pa. Super. 2002); see also Pa.R.A.P. 2119(a). While the Gantalaos fail to
conform to the Pennsylvania Rules of Appellate Procedure, we will address
the Gantalaos’ second claim in conjunction with their first claim.


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J-A24033-17

erred as a matter of law in failing to find that Royer trespassed on the

Gantalaos’ property where the independent contractor “was acting for the

commercial benefit of [Royer], [Royer] took the full benefit of the work done

by his independent contractor …, and … the independent contractor knew, or

should have known[,] that he was trespassing at the time he exposed and

severed the [Gantalaos’] drainage pipe.” (capitalization omitted)).          The

Gantalaos also assert that Royer failed to plead or establish that he had a

relationship with an independent contractor such that Royer had no

knowledge of the trespass and therefore could avoid liability. Id. at 14-15,

18.

      Under Pennsylvania law,

      One is subject to liability to another for trespass, irrespective of
      whether he thereby causes harm to any legally protected
      interest of the other, if he intentionally

       (a) enters land in the possession of the other, or causes a
           thing or a third person to do so, or
       (b) remains on the land, or
       (c) fails to remove from the land a thing which he is under a
           duty to remove.

      Restatement (Second) of Torts § 158 (1965) … “The word
      ‘intent’ is used throughout the Restatement [(Second) of Torts]
      to denote that the actor desires to cause [the] consequences of
      his act, or that he believes that the consequences are
      substantially certain to result from it.” Restatement (Second) of
      Torts § 8A ….

      In the context of a trespass, “intent” refers to intent to be on the
      land. Kopka [v. Bell Tel. Co. of Pa.], 91 A.2d [232,] 235 [(Pa.
      1952)].




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J-A24033-17

     It is, therefore, immaterial whether or not [the actor] honestly
     and reasonably believes that the land is his own, or that he has
     the consent of the possessor or of a third person having power
     to give consent on his behalf, or that he has a mistaken belief
     that he has some other privilege to enter.

     Id. (quoting Restatement (First) of Torts § 158 cmt. i). Stated
     another way, a person is a trespasser merely by intending to be
     where he is. The intent to be on another’s land is not required
     to prove trespass. …

     Additionally, one who intentionally causes a third person to enter
     another’s land is liable for trespass:

       If, by any act of his, the actor intentionally causes a third
       person to enter land, he is as fully liable as though he himself
       enters. Thus, if the actor has commanded or requested a
       third person to enter land in the possession of another, the
       actor is responsible for the third person’s entry if it be a
       trespass. This is an application of the general principle that
       one who intentionally causes another to do an act is under the
       same liability as though he himself does the act in question.
       So too, one who by physical duress causes a third person to
       go upon the land of another or who carries the third person
       there against his will is liable as a trespasser, although the
       third person may not be liable.

     Restatement (Second) of Torts § 158 cmt. j. A person who
     “authorizes or directs” another to trespass “is himself liable as a
     trespasser to the same extent as if the trespass were committed
     directly by himself.” Kopka, 91 A.2d at 235. “[T]his is true
     even though the authority or direction be given to one who is an
     independent contractor.” Id.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal

Practical Knowledge, 102 A.3d 501, 506–07 (Pa. Super. 2014) (footnote,

emphasis, and citation omitted).

     The trial court addressed the Gantalaos’ claims as follows:

     In the case at bar, [Royer] was the titled owner of the property
     adjacent to [the Gantalaos’] property. [Royer] employed his


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J-A24033-17

      contractor(s) to construct the drainage system for [Royer’s] spec
      house and directed them to install it. However, while it is
      established that either [Royer] or his contractor(s) at some point
      trespassed onto the [Gantalaos’] property while installing the
      drainage system, no evidence has shown that [Royer] actually
      committed the trespass, or authorized or directed any such
      trespass. Instead, all that can be ascertained from the record is
      that there was in fact a trespass onto [the Gantalaos’] property,
      and extensive damage was caused when the [Gantalaos’]
      drainage pipe was removed. The record remains unclear as to
      who impermissibly intruded upon [the Gantalaos’] property, or if
      it was ever at [Royer’s] direction. Therefore, [the trial c]ourt
      cannot hold [Royer] liable for trespass.

Trial Court Opinion, 11/17/16, at 4.

      We are constrained to agree and note that, at the non-jury trial, the

only testimony presented was that of the Gantalaos and Fred Boyce, the

owner-operator of Roto-Rooter, who repaired the Gantalaos’ drainage pipe.

The Gantalaos did not present any testimony from Royer or the independent

contractor who performed the work.        At trial, the Gantalaos’ attorney

indicated that Royer had given a deposition on September 14, 2015, and

wanted to read into the record the portion where Royer admitted “that he

had constructed this home on that particular site.” N.T., 10/18/16, at 53.

Royer’s counsel stipulated to the fact that Royer owned the property and

constructed the home on the site. Id. The deposition was not entered into

the record, and neither party describes the contents of the deposition. See

Love-Diggs v. Tirath, 911 A.2d 539, 541 (Pa. Super. 2006) (stating that

“[i]t is an appellant’s duty to insure that the certified record contains all

documents necessary for appellate review.”) (citation omitted).



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J-A24033-17

        Furthermore, the Gantalaos’ reliance upon 75 Am.Jur.2d Trespass

§ 55,3 see Brief for Appellants at 17, is misplaced in light of the lack of

evidence in this case. As noted above, the Gantalaos presented no evidence

that Royer directed, authorized, commanded, encouraged, or cooperated in

the trespass.       The fact that Royer owned the spec home and ostensibly

benefited from the trespass does not demonstrate that he knew about,

approved, or accepted the trespass where the Gantalaos introduced no

evidence     regarding      this   assertion.       Further,   without   any   evidence

demonstrating Royer directed, authorized, or accepted the trespass, we

cannot infer Royer’s liability.       Additionally, there is no evidence that Royer

controlled the manner in which the independent contractor constructed the

drainage system. See Beil v. Telesis Const., Inc., 11 A.3d 456, 466 (Pa.

2011)     (noting    that    “[o]ne    who      entrusts   work   to   an   independent




3   Section 55 states the following, in relevant part:

        A person may be liable for causing someone else to commit a
        trespass.    All persons who command, instigate, promote,
        encourage, advise, countenance, cooperate in, aid, or abet the
        commission of a trespass, or who approve of it after it is done, if
        done for their benefit, are co-trespassers with the person
        committing the trespass, and are liable as principals to the same
        extent and in the same manner as if they had performed the
        wrongful act themselves. Thus, although entry is a requisite of a
        trespass, one is also liable for causing a third person to do so,
        and a trespasser who did not personally and physically invade
        still may be liable for having caused or directed another person
        to trespass.

75 Am.Jur.2d Trespass § 55.


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contractor, but who retains the control of any part of the work, is subject to

liability …”); see also id. at 467 (noting that where “the evidence fails to

establish the requisite retained control, the determination of liability may be

made as a matter of law.”). Thus, we are constrained to conclude that the

trial court properly denied the Gantalaos’ Motion for Post-Trial Relief.4

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/22/2017




4 The Gantalaos do not raise an argument related to their negligence claim in
their appellate brief.


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