J-A03010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARJORIE STEIN                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD F. GRABOWSKI AND SALLY             :
    L. GRABOWSKI, HUSBAND AND                  :
    WIFE                                       :
                                               :
                       Appellants              :   No. 556 WDA 2018

              Appeal from the Judgment Entered March 23, 2018
      In the Court of Common Pleas of Allegheny County Civil Division at
                           No(s): G.D. 15-018110

BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER,* J.

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 12, 2019

       Richard F. Grabowski and Sally L. Grabowski (“Grabowskis,” collectively)

appeal from the judgment entered against them and in favor of Marjorie Stein

following a non-jury trial in this quiet title action.1 We vacate the judgment

and remand for proceedings consistent with this memorandum.

       The trial court offered the following summary of the facts of the case.

            This case primarily concerns a disputed area of land located
       between two adjacent, properties and the conduct of their
____________________________________________


1 Although the Grabowskis purport to appeal from the March 19, 2018 order
that denied their motion for post-trial relief, the appeal properly lies from the
subsequent entry of judgment on the trial court’s verdict. See, e.g., U.S.
Bank, N.A. v. Pautenis, 118 A.3d 386, 388 n.2 (Pa.Super. 2015) (providing
appeal to Superior Court can only lie from judgment entered after the trial
court’s disposition of any post-verdict motions, not from the order denying
post-trial motions). We have amended the caption accordingly.



*    Retired Senior Judge assigned to the Superior Court.
J-A03010-19


       predecessors in title with respect to that disputed land. Stein is
       the current owner of the property at 2521 Old Washington Road,
       Pittsburgh, Pennsylvania 15241 (the “Stein property”).        The
       Grabowskis are the current owners of the property at 2511 Old
       Washington Road, Pittsburgh, Pennsylvania 15241 (the
       “Grabowski property”). These properties are adjacent to one
       another with the Grabowski property situated north of the Stein
       Property.[2]

             Stein’s parents, Frank and Florence Dolanch, purchased the
       Stein property and constructed a house on it in 1951. Stein was
       raised on the Stein property and left briefly when she was married
       in 1967. Stein’s mother conveyed the Stein property to her in
       1995. In 2000, Stein’s daughter occupied the Stein property when
       Stein’s mother went into a nursing home. Stein’s daughter lived
       in and maintained the property until 2003, at which time Stein
       moved back onto the Stein property. Throughout the time that
       Stein did not occupy the Stein property as her home, she lived
       within a few miles of the property and she stayed in contact with
       her parents and visited regularly.

            Prior to 2001, when the Grabowski[s] purchased their
       property, it was owned by William and Martha Stevenson, Stein’s
____________________________________________


2Purely for ease of visualization, we offer the following diagram of the land in
question, which is a modified version of Exhibit A to the trial court’s verdict.




                                           -2-
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     uncle and aunt. The Stevenson[s] had purchased the Grabowski
     property in 1950 and subsequently built their house. Mr. and Mrs.
     Stevenson are deceased but their son, Walter Stevenson, did
     testify regarding the recognized boundary lines prior to the
     Grabowski[s’] ownership of their property. . . .

           On the Stein property, there is a driveway leading to Stein’s
     residence which has existed at that location since approximately
     1951. Immediately north and adjacent to . . . Stein’s driveway is
     a slope or bank which rises northward and, levels out
     approximately at the top of the ostensible front yard of the
     Grabowski property. The east-west trajectory of the top of the
     slope of this bank extends from the west, at Old Washington Road
     in the area of Stein’s mailbox, to the east where there is a stand
     of evergreen trees planted on Stein’s side-yard (referred to as the,
     “bank”).

           Fifteen years after purchasing the Grabowski property,
     Richard Grabowski informed Stein that he believed he owned the
     disputed property described above. Richard Grabowski admitted
     that he did not have a survey completed prior to his purchase of
     the Grabowski property, which may have resolved this dispute.
     Stein asserts that an observed boundary line has been established
     by the doctrine of consentable lines, which is often referred to as
     the “consentable” or “observed” boundary line. The Grabowskis
     rely exclusively upon the deed description and surveys, but not on
     the conduct of the predecessors to the respective properties, and
     claim that a triangular section of the bank and entire front part of
     Stein’s driveway are their property (referred to as the “disputed
     property”).

Trial Court Opinion, 7/16/18, at unnumbered 1-4 (citations, footnotes, and

unnecessary capitalization omitted).

     Stein filed a complaint against the Grabowskis, seeking a declaratory

judgment that she became the owner of the disputed property through the

doctrine of consentable lines and stating counts sounding in quiet title and

ejectment. Complaint, 8/15/16, at ¶¶ 21-31. The Grabowskis filed an answer

and raised a counterclaim seeking a declaration that the boundary was that

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reflected in the deeds, as well as claims of quiet title and ejectment. Answer,

9/6/16, at ¶¶ 32-49. The case proceeded to a non-jury trial on October 23,

2017, after which the parties submitted briefs.       The trial court issued its

verdict by order filed January 17, 2018. Therein, the court found for Stein

and against the Grabowskis on the quiet title claim, declaring that Stein owned

the disputed property. The court further specified a new legal description for

Stein’s property, provided that the legal description of Grabowskis’ property

must conform to that new description, instructed Stein to record the order

with the department of court records, and directed Stein to pay for a survey

and staking of the corners of the new boundary. Non-Jury Verdict, 1/17/18,

at 2.

        The Grabowskis filed a timely post-trial motion, which the trial court

denied by order of March 19, 2018. Judgment was entered on the verdict on

March 23, 2018, and the Grabowskis filed a timely notice of appeal from that

judgment. Both the Grabowskis and the trial court complied with Pa.R.A.P.

1925, and the appeal is ripe for our disposition.

        The Grabowskis state the following rather verbose claims of error, which

we have reordered for ease of disposition:

        A.   The Court erred, as a matter of law, in concluding that the
             evidence presented by Plaintiff was sufficient to establish a
             consentable line because Plaintiff failed to clearly establish
             by a fair preponderance of the evidence that she laid claim
             to the contested property in a manner that was “actual,
             visible, notorious, distinct and hostile” to the rights of the
             Grabowskis.


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     B.   The Court erred, by abusing its discretion, in concluding that
          the evidence presented by Plaintiff was sufficient to
          establish a consentable line claimed by Plaintiff, when the
          deed dated September 5, 1995 and recorded June 25, 2001
          from Florence E. Dolanch, her now deceased mother, failed
          to include that portion of the real estate she now claims by
          consentable line.

     C.   Stein testified that two surveys of her property done in 2003
          and 2015, that were offered and admitted into evidence,
          and coupled with building permit applications, contained
          affirmations that the surveys accurately reflected the
          property boundaries of her property. The aforesaid surveys
          were consistent with the description contained in her deed.
          To ignore such testimony and sworn affidavits of Stein,
          which contradicts her claim of the location of the property
          line by recognition and acquiescence, namely a consentable
          line, is an error of law.

     D.   The Court admitted, over the Grabowskis’ objections,
          hearsay testimony from Stein, specifically permitting her to
          testify as to statements made to her by her deceased
          mother regarding where the property lines were located on
          the property. Those statements constituted yet another
          basis of Stein’s claim of the location of the boundary of the
          property by consentable line, other than as described in the
          deeds. Admission of such evidence constituted an error of
          law, notwithstanding the statement by the Court, at trial,
          that it was admitted, but not for establishing the truth
          thereof.

     E.   Establishing a binding consentable line by recognition and
          acquiescence requires both (i) a finding that each party
          claimed the land on his side of the line, and (ii) a finding
          that occupation has occurred for the statutory period of
          twenty-one years. However, Marjorie Stein, the Plaintiff
          (“Stein”) offered inconsistent evidence regarding the
          location of the boundary property line, offering at least four
          (4) different locations of the claimed boundary of the
          property. To establish a property line other than that as set
          forth in the deeds, as proposed by Stein, is an error of law.

     F.   Stein contends that lawn mowing activity on the Stein and
          Grabowski properties, in conjunction with topography,

                                   -5-
J-A03010-19


            creates a consentable line. Such acts, even if established,
            are not acts sufficient to establish an open manifestation of
            ownership as required to establish a consentable line under
            Pennsylvania law. Arbitrary lawn mowing does not rise to
            “notorious, distinct, and hostile” assertion of dominion over
            property as required to establish a contestable line in
            Pennsylvania and to conclude otherwise is an error of law.

Grabowskis’ brief at 4-5.

      We begin with a review of the applicable law:

      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 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) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568

(Pa.Super. 2005)).

      This Court has summarized the law regarding the doctrine of

consentable boundary lines as follows:

            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.
      Based upon a rule of repose sometimes known as the doctrine of
      consentable line, the existence of such a boundary may be proved
      either by dispute and compromise between the parties or
      recognition and acquiescence by one party of the right and title of
      the other.




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Moore v. Moore, 921 A.2d 1, 4-5 (Pa.Super. 2007) (cleaned up).               The

doctrine “is a form of estoppel, whereby once a consentable line has been

clearly established, the line becomes binding under application of the doctrine

of estoppel after twenty-one years.”     Long Run Timber Co. v. Dep’t of

Conservation & Nat. Res., 145 A.3d 1217, 1233 (Pa.Cmwlth. 2016)

(cleaned up). “[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.”

Soderberg v. Weisel, 687 A.2d 839, 843 (Pa.Super. 1997) (citation

omitted).

      Two elements must be proven to establish a boundary by consentable

line: “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.” Moore, supra at 5. In other words, in order

for a legal boundary to be established by acquiescence, “[i]t must . . . appear

that for the requisite twenty-one years a line was recognized and acquiesced

in as a boundary by adjoining landowners.”      Plauchak v. Boling, 653 A.2d

671, 676 (Pa.Super. 1995) (quoting Inn Le’Daerda, Inc. v. Davis, 360 A.2d

209, 215-16 (Pa. Super. 1976)).      Since “the finding of a consentable line

depends upon possession rather than ownership, proof of the passage of




                                      -7-
J-A03010-19


sufficient time may be shown by tacking the current claimant’s tenancy to that

of his predecessor.” Moore, supra at 5 (cleaned up).

       “‘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.’” Id. at 5 (quoting Zeglin v. Gahagen, 812 A.2d 558, 562

n.5 (Pa. 2002)).       “A consentable line by recognition and acquiescence is

typically established by a fence, hedgerow, tree line, or some other physical

boundary by which each party abides.”3 Long Run Timber Co., supra at

1234. “However, the fence line need not be as substantial as that required

for adverse possession.” Id.

       With these principles in mind, we turn to the issues before us. In their

first claim of error, the Grabowskis contend that the trial court erred in finding

for Stein because the evidence did not establish that her claim to the disputed

property was “‘actual, visible, notorious, distinct and hostile’ to the rights of

the Grabowskis.” Grabowskis’ brief at 4. Stein argues that this issue was not

raised in the Grabowskis’ post-trial motion, and is therefore not preserved for

our review.     See Stein’s brief at 18, 23.     Stein further asserts that the

Grabowskis’ argument conflates the doctrines of adverse possession and


____________________________________________


3  See, e.g., Zeglin, supra (fence and row of bushes); Plauchak, supra
(hedge); Niles v. Fall Creek Hunting Club, Inc., 545 A.2d 926 (Pa.Super.
1988) (strand of wire along survey line); Inn Le’Daerda, Inc., supra (tree
line and fence).

                                           -8-
J-A03010-19


consentable boundary, and notes that no adverse possession theory was

before the court at trial. See id. at 18, 21-23.

       We agree with Stein on both counts. Our review of the record confirms

that the issue was not included in the Grabowskis’ post-trial motion, and is

therefore waived. Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943,

976 (Pa.Super. 2009) (providing issues not raised in post-trial motion are

“deemed waived for purposes of appellate review”). Moreover, this claim, as

presented by the Grabowskis in their statement of questions, as well as in the

argument section that accompanies it,4 is focused upon the elements of

adverse possession, a separate and distinct legal theory that was not pled by

Stein. Compare Shaffer v. O’Toole, 964 A.2d 420, 423 (Pa.Super. 2009)

(stating elements of adverse possession as “actual, continuous, exclusive,

visible, notorious, distinct and hostile possession of the land for twenty-one

years”); with Zeglin, supra at 561 (providing the two elements of

establishing a consentable boundary are that “each party must have claimed

and occupied the land on his side of the line as his own,” and that “such

occupation must have continued for the statutory period of twenty-one

years”). See also Plauchak, supra at 675 (“[T]he doctrine of consentable



____________________________________________


4 See Grabowskis’ brief at 4, 30-52. To the extent that the Grabowskis’
argument as to this question is fairly suggested by other, preserved questions
they raise concerning the adequacy of Stein’s evidence to support the trial
court’s finding of a consentable boundary, we address it infra in the context
of their fifth and sixth questions.

                                           -9-
J-A03010-19


line is a separate and distinct theory from that of traditional adverse

possession[.]”).   For either of these reasons, the Grabowskis’ first issue

warrants no relief.

      The Grabowskis next argue that the trial court’s verdict is erroneous

because the disputed property is not included in the deed by which Stein

acquired her property from her mother.        Grabowskis’ brief at 52-56.      As

quoted above, the doctrine of consentable boundaries is based upon the

conduct of the adjoining landowners as to land “which may not have been

theirs under their deeds” and vests title accordingly, “regardless of what the

deed specifies.” Moore, supra at 5. Hence, the absence of the disputed land

from Stein’s deed does not resolve the question, and the issue merits no relief.

      The   Grabowskis    further   contend   that   the   trial   court   ignored

representations Stein made as to the accuracy of the deed description of the

boundary in the form of property surveys and building permit applications.

Grabowskis’ brief at 5.   The Grabowskis waived this claim of error by not

raising it in their post-trial motion. Estate of Hicks, supra at 976. In any

event, the trial court did not ignore the evidence, it merely did not find it

persuasive in resolution of the claim. See Trial Court Opinion, 7/16/18, at

unnumbered 11-12. As such, no relief is due.

      The Grabowskis’ next issue concerns the following exchange, which

occurred during the cross-examination of Stein at trial concerning the survey




                                     - 10 -
J-A03010-19


done at her behest in 2003 in connection with building an addition to her

home.

     Q     Now, when you had him do the survey, did you know where
           the survey lines were? Before he did that, did you know
           that, for example, it went across the end of the driveway?

     A     No. I knew where the line was that ended at the locust
           trees.

     Q     I’m talking about the actual property line, the survey line.

     A.    I’m not a surveyor, sir. I did not know -- I had assumed
           that what my mother had always told me, --

     Q     I’m not asking you -- you can’t tell me what your mother
           told you.

           THE COURT:          I’m going to let her finish the answer.

           MR. AUDLEY:         I object to [her] telling what her mother
                               may have told her.

           THE COURT:          It’s not offered for the truth. You asked
                               her a question about the survey, and she
                               has an understanding. I’m going to let
                               her answer that question. I’m not taking
                               it for the truth, of the matter. Again, I’m
                               going to let her finish the answer on that
                               one. You asked, did she know about the
                               survey, and she’s going to explain what
                               she knew. I’ll let her do that.

     A     When Larry Elliott did the survey, he did, not do it himself.
           He had two men who did it for him. When he gave it to me,
           I was stunned to see that there was a line going, across my
           driveway because my mother had always told me and we
           sat out, on our front porch for months and months and
           months, if you ever added them up, and one of the
           conversations we always had was where does the -- where
           do you cut? Do you cut all the way down there? Is the end
           of the property at the end of the locust trees on the bank?
           And mother would say, yes, that’s exactly where-that is.

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J-A03010-19


            Especially important, after 1995 because I really needed to
            know where they were, and nobody had ever done a survey
            since they first put in the house in 1951.

N.T. Trial, 9/7-8/17, at 115-16.

      The Grabowskis argue that Stein’s testimony concerning statements her

mother made about the location of the boundary lines was offered for the truth

of the matter asserted and, therefore, was inadmissible under the rule against

hearsay.    Grabowskis’ brief at 70-74.       The trial court addressed the

Grabowskis’ argument as follows.

            In response to a question on cross examination regarding
      her understanding as to the location of the boundary line the court
      admitted Stein’s testimony that her understanding was derived
      from what her mother had always told her about the location of
      the boundary line over the objection of Grabowski. This court
      ruled that it was not being offered for the truth of the matter
      asserted and further, it was offered in response to defense
      counsel’s cross examination question about the survey and her
      understanding about the boundary line and why she believed the
      survey to be incorrect. This admission was not a deciding factor
      in the court’s finding of a consentable line in favor of Stein and
      was not considered for the truth of the matter asserted.

Trial Court Opinion, 7/16/18, at unnumbered 12 (unnecessary capitalization

omitted).

      Our review of the record and the trial court’s explanation of its ruling

reveal no abuse of discretion or reversible error. From the full exchange, it is

clear that Stein’s testimony was not offered to show that the survey line was

where her mother said it was. Indeed, Stein acknowledged throughout the

trial that her understanding of the boundary was not consistent with that

described by the deed, and, hence, her mother’s statements were not true.

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Rather, the statements were offered to establish the basis of Stein’s

assumption as to the location of the line. Statements offered to show the

effect on the listener or explain a course of conduct are not hearsay. See,

e.g., S.W. v. S.F., 196 A.3d 224, 232 (Pa.Super. 2018) (course of conduct);

Schmalz v. Manufacturers & Traders Tr. Co., 67 A.3d 800, 803 n.3

(Pa.Super. 2013) (effect upon listener).      Accordingly, the admission of the

testimony establishes no basis for relief.

      With their final claims, the Grabowskis assert that Stein failed to

establish that she had acquired title to the disputed property through the

doctrine of consentable lines. Specifically, they contend that there was no

evidence of any formal agreement or discussions between the adjoining

landowners concerning a new boundary.         Grabowskis’ brief at 41-42. The

Grabowskis maintain that, other than the obvious encroachment by the

driveway, the evidence showed no consistently-recognized line “demarcated

by blatant physical barriers such as fences or hedges” to warrant

establishment of a boundary other than that provided in the deeds. Id. at 37,

59.   The Grabowskis further argue that Stein’s evidence concerning the

placement of her mailbox, mowing of the lawn, and tree lines did not

adequately manifest ownership of the disputed area. Id. at 39-52, 59-62.

      The trial court offered the following evaluation of the testimony in

explaining its conclusion that Stein acquired title to the disputed property by

the doctrine of consentable lines.


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           The evidence is clear that the prior owners of the two
     adjacent properties (the Stevensons and Dolanchs) had observed
     a consentable boundary that deviated from their deed descriptions
     and surveys for approximately fifty (50) years prior to [when] the
     Grabowskis purchased their property from the Stevensons in
     2001.

          Stein presented clear and convincing evidence that her
     parents constructed a house and installed a driveway in 1951
     which encroached the boundary line found in the deed descriptions
     and later surveys. Beyond the driveway, the court finds the
     placement of the Dolanchs’ mailbox on the disputed strip of
     property in 1962 as further evidence of their control and the
     Stevensons[’] acquiescence to the consentable boundary line.

           The court also found sufficient evidence that when the
     Dolanchs installed their driveway they also took control and
     maintained the strip of land that abutted their driveway which ran
     from Old Washington Road up the hill to a stand of pine trees that
     they had planted.      This maintenance included mowing the
     disputed property, applying fertilizer to the grass, as well as raking
     the leaves.

           Stein testified that her brother and her father began mowing
     the bank in approximately 1953, and that they stopped mowing
     “where the bank came up and leveled off:” Stein testified that
     multiple other people, either in her family or engaged by her
     family, mowed the bank since that time and up to the present day
     for 64 years. There is no contradictory evidence that from 1953
     through 2001 both sets of property owners consistently
     recognized and observed mowing [to] the line at the top of the
     bank.

           Walter Stevenson’s testimony further supported Stein’s
     assertion that the disputed property belonged to her and that the
     consentable line was recognized and acquiesced to by the
     Stevenson[s]. His testimony showed that he mowed the level
     portion of the lawn of the Grabowski Property beginning in 1954
     but that he did not, nor ever had mowed the bank. The bank was
     never mowed or maintained in any way by or on behalf of the
     Stevenson[s] for about 46 or 47 years. Stevenson testified that
     the Dolanchs, Stein’s parents, mowed and maintained the bank
     from approximately 1953 onward.


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           Scott Grabowski did testify that when the Stein house was
     unoccupied they hired someone from Peters Township Public
     Works to come intermittently to cut the grass. During this time
     period, Scott Grabowski mowed a portion of the bank south of the
     top of the slope in 2001, but he did so because, in his opinion, the
     lawn was not being maintained (evidencing his presumption that
     it should be maintained by the Steins), and he mowed the bank
     because he “did not want to look at it.” Once Stein resumed her
     occupancy of the residence in 2003, her husband resumed
     mowing the bank and has continued to do so ever since. Scott
     Grabowskis [sic] has never maintained the bank at any other time.

            Beyond the maintenance of the bank, this court found
     significant uncontroverted evidence, that when both properties
     where transferred in 1951, a stand of locust trees ran along
     Washington Road fronting both properties. The locust trees were
     subsequently removed from the Stein property as well as trees on
     the Stevenson property at about the same time that the Stein
     driveway was installed, in approximately 1951. The removal of
     the trees on the Grabowski property by the Dolanchs created a
     clear view of Washington Road for vehicles exiting the Stein
     driveway.

           As a result of the removal of the locust trees by the Dolanchs
     on the Grabowski property, and the continued control of that area
     by the Steins, the end of this stand of locust trees running along
     Old Washington Road at the front of the Grabowski Property and
     ending at the top of the slope of the bank and the Stein’s mailbox
     delineated the observed boundary. A photograph was admitted
     from 1967 which shows the end of the cluster of locust trees and
     shrubbery in the same location ‘as another photograph from 1997.
     Another photograph which is approximately from 1960 or 1961
     shows the same location of these trees and shrubs ending at the
     observed boundary line.

           ....

           Lastly, the Court gave significant weight to the conduct of
     Scott Grabowski during the relevant period. As the occupant of
     the Grabowski property, Scott Grabowski maintained the lawn
     north of the consentable line. In approximately 2004 or 2005, he
     removed the locust trees and shrubs along Old Washington Road.
     He also “leveled out,” or reduced the slope along Old Washington
     Road, the area where he removed the locust trees on the

                                    - 15 -
J-A03010-19


      Grabowski Property. He did so to make his lawn easier to mow
      with his riding mower; however in doing so, he did not go beyond
      the top of the slope of the bank with his grading or in doing any
      lawn maintenance. In doing so, Scott Grabowski supported the
      idea that the consentable line had been established by the conduct
      of the predecessors in title.

             In all, this court finds that there was clear and convincing
      evidence to show that a consentable boundary line had been
      recognized and acquiesced to for approximately 50 years;
      significantly more than the requisite amount of time under the
      law. Stein provided evidence to show that both [she and her
      predecessors], as well as the predecessors in title to the
      Grabowski[s’] property, recognized the disputed property
      belonged to her. Stein’s testimony showed that she and her family
      had always maintained the bank. William Stevenson testified that
      during the relevant period from approximately 1951 until 2001,
      his family had never mowed or maintained the bank in anyway.
      Even after the Grabowskis purchased their property in 2001, the
      conduct of both the Grabowskis and Steins recognized the
      disputed property belonged to Stein. As such, this court f[ou]nd
      that [Stein] ha[d] provided enough evidence to show a
      consentable line was established which deviated from the surveys
      and deed descriptions.

            ....

            The court correctly concluded, as a matter of law, [that] the
      pine trees at the top of the hill and the mailbox at the bottom
      established the consentable boundary line that the adjacent
      landowner[s] recognized and acquiesced to for 50 plus years by
      maintaining their property up to that line.

Trial Court Opinion, 7/16/18, at unnumbered 6-10, 12 (citations and

unnecessary capitalization omitted; emphasis in original).

      Our review of the record reveals that the trial court’s findings and

conclusions are supported and legally correct in all respects but for the location

of the consented-to line. Again, for the sole purpose of ease of our discussion




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of our ruling, and not to establish any property rights, we offer the following

diagram of the relevant portion of the property.5




       The trial transcript shows that Stein offered testimony, credited by the

trial court,6 that both adjoining landowners had treated the crest of the slope

or bank north of Stein’s driveway (represented in the diagram by the dashed

line) as the line separating their properties for half a century before the

Grabowskis purchased the land, despite the fact that the deeds established a

different line. Walter Stevenson testified that from 1952 to 2001, he mowed

the property that is now the Grabowski property up to a line of locust trees at

the top of the bank, but never mowed the slope although he knew that the

property line was at the bottom of the slope. N.T. Trial, 9/7-8/17, at 28-29,

____________________________________________


5 Stein’s surveyor witness testified that the mow line coincides with the top of
the bank, and is represented by the dashed line in the diagram. See N.T.
Trial, 9/7-8/17, at 161-62.

6 As the Grabowskis acknowledged during their opening statement, “at the
end of the testimony it’s going to be a question of [the trial court] judging the
credibility of [Stein’s] witnesses.” N.T. Trial, 9/7-8/17, at 14. This Court is
bound by the trial court’s credibility determinations.

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43. Rather, the Dolanchs (Stein’s father and brother) mowed the bank in

addition to the property specified in the deed. Id. at 29. Stein confirmed the

mowing history, and testified to other activities she and her family conducted

on the land between the boundary specified by the deed and the line of locust

trees at the top of the slope, including application of lawn treatments

(resulting in the lawn being a different color from that of the Grabowskis’

lawn), removing and planting trees, and raking leaves. Id. at 55-58, 62-63,

77.

       Furthermore, the Grabowskis’ son Scott, who has been the only

occupant of their property since they purchased it, continued this treatment

of the top of the slope as the boundary of the property by mowing to that line

and no farther, except when the Stein property was unoccupied and he found

the lack of lawn maintenance unsightly. Id. at 133, 187, 197. Indeed, when

grading the southwestern portion of the Grabowskis’ property and clearing

leaves and other debris from the Stein’s trees that had collected on the

Grabowskis’ property, Scott Grabowski went to the crest of the slope and

stopped, rather than continuing to the line indicated by the deeds. Id. at 88,

184.

       We might agree with the Grabowskis that the above evidence would be

insufficient to establish a consentable boundary if it merely showed that Stein

and her predecessors treated the disputed property as their own, without any

sign that the she and her predecessors, along with the Grabowskis’


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predecessors, recognized and consented to a particular line as a boundary

line. See Plauchak, supra at 676 (“It must . . . appear that for the requisite

twenty-one years a line was recognized and acquiesced in as a boundary

by adjoining landowners.”) (citation omitted; emphasis added). However, the

evidence discussed above fully supports the trial court’s finding that, for more

than twenty-one years, both Stein and/or her predecessors and the

Grabowskis’ predecessors recognized and acquiesced to an obvious physical

demarcation on the land as the boundary between their respective land:

namely, the top of the slope north of Stein’s driveway.7

       To the extent the Grabowskis argue that the evidence was not consistent

as to the location of the observed boundary, we disagree. The evidence from

multiple sources pointed to the top of the bank as the boundary that was

recognized by the adjoining landowners for far more than twenty-one years.

Further, the Dolanchs and Stein continuously occupied the land up to the crest

of the bank during that time, and the Stevensons and Grabowskis passively

acquiesced to that line. Hence, the trial court did not err in concluding that

Stein proved both elements of her consentable-line claim. See, e.g., Moore,

supra at 5.




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7 Stein’s surveyor witness testified that the bank of the disputed property is
of a “substantially different grade than the balance of the Grabowskis’
property.” N.T. Trial, 9/7-8/17, at 153.

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      However, there is an inconsistency between the trial evidence and the

boundary adopted by the trial court in its verdict.      Although, as discussed

above, the consent line was established to be at the crest of the slope, the

trial court instead accepted Stein’s proposed property line and set it as the

new boundary for purposes of the parties’ recording of new deeds and having

a surveyor placing monuments on the land to reflect the new legal

descriptions. The line established by the trial court was created by Stein’s

surveyor by making “a simple a straight line as [he] could that encompassed

or tried to traverse the top of the slope and terminate[d] at the Steins’ mailbox

on Old Washington Road.” N.T. Trial, 9/7-8/17, at 148.

      From the survey, it appears that this line awards to Stein a significantly

greater amount of land than she is entitled to receive.         The doctrine of

consentable lines allows a successful plaintiff to obtain title only to the land

on her side of the consent line and no more.    See Soderberg, supra at 843

(“[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.”

(emphasis added).

      Accordingly, while we affirm the trial court’s verdict to the extent that it

found in favor of Stein and against the Grabowskis, we vacate the judgment

and that portion of the verdict that established Stein’s proposed boundary line

rather than the proven consent line at the top of the bank as the new




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boundary.     We remand the case for the trial court to enter a new verdict

incorporating the correct property line.8

       Judgment vacated. Verdict affirmed in part and vacated in part. Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judge Shogan joins the memorandum.

Judge Strassburger files a concurring memorandum.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2019




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8We leave to the trial court’s discretion the decision whether an additional
hearing is necessary to aid its crafting of a new verdict and/or exhibits thereto.

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