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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

FREDERIC J. AMMERMAN AND                     :   IN THE SUPERIOR COURT OF
DONA M. AMMERMAN,                            :         PENNSYLVANIA
HUSBAND AND WIFE                             :
                                             :
                       v.                    :
                                             :
CHRISTOPHER J. SHAFFER AND                   :
BETH A. SHAFFER,                             :
HUSBAND AND WIFE,                            :           No. 387 WDA 2014
                                             :
                            Appellants       :


                Appeal from the Order Entered February 19, 2014,
                in the Court of Common Pleas of Clearfield County
                        Civil Division at No. 2010-419-CD


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED OCTOBER 03, 2014

         Appellants, Christopher J. Shaffer and Beth A. Shaffer (“the Shaffers”),

appeal from the order granting appellees, Frederic J. Ammerman and

Dona M. Ammerman (“the Ammermans”), possession of a strip of property

running      between    their   respective   household    properties   by   adverse

possession. Finding no error, we affirm.

         The following synopsis is distilled from the trial court’s findings of

fact:1



* Retired Senior Judge assigned to the Superior Court.
1
  We have included some facts outside of the findings; we reference the
notes of testimony where we have done so.
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      The Ammermans acquired their property on June 28, 1986, and the

Shaffers acquired their property, which adjoins the Ammermans’ along a

north-south boundary, on June 11, 1998. At the time Frederic Ammerman

purchased his property, he was shown by his predecessor in title, a

Mr. Allison, a one-inch rebar located in the western corner of the boundary

between the Ammerman and Shaffer properties. Allison indicated that this

marked the property line which ran east out to the street (“the Allison line”).

When the Shaffers moved into their property, Frederic Ammerman showed

the rebar to Christopher Shaffer and motioned where the property line ran.

(Notes of testimony, 3/5/12 at 123-124.)         In the ensuing years, the

Ammermans took care of the small, sloped strip demarcated by the

Allison line, mowing grass, raking leaves, weeding, reseeding, and other

activities.   Neighbors, whom the trial court specifically found credible,

confirmed this activity. Young men who were hired by the Ammermans to

perform yard work also testified to caring for this strip.   The Ammermans

also erected a fence within the claimed land and took down a different fence

within the claimed land without complaint from the Shaffers.

      Eventually, in preparing to construct a garage, the Shaffers had a

survey conducted of their property. (Id. at 133-134.) Curry and Associates

(“Curry”) performed a survey and produced a map dated March 18, 2009.

Curry discovered the actual pins marking the property line between the

properties.    The Curry survey (“the Curry line”) revealed that the



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Allison rebar is, in fact, 1.12 feet into the Shaffer property, and that the

Allison line cuts a small triangular strip from the Shaffer property that is

.42 feet wide at its narrowest, 8.39 feet at its widest, and comprises

approximately 984 square feet.

      In 2003, before the dispute arose between the parties, a large pine

tree was removed from this strip of land. Significantly, the parties agreed to

split the cost of removing this tree. In their post-trial motion, filed April 23,

2012, the Shaffers asserted that this tree was located on the Curry line. The

trial court specifically found that the tree was located on the Allison line.

(Finding of Fact No. 12.)2

      On March 15, 2010, the Ammermans initiated legal action, filing a

complaint seeking to quiet title and a declaratory judgment that they owned

the strip in question by adverse possession. Following the Shaffers’ answer

and new matter, testimony was taken from various witnesses. On April 12,

2012, the trial court found in favor of the Ammermans deciding that they

had proven by a preponderance of the evidence that they had acquired the

strip of land through adverse possession. On April 23, 2012, the Shaffers

filed a motion for post-trial relief. In that motion, the Shaffers essentially

argued that by agreeing to split the cost of removing the pine tree, the




2
  The Curry survey map appears to show the tree stump midway between
the Allison and Curry lines.


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Ammermans recognized that the Shaffers had title to the disputed strip such

that it defeated a claim of adverse possession.

      On September 18, 2012, the Shaffers filed a timely notice of appeal.

On October 4, 2012, the Shaffers filed a Statement of Matters Complained of

on Appeal that raised the following issues:

            1.    Does the mowing by one neighbor with the
                  consent of the other constitute conduct
                  sufficient to make a successful claim of
                  adverse possession when neither were sure of
                  the precise location of the common boundary?

            2.    Does occasional weeding or planting behind a
                  “boundary” fence constitute conduct sufficient
                  to make a successful claim of adverse
                  possession?

            3.    Does the cost sharing arrangement for
                  expenses incurred when a large tree in the
                  area of the actual boundary toll any claim of
                  adverse possession?

Statement of Matters Complained of on Appeal, 10/4/12.

      On appeal, this court did not address the above issues. Rather, this

court found that the trial court had applied the wrong burden of proof,

preponderance of the evidence, to the Ammermans’ claim; adverse

possession must be demonstrated by clear and convincing evidence.

Ammerman v. Shaffer, 87 A.3d 893 (Pa.Super. 2013) (unpublished

memorandum)      See Stevenson v. Stein, 195 A.2d 268, 270 (Pa. 1963)

(“Of course, the burden of proving this adverse possession was upon the

plaintiff by credible, clear and definitive proof.”). Consequently, this court



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vacated the order and remanded for the trial court to re-assess the evidence

using the proper burden of proof.

     On February 10, 2014, the trial court re-affirmed its verdict using the

proper burden of proof. No post-trial motions were filed. On March 5, 2014,

the Shaffers filed their notice of appeal.       On March 31, 2014, the

Ammermans filed a motion to quash the appeal because the Shaffers failed

to preserve any issues by filing any post-trial motion. On April 1, 2014, the

Shaffers filed their Statement of Matters Complained of on Appeal which

raised the identical issues they had raised initially on appeal.   On May 6,

2014, this court denied the motion to quash without prejudice to raise the

matter before the panel.   We note that the Ammermans again argue that

this appeal should be quashed.      We must determine whether this appeal

must be quashed before endeavoring to analyze any of the issues raised on

appeal. We find that quashal is not warranted.

     The Ammermans contend that the Shaffers have waived their issues

under Pa.R.C.P., Rule 227.1, 42 Pa.C.S.A., by failing to file new post-trial

motions following the trial court’s verdict upon remand.       In Newman

Development Group of Pottstown, LLC v. Genuardi’s Family Markets,

Inc., 52 A.3d 1233 (Pa. 2012), this court quashed an appellant’s appeal

following remand for a recalculation of damages because the appellant failed

to file a second round of post-trial motions following the recalculation on

remand. Our supreme court vacated our decision and held that Rule 227.1’s



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requirement for post-trial motions to avoid waiver does not always apply to

remanded cases:

                  Obviously, if an appellate court remands for a
           new trial, the civil trial rules apply again, and in full
           force.      But, the circumstance here--not an
           uncommon scenario--involves a gray area, where
           there are to be further proceedings below, but the
           proceedings do not amount to a new trial. Remands
           may encompass a variety of proceedings: remand
           for a new trial, in whole or in part, remand for a
           ministerial act such as entry of judgment, remand
           for opinion or explanation, remand for an evidentiary
           hearing, remand to apply the ruling of the appellate
           court to settled facts, etc. Many remand proceedings
           may include submission of additional evidence, or
           resolution of disputed factual positions, a variety of
           iterations that would fall short of a full-blown trial.
           Thus, remands may encompass purely factual
           disputes, purely legal questions, mixed questions, or
           some measure of all questions. Our Rule as written
           does not purport to account for the variety of these
           remand proceedings. Rather, it speaks to “trials,” in
           the midst of a series of rules governing civil trial
           practice.

           ....

           Our primary holding remains that, notwithstanding
           the interpretation of the Superior Court which was
           powered by its accurate estimation of the Rule’s
           overriding purpose, the proper interpretation of the
           Rule is that it does not purport to address the
           remand scenario, and thus a party cannot be
           faulted--upon pain of waiver--for failing to file post-
           trial motions to a proceeding upon remand which
           amounts to less than an actual trial. A remand
           proceeding such as the one here, that relies on an
           existing record, is not a trial--even if the trial court
           draws different conclusions from that record to
           comport with an appellate court’s directive. Thus,
           the remand proceeding in this instance, where the
           trial judge merely reached a different damage


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            calculation based upon facts and contract terms
            already in the record, was not a “trial,” and
            Rule 227.1 does not apply.

Newman, 52 A.3d at 1246-1247, 1251.

      Instantly, upon remand, no new evidence was taken. The trial court’s

only function was to re-weigh the existing evidence using the appropriate

burden of proof. Under Newman, that does not constitute a new trial and

the Shaffers did not need to file new post-trial motions.

      Moreover, the purpose of post-trial motion practice has been often

stated:

                  The Pennsylvania Supreme Court in Sahutsky
            [v. H.H. Knoebel Sons, t/a Knoebel’s Grove, 782
            A.2d 996 (Pa. 2001)] determined that “issues not
            raised in post-trial motions are waived,” and
            reiterated:

                  the filing of post-trial motions . . .
                  ensure[s] that that the trial judge has a
                  chance to correct alleged trial errors.
                  This opportunity to correct alleged errors
                  . . . advances the orderly and efficient
                  use of our judicial resources.       First,
                  appellate courts will not be required to
                  expend time and energy reviewing points
                  on which no trial ruling has been made.
                  Second, the trial court may promptly
                  correct the asserted error.      With the
                  issue properly presented, the trial court
                  is more likely to reach a satisfactory
                  result, thus obviating the need for
                  appellate review on this issue. Or if a
                  new trial is necessary, it may be granted
                  by the trial court without subjecting both
                  the litigants and the courts to the
                  expense and delay inherent in appellate
                  review. Third, appellate courts will be


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                   free to more expeditiously dispose of the
                   issues properly preserved for appeal. . . .

            Id. citing Benson v. Penn Central Transp. Co.,
            463 Pa. 37, 342 A.2d 393, 394 (1975) (internal
            citations omitted).

D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d

915, 919 (Pa.Super. 2013).

      The Shaffers attempted to comply with post-trial motioning practice

when they filed their original post-trial motions on April 23, 2012. This court

did not address those issues before remanding the case to be re-decided

using the proper burden of proof.      We find that the issues raised in the

Shaffers’ original post-trial motion are properly before us for review. Thus,

for these reasons, the motion to quash will be denied.

      The Shaffers raise the following issues on appeal:

            1.     Does the mowing by one neighbor with the
                   consent of the other constitute conduct
                   sufficient to make a successful claim of
                   adverse possession when neither were sure of
                   the precise location of the common boundary?

            2.     Does intermittent weeding or planting behind a
                   fence, as well as trimming a large and unruly
                   hedge, coupled with a joint agreement in 2003
                   to remove a pine tree and share the expense,
                   constitute conduct sufficient to meet the
                   required hostility to support a claim of adverse
                   possession[?]

Shaffers’ brief at 4.

      We begin by noting our standard of review:




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                The case of Glenn v. Shuey, 407 Pa.Super.
          213, 595 A.2d 606 (1991) thoroughly sets forth the
          standard of review to be applied today and the
          substantive law of adverse possession, as follows:

                      At the outset, we note that “the
               factual findings of a trial court sitting
               without a jury carry the same weight as
               a jury verdict, and we will not disturb
               those findings on appeal absent an error
               of law or abuse of discretion.” Arcadia
               Co., Inc. v. Peles, 395 Pa.Super. 203,
               207-208, 576 A.2d 1114, 1116 (1990)
               (citing Pato v. Cernuska, 342 Pa.Super.
               609, 612, 493 A.2d 758, 759 (1985));
               see also Bigham v. Wenschhof, 295
               Pa.Super. 146, 148, 441 A.2d 391, 392
               (1982).

                      It is well settled that a party
               claiming title to real property by adverse
               possession must affirmatively prove that
               he or she had “actual, continuous,
               exclusive, visible, notorious, distinct, and
               hostile possession of the land for twenty-
               one years.” Conneaut Lake Park, Inc.
               v. Klingensmith, 362 Pa. 592, 594-95,
               66 A.2d 828, 829 (1949) (citing Parks
               v. Pennsylvania R.R. Co., 301 Pa. 475,
               152 A. 682 (1930)); see also Klos v.
               Molenda, 355 Pa.Super. 399, 513 A.2d
               490 (1986); Tioga Coal Co. v.
               Supermarkets General Corp., 289
               Pa.Super. 344, 433 A.2d 483 (1981),
               alloc. denied, 500 Pa. 555, 458 A.2d
               1355 (1983). Each of these elements
               must exist, otherwise the possession will
               not confer title. Conneaut Lake, 362
               Pa. at 594-595, 66 A.2d at 829. “An
               adverse possessor must intend to hold
               the land for himself, and that intention
               must be made manifest by his acts . . .
               He must keep his flag flying and present
               a    hostile    front   to    all   adverse


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                  pretensions.”   Klos, 355 Pa.Super. at
                  403, 513 A.2d at 492 (citations and
                  quotations omitted).

Brennan v. Manchester Crossings, Inc., 708 A.2d 815, 817 (Pa.Super.

1998), appeal denied, 727 A.2d 1115 (Pa. 1998), quoting Glenn v.

Shuey.

      In their first argument, the Shaffers contend that the trial court

committed a clear error of law in relying upon three cases:        Ewing v.

Dauphin County Tax Claim Bureau, 375 A.2d 1373 (Pa.Cmwlth. 1977),

Reed v. Wolyniec, 471 A.2d 80 (Pa.Super. 1983), and Brennan. In each

of these cases, adverse possession was found based upon the adverse

possessor’s actions in cutting and planting of grass on the subject property

(Ewing), planting and maintaining various flowers and shrubs on the subject

property and placing a pole for a bird house (Reed), and maintaining a

lawn, trimming bushes and trees, and raking leaves (Brennan).             The

Shaffers attempt to distinguish these cases on the basis that the property

adversely possessed constituted an entire lot as opposed to a narrow strip of

property between lots in a mature subdivision. The Shaffers do not explain

why this distinction is important, nor do they cite to case law explaining why

this distinction makes a difference, undoubtedly because such a distinction is

specious.   Furthermore, we direct the Shaffers’ attention to Klos v.

Molenda, 513 A.2d 490 (Pa.Super. 1986). Therein, Michael and Albina Klos

were found to have adversely possessed a narrow, 30-inch strip of land



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located between the parties’ lots in Scranton because they planted grass on

the strip and maintained it in excess of 21 years. We see no merit in the

Shaffers’ first argument.

      In their second argument, the Shaffers essentially argue that the

Ammermans’ conduct in maintaining the disputed property was merely

permissive and tolerated and the fact that the parties cooperated in the

removal of the pine tree vitiated the hostility element of adverse possession.

We disagree.

      As used in adverse possession, the term hostile does not imply ill-will,

but instead implies an assertion of ownership rights adverse to that of the

true owner and all others. Brennan, 708 A.2d at 818. Instantly, there was

more here than just the Ammermans’ yard work to establish hostile

possession. Christopher Shaffer admitted that when he first purchased the

Shaffers’ property, Frederic Ammerman showed him the Allison rebar and

indicated that the Allison line constituted the actual property line.      This

would also satisfy the hostile element as Frederic Ammerman was openly

asserting his claim of the property up to the Allison line to the true owner.

      We also do not find that the joint removal of the pine tree vitiated the

hostile element. A party might offer to pay a neighbor part of the cost of

removing a tree wholly on the neighbor’s property because the tree over

hangs the first party’s property and is considered a nuisance.         In other




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words, helping to pay for the removal of a tree is not necessarily an

indication or assertion of property rights.

      Accordingly, having found no error in the issues raised on appeal, we

will affirm the order below.

      Order affirmed. Motion to quash denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/03/2014




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