J-A29032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KENNETH SUCHMA AND JANICE                 :       IN THE SUPERIOR COURT OF
SUCHMA, Husband and Wife,                 :             PENNSYLVANIA
                                          :
                                          :
                   Appellants             :
                                          :
              v.                          :
                                          :
DAVID LASOTA AND CAROLINE                 :
LASOTA, Husband and Wife,                 :           No. 1932 WDA 2014

                 Appeal from the Order entered October 28, 2014
               in the Court of Common Pleas of Allegheny County,
                         Civil Division, No. GD-12-010229

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 05, 2016

      Kenneth Suchma and his wife, Janice Suchma (collectively “Suchma”),

appeal from the Order directing David LaSota1 and Caroline LaSota

(collectively “LaSota”) to remove a fence and abate water discharging from

their shed into Suchma’s property. We affirm.

      The trial court summarized the relevant factual and procedural history

as follows:

            The parties in this dispute are next door neighbors residing
      at 26 and 24 John Street in Crafton Borough, Allegheny County,
      Pennsylvania. The dispute is over storm water drainage and a
      small flower garden [planted by LaSota]. The non-jury trial of
      the dispute was held before [the Honorable Alan Hertzberg on
      October 2, 2014], and [Judge Hertzberg] thereafter ordered
      [LaSota] to remove a fence in the flower garden[,] and abate
      water discharging from their shed on to the property of


1
 David LaSota died after the commencement of the action, and prior to the
non-jury trial of this matter.
J-A29032-15


      [Suchma]. Suchma has appealed [Judge Hertzberg’s] ruling to
      the Superior Court [] because [Judge Hertzberg] did not also
      order La[S]ota to remove the rest of the flower garden. ….

            The flower garden that Suchma wants removed is located
      on an unpaved and unimproved portion of John Street, bordering
      the La[S]ota front yard, and near the Suchma property. [The
      garden] consist[s] of a wooden post and rail fence, small flower-
      producing plants and 12 decorative flat stones, covering an area
      of approximately 20 to 40 square feet.        [Judge Hertzberg]
      ordered La[S]ota to remove the fence, but not the rest of the
      garden. Suchma wants La[S]ota to remove the rest of the
      flower garden because it allegedly interferes with Suchma’s
      water line and with their use of the John Street public right-of-
      way.

             John Street is a public street[,] paved with asphalt [and]
      wide enough for two lanes of vehicular traffic to the point where
      it reaches the Suchma land, as Crafton Borough left John Street
      unopened at that point for over 21 years. …. Suchma or a prior
      owner paved a short portion of the unopened part of John Street
      approximately one lane in width, and Suchma uses this paved
      area for parking cars. The portion of John Street in front of
      Suchma’s residence otherwise is unpaved.

Trial Court Opinion, 1/27/15, at 1-2 (footnote omitted, citations omitted).2

      Suchma filed a court-ordered Concise Statement of Errors Complained

of on Appeal, and the trial court thereafter issued an Opinion.3


2
  We make the following procedural clarification to the trial court’s recitation.
After trial, the trial court entered a verdict awarding Suchma nominal
damages in the amount of $1.00, directing LaSota to remove the fence, and
prohibiting LaSota from placing or erecting a fence within the John Street
right-of-way. See Non-Jury Verdict 10/2/14, at 1. Suchma filed a Motion
for post-trial relief. On October 29, 2014, the trial court granted in part and
denied in part the Motion, and modified the Non-Jury Verdict by ordering
LaSota to immediately abate the discharge of water from a shed on their
property. See Order 10/29/14, at 1.

3
 This Court initially quashed Suchma’s appeal as interlocutory because the
non-jury verdict, as modified by the trial court, had not been reduced to


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J-A29032-15


      On appeal, Suchma raises the following issue for our review:

            Did [Suchma] prove that [LaSota] committed trespass by
      [LaSota’s] admittedly placing and maintaining a raised earthen
      berm or planting area, large landscaping stones, and vegetation
      in the public right-of-way, immediately adjacent to [Suchma’s]
      property, and directly over top of [Suchma’s] private water line,
      which limited [Suchma’s] access and obstructed parking in the
      public right of way and the private “paper street” with which it
      was continuous?

Brief for Appellants at 4.

             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 Pa., 976 A.2d 557, 564 (Pa. Super. 2009)

(citations omitted).

      Suchma contends that the trial court erred by not finding that the

garden area constitutes a trespass, despite its finding that the fence atop

the garden area constitutes a trespass. Brief for Appellants at 10. Suchma

asserts that there is no relevant distinction between the garden and the

fence, and claims that both constitute an encroachment on the public right-

of-way and on access between Suchma’s property and the right-of-way. Id.



judgment. However, after this procedural defect was cured, we granted
Suchma’s Motion to Reinstate the appeal.


                                 -3-
J-A29032-15


Suchma claims that LaSota has no right to assert dominion and control over

the right-of-way. Id. Suchma argues that LaSota has deprived Suchma of

reasonable ingress and egress to the Suchma property from John Street by

placing the garden in the right-of-way. Id. at 11. Suchma contends that,

per the Suchma property deed, John Street was designed to continue

through the Suchma property, but was never opened by Crafton Borough.

Id. at 12.    Suchma asserts that the deed created a “private contractual

right” for Suchma to use the right-of-way and the John Street extension as a

private “paper street.”   Id.     Suchma claims that the trial court erred by

using an easement theory with regard to Suchma’s access to the right-of-

way, given Suchma’s rights in and to the right-of-way and the paper street

extention. Id. According to Suchma, by using an easement theory, the trial

court held Suchma to an “unreasonable interference” standard to show a

legal violation by LaSota, rather than finding that LaSota’s encroachment on

the right-of-way constituted an interference with Suchma’s property rights

as a matter of law. Id. at 13.4

      The trial court addressed Suchma’s issue and determined that it lacks

merit. See Trial Court Opinion, 1/27/15, at 2-4. We discern no error of law

or abuse of discretion by the trial court, and affirm on this basis. See id.


4
 Suchma also attempts to rely on events that purportedly occurred after the
non-jury trial had concluded and after Suchma had commenced this appeal.
See Brief for Appellants at 10. However, such events are not part of the
record and, hence, are not evidence that may be considered in our
determination.


                                    -4-
J-A29032-15


     Order affirmed.

     Ford Elliott, P.J.E., joins the memorandum.

     Bowes, J., files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2016




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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                         CIVIL DIVISION

  KENNETH SUCHMA and JANICE
  SUCHMA, husband and wife,

          Plaintiffs,
                                                     CASE NO. GD 12-10229
          vs.
                                                     Superior Court No. 1932 WDA 2014

  DAVID LASOTA and CAROLYN
  LASOTA, husband and wife,

          Defendants.

                                               OPINION

  'Judge: Alan Hertzberg                                      Date Filed: January 26, 2015

          The parties in this dispute are next door neighbors residing at 26 and 24 John

  Street in Crafton Borough, Allegheny County, Pennsylvania. The dispute is over storm

  water drainage and a small flower garden. The non-jury trial of the dispute was held

  before me, and I thereafter ordered Defendants David Lasota 1 and Carolyn Lasota

  ("Lasota" hereinafter) to remove a fence in the flower garden and abate water discharging

  from their shed on to the property of Plaintiffs Kenneth Suchma and Janice Suchma

  ("Suchma" hereinafter). Suchma has appealed my ruling to the Superior Court of

  Pennsylvania because I did not also order Lasota to remove the rest of the flower garden.

  This opinion explains the reasons for my ruling. See Pa. R.A.P. No. l 925(a).

          The flower garden that Suchma wants removed is located on an unpaved and

  unimproved portion of John Street, bordering the Lasota front yard, and near the Suchma

  property. A photograph of this garden ( see trial exhibit D .1) shows it to consist of a


  I
    David Lasota died in March of 2014, which was after Plaintiffs commenced these proceedings but before
  the trial.

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 wooden post and rail fence, small flower-producing plants and 12 decorative flat stones,

 covering an area of approximately 20 to 40 square feet. I ordered Lasota to remove the

 fence, but not the rest of the garden. Suchma wants Lasota to remove the rest of the

 flower garden because it allegedly interferes with Suchma's water line and with their use

 of the John Street public right-of-way.

        John Street is a public street paved with asphalt wide enough for two lanes of

 vehicular travel to the point where it reaches the Suchma land, as Crafton Borough left

 John Street unopened at that point for over 21 years. See 8 Pa. C.S. § 1724. Suchma or a

 prior owner paved a short portion of the unopened part of John Street approximately one

 lane in width, and Suchma uses this paved area for parking cars. The portion of John

 Street in front of Suchma's residence otherwise is unpaved.

        An owner of land subject to an easement, including an easement for a right-of-

 way, may make any use of the easement that does not unreasonably interfere with the use

 and enjoyment of the easement. Matakitis v. Woodmansee, 446 Pa. Super. 433, 667 A.2d

 228 (1995). Encroachment into the easement will be permitted unless there is significant

 interference with use of the easement. Big Bass Lake Community Ass'n v. Warren, 950

 A.2d 1137, 1145 (Pa. .Cmwlth. 2008) citing Moyerman v. Glanzberg, 391 Pa. 387 at 391,

 138 A.2d 681 at 683 (1958).

         At trial, Suchma's primary concern with the water line was that a fence post in the

 flower garden went 3 feet below the surface and very close to the/water line. See

 Nonjury Transcript dated September 29, 2014 ("T." hereinafter), pp. 37-38 and 78-79.

 Since I ordered Lasota to remove the fence, this no longer can be Suchma's complaint.

· While it appears that the line that supplies the Suchma residence with drinking water runs



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under the remaining flower garden, there was no testimony at the trial that this flower

garden on the surface of the land unreasonably or significantly interfered with the use of

the subsurface water line. In addition, the temporary nature of the flower garden poses no

difficulty if excavation for a repair of the water line is needed in the future. Hence,

assuming an easement exists for the water line, the flower garden does not unreasonably

or significantly interfere with it. Therefore, there is no merit to the Suchma argument

that the rest of the flower garden must be removed because it interferes with the water

line.

         Suchma also argues that there is no difference between the fence that had to be

removed and the rest of flower garden that I allowed to remain. The difference, however,

is that the fence significantly interferes with Suchma's use of the unpaved part of John

Street for pedestrian ingress and egress, while the flower garden interference is minimal/.

Clearly the small plants and flat, decorative rocks that make up the rest of the flower

garden will not prevent pedestrian ingress and egress and pose less of an encroachment to

the right-of-way than would weeds and underbrush that would otherwise grow there.

Since the flower garden does not encroach on any paved portion of John Street, there is

no interference whatsoever with the ingress or egress of cars. Hence, because the flower

garden does not significantly interfere with Suchma's use of the right-of-way, my

decision to allow it to remain was correct'.


2
 Suchma's expert on municipal code compliance testified that the fence is not permitted in the right-of-
way. See T., pp. 134-135. However, he provided no testimony relative to whether the remaining
components of the flower garden also are not permitted.
3
  Suchma's Concise Statement of Errors Complained of on appeal, at paragraph nos. 5 and 8, raises the
additional issue that the flower garden prevents parking in the right-of-way. The amended complaint does
not mention the parking issue, and at trial Suchma's counsel elected to withdraw a question and an exhibit
concerning the topic. See T., pp. 49-50. Suchma has therefore waived the right to appeal as to the parking
issue. Pa. R.C.P. No. 227.1(b)( I). In any event, this area cannot be used for parking primarily due to large

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                                          BY THE COURT:




trees planted by Janice Suchma's father. See T., pp. 46 and 79. The remaining components of the flower
garden do not prevent parking.

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