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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CONCURRING MEMORANDUM BY STRASSBURGER, J.:
                                          FILED JUNE 12, 2019

      I agree with the result reached by the Majority. I write separately to

point out that it is my position that the trial court admitted hearsay testimony

when it permitted Stein to testify where her mother told her the boundary line

was located. However, I conclude the admission of that testimony did not

change the outcome of the trial.

      Here, the trial court permitted Stein to testify that the “end of the

property [was] at the end of the locust trees on the bank,” which was the

location where Stein’s mother had told her it was. N.T. Trial, 9/7-8/17, at

115-16. After counsel objected, the trial court reasoned that the testimony

was not being “offered for the truth,” but rather was being offered to show




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


Stein’s understanding of where the property line was. Id.       The trial court

concluded that the statement was being offered to explain Stein’s belief that

the survey was incorrect. See Trial Court Opinion, 7/16/18, at unnumbered

12. In its opinion, the trial court went on to point out that the “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.” Id.

      Instantly, Stein’s testimony about where her mother believed the

boundary line to be was offered “in evidence to prove the truth of the matter

asserted in the statement.” Pa.R.E. 801(c)(2).      The dispute between the

parties centered on the fact that even though the deeds and surveys set the

boundary line at one place, the parties had always acted as though the

boundary line was located at a different place. In fact, Stein believed the

boundary line was exactly where Stein’s mother believed it was. Thus, this

statement was clearly hearsay, and the trial court committed legal error in

admitting it.

      However, this Court “may disturb the non-jury verdict only if the court’s

findings are unsupported by competent evidence or the court committed

legal error that affected the outcome of the trial.” Hollock v. Erie Ins.

Exch., 842 A.2d 409, 414 (Pa. Super. 2004) (emphasis added). Here, there

was ample evidence for the trial court to conclude that the boundary line

recognized by the parties was not where it was shown on the deeds. We agree

with the Majority that the evidence established that “both adjoining


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J-A03010-19


landowners had treated the crest of the slope or bank north of Stein’s driveway

… 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.” Majority, at 17.   Accordingly, I conclude the trial court’s

admitting this hearsay testimony did not affect the outcome of the trial, and

therefore, this error does not require this Court grant the Grabowskis a new

trial on this basis.




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