J-S27013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HAROLD K. CRONER, JAMES E.                 :   IN THE SUPERIOR COURT OF
    CRONER, AND JONATHAN H.                    :        PENNSYLVANIA
    CRONER                                     :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL G. POPOVICH AND CATHY J.            :   No. 1232 WDA 2018
    POPOVICH, HUSBAND AND WIFE,                :
    JOSEPH POPOVICH, SINGLE, AND               :
    FRANK POPOVICH, JR. SINGLE                 :
                                               :
                       Appellants

               Appeal from the Order Entered August 21, 2018
      In the Court of Common Pleas of Somerset County Civil Division at
                         No(s): No. 221 Civil 1991


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.:                                   FILED JUNE 7, 2019

       Appellants, Samuel G. Popovich and Cathy J. Popovich, husband and

wife, Joseph Popovich and Frank Popovich, Jr., appeal from the order entered

on August 21, 2018. We affirm.

       As the trial court explained:

         On May 15, 1991, Plaintiffs, Harold K. Croner[, James E.
         Croner, and Jonathan H. Croner (hereinafter, collectively,
         “the Croners”), filed a Petition for Appointment of Fence
         Viewer [(hereinafter “the Petition”),] pursuant to the
         provisions of 29 P.S. § 41.[1] The Petition concerned the
____________________________________________


1 We quote 29 P.S. § 41 at pages 11-12 of this memorandum. At this point,
we merely note that Section 41 “addresses the sharing of costs for [line or
division] fences constructed on farms and ranches” and the procedure by


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27013-19


         repair and reconstruction of a division fence that marks the
         boundary between the adjacent [lands of the Croners and
         Appellants]. . . . At the time of the Petition, the fence was
         alleged to be over [21] years old and [] had fallen into
         disrepair. [The Croners] wished to repair or replace the fence
         and receive reimbursement from [Appellants] for one-half of
         the attendant costs pursuant to 29 P.S. § 41. . . .

         The [trial court] entered an order on May 15, 1991[,]
         appointing Roland Fogle as the Fence Viewer in accordance
         with [Section 41]. Fogle conducted a field viewing of the line
         fence on May 23, 1991 and began reconstructing the
         boundary line. Fogle then prepared a Report and Probable
         Cost Estimate regarding the repair or reconstruction of the
         fence. On or about April 20, 1992, [Appellants] began
         reconstruction of a replacement fence as close as possible to
         the sketch prepared by Fogle in his report. [The Croners
         were] dissatisfied with the placement and sufficiency of the
         replacement fence[] and filed a Notice of Objection to the
         placement of Fence Line with the [trial] court on March 14,
         1995. Nearly three years later, [the Croners] filed a Motion
         Directing [Appellants] to Reconstruct Fence Line in
         Accordance with Viewer’s Certificate. Thereafter, the case
         was inactive and continued until a hearing was held on [the
         Croners’ Motion Directing Appellants to Reconstruct Fence
         Line in Accordance with Viewer’s Certificate].

         [The trial court] issued a memorandum and order on
         September [20,] 2016[,] granting in part [the Croners’]
         motion and also denying it in part. [The trial court] held that
         [Appellants] had, in fact, not constructed the replacement
         fence along the originally marked certificate line at certain
         sections, but that (a) the replacement fence was sufficient for
         the purpose of containing livestock, (b) the deviations from
         the certificate line were either necessary (due to the presence
         of a [15-]foot spoil bank on the certificate line, over which
         the fence physically could not be built) or were de minimis
         (in the case of three- to four-foot deviations from the
____________________________________________


which one landowner may compel an adjoining landowner to share in the costs
of repairing or replacing an insufficient line or division fence. Fogle v.
Malvern Courts, Inc., 722 A.2d 680, 684 (Pa. 1999); 29 P.S. § 41.


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        certificate line), and (c) [the Croners] had enjoyed the benefit
        of the sufficient replacement fence from the time that it was
        constructed in 1992 until it was damaged in June 2014, or
        [22] years later. . . .

        Additionally, as a result of [the fence’s] age and [the]
        damage to the fence wires, [the trial court] held in the
        [September 20, 2016] memorandum and order that the
        fence had once again become insufficient for its intended
        purpose of containing livestock[. The trial court] ordered
        another report detailing a fence viewing, a survey, a
        determination as to whether the fence was again in need of
        repair or replacement, and the estimated costs associated
        therewith [(hereinafter “the Fence Viewer’s Report”). The
        trial court] authorized [the Croners] to repair or replace the
        fence where necessary in accordance with the Fence Viewer’s
        Report, and ordered [Appellants] to pay for one-half of the
        costs, minus a credit to [Appellants] of $579.86. This credit
        represented one-half of the cost previously incurred by
        [Appellants] in constructing the replacement fence in 1992,
        and for which, pursuant to 29 P.S. § 41, [the Croners were]
        responsible.

Trial Court Opinion, 11/19/18, at 1-3 (some capitalization omitted).

      Appellants filed a notice of appeal from the trial court’s September 20,

2016 order and claimed that the trial court erred in holding that Appellants

had “a duty to pay any portion of the erection and maintenance of a line fence

when they do not keep livestock on their property.” Croner v. Popovich,

175 A.3d 1042 (Pa. Super. 2017) (unpublished memorandum) at 2, appeal

denied, 179 A.3d 4 (Pa. 2018). On August 1, 2017, a panel of this Court

affirmed the trial court’s order on the merits. We concluded that, pursuant to

29 P.S. § 41 and the Pennsylvania Supreme Court’s opinion in Fogle v.

Malvern Courts, Inc., 722 A.2d 680 (Pa. 1999), Appellants were obligated

to pay for one-half of the cost of the line fence. Croner v. Popovich, 175



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A.3d 1042 (Pa. Super. 2017) (unpublished memorandum) at 1-10, appeal

denied, 179 A.3d 4 (Pa. 2018).      The Pennsylvania Supreme Court denied

Appellants’ petition for allowance of appeal on January 11, 2018. Id.

      The Croners then “had the fence reconstructed along the line set forth

by the surveyor.” See the Croners’ “Motion to Establish Damages and Compel

Payment” (hereinafter “Motion to Compel”), 6/5/18, at ¶ 4.

      On June 5, 2018, the Croners filed their Motion to Compel. Within the

motion, the Croners requested that the trial court order Appellants to pay

$5,175.24, as that amount constituted Appellants’ “one-half [] share of the

fence reconstruction costs.”     Motion to Compel, 6/5/18, at ¶ 11 and

“Wherefore” Clause. Further, the Croners attached a “cost share calculation”

to their Motion to Compel.   See id. at Exhibit “A”. The cost share calculation

declared that the total fence replacement expenses comprised $7,484.20 in

engineering costs and $4,026.00 in labor and materials. Id. After allowing

for Appellants’ $579.86 court-ordered credit, the cost share calculation stated

that Appellants’ one-half share of the fence replacement costs was $5,175.24.

Id.

      The trial court scheduled argument on the Motion to Compel for August

21, 2018. Trial Court Order, 6/11/18, at 1.

      On August 21, 2018, the trial court heard argument on the Croners’

Motion to Compel. During the argument, the Croners’ attorney (hereinafter

“the Croners’ Attorney”) referred the court to the Fence Viewer’s Report, which




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was prepared by Registered Professional Land Surveyor John Joseph Cenkner,

Jr. This report declared:

                         FENCE VIEWER’S REPORT
                            Line Fence Between
              James E. Croner and Jonathan H. Croner, Owners
                     & Samuel Popovich, et al, Owners
               Brothersvalley Township, Somerset County, PA

        I, JOHN JOSEPH CENKNER, JR., a Registered Professional
        Land Surveyor, do hereby certify that:

        1. On Tuesday, November 22, 2016, I have viewed and
        examined the line fence as it currently exists separating the
        property of Messrs. James E. Croner and Jonathan H. Croner,
        co-owners, and the property of Samuel G. Popovich and
        Cathy J. Popovich, husband and wife, Joseph Popovich,
        single, and Frank Popovich, Jr., single, owners, located in
        Brothersvalley Township, Somerset County. I performed my
        fence viewing for the purposes of determining the status of
        the line fence as directed by Order dated September 19,
        2016, of the Court of Common Pleas of Somerset County, PA,
        case 221 Civil 1991.

        2. I viewed and examined the fence line, assisted by Ms.
        Jeanne Johnson, also of R.D. Fogle Engineering. My fence
        viewing began at approximately 9:00 a.m. and ended at
        approximately 11:00 a.m. on November 22, 2016. Messrs.
        James E. Croner and Jonathan H. Croner were present during
        my fence viewing, along with two representatives from a
        fence contracting company.

        3. Based upon my viewing on November 22, 2016, I have
        concluded that the line fence is beyond repair and is in need
        of reconstructing along its entire length of 1278 ft. The entire
        fence is in very poor condition.         The fence posts are
        deteriorated and/or rotting and the barbed wire strands are
        badly rusted or missing in several sections. The age of the
        fence is approximately [25] years and in my professional
        opinion has outlived its useful life and is no longer sufficient
        to contain livestock.



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        4. I have estimated probable costs of reconstructing the line
        fence as set forth in EXHIBIT A attached to this Report.

                                     ...

Fence Viewer’s Report, 5/17/17, at 1 (bolding omitted).

      During the August 21, 2018 argument, the Croners’ Attorney attested

that “the actual cost of the [fence] reconstruction [by Green Mountain

Construction] was [$4,027.26]” and that Appellants’ “one-half share of the

construction costs is $2,013.” N.T. Argument, 8/21/18, at 4-5. Further, the

Croners’ Attorney attested that Appellants were also responsible for paying

$3,742.10, which constituted “one-half of the adjusted engineering fee.” Id.

After subtracting Appellants’ allowable credit, the Croners’ Attorney requested

that the trial court order Appellants to pay a total of $5,175.24 for their

one-half share of the cost of reconstructing the fence. Id. at 5.

      At argument, Appellants’ counsel (hereinafter “Appellants’ Counsel”)

objected to or contested the Fence Viewer’s Report on three grounds. First,

Appellants’ Counsel declared: “[m]y client did not receive [the Fence Viewer’s

Report] until today; and, quite frankly, my client objects – or objects to that

report being used as for not having time to respond to that report.” Id. at 6.

Second, Appellants’ Counsel claimed that the Fence Viewer’s Report was

inaccurate, as “not all portions of that fence were unusable.”      Id. Finally,

Appellants’ Counsel argued that 29 P.S. § 41 limits the Fence Viewer’s fee to

$25.00; therefore, Appellants’ Counsel argued, even if Appellants were

obligated to pay for one-half of the line fence reconstruction costs, the

engineering fee was capped at $25.00. Id. at 6-7.

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      The Croners’ Attorney responded to Appellants’ Counsel’s arguments.

First, the Croners’ Attorney informed the trial court: “my file reflects that . .

. [the Fence Viewer’s Report] had been previously provided to [Appellant’s

Counsel] in correspondence dated August of last year when we gave notice

that we were intending to begin construction [of the fence] in the near future.”

Id. at 8. In support of this assertion, the Croners’ Attorney read the court a

letter, dated August 22, 2017, which he sent to Appellants’ Counsel.         The

Croners’ Attorney stated that the letter read:

        It’s been 11 months since [the trial court] entered an order.
        The [Croners] were permitted to repair the fence pursuant to
        the Fence Viewer [R]eport previously supplied to you. Please
        consider that your client knows that my client . . . [does]
        intend to begin construction on that fence.

Id. at 9 (some capitalization omitted).

      As to Appellants’ claim that the engineering fees are statutorily capped

at $25.00, the Croners’ Attorney argued that, while 29 P.S. § 41 limits a

surveyor’s fees to $25.00 when the surveyor is “acting as a fence viewer,” the

statute does not limit all engineering fees.     Id. at 10-11.     The Croners’

Attorney argued that, in this case, the engineer was required to reestablish

the “certificate line” over which the line fence would follow. Id. Further, the

Croners’ Attorney argued, the engineering work performed in this case cost a

substantial amount money, was not included in the surveyor’s duties as a

“fence viewer,” and, pursuant to 29 P.S. § 41, must be shared between the

Croners and Appellants as the cost of the line fence. See id.



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        At the end of the argument, the trial court concluded that: “the Fence

Viewer’s [R]eport was provided to [Appellants] in a reasonable time frame and

that [Appellants] had notice of the findings of the report and the proposed

work to be done;” the $25.00 cap only applied to the surveyor’s duties as a

“fence viewer” – not to all of the engineering work necessary for

reconstructing the fence; and, Appellants were liable to the Croners in the

amount of $5,175.24. Id. at 13-17.

        Appellants filed a timely notice of appeal. They number four claims in

their statement of questions presented:2

          [1.] When the [trial] court did not hear testimony as to
          whether or not the [Croners] had served the Appellants with
          the Fence Viewer Report prior to the hearing, did the [trial]
          court commit a procedural error, err as a matter of fact and
          law, was arbitrary and capricious and based the [trial] court’s
          decision on facts not supported by the record when the [trial]
          court determined that the Appellants had received said
          document without said facts being properly placed and
          admitted into the record?

          [2.] Did the [trial] court violate the Appellants' due process
          rights when the [trial] court admitted the Fence Viewer
          Report into the record without testimony of an expert witness
          and a hearing to allow the Appellants to cross examine
          witnesses and experts, when the Appellants lodged a timely
          objection that was overruled by the [trial] court that the
          Appellants did not previously receive the report?

          [3.] When the Appellants did not receive the Fence Viewer
          Report prior to the construction of the fence as required by
          29 P.S. [§] 41, did the [trial] court commit a procedural error,
          err as a matter of fact and law, was arbitrary and capricious
          and based the [trial] court’s decision on facts not supported
____________________________________________


2   For ease of discussion, we have re-numbered Appellants’ claims on appeal.

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J-S27013-19


        by the record when the [trial] court ruled that the Appellants
        had obeyed the statute?

        [4.] Did the [trial] court err as a matter of law and fact, was
        arbitrary and capricious, and based the [trial] court’s decision
        on facts not supported by the record when the [trial] court
        awarded the [Croners] the cost of surveying of the fence line,
        when 29 P.S. [§] 41 allows for the charge of the surveyor to
        provide a report of the fence line not to survey the property
        lines?

Appellants’ Brief at 2-4 (some capitalization omitted).

      Appellants’ first two claims on appeal contend that the trial court erred

when it did not hold an evidentiary hearing on: “whether or not [Appellants]

received the [Fence Viewer’s] Report prior to” the August 21, 2018 argument

and the actual merits of the case. See id. at 8-11 and 15-17. These claims

are waived.

      At no time prior to or during the August 21, 2018 argument did

Appellants’ Counsel ever object to the current matter being adjudicated

through argument and attorney attestations - and at no time did Appellants’

Counsel ever demand a hearing on any matter before the trial court. See N.T.

Argument, 8/21/18, at 1-17; see also Trial Court Order, 6/11/18, at 1 (the

trial court order clearly scheduled the matter for an August 21, 2018 argument

– not a hearing). Therefore, Appellants waived any appellate claim that the

trial court erred when it did not hold an evidentiary hearing on either the

merits of the case or the issue of whether Appellants received the Fence

Viewer’s Report prior to the August 21, 2018 argument. State Farm Mut.

Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc) (“[i]t



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is axiomatic that in order to preserve an issue for appellate review, a party

must make a timely and specific objection at the appropriate stage of the

proceedings before the trial court. Failure to timely object to a basic and

fundamental error will result in waiver of that issue. On appeal, we will not

consider assignments of error that were not brought to the tribunal's attention

at a time at which the error could have been corrected or the alleged prejudice

could have been mitigated”) (quotations, citations, and corrections omitted);

Commonwealth v. Chamberlain, 30 A.3d 381, 405 (Pa. 2011) (defendant

waived appellate review of state due process claim that was not directly raised

before the trial court); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

      For Appellants’ third claim on appeal, Appellants argue that the trial

court erred when it accepted the Fence Viewer’s Report, as the Croners “did

not produce the Report until the day of the” argument. Appellants’ Brief at

12. According to Appellants, this caused them unfair surprise and prejudice,

as they were “unable to produce an expert report to refute the report of” the

Croners. Id. at 14.

      Appellants’ claim on appeal immediately fails because the trial court

specifically concluded that “the Fence Viewer’s [R]eport was provided to

[Appellants] in a reasonable time frame and [Appellants] had notice of the

findings of the report and the proposed work to be done.” N.T. Argument,

8/21/18, at 14. On appeal, Appellants do not claim that the trial court erred

in arriving at this factual conclusion. See Appellants’ Brief at 11-15. Rather,

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Appellants simply ignore the trial court’s express factual finding and base their

entire argument upon the faulty premise that the Croners “did not produce

the Report until the day of the” argument. See id. Since Appellants’ claim is

based upon a fundamentally erroneous proposition, the claim necessarily fails.

      Finally, Appellants claim that the trial court erred when it “awarded [the

Croners] the cost of surveying [] the fence line, when 29 P.S. § 41 allows for

. . . the surveyor to provide a report of the fence line[,] not to survey property

lines.” Appellants’ Brief at 4 and 17. This claim fails.

      29 P.S. § 41, entitled “Division fences; proceedings to compel erection

or part payment,” provides:

        From and after the passage of this act, owners of improved
        and occupied land shall erect and maintain an equal part of
        all line or division fences between them, nor shall any such
        owner be relieved from liability under the provisions of this
        act except by the consent of the adjoining owner. And if any
        owner of such improved and occupied land shall fail or neglect
        to erect or maintain his, her, or their share of such line or
        division fence the party aggrieved shall notify the county
        surveyor or, if there is no county surveyor in the county, then
        a county surveyor of any adjoining county, or, if the county
        surveyor in any adjoining county refuses to act, a surveyor
        appointed by a judge of the court of common pleas, who shall
        act as a fence viewer and whose duty it shall be to examine
        such line or division fence, so complained of; and if he finds
        said fence sufficient, the complainant shall pay the cost of his
        service; but if he finds such fence insufficient, he shall so
        report to a justice of the peace[fn.1] or alderman, residing in
        the county where such fence is located, designating points
        and distances of such fence, whether a new fence is required
        or whether the old one can be repaired, and the probable
        costs of a new, or the repair of the old, fence; and said justice
        or alderman shall notify the delinquent owner of such
        improved and occupied land of the surveyor's report, and that
        his part of said fence, as found by the surveyor, be erected

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        or repaired within forty days from the date of such notice;
        and if such notice be not complied with, the aggrieved party
        may cause said line or division fence to be erected or
        repaired, and the costs thereof collected, including the charge
        of the surveyor, from the delinquent owner of such improved
        and occupied land, as other debts are collected by law. The
        surveyor shall be entitled to such payment for acting as a
        fence viewer as he may fix, not, however, exceeding twenty-
        five dollars. Where the surveyor reports that he finds the
        fence complained of sufficient, the amount payable to the
        surveyor shall be paid by the complainant, but where he
        reports the fence insufficient, the amount payable to him
        shall be paid by the delinquent owner of such improved or
        occupied land: Provided, That no owner of improved land
        shall be compelled to build or repair fence during the months
        of December, January, February, and March: And provided
        further, That nothing herein contained shall be construed to
        apply to railroad companies.

           [fn.1] Now magisterial district judge. See 2004, Nov. 30,
           P.L. 1618. No. 207, § 28(1).

29 P.S. § 41.

     Our Supreme Court explained the history and purpose behind

Pennsylvania’s Fence Law:

        During the eighteenth and nineteenth centuries, almost every
        landowner kept some form of livestock on his property and
        the common law did not require such landowners to fence
        their land in the absence of an agreement between the
        adjoining owners. However, the common law did encourage
        landowners to fence their properties by applying the rule of
        strict liability for any damages caused by their animals if they
        trespassed onto another's land. Eventually, many states,
        including Pennsylvania, enacted laws combining a duty to
        fence with the concept of strict liability to create a firm set of
        rules which would prevent disputes concerning the liability for
        damages to crops or other property caused by livestock.
        Specifically, the only discernible purpose of Pennsylvania's
        Fence Law has been to resolve disputes involving trespassing
        livestock. This purpose is indicated in the preamble of the
        first such law:

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            For preventing all disputes and differences that may arise
            through the neglect or insufficiency of fences in this
            province and counties annexed, Be it enacted, that all
            cornfields and grounds kept for enclosures . . . shall be
            well fenced. . . .

        1700 Pa. Laws 13, § 1.

Fogle v. Malvern Courts, Inc., 722 A.2d 680, 682-683 (Pa. 1999)

(quotations and citations omitted).

      On appeal, Appellants claim that 29 P.S. § 41 limits the surveyor’s

permissible actions in any proceeding under the Fence Law. See Appellants’

Brief at 18-19. Specifically, Appellants claim, the language of Section 41 limits

the surveyor’s permissible actions to the mere “inspect[ion of] the condition

of the fence.” Id. at 18. According to Appellants, the surveyor in this case

exceeded his statutory authority by conducting a “survey [of] the property

line.” Id. Appellants claim that, since “[t]he surveyor did more than review

the condition of the fence line . . . and surveyed the property line, which is

not covered by the statute,” the surveyor exceeded his statutory authority

and the trial court erred in requiring Appellants to pay for one-half of the

surveyor’s fee. Id. at 18-19. This claim cannot succeed.

      At the outset, we note that – while Section 41 defines the duties of a

surveyor who is “act[ing] as a fence viewer” – Section 41 does not, in any

way, limit a surveyor’s general authority to act. We further note that Section

41 only places a $25.00 cap on surveyor fees when the surveyor is “acting

as a fence viewer.” Id. (emphasis added). Thus, the statute does not cap



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the fees that a surveyor may charge for surveying and engineering work that

fall outside of his express and statutorily-delineated duties as “fence viewer.”

See id.

       Within Appellants’ brief, Appellants acknowledge that the engineering

fee was for work that fell outside of the surveyor’s statutorily-delineated duties

as “fence viewer.”       Appellants’ Brief at 18 (“[t]he statute states that the

[surveyor’s] ‘duty shall be to examine such line or division fence,’ meaning

the surveyor is to examine the fence line and report on the condition of the

fence. . . . The surveyor did more than review the condition of the fence line,

the surveyor surveyed the property line, which is not covered by the statute”).

Therefore, on appeal, we assume (without deciding) that the engineering fee

was for work that fell outside of the surveyor’s duties as a “fence viewer.”

See Steiner v. Markel, 968 A.2d 1253, 1256 (Pa. 2009) (“[the Pennsylvania

Supreme Court] has consistently held that an appellate court cannot reverse

a trial court judgment on a basis that was not properly raised and preserved

by the parties”).

       Given the posture of this case, Appellants’ claim that the trial court erred

in requiring that they share in the engineering costs simply cannot succeed.

To be sure, Section 41 demands that owners of adjacent land share, equally,

in the costs of erecting, repairing, and maintaining a line fence. See 29 P.S.

§ 41. Where surveying or engineering work is necessary to erect or repair a

line   fence   –   and   where   that   work     falls   outside   of the   surveyor’s

statutorily-defined duties as a fence viewer – the fees for that work must

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necessarily be shared equally between the land owners, just as the land

owners must share, equally, in the labor and material costs for the fence.

Certainly, whatever the label, the fees for the work constitute “the costs” of

erecting or repairing the fence. See id. Appellants’ claim to the contrary fails.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2019




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