J. A25012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JAMES N. DENNIS,                           :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                          Appellant        :
                                           :
                     v.                    :
                                           :        No. 467 MDA 2016
JOHN L. PALMAN AND                         :
SHERRY I. PALMAN                           :


                 Appeal from the Judgment Entered May 6, 2016,
                  in the Court of Common Pleas of York County
                     Civil Division at No. 2014-SU-000667-04


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 24, 2017

      James N. Dennis appeals from the May 6, 2016 judgment entered in

favor of appellees, John L. Palman and Sherry I. Palman, in this ejectment

action. After careful review, we affirm.

      The trial court set forth the relevant “findings of fact” of this case as

follows:

            1.      [Appellant] is the owner of lot 13 on a Plan of
                    Lots of “Hilltop” in Shrewsbury Township, York
                    County being named and numbered as
                    379 Hilltop Court, New Freedom, Pennsylvania
                    17349.      [Appellant] and his former wife
                    originally became owners of the property by
                    deed recorded in York County Deed Book 67-V
                    beginning at page 637.




* Former Justice specially assigned to the Superior Court.
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          2.    [Appellees] are owners of the property known
                as lot 14 on a Plan of Lots of “Hilltop” in
                Shrewsbury Township, York County being
                named and numbered as 347 Hilltop Court,
                New Freedom, Pennsylvania 17349 pursuant to
                the deed dated August 1, 1976 and recorded in
                York County deed book 69-1 beginning on
                page 472.

          3.    In 1986 [appellees] installed a swimming pool
                on their property and a lattice wooden fence.

          4.    In 2001 [appellees] removed the lattice
                wooden fence and installed a vinyl fence with
                an increased perimeter from the wooden fence.
                The vinyl fence was installed closer to
                [appellant’s] property line than was the
                wooden lattice fence.

          5.    In 2007 [appellant] put up a wooden fence on
                his property.

          6.    [Appellant] applied for a building permit for the
                wooden fence from Shrewsbury Township
                indicating that the fence would be two feet
                from the property line.

          7.    When [appellees] put up the new vinyl fence
                [appellant] told [appellees] he believed that
                the fence was on the property line.

          8.    [Appellant] planted two pine trees at the
                corner of his property in order to establish the
                property line shortly after he moved to the
                property in 1975.

          9.    [Appellant] told [appellees] the property line
                was the two pine trees.

          10.   Both [appellant] and [appellees] treated the
                property line as being indicated by the two
                pine trees.




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             11.   [Appellant] told [appellees] he put the wooden
                   fence installed in 2007 one foot inside
                   [appellant’s] property line.

             12.   [Appellant] and [appellees] both treated the
                   pine trees as being the property line.

             13.   [Appellees] maintained the land up to the pine
                   trees.

             14.   [Appellant] raised no issue with regard to the
                   disputed property line until approximately
                   2013 and [appellant] then had the property
                   surveyed.

             15.   The [trial c]ourt determined that [t]he
                   testimony of [appellee,] John L. Palman
                   [(“appellee Palman”),] was credible.

Trial court opinion, 12/22/15 at 1-3.1

      On February 27, 2014, appellant filed an ejectment action against

appellees, alleging that the vinyl fence they installed in 2001 encroached

upon his property and requesting that the trial court compel them to remove

the fence.   (See Complaint Upon an Action in Ejectment, 2/27/14 at 5,

¶¶ 12-14.) On March 17, 2014, appellees filed an answer and new matter

averring, inter alia, that “[a] common boundary line between [the parties’]

properties has been established by the doctrine of consentable line.”

(Answer to Complaint with New Matter, 3/17/14 at 6, ¶ 24.) Appellant filed

a reply on April 4, 2014. On November 23, 2015, the parties proceeded to a



1
  We note that the trial court’s December 22, 2015 opinion does not contain
pagination.   For ease of discussion, we have assigned each page a
corresponding page number.


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bench trial before the Honorable Steven P. Linebaugh.          Thereafter, on

December 22, 2015, the trial court entered an order establishing the

common boundary line between the parties’ respective properties as the

“line running through the center of [the] two pine trees” in question. (Trial

court order, 12/22/15 at ¶ 1.)         This order was accompanied by a

comprehensive, four-page opinion wherein the trial court held that “[t]he

doctrine of consentable line has been established by [appellees].”       (Trial

court opinion, 12/22/15 at 3.)

      Appellant filed a motion for post-trial relief, which was denied by the

trial court on February 26, 2016.     On March 21, 2016, appellant filed a

notice of appeal. On March 29, 2016, the trial court directed appellant to file

a concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b).     Appellant filed his timely Rule 1925(b) statement on

April 18, 2016.      Thereafter, on April 20, 2016, the trial court filed a

Rule 1925(a) opinion indicating that its December 22, 2015 opinion and

order adequately disposed of all of appellant’s issues.        (Rule 1925(a)

opinion, 4/20/16 at 2.)

      On May 2, 2016, this court entered an order indicating that “final

judgment has not been entered on the trial court docket as required by

Pa.R.A.P. 301[.]”    (Per curiam order, 5/2/16.)    We directed appellant to

praecipe the trial court to enter final judgment and file with the Prothonotary

a certified copy of the trial court docket reflecting the entry of said



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judgment.       (Id.)   On May 6, 2016, judgment was entered in favor of

appellees.2

         Appellant raises the following issues for our review:

               1.    Whether the [t]rial [c]ourt erred as a matter of
                     law in determining that both parties recognized
                     and acted as if the property line was
                     established by the pine trees[?]

               2.    Whether a finding that the parties recognized
                     and acted as if a property line was established
                     by the pine trees was against the weight of the
                     evidence established at trial[?]

               3.    Whether the [trial c]ourt erred as a matter of
                     law in determining that [appellees] presented
                     sufficient evidence to prove a consentable
                     line[?]

Appellant’s brief at 4. The record reflects that appellant has presented these

issues in a slightly different order in the “Argument” section of his appellate

brief.    (See appellant’s brief at 9-19.)    Thus, we will address each issue

accordingly.



2
    Appellant’s March 21, 2016 notice of appeal indicated that he was
appealing from the February 26, 2016 order denying his motion for post-trial
relief. However, an appeal from an order denying post-trial motions is
interlocutory. See Pa.R.A.P. 301(a), (c), and (d). Following appellant’s
compliance with Rule 301, his notice of appeal was treated as filed after the
entry of judgment. See Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof[]”); Keystone Dedicated Logistics, LLC v. JGB Enterprises,
Inc., 77 A.3d 1, 3 (Pa.Super. 2013) (stating, “even though the appeal was
filed prior to the entry of judgment, it is clear that jurisdiction in appellate
courts may be perfected after an appeal notice has been filed upon the
docketing of a final judgment[]”).


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      Preliminarily, we note that

            [o]ur 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) (citations omitted).

      We begin by addressing appellant’s claims that the trial court erred in

concluding that the boundary line between the parties’ respective properties

was established by the doctrine of consentable line. (Appellant’s brief at 9.)

                  The doctrine of consentable line is a rule of
            repose for the purpose of quieting title and
            discouraging confusing and vexatious litigation.
            There are two ways in which a boundary may be
            established through consentable line: (1) by dispute
            and compromise, or (2) by recognition and
            acquiescence. As the en banc court explained in
            Niles [v. Fall Creek Hunting Club, Inc., 545 A.2d
            926, 930 (Pa.Super. 1988) (en banc)], the doctrine
            of consentable line is a separate and distinct theory
            from that of traditional adverse possession, although
            both involve a twenty-one year statute of limitation.
            Under the doctrine of consentable line,

                  [i]f  adjoining  landowners   occupy   their
                  respective premises up to a certain line[,]
                  which they mutually recognize and acquiesce


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                    in for the period of time prescribed by the
                    statute of limitations, they are precluded from
                    claiming    that the      boundary line     thus
                    recognized and acquiesced in is not the true
                    one.

                  The establishment of a consentable line is not
            a conveyance of land within the meaning of the
            Statute of Frauds because no estate is thereby
            created. Therefore such a line may be initiated by
            oral agreement and proved by parol evidence.

Plauchak v. Boling, 653 A.2d 671, 675 (Pa.Super. 1995) (citation

formatting corrected; footnote and some citations omitted).

      Appellant first contends that the pine trees in question, which were

planted on the corners of his property in 1976 and located 193 feet away

from each other, were legally insufficient, as a matter of law, to prove a

consentable line.     (Appellant’s brief at 9-14.)   In support of this claim,

appellant avers that “[t]here is no physical line in the manner of a fence or

hedge row[,]” and that “the distance between these two pine trees is too

great to clearly establish a property line as required by law.” (Id. at 12

(emphasis in original).) We disagree.

      This court has continually recognized that under the doctrine of

consentable line, “it is not necessary that the boundary line be substantial.”

Jedlicka v. Clemmer, 677 A.2d 1232, 1235 (Pa.Super. 1996) (citation

omitted).   Although the majority of cases in this Commonwealth that

address the doctrine of consentable line involve a dispute over the location




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of a fence or similar physical barrier,3 there is no specific requirement that a

consentable    boundary line   be   marked by a fence.          See Sorg v.

Cunningham, 687 A.2d 846, 849-850 (Pa.Super. 1997) (holding that the

evidence was sufficient to establish a consentable boundary line along row of

pine trees); Niles, 545 A.2d at 930-931 (holding that the evidence was

sufficient to establish that a survey line had become binding, consentable

boundary line between two adjoining landowners); Jedlicka, 677 A.2d at

1233-1235 (holding that the evidence was sufficient to establish a

consentable boundary marked with metal spikes and pins, an old rail fence,

rocks, and large maple trees). Accordingly, appellant’s contention that the

two pine trees in question were legally insufficient to prove a consentable

line is meritless.

      Appellant next challenges the trial court’s determination that appellees

established a consentable line by recognition and acquiescence. Specifically,

appellant contends that there was insufficient evidence to support the trial

court’s determination “that the parties acquiesced to the property line being

established at the pine trees for a period of 21 years.” (Appellant’s brief at

14.) For the following reasons, we disagree.




3
  See, e.g., Zeglin v. Gahagen, 812 A.2d 558, 559 (Pa. 2002) (fence and
hedge row); Corbin v. Cowan, 716 A.2d 614, 617 (Pa.Super. 1998),
appeal denied, 740 A.2d 233 (Pa. 1999) (fence); Schimp v. Allaman, 659
A.2d 1032, 1034 (Pa.Super. 1995) (fence); and Inn Le'Daerda, Inc. v.
Davis, 360 A.2d 209, 214-215 (Pa.Super. 1976) (fence).


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      As   discussed,   the   “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.

Zeglin, 812 A.2d at 561; see also Corbin, 716 A.2d at 617.

      In Moore v. Moore, 921 A.2d 1 (Pa.Super. 2007), appeal denied,

934 A.2d 1278 (Pa. 2007), a panel of this court set forth the requirements

for establishing a consentable line by acquiescence.

                   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. A determination
            of consentable line by acquiescence requires a
            finding 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. . . .
            [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.

Id. at 5 (citations and internal quotation marks omitted; emphasis added).

      Herein, our review of the record reveals sufficient evidence to support

the trial court’s determination that the boundary line in question had become

a binding consentable line by recognition and acquiescence. The trial court

determined that the “line running through the center of [the] two pine trees”

marked the common boundary between the parties’ respective properties.

(Trial court order, 12/22/15 at ¶ 1.) The record reflects that both parties


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claimed at least the land on their respective sides of the trees.     At trial,

appellant acknowledged planting two pine trees at each corner of his

property “a few feet” from the line in 1976, and thereafter maintaining his

land. (Notes of testimony, 11/23/15 at 5-6.) The trial court found that both

parties exclusively maintained their property up to and not beyond said pine

trees. (See trial court opinion, 12/22/15 at 2, finding of fact no. 10 (stating

that, “both [parties] treated the property line as being indicated by the two

pine trees.”).)

      We must now determine whether the land in question has been

occupied for a continuous period of 21 years.        The record reflects that

appellant has owned his property for over 40 years, having purchased it in

1973. (Notes of testimony, 11/23/15 at 4.) Appellees, in turn, purchased

their property in August 1976. (Id. at 4, 39.) The record further indicates

that the two pine trees in question have existed near the parties’ common

boundary line since 1976. (Id. at 6.) According to appellee Palman, whom

the trial court found to be credible, he maintained and occupied the property

up to the pine trees since 1976. (Id. at 40; see also trial court opinion,

12/22/15 at 2, findings of fact nos. 9, 13, 15.) This maintenance primarily

included mowing, weeding, and mulching the area up to the tree line.

(Notes of testimony, 11/23/15 at 54, 56-57.)       The trial court found that

appellant told appellees on multiple occasions that the common property

boundary line was marked by the two pine trees.          (Trial court opinion,



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12/22/15 at 2, findings of fact nos. 7, 9; see also notes of testimony,

11/23/15 at 39-40, 69.) The trial court further found that appellant did not

dispute the boundary line until 2013, 37 years after he planted the pine

trees, by having the property surveyed and informing appellees that the

fence appellees installed in 2001 was one foot inside his property line. (Trial

court opinion, 12/22/15 at 2-3; findings of fact nos. 11, 14; notes of

testimony, 11/23/15 at 58.)

      Based upon the credibility determinations made by the trial court,

which are supported in the record, as well as a careful review of the relevant

case law, we conclude that the trial court did not abuse its discretion in

determining the “line running through the center of [the] two pine trees”

marked the consentable boundary line between the parties’ respective

properties.

      We now turn to appellant’s claim that the trial court’s determination

that “the parties recognized and acted as if a property line was established

by the pine trees is against the weight of the evidence.” (Appellant’s brief at

17-19.)

      “[A]ppellate review of a weight claim is a review of the [trial court’s]

exercise of discretion, not of the underlying question of whether the verdict

is against the weight of the evidence.” Phillips v. Lock, 86 A.3d 906, 919

(Pa.Super. 2014) (citations omitted).      This court has long recognized that

“[i]n a non-jury trial, the factfinder is free to believe all, part, or none of the



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evidence, and [this c]ourt will not disturb the trial court’s credibility

determinations.”    Voracek v. Crown Castle USA Inc., 907 A.2d 1105,

1108 (Pa.Super. 2006). “The trial court’s findings are especially binding on

appeal, where they are based upon the credibility of the witnesses, unless it

appears that the court abused its discretion or that the court's findings lack

evidentiary support or that the court capriciously disbelieved the evidence.”

Shaffer v. O'Toole, 964 A.2d 420, 422-423 (Pa.Super. 2009), appeal

denied, 981 A.2d 220 (Pa. 2009) (brackets omitted).

      Here, the trial court, sitting as fact-finder, specifically found the

testimony of appellee Palman credible, and elected not to believe appellant’s

version of the events. (See trial court opinion, 12/22/15 at 3, finding of fact

no. 15.) Contrary to appellant’s desire to have us do so, we are precluded

from reweighing the evidence and substituting our judgment for that of the

fact-finder. Accordingly, appellant’s weight claim must fail.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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