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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

PHARES L. HUBER,                        :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :          No. 536 WDA 2017
                                        :
ROGER S. SMITH                          :


             Appeal from the Judgment Entered June 26, 2017,
             in the Court of Common Pleas of Clearfield County
                       Civil Division at No. 16-235-CD


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 13, 2017

     Phares L. Huber appeals from the June 26, 2017 judgment entered in

favor of Roger S. Smith (“Smith”) and against appellant. 1 We affirm.

     The trial court set forth the following factual and procedural history:

                  [Appellant] and [Smith] were at one point
           involved in a romantic relationship, which dissolved
           some time prior to the present civil suit. During
           their years-long relationship, [appellant] and [Smith]
           cohabitated with one another in Lancaster County,
           Pennsylvania.     On or about January 19, 2012,
           [Smith] purchased a smooth collie dog from an
           Amish Farm. [Smith] thereafter took care of the
           dog, and has taken care of the dog from January 19,
           2012 to present.       Although [appellant] provided


1 Appellant’s brief incorrectly indicates that appellant appeals from the
March 3, 2017 order that dismissed his motion for post-trial relief.
(Appellant’s brief at 2.) An appeal, however, properly lies from the entry of
judgment, not from an order denying post-trial motions. See Hart v.
Arnold, 884 A.2d 316, 343 n.1 (Pa.Super. 2005) (citation omitted).
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            financial support for the dog from time to time,
            [Smith] has always remained the owner of the dog.

                   Because [appellant] had in some instances
            paid for the dog’s expenses, after the parties ended
            their relationship, [appellant] requested that [Smith]
            compensate him for all financial support related to
            the dog. [Smith] complied by paying [appellant]
            $1,300.00 by check dated April 15, 2015 and
            $2,700.00 by check dated April 25, 2015. Upon final
            payment, [Smith] believed he was no longer
            indebted to [appellant] and was free to take the dog
            with him upon his relocation out of [appellant’s]
            residence.

                   [Smith] moved out of [appellant’s] residence
            on or about May 6, 2015 and relocated to Clearfield
            County, Pennsylvania.      On February 17, 2016,
            [appellant] commenced the instant civil action by
            filing a Complaint, wherein [appellant] requests that
            [Smith] return the dog to [appellant]. [Appellant]
            asserts causes of action in replevin and conversion.
            A civil non-jury trial was held before this Court on
            January 20, 2017, following which the parties were
            ordered to submit briefs in support of their
            respective positions.

Trial court opinion, 2/22/17 at 1-2.

      The record reflects that on February 22, 2017, the trial court entered

an order that dismissed appellant’s complaint with prejudice and directed

that Smith retain ownership and possession of the dog. On March 6, 2017,




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appellant filed a timely post-trial motion pursuant to Pa.R.Civ.P. 227.1.2 On

March 16, 2017, the trial court dismissed appellant’s motion for post-trial

relief.    On April 5, 2017, appellant filed a notice of appeal to this court.

Pursuant to Pa.R.A.P. 1925(b), the trial court then ordered appellant to file

concise statement of errors complained of on appeal with 21 days. Appellant

timely complied. Because judgment had not been entered on the trial court

docket, however, this court entered a rule-to-show-cause order on June 13,

2017 that directed appellant to praecipe the trial court prothonotary to enter

judgment within 14 days.          Appellant timely complied.      Judgment was

entered on June 26, 2017.          This court then discharged the show-cause

order. This appeal is now ripe for our review.

          Appellant raises the following issue: “Does the record establish as a

matter of law that [appellant] is the lawful owner of the dog?” (Appellant’s

brief at 4.)

               Our scope of review is quite limited in cases in which
               the verdict of the trial judge is called into question.
               We are bound by the findings of the trial court which
               have adequate support in the record, as long as the
               findings do not evidence capricious disregard for
               competent and credible evidence.

2  We note that Pa.R.Civ.P. 227.1 requires that “[p]ost-trial motions shall be
filed within ten days after . . . the filing of the decision in the case of a trial
without a jury.” Pa.R.Civ.P. 227.1(c)(1). Because the tenth day following
the trial court’s decision fell on Saturday, March 4, 2017, appellant timely
filed his post-trial motion on Monday, March 6, 2017.                         See
Pa.R.Civ.P. 106(b) (“[w]henever the last day of [any period of time referred
to in any rule] shall fall on Saturday or Sunday, or on any day made a legal
holiday by the laws of this Commonwealth or of the United States, such day
shall be omitted from the computation [of time].”).


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            In a nonjury trial, the trial judge sits as the finder of
            fact. The weight to be assigned the testimony of the
            witnesses is within the exclusive province of the fact-
            finder. The trial court, as sole assessor of credibility,
            may believe all, part or none of the evidence
            presented. Absent an abuse of discretion we will not
            disturb a trial court’s findings of fact if they are
            supported by the record.

Lou Botti Constr. V. Harbulak, 760 A.2d 896, 898 (Pa.Super. 2000)

(internal citations omitted).

      Here, the trial court entered judgment in favor of Smith and against

appellant because:

            [w]hile both parties claimed ownership of the dog
            during the non-jury trial for this case, the Court did
            not find [appellant’s] testimony to be credible for a
            number of reasons. First, [appellant] did not license
            the dog in Lancaster County until after [Smith] had
            moved out of [appellant’s] residence with the dog.
            [Smith], however, had licensed the dog in Lancaster
            County for the years 2014 and 2015, and then in
            Clearfield County for the years 2016 and 2017.
            Further, although both parties claimed to have taken
            the dog to various veterinarian appointments and
            paying for the services rendered, following the
            parties’ separation, [appellant] requested that
            [Smith] pay him back for all veterinary fees
            associated with the dog. If [appellant] had actually
            owned the dog, it would seem unlikely that he would
            have requested payment for the expenses related to
            the care of his own property. Rather, it seems as
            though [appellant] wished to be reimbursed for the
            expenses because he believed that those expenses
            had been accrued in support of [Smith’s] property.

             [Smith’s] testimony, as opposed to [appellant’s],
            appeared credible to the Court. Moreover, [Smith’s]
            testimony was overall consistent with claims of
            ownership of the dog; namely, that [Smith] cared


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            for, licensed, and financially supported the dog.
            Thus, the Court cannot grant [appellant’s] claims for
            either replevin or conversion, as the Court does not
            believe [appellant] had ownership rights or a
            possessory interest in the dog.

Trial court opinion, 2/22/17 at 3-4.

      We have carefully reviewed the record in this case.           The record

supports the trial court’s factual findings. Moreover, the trial court, as sole

assessor of credibility, was free to believe Smith’s testimony over appellant’s

testimony. We discern no abuse of discretion.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/13/2017




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