J-A04036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KENNETH R. KNUTH                                  IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellant

                        v.

    PAUL E. KNUTH, JR., AND B.S. SMITH
    SERVICES, INC.

                             Appellees                   No. 1125 MDA 2017


                Appeal from the Judgment Entered August 4, 2017
                  In the Court of Common Pleas of Perry County
                    Civil Division at No(s): CV-TO-2013-00373


BEFORE: STABILE, J., NICHOLS, J., AND RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                               FILED MARCH 27, 2018

        Appellant, Kenneth R. Knuth (“Kenneth”),1 appeals from the judgment

entered on August 4, 2017, against him and in favor of Appellee, Paul E. Knuth

(“Paul”).2 We vacate the judgment and remand for a hearing on damages.3

        Kenneth and Paul are brothers who own adjoining farms. Paul is the

owner of the dominant tenement.            Kenneth sued Paul for using demolition

material in improving a road across Kenneth’s farm.          Paul counterclaimed
____________________________________________


1To avoid confusion, we shall refer to the Knuth parties in this memorandum
by their first names.
2 Co-defendant B.S. Smith Services, Inc. is not participating in this appeal.
Letter from David R. Getz, Esq., to Jennifer Traxler, Esq., Deputy Prothonotary
(Aug. 17, 2017).
3   Kenneth did not appeal on the issue of his liability.



*Retired Senior Judge Assigned to the Superior Court
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against Kenneth for later removing the demolition material and a top coating

of stone from a portion of the road.

       At the non-jury hearing, during the testimony of Paul’s contractor,

Ben Smith,4 president of B.S. Smith Services, Inc., an invoice was admitted

stating that the original cost in 2012 to improve the road was $7,352.34.

Defense Ex. 1 at 4. A second invoice, id. at 5, was admitted stating that, in

2014, Paul had already spent $12,628.38 redoing the road to make it

“passable.” Notes of Testimony (N. T.), 10/12/16, at 148. Follow-up work

was performed in 2015 due to “weather and conditions and everything,” id.,

which a third invoice indicated cost $762.50. Defense Ex. 1 at 6. When asked

what the cost for redoing the road would be, Mr. Smith answered $25,000.

N. T. at 149.5

       The trial court found in favor of Paul and held Kenneth responsible for

the payment of damages, stating: “These damages will consist of a figure to

restore the road to the condition that it would have been in had [Kenneth] not

actually removed the material, together with an additional sum in support of

the material that was already provided.” Trial Ct. Mem., 12/1/16, at 2. After

ordering briefs on the issue of damages, the trial court awarded $31,000 in

damages to Paul. The trial court explained: “We are not entirely satisfied
____________________________________________


4Mr. Smith’s first name is only given as “Ben” in the notes of testimony. Notes
of Testimony (N. T.), 10/12/16, at 125.
5 Mr. Smith’s testimony was ambiguous as to whether the cost would be
$25,000 in addition to the $12,628.38 already spent to fix the road in 2014
or if $25,000 was Mr. Smith’s estimate of the total cost to redo the road.

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that the gross amount claimed by [Paul] in this matter is appropriate and,

thus, we will enter a compromise figure, based on what we think is not an

inappropriate amount in consideration of all factors.” Trial Ct. Mem., 2/28/17,

at 2.

        In March 2017, Kenneth filed post-trial motions, which the trial court

denied in June 2017. Kenneth filed a notice of appeal in July 2017. In August

2017, Kenneth filed a praecipe to enter judgment in order to facilitate and to

perfect his appeal.

        Kenneth now raises the following issues on appeal:

        A. Whether there was sufficient competent evidence at trial to
           support a finding that [Paul’s] damages were $31,000.

        B. Whether the court should order the entry of judgment in an
           amount the evidence will support or, in the alternative, order a
           new trial on the issue of damages.

Kenneth’s Brief at 4.

        “Whether sufficient evidence exists to support the verdict is a question

of law; our standard of review is de novo[.]” Commonwealth v. Hutchison,

164 A.3d 494, 497 (Pa. Super. 2017) (citations omitted), appeal denied, No.

430 MAL 2017 (Pa. filed December 5, 2017).

        Here, Kenneth disputes the amount of damages, contending that the

evidence was insufficient to support the award.          He cites to Morin v.

Brassington, 871 A.2d 844, 852 (Pa. Super. 2005), for the “principle that

damages must be proven with reasonable certainty.” Kenneth’s Brief at 12.




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      The only evidence presented regarding damages was Mr. Smith’s

testimony and invoices. As explained above, the invoice from 2012 in the

amount of $7,352.34 was the total cost of building the road in the first

instance. Defense Ex. 1 at 4. The next time Mr. Smith worked on the road

was in 2014 in order to redo that road; the cost of that rebuilding was

$12,628.38.   Id. at 5; N. T. at 148.    Mr. Smith returned in 2015, due to

“weather and conditions and everything” and charged $762.50. Id.; Defense

Ex. 1 at 6. These amounts total $20,743.22.

      As this Court stated in Morin, damages must be proven with reasonable

certainty. 871 A.2d at 852. We fail to see – and the trial court did not explain

– how it calculated an award of $31,000, when there was insufficient

competent evidence at trial to support that finding.

      In particular, it is unclear if the amount of the 2015 repairs was

considered by the trial court when determining damages; this cost was for

road maintenance due to “weather and conditions and everything,” N. T. at

148, and not due to Kenneth’s actions. In its original verdict, the trial court

limited its damages to “a figure to restore the road to the condition that it

would have been in had [Kenneth] not actually removed the material, together

with an additional sum in support of the material that was already provided.”

Trial Ct. Mem., 12/1/16, at 2. Once the road was restored to the condition it

would have been in without Kenneth’s actions, Paul, as the dominant tenant,

would be responsible for any future upkeep. See Meadow Run & Mountain

Lake Park Ass’n v. Berkel, 598 A.2d 1024, 1027 (Pa. Super. 1991) (owner

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of dominant estate is under obligation to keep the easement in good repair);

Borgel v. Hoffman, 280 A.2d 608, 609 (Pa. Super. 1971).

      Moreover, we are uncertain as to how or if the trial court considered

Mr. Smith’s estimate of the cost for redoing the road of $25,000. N. T. at 149.

Further affecting the reasonable certainty of the damage award is the

ambiguity of Mr. Smith’s statement itself – i.e., whether the cost would be

$25,000 in addition to the $12,628.38 already spent to fix the road in 2014

or if $25,000 was Mr. Smith’s estimate of the total cost to redo the road.

      In order to rectify these concerns so that damages may be proven with

reasonable certainty, we vacate the judgment and remand for a new hearing

limited to the issue of damages. See Morin, 871 A.2d at 852.

      Judgment vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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