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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. CRONER            :           PENNSYLVANIA
                                         :
                    v.                   :
                                         :
SAMUEL G. POPOVICH AND CATHY J.          :
POPOVICH, HUSBAND AND WIFE,              :
JOSEPH POPOVICH, SINGLE, AND             :
FRANK POPOVICH, JR., SINGLE,             :
                                         :
APPEAL OF: SAMUEL G. POPOVICH            :         No. 1595 WDA 2016
AND CATHY J. POPOVICH, HUSBAND           :
AND WIFE                                 :


              Appeal from the Order Entered September 16, 2016,
               in the Court of Common Pleas of Somerset County
                       Civil Division at No. 221 Civil 1991


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 01, 2017

        Samuel G. Popovich and Cathy J. Popovich1 (“the Popoviches”) appeal

the order of the Court of Common Pleas of Somerset County that granted in

part and denied in part the motion of Harold K. Croner,2 James E. Croner,

and Jonathan H. Croner (“the Croners”) which sought to require the

Popoviches to construct a fence line in accordance with a viewer’s certificate.

The trial court ordered the appointment of a fence viewer to view and



1
    The other two named Popovich parties are no longer part of the case.
2
    Harold Croner is deceased.
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examine the division fence between the parties’ land for purposes of

determining the status of the fence and costs, if any, of repairing or

replacing the fence.   The trial court ordered the fence viewer to issue a

report of his findings. In accordance with these findings, the Croners were

then authorized to repair the fence where necessary in order to make the

fence sufficient to contain livestock, and the Popoviches were ordered to pay

one-half of the cost of repair less a credit of $579.86 for earlier repairs. If

the viewer’s report indicated that a new fence had to be constructed, the

Croners were authorized to construct a new fence on the “certificate line”

established by the viewer with the Popoviches responsible for one-half the

cost less the $579.86 credit. The trial court denied the portion of the motion

in which the Croners sought to have the Popoviches remove the current

fence and reconstruct one on the “certificate line” at the Popoviches’

expense.

      Before this court, the only issue presented on appeal is whether the

Popoviches have a duty to pay any portion of the erection and maintenance

of a line fence when they do not keep livestock on their property.         The

Popoviches essentially argue that under 29 P.S. § 41 and the case law

interpreting it, they do not have to pay for the cost of erecting and

maintaining the fence because the Croners have livestock and they do not.

      The record reflects the history of this case.     The Croners and the

Popoviches owned adjoining farms in Brothersvalley Township, Somerset



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County.     The Croners’ farm has been used as pastureland for cattle since

approximately 1948.      A fence that had been in place between the two

properties for many years fell into disrepair in 1991. On May 15, 1991, the

Croners petitioned for appointment of a fence viewer. The Croners wished

to repair the fence and sought an order that the Popoviches pay one-half of

the cost.     On May 23, 1991, Roland Fogle, a registered professional

engineer, conducted a field viewing of the line fence between the parties’

land and determined that the fence or at least a portion of it was insufficient

and needed to be repaired or replaced.      On or about April 20, 1992, the

Popoviches removed all or a substantial portion of the old fence and began

to construct a new fence as close to the fence line as possible at their own

expense because cattle kept entering their property from the Croners’

property. In 2014, someone cut the fence in five or six places, so that the

fence would no longer contain cattle. (Trial court opinion, 9/20/16 at 1-4.)

Hence, the Croners filed this instant motion.

             When reviewing the results of a non-jury trial, we
             give great deference to the factual findings of the
             trial court. We must determine whether the trial
             court’s verdict is supported by competent evidence in
             the record and is free from legal error.         For
             discretionary questions, we review for an abuse of
             discretion. For pure questions of law, our review is
             de novo.

Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa.Super. 2008),

citing In re Scheidmantel, 868 A.2d 464, 478-479 (Pa.Super. 2005).




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     This case involves the interpretation of Section 1 of the Fence Law, 29

P.S. § 41, which provides:

           § 41. Division fences; proceedings to compel
           erection or part payment

           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 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 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


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           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.

29 P.S. § 41.

     Both parties and the trial court rely on Fogle v. Malvern Courts,

Inc., 701 A.2d 265 (Pa.Super. 1997), affirmed, 722 A.2d 680 (Pa. 1999).

In Fogle, Donald W. Fogle and Charlotte A. Fogle (“the Fogles”)3 owned

property in Frazer, Pennsylvania. The property was bordered on three sides

by property of Malvern Courts, Inc., Roger Buettner, and Joan Buettner

(“the Buettners”).   The properties were located in a single family home

residential neighborhood with some commercial uses nearby.          No fence

existed on the boundary lines between the Fogles’ and the Buettners’

properties. In 1995, the Fogles petitioned to appoint a surveyor pursuant to

29 P.S. § 41 and requested that the Court of Common Pleas of Chester

County order the Buettners to pay an equal share of the cost of erecting a

division fence between their properties.   The Buettners denied that they

were liable to pay any of the cost of constructing a fence and asserted that


3
 As far as this court can discern, it is a mere coincidence that the Fogles
have the same last name as the fence viewer in the present case.


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the Fence Law did not apply to residential neighborhoods or where a fence

had not already been constructed. Fogle, 701 A.2d at 265.

      Each side moved for summary judgment. The Court of Common Pleas

of Chester County granted the Fogles’ motion and denied the Buettners’.

The Buettners appealed to this court.       The one issue on which this court

based its decision was whether the Fence Law should be construed to

require landowners to erect a division fence on their property and contribute

to its cost where there is no pre-existing fence or livestock on their property.

Id. at 266.

      This court reviewed the Fence Law, its predecessor statutes, and

applicable case law.     This court reversed and remanded to the Court of

Common Pleas of Chester County with the direction to enter summary

judgment in favor of the Buettners. Id. at 268. This court reasoned:

                    Finding no other discernible purpose but to
              protect property from trespassing livestock, we
              conclude that the 29 P.S. § 41 does not require an
              adjoining landowner who does not keep livestock to
              share the cost of a fence for the benefit of a
              neighbor.

                    We also note that our interpretation avoids the
              unreasonable result of requiring every owner of
              improved and occupied land in Pennsylvania to pay a
              portion of the cost of a division fence which he or
              she neither wants nor needs.         See 1 Pa.C.S.
              § 1922(1) (“the General Assembly does not intend a
              result that is absurd, impossible of execution or
              unreasonable”). The unreasonableness of such a
              result has also been recognized by courts of other
              states. See Choquette v. Perrault, 153 Vt. 45,
              569 A.2d 455 (1989); Sweeney v. Murphy, 31


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           N.Y.2d 1042, 342 N.Y.S.2d 70, 294 N.E.2d 855
           (1973). Most recently, the Vermont Supreme Court
           held that their state fence law could not be applied
           to landowners without livestock.         Choquette,
           supra, at 460.       After finding that the primary
           purpose of the law was to benefit landowners with
           livestock, the court concluded that the statute was
           burdensome and arbitrary as applied to landowners
           without livestock. Id. Likewise, we also find such a
           result arbitrary and unreasonable.

                 Since the Buettners have no livestock to be
           enclosed, we conclude that the statute does not
           apply. Accordingly, the Buettners are not required to
           pay a portion of the costs should the Fogles erect a
           fence between their adjoining properties. We must,
           therefore, reverse the trial court order granting the
           Fogles’ motion for summary judgment and remand
           to the trial court with direction to enter summary
           judgment in favor of the Buettners.

Fogle, 701 A.2d at 268.

     The Fogles appealed to the Pennsylvania Supreme Court. As this court

did, our supreme court reviewed the Fence Law, its predecessor statutes,

and the case law interpreting the older statutes.      Our supreme court

affirmed and concluded that the Fence Law did not apply because neither of

the properties contained livestock and were not farms or ranches:

                 Hence, even in their earliest forms, fence laws
           had as their objective the containment of livestock
           and the protection of crops.

                 This conclusion is reinforced by the statutes’
           references to the “sufficiency” of fences. As did the
           laws described in Barber v. Mensch [27 A. 708 (Pa.
           1893), the present statute provides that the fence
           between adjoining landowners, the cost of which is
           to be collected in part from the neighboring owner,
           must be a “sufficient” one. For the fence to be


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            sufficient, it must be adequate for its intended
            purpose. There being no other discernible purpose
            than the containment of livestock, the term
            “sufficient” must have been used by the legislature
            to describe a fence in the context of ranch or farm
            property, i.e., a fence that was sufficient to prevent
            livestock from straying onto neighboring properties.

                   In short, the Fence Law addresses the sharing
            of costs for fences constructed on farms and
            ranches.      It does not apply to single-family
            residential neighborhoods in typical urban or
            suburban settings, where the containment of
            livestock is not a concern. Superior Court properly
            held, therefore, that the Fence Law is inapplicable to
            properties of the type presented here.

Fogle, 722 A.2d at 684 (footnotes omitted).

      In the present case, the trial court relied on our supreme court’s

decision in Fogle that the Fence Law addresses the sharing of costs for

fences constructed on farms and ranches and does not apply to single family

residential neighborhoods where the containment of livestock was not a

concern.   The trial court reasoned that both the Croners’ farm and the

Popoviches’ farm were located in rural Somerset County and had been used

to graze cattle. Further, when the action commenced in 1991, there clearly

was an issue with a division fence in need of repair as well as straying cattle.

The trial court concluded that the Fence Law applied and imposed the order

which is at issue here.

      The Popoviches argue that because they no longer keep livestock on

their property and the Croners do, the Popoviches are not the party intended

by the General Assembly to come under the Fence Law.           The Popoviches


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further argue that this court held in Fogle that the Fence Law does not

require an adjoining landowner who does not have livestock to share the

cost of a fence for the benefit of an adjoining landowner who does have

cattle or other livestock. The Popoviches also argue that forcing them to pay

for one-half the cost of the fence would constitute an absurd result that the

General Assembly did not intend, see 1 Pa.C.S.A. § 1922, because they do

not own livestock.

     Jonathan Croner4 (“Croner”) argues that the trial court correctly

applied the Fence Law when it ordered the Popoviches to pay for one-half of

the cost of repairing or replacing the fence even though the Popoviches do

not currently raise livestock. Croner points to our supreme court’s decision

in Fogle for support in that our supreme court decided that the Fence Law

did not apply in Fogle because the properties in question were not farms

and/or ranches but were single family residences in an urban or suburban

setting where the containment of livestock is not a concern.

     This court finds Croner’s argument persuasive.      He asserts and the

record supports him that the fence has existed in one form or another for as

long as the parties can recall, both properties having been rural farms for

many years. Unlike Fogle, the containment of livestock here is a genuine

concern as the Croners had to stop renting out their pastureland to another



4
  Jonathan H. Croner and James E. Croner filed separate briefs though each
sought the same outcome.


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farmer to graze cattle because the cattle would travel over to the

Popoviches’ property. While the Popoviches do not currently have livestock

on their property, there is no requirement in the Fence Law that both parties

own livestock in order for a fence to be required under the law.     Further,

whether or not they own livestock, the Popoviches would benefit from the

installation of a fence that would keep any cattle grazing on the Croners’

land from coming over onto their land. In addition, the Popoviches ignore

our supreme court’s holding in Fogle that the Fence Law applies to farms

and ranches.

      Croner also argues that affirming the trial court would not lead to an

absurd result because there is no “benefits” test in the Fence Law to

determine who pays the cost, and at any rate, the Popoviches do benefit

from the fence in that, if they resume raising livestock, the fence would keep

their livestock on their property.    Also, the fence would keep others from

trespassing and would keep cattle from the Croners’ property from coming

onto the Popoviches’ property.       This court agrees with the arguments of

Croner and determines that the trial court did not err.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2017




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