J. A16025/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


CATHLEEN M. TESAURO AND                :     IN THE SUPERIOR COURT OF
JOSEPH W. TESAURO, JR.,                :           PENNSYLVANIA
HUSBAND AND WIFE                       :
                                       :
                  v.                   :
                                       :
CYNTHIA SCHROYER AND                   :
ADAM T. SCHROYER,                      :         No. 1655 WDA 2016
                                       :
                       Appellants      :


            Appeal from the Order Entered September 26, 2016,
              in the Court of Common Pleas of Fayette County
                   Civil Division at No. 2572 of 2014 G.D.


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED NOVEMBER 21, 2017

     Cynthia Schroyer and Adam T. Schroyer appeal the September 26,

2016 order in which the Court of Common Pleas of Fayette County declared

Cathleen M. Tesauro and Joseph W. Tesauro the fee simple owners of a

parcel of land of 0.2033 acres acquired by adverse possession and legal and




* Retired Senior Judge assigned to the Superior Court.
J. A16025/17

equitable owners of a parcel of land of 0.1618 acres. 1 After careful review,

we affirm.

      The relevant facts, as found by the trial court, are as follows:

                   Before the Court is a Complaint in Action to
             Quiet Title filed by [appellees], involving two
             adjacent parcels of land in South Connellsville,
             Fayette County, Pennsylvania.

                   In the Complaint, the ownership of the first
             parcel, identified as “Disputed Property I,” is being

1  Appellants’ brief incorrectly indicates that appellants appeal from the
October 24, 2016 order that modified the trial court’s order of October 7,
2016 and denied appellants’ motion for post-trial relief. (Appellants’ brief
at iv.) 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). We have corrected the
caption accordingly.

      After judgment was entered, appellants moved for post-trial relief on
October 4, 2016. At the same time, appellant moved for leave to specify
additional grounds for post-trial relief after they had the opportunity to
review the trial transcript. On October 7, 2016, the trial court denied the
motion for post-trial relief and granted the motion for leave to specify
additional grounds for post-trial relief and gave appellants 30 days from the
receipt of the transcript to file amended post-trial motions. On October 21,
2016, appellants moved to vacate their motion for post-trial relief because

             the denial of the original or Post Trial Relief is
             inappropriate in as much as, if that motion is not
             vacated, then an appeal must be had to the Superior
             Court before the [trial] Court would have a chance to
             receive the additional grounds for Post Trial Relief
             after receipt of the transcript and within 30 days
             thereof to file an amended Post Trial Motion.

Petition to Vacate Motion for Post Trial Relief, 10/21/16 at 1, ¶ 4.

      On October 24, 2016, the trial court denied the petition to vacate “as
well as the Order extending time to file petition for Reconsideration of
additional reasons pending transcript.” (Order, 10/24/16 at 1.)


                                     -2-
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            claimed by [appellees] by way of adverse possession
            beginning in or about January 1957. [Appellees]
            seek to be declared the legal and equitable owners of
            Disputed Property I and request that [appellants] be
            forever barred and estopped from having or claiming
            any right, title, or interest therein.

                  The ownership of the second parcel, identified
            as “Disputed Property II,” is alleged by [appellees] to
            be their property through title ownership of deeds of
            record. [Appellees] request this Court to enter an
            Order compelling [appellants] to commence an
            action of ejectment within thirty (30) days or in the
            alternative declare that [appellees] are the legal and
            equitable owners of this parcel and that [appellants]
            be forever barred and estopped from having or
            claiming any right, title, or interest therein.

                  By way of Answer and Counterclaim,
            [appellants] deny the allegations of [appellees’]
            alleged ownership of the disputed properties and
            move this Court to eject [appellees] from the
            disputed lands and declare the rights to the lands as
            belonging to [appellants].

                  Following bench trial, we make the following:

                            FINDINGS OF FACT

            1.    [Appellees], Cathleen M. Tesauro and
                  Joseph W. Tesauro, Jr., husband and
                  wife, are the owners of property located
                  at 1513 East Gibson Avenue, South
                  Connellsville, Pennsylvania.

            2.    [Appellants] and siblings, Cynthia L.
                  Schroyer and Adam T. Schroyer, are the
                  record owners of the land in dispute.

            4.[2] From    1957    through    the   present,
                  [appellees] and their predecessors in title

2 The trial court did not include a paragraph enumerated “3” in its findings of
fact.


                                     -3-
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               came into use and possession of
               Disputed Property I, an area containing
               0.2033 acres.

          5.   [Appellees] and their predecessors in
               title maintained Disputed Property I by
               cutting the grass, maintaining and
               trimming    the   trees,   building  and
               maintaining a shed, repairing and storing
               motor vehicles, cultivating a garden,
               constructing and maintain[ing] a pigpen,
               and utilizing the land for ingress and
               egress to the garden and shed.

          6.   [Appellees] are the sole owners in fee
               simple of Disputed Property I by way of
               adverse    possession      accruing with
               predecessors in title since 1978.

          7.   The metes and bounds description of
               [appellees’] 1.433 acre tract requires the
               first call point as “beginning at an iron
               pin in Gibson Avenue at a place where an
               alley intersects on said Avenue.”

          8.   The boundary line of the [appellees’]
               1.433 acre tract is established by deeds
               of record, by the surveys of L.J. Swisher,
               dated September 24, 1956, Reid
               Pendleton, dated September 15, 1962,
               and Fayette Engineering, dated October
               8, 2014, and by the monumentation on
               the ground as found by Rusty Mechling
               of Fayette Engineering.

          9.   [Appellees] are the legal and equitable
               owners of Disputed Property II by deeds
               of record.

                            DISCUSSION

                [Appellee] Cathleen M. Tesauro is the daughter
          of Lester and Nellie Greenawalt. The Greenawalts
          acquired the property located at 1513 East Gibson


                                 -4-
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          Avenue, South Connellsville, Fayette County,
          Pennsylvania, by way of Deed, dated January 9,
          1957, and recorded in the Recorder of Deeds of
          Fayette County at Record Book 874, Page 530, from
          Grantors, George E. Schroyer and wife, Vivian J.
          Schroyer.

                 Lester    Greenawalt   died    in   1986  and
          Nellie Greenawalt was vested as the fee owner in
          1513 East Gibson Avenue.            Nellie Greenawalt
          continued      to    reside   there     and   married
          William Blackburn in 1989. [] Cathleen M. Tesauro
          moved to Gibson Avenue with her parents in 1957 at
          the age of five years old. She remained a resident
          until she married, but maintained daily visits with
          her parents thereafter. Nellie Greenawalt died in
          2011. By Deed, dated August 15, 2012, The Estate
          of Nellie P. Blackburn and others conveyed 1513 East
          Gibson Avenue, South Connellsville, Fayette County,
          Pennsylvania, to [appellees], recorded at Record
          Book Volume 3196, Page 1197.

          ....

                [Appellees] assert that they are the fee simple
          owner[s] of Disputed Property I by virtue of adverse
          possession. Disputed Property I lies adjacent to and
          south of the [sic] 1531 Gibson Avenue as acquired
          by [appellees] by Deed, recorded at Record Book
          874, Page 530. [Appellees] alleged they and their
          predecessors in title have been in actual, continuous,
          exclusive, visible, notorious, distinct, and hostile
          possession of the land since 1957.          Here, the
          testimony adduced at trial establishes that
          [appellees] have exercised such dominion and
          control over Disputed Property I to be declared as
          the legal and equitable owners of this tract.

                Cathleen M. Tesauro testified that her father,
          Lester Greenawalt, and also her predecessor in title,
          cleared the property identified as Disputed Property I
          by removing boulders and clearing tree limbs. The
          tree   line   has    remained      unchanged    since
          Lester Greenawalt began maintenance. According to


                                  -5-
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          Cathleen Tesauro, Lester Greenawalt also planted
          fruit trees, cut and maintained the grass, and
          gardened on the disputed land. Lester Greenawalt
          placed a shed on Disputed Property I, as depicted by
          Exhibit 8 in approximately 1968 which shows
          Cathleen in front of the shed. The shed was used to
          store car parts, tools, and lawn and gardening
          equipment.

                 When       Lester      Greenawalt      died,
          Nellie Greenawalt    and   her   second   husband,
          William Blackburn, maintained Disputed Property I in
          a similar manner by gardening, cutting the grass,
          trimming the trees, and utilizing the shed.
          [Appellee], Joseph W. Tesauro, Jr. assisted his
          mother-in-law and step-father-in-law and the
          Greenawalt-Blackburn grandchildren also assisted
          Nellie and William Blackburn in maintaining the
          disputed property. The continued maintenance of
          Disputed Property I is depicted in photograph
          Exhibits 9, 10, and 11.

                 Cathleen Tesauro credibly testified that neither
          [appellant] nor any other Schroyer previous in title
          ownership has ever acted in a manner to take
          possession or control of Disputed Property I. No
          other person has ever used the shed, mowed the
          grass, cut the trees, or maintained a garden on this
          tract of land.

                Joseph W. Tesauro, Jr. testified that his
          father-in-law, Lester Greenawalt, worked on vehicles
          by the shed, cut car parts up near the shed, and
          kept spare motors and parts in and around the shed
          for the several cars parked on Disputed Property I.
          Joseph W. Tesauro affirmed that the lands over
          Disputed Property I were cleared and maintained
          prior to his involvement with the Greenawalt family,
          beginning in approximately 1969.         Joseph W.
          Tesauro also denied that anyone has ever demanded
          that he not use [the] land or that the shed be
          removed. Upon this factual basis, the period in time
          from January 1957 until August 15, 2012, the date



                                   -6-
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          of the vesting Deed to the Tesauros shall be included
          in calculating the twenty-one[-]year requirement.

                 [Appellants]   presented     fact    witnesses
          Jeff Schroyer, Richard E. Schroyer, Donald J. Evans,
          Eric Schroyer, Kevin B. Schroyer, and [appellant]
          Adam Schroyer.      The substance of [appellants’]
          factual evidence focused on the relationship between
          Lester Greenawalt as being friends with George E.
          Schroyer, the patriarch of the Schroyer family and
          the Grantor of the vesting deed to the Greenawalts
          as is recorded at Record Book 874, Page 530.

                The Schroyers testified that they maintained
          farm animals and would deliver eggs and manure to
          the Greenawalts. Several of the Schroyer children
          remembered spreading the manure on the garden in
          Disputed Property I, but doing so as an act beneficial
          to Lester Greenawalt. The Schroyer family did not
          maintain the garden on Disputed Property I for
          themselves and did not reap the benefits of the
          garden. Several Schroyers testified that their family
          maintained their own garden throughout their
          childhood and that garden was not located on
          Disputed Property I.

                Jeff Schroyer placed the location of the
          Greenawalt garden within the pink and blue sections
          of Exhibit 7 -- the blue being claimed by adverse
          possession. Jeff Schroyer stated that the size of the
          garden varied but grew larger with time.
          Jeff Schroyer also confirmed that the shed on
          Disputed Property I was built for Lester Greenawalt
          and that Lester Greenawalt kept “fifteen to twenty”
          cars around the shed where he performed
          mechanical work on the cars. The Schroyer family
          members testified that Lester Greenawalt kept a pig
          pen.    Jeff Schroyer believed part of the pig pen
          likewise overlapped the blue section on Exhibit 7.

                On direct examination, Richard E. Schroyer
          alleged that his father, George Schroyer gave
          Lester Greenawalt permission to use the lands of
          Disputed Property I. On cross examination, Richard


                                  -7-
J. A16025/17

          E. Schroyer testified the permission was known as “a
          common thing” and could not pinpoint a time when
          verbal permission occurred, rather he “assumed” his
          father gave permission to Greenawalt.         When
          re-directed by [appellants’] counsel, Richard E.
          Schroyer admitted that he never heard a property
          line discussion between his father, George Schroyer,
          and Lester Greenawalt, but that it was an “unspoken
          thing” between “neighbors.” Richard E. Schroyer
          was never personally a title owner to the disputed
          properties and never told the Greenawalts or
          Tesauros not to use the land.

          ....

                [Appellant] Cynthia L. Schroyer did not testify.
          [Appellant] Adam Schroyer testified that he jointly
          owns the property with his sister, Cynthia L.
          Schroyer.    Adam Schroyer admitted that he has
          never denied the use of the land in the blue area to
          the Tesauros, Blackburn, or Greenawalts.       Adam
          Schroyer alleged that he did not deny the use of the
          land because he was told by his father that as long
          as Mr. and Mrs. Greenawalt lived there, they could
          use that ground. Adam Schroyer took no actions
          and uttered no words to prevent the Tesauros or
          predecessors in title from using Disputed Property I.
          Adam Schroyer admitted that the area shaded in
          blue, representing Disputed Property I, has been
          used continuously by the Greenawalts and Tesauros
          since 1957 as their own. Adam Schroyer denied that
          he or any members of his family ever took
          possession of Disputed Property I in any way. Adam
          Schroyer admitted that the Tesauros, Blackburns,
          and Greenawalts cut the grass for all those years,
          planted fruit trees, placed a shed, and maintained a
          garden on Disputed Property I.

                Based upon the testimony and as admitted by
          [appellant], Adam Schroyer, there remains no
          question of fact that [appellees] have continuously
          used Disputed Property I as their own lands since
          1957.



                                  -8-
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Trial court opinion, 9/26/16 at 1-9 (citations to the record omitted).

                         DISPUTED PROPERTY II

                  [Appellees] are the fee simple owners of
            1513 East Gibson Avenue, South Connellsville,
            Fayette County, Pennsylvania as fully described and
            bounded in the Deed, dated August 15, 2012, from
            the Estate of Nellie P. Blackburn and others to
            [appellees] recorded at Record Book Volume 3196,
            Page 1197. [Appellants] claim an interest in
            0.1618 acres, referred to as “Disputed Property II,”
            which lies on the southern edge of [appellees’] lands
            and is depicted in a pink shaded area on Exhibit 7.

                   [Appellees] presented the testimony of
            Rusty Mechling, a civil engineer and surveyor
            employed by Fayette Engineering, and who was
            recognized by the Court as an expert in the field of
            civil engineering and surveying. Mechling detailed
            the title history of the subject tract from which he
            relied as follows:

            1.    Deed, dated August 20, 1955, recorded
                  at Record Book 841, Page 354, from
                  Charles E. Schroyer to George E.
                  Schroyer and Vivian J. Schroyer, his
                  wife, containing 6.847 acres.

            2.    Survey    of  L.J.   Swisher    dated
                  September 24,     1956,    identifying
                  1.433 acres.

            3.    Deed, dated January 9, 1957, recorded
                  at Record Book 874, Page 530, from
                  George E. Schroyer and Vivian J.
                  Schroyer, his wife, to Lester F.
                  Greenawalt and Nellie Greenawalt, his
                  wife, containing 1.433 acres.

            4.    Survey    of   Reid    Pendleton,   dated
                  September      15,    1962,    identifying
                  1.43 acres.



                                     -9-
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          5.    Deed, dated August 15, 2012, recorded
                at Record Book 3196, Page 1197, from
                the Estate of Nellie P. Blackburn and
                others to Cathleen M. Tesauro and
                Joseph W. Tesauro, her husband.

                 Mechling first relied on the Swisher survey with
          a call point located at the center of Gibson Avenue
          with the intersection of an alley. Mechling explained
          the parent tract of land is 6.847 acres as was vested
          in George E. Schroyer and Vivian J. Schroyer, his
          wife. Prior to subdividing the property, a survey was
          prepared by L. J. Swisher.         The Swisher survey
          identified a point at the center of Gibson Avenue.
          Mechling credibly explained that this point is now
          referred to as a beginning point on the Tesauro
          property, since the metes and bounds description in
          the subsequent vesting deeds state[s] “beginning at
          an iron pin in Gibson Avenue at a place where an
          alley intersects on said Avenue.”        A subsequent
          survey by Reid Pendleton, dated September 15,
          1962, confirmed the point in the middle of Gibson
          Avenue.

                Mechling personally surveyed the tract of land,
          but was not able to physically observe the iron pin in
          Gibson Avenue as a result of the asphalt on the road.
          However, Mechling did identify the location of that
          pin with a metal detector. Mechling, on behalf of
          Fayette Engineering, prepared for [appellees] the
          Exhibits 6 and 7, which were admitted into evidence.

                Mechling opined that the boundary lines by the
          deeds of record, by the surveys of Swisher and
          Pendleton, and by investigating the monumentation
          on the ground by personal survey, the current
          boundary of the Tesauro tract is as shown on
          Exhibits 6 and 7. Mechling bases his opinion on the
          original outconveyance from the Schroyers to the
          Greenawalts with a call point specifically in Gibson
          Avenue. Based upon the first call, with the metes
          and bounds ran from that call, Mechling was able to
          follow the footsteps of the original surveyors.



                                  - 10 -
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                Mechling further opined [appellants] own no
          part of the Tesauro property based on the metes and
          bounds description. In support of this opinion,
          [appellees] cite that the subdivision creating their
          parcel was the first execute [sic] deed and should be
          given priority.

                 With    respect   to    Disputed   Property II,
          [appellants]     presented     two    witnesses     --
          Donald Waxter, a title examiner and Terald McMillen,
          Jr., a Registered Professional Land Surveyor.

                 Donald Waxter testified that he reviewed the
          property records of the disputed parcel and that the
          location of Gibson Avenue was not able to be
          ascertained of record since there were no
          right-of-ways found in the title examination and no
          recorded plan for South Connellsville which would
          identify the disputed portion of East Gibson Avenue.
          Waxter agreed that the Tesauro property of 1.433
          acres was the first parcel conveyed out of the
          Schroyers’ 6.847 acre parent tract. Waxter also
          agreed that the same metes and bounds description
          is found throughout the deeds for the 1.433 acres
          and the description begins at an iron pin in Gibson
          Avenue.

                 Terald McMillen, Jr. of McMillen Engineering
          was recognized as an expert for [appellants] in the
          field of surveying.   McMillen presented Exhibit C
          which depicted a survey prepared by McMillen
          Engineering for Nellie Blackburn (nee Greenawalt),
          dated February 1992.       This survey had located
          various pins that were uncovered by McMillen as
          having been set in 1992.       McMillen opined that
          Gibson Avenue has moved and that McMillen
          Engineering by survey has re-established the correct
          location for Gibson Avenue. McMillen did not have []
          the benefit of the Swisher survey in his file in the
          preparation of the McMillen Engineering survey.
          McMillen based his 2015 survey on points and pins
          that were previously located by McMillen Engineering
          for the 1992 survey.      McMillen opined that the
          correct boundary between the Tesauros and


                                  - 11 -
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            Schroyers is identified on Exhibit B -- the McMillen
            survey.

                  Under questioning by this Court as to how
            McMillen believed that Gibson Avenue had moved,
            McMillen testified that information was at the
            McMillen Engineering office, but no such evidence
            was admitted at trial or provided to this Court.

Id. at 11-14 (citations to the record omitted).

      On March 7, 2016, appellants petitioned to strike the testimony of

Russell B. Mechling, III (“Mechling”), because Mechling was not a licensed

land surveyor in Pennsylvania which made his testimony illegal under the

Engineer, Land Surveyor and Geologist Registration Law (“Law”).3 By order

dated March 14, 2016, the trial court denied the petition.


3Section 3 of the of the Engineer, Land Surveyor and Geologist Registration
Law provides in pertinent part:

            Practice of engineering, land surveying or geology
            without licensure and registration prohibited

            (a)   In order to safeguard life, health or
                  property and to promote the general
                  welfare, it is unlawful for any person to
                  practice    or   to  offer   to   practice
                  engineering in this Commonwealth,
                  unless he is licensed and registered
                  under the laws of this Commonwealth as
                  a professional engineer, for any person
                  to practice or to offer to practice land
                  surveying, unless he is licensed and
                  registered under the laws of this
                  Commonwealth as a professional land
                  surveyor or for any person to practice or
                  to offer to practice geology unless he is
                  licensed and registered under the laws of
                  this Commonwealth as a professional


                                    - 12 -
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     On September 26, 2016, the trial court ruled in favor of appellees on

both disputed parcels and entered judgment in their favor. With respect to

Disputed Property I, the trial court awarded appellees the parcel based on

adverse possession.   With respect to Disputed Property II, the trial court

declared appellees the legal and equitable owners of the tract and barred




                 geologist.   Individuals    licensed    as
                 professional engineers, professional land
                 surveyors    or   registered     landscape
                 architects may perform geological work
                 which is incidental to their engineering,
                 surveying or landscape architecture
                 without being licensed as a professional
                 geologist.

           (b)   A person shall be construed to practice
                 or offer to practice engineering, land
                 surveying or geology who practices any
                 branch of the profession of engineering,
                 land surveying or geology; or who, by
                 verbal    claim,   sign,   advertisement,
                 letterhead, card, or in any other way
                 represents himself to be an engineer,
                 land surveyor or geologist, or through
                 the use of some other title implies that
                 he is an engineer, land surveyor or
                 geologist or that he is registered under
                 this act; or who holds himself out as able
                 to perform, or who does perform any
                 engineering, land surveying or geological
                 service or work or any other service
                 designated by the practitioner or
                 recognized     as     engineering,    land
                 surveying or geology.

63 P.S. § 150.


                                   - 13 -
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and estopped appellants from having or claiming any right, title, or interest

in and to the tract.

      On November 2, 2016, appellants appealed to this court.             On

November 4, 2016, the trial court ordered appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On November 22, 2016, appellants complied with the request.               On

December 27, 2016, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellants raise the following issues for this court’s review:

            I.     Whether the Trial Court erred in considering
                   illegal testimony of [appellees’] surveyor when
                   the court became aware that the surveyor was
                   not licensed in Pennsylvania?

            II.    Whether the Trial Court erred in excluding
                   evidence of Witnesses, Family Members, and
                   [appellants’] predecessor in title and letters
                   form [sic] [appellants’] prior lawyer regarding
                   [appellants’] prior position concerning the
                   ownership of the property?

Appellants’ brief at 2.

            Our 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 the trial judge
            in a non-jury case must be given the same weight
            and effect on appeal as the verdict of a jury, and the
            findings will not be disturbed on appeal unless
            predicated upon errors of law or unsupported by
            competent evidence in the record. Furthermore, our
            standard of review demands that we consider the



                                     - 14 -
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            evidence in a light most favorable to the verdict
            winner.

Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citation omitted).

      Initially, appellants contend that Mechling should not have been

permitted to testify because he was not licensed in the Commonwealth of

Pennsylvania as a land surveyor or engineer. For support, appellants refer

to Section 3 of the Law, 63 P.S. § 150(a), which states that it is unlawful to

practice land surveying without a license in the Commonwealth.

                   The decision to permit a witness to testify as
            an expert rests with the sound discretion of the trial
            court, and, absent an abuse of discretion, the
            decision will not be disturbed on appeal. Miller v.
            Brass Rail Tavern, Inc., 541 Pa. 474, 481, 664
            A.2d 525, 528 (1995). To be qualified to testify in a
            given field, a witness normally needs only to possess
            more expertise than is within the ordinary range of
            training, knowledge, intelligence, or experience. Id.
            at 481, 664 A.2d at 528. Ordinarily, therefore, the
            test to be applied is whether the witness has a
            reasonable pretension to specialized knowledge on
            the subject matter in question. Id. at 480-81, 664
            A.2d at 528; Ruzzi v. Butler Petroleum Co., 527
            Pa. 1, 10, 588 A.2d 1,5 (1991).

Flanagan v. Labe, 690 A.2d 183, 185 (Pa. 1997).

      Appellants challenge the qualifications of Mechling as an expert.

However, at the commencement of the trial on September 25, 2015,

appellants’ counsel stipulated to the qualifications of Mechling.    (Notes of

testimony, 9/25/15 at 5.)      Furthermore, the record reflects that when

appellees offered Mechling as an expert in civil engineering survey,

appellants had no objection. (Id. at 7.)


                                    - 15 -
J. A16025/17

      “Parties are bound by their stipulations made in judicial proceedings.

‘[C]oncessions made in stipulations are judicial admissions, and accordingly

may not later in the proceedings be contradicted by the party who made

them.’” Fierst v. Commonwealth Land Title Ins. Co., 535 A.2d 196, 199

(Pa.Super. 1987), quoting, Tyler v. King, 496 A.2d 16, 21 (Pa.Super.

1985).

      Because of appellants’ earlier stipulation, they cannot at a later time

challenge Mechling’s qualifications as an expert. They had the opportunity

to do so at trial and chose not to avail themselves of this opportunity. The

trial court did not abuse its discretion or commit an error of law when it

denied appellants’ motion to strike Mechling’s testimony.

      Appellants next contend that the trial court erred when it excluded

evidence    of   witnesses,   family   members,   and   appellants   themselves

concerning permission given by the appellants’ predecessor in title to use

the land.

      Adverse possession is a doctrine that permits one to obtain ownership

of another’s property by operation of law. The grant of adverse possession

must be based on clear evidence.          Flannery v. Stump, 786 A.2d 255

(Pa.Super. 2001).     A person who claims title by adverse possession must

establish that he or she had actual, continuous, exclusive, visible, notorious,

distinct, and hostile possession of the land for 21 years. Recreation Land

Corp. v. Hartzfeld, 947 A.2d 771 (Pa.Super. 2008).           The use must be



                                       - 16 -
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adverse to that of the record owner of the property. If the use is permitted

by a lease, license, indulgence, or other grant from the owner, it is not

adverse. Flannery, 786 A.2d at 258-259.

     Appellants argue that the trial court erred when it did not permit their

witnesses and family members to testify that George Schroyer told them

that he gave permission to appellees and their predecessors to use Disputed

Property I because such statements were hearsay.         Appellants assert that

these statements were admissible as a present sense impression exception

to hearsay.

     Section 803(1) of the Pennsylvania Rules of Evidence provides:

              Present Sense Impression.              A statement
              describing or explaining an event or condition, made
              while or immediately after the declarant perceived it.

                   Comment: This rule is identical to F.R.E.
                   803(1).

                   For this exception to apply, declarant need
                   not be excited or otherwise emotionally
                   affected by the event or condition
                   perceived.    The trustworthiness of the
                   statement arises from its timing.       The
                   requirement of contemporaneousness, or
                   near contemporaneousness, reduces the
                   chance of premeditated prevarication or
                   loss of memory.

Pa.R.E. 803(1).

     Appellants argue that George Schroyer, based on his impression, told

his family members and other witnesses about the permission that he gave

to use the land.     The family members and other witnesses perceived the


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event based on George Schroyer’s description or, in the case of appellants,

provided permission again to appellees based on what their father,

George Schroyer,     told   them.        Appellants    argue    that   because

George Schroyer told them about granting permission, this information was

perceived by appellants and other family members and witnesses and should

be admitted under the present-sense impression exception to the rule

excluding hearsay.

      This court does not agree.     The exception states that the statement

must have been made at the time of the event or immediately after the

declarant perceived it. Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270,

1279 (Pa.Super. 2005).

      In Croyle v. Smith, 918 A.2d 142, 150 (Pa.Super. 2007), this court

held that a statement given approximately ten minutes after a motorcycle

accident was not a present sense impression because the statement was not

issued so close to the event that the declarant did not have the opportunity

to decide to make a false statement.

      Here, nothing in the record sets forth when George Schroyer allegedly

made such a statement or its relation to the alleged grant of permission to

the Greenawalt family. This exception to hearsay does not apply.

      Appellants next contend that the trial court erred when it excluded as

hearsay evidence of a prior survey which had been given to a witness by

appellants’ predecessors in title in violation of Pa.R.E. 803(15).



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         Section 803(15) of the Pennsylvania Rules of Evidence provides that

the following is not excluded by the rule against hearsay:

              Statements in Documents That Affect an
              Interest in Property. A statement contained in a
              document, other than a will, that purports to
              establish or affect an interest in property if the
              matter stated was relevant to the document’s
              purpose--unless later dealings with the property are
              inconsistent with the truth of the statement or the
              purport of the document.

Pa.R.E. 803(15).

         Although appellants admit that the survey which was marked as

Exhibit C was admitted into evidence, appellants claim that their expert

witness, Terald McMillen, Jr. (“McMillen”), was not permitted to testify

regarding     it.   This   survey   was   prepared   by   McMillen’s   father   for

Nellie Greenawalt Blackburn.        Appellees objected to the offering of this

document.      The trial court overruled the objection.    (Notes of testimony,

9/25/15 at 64-65.)         Reviewing McMillen’s testimony, it appears that

appellants’ attorney questioned him about the survey labeled Exhibit C

without objection.    It is not exactly clear what issue appellants attempt to

raise.

         Appellants also assert that the exclusion of additional evidence

regarding this survey harmed appellants’ right to defend what they believed

was their property.     Apparently, appellants are referring to letters written

from a deceased attorney who represented appellants’ parents.            The trial




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court sustained appellees’ objection to these letters. It does not appear that

these letters would qualify as exceptions to hearsay under Pa.R.E. 803(15).

      Finally, appellants assert that the disputed land holds its reputation as

Schroyer land based on earlier surveys that testimony should have been

permitted as an exception to hearsay contained in Pa.R.E. 803(20) which

provides:

            Reputation Concerning Boundaries or General
            History.    A reputation in a community--arising
            before the controversy--concerning boundaries of
            land in the community or customs that affect the
            land, or concerning general historical events
            important to that community, state or nation.

Pa.R.E. 803(20).

      Here, there were already surveys which represented boundaries of the

land in question that were admitted into evidence.            Also, testimony

regarding the permission to use land in Disputed Property I is not reputation

evidence nor does it establish boundaries. The surveys of 1956 and 1962,

referred to by appellants, are not the reputation of boundaries but represent

the boundaries themselves. This issue has no merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/21/2017




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