J-S48036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KENNETH J. HARCHICK AND JOYCE A.               IN THE SUPERIOR COURT OF
HARCHICK, HUSBAND AND WIFE                           PENNSYLVANIA

                        Appellants

                   v.

RYAN CAMPBELL

                        Appellee                    No. 271 WDA 2015


          Appeal from the Judgment Entered on February 9, 2015
            In the Court of Common Pleas of Clearfield County
                    Civil Division at No.: 2009-1997-CD


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 15, 2015

      Kenneth Harchick     (individually, “Harchick”)   and   Joyce   Harchick,

husband and wife (collectively, “the Harchicks”), appeal the trial court’s

entry of judgment in favor of the defendant following a bench trial.       We

affirm.

      In the underlying controversy, the Harchicks filed suit against Ryan

Campbell, in which they alleged that Campbell erected a free-standing

scaffold hunting stand on the Harchicks’ property (“the Property”) without

permission and that Campbell had cut down 109 trees on their property to

create a radial pattern of shooting lanes. Because the Harchicks challenge

reduces to the claim that the trial court’s improperly weighed the evidence in

granting a defense verdict, we begin with our standard of review:
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     Appellate review of a weight [of the evidence] 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. Because the trial court has had the opportunity to
     hear and see the evidence presented, an appellate court will give
     the gravest consideration to the findings and reasons advanced
     by the trial judge when reviewing a trial court’s determination
     that the verdict is against the weight of the evidence. One of
     the least assailable reasons for granting or denying a new trial is
     the lower court’s conviction that the verdict was or was not
     against the weight of the evidence and that a new trial should be
     granted in the interests of justice.

     The fact-finder is free to believe all, part, or none of the
     evidence and to determine the credibility of the witnesses. The
     trial court may award a judgment notwithstanding the verdict or
     a new trial only when the jury’s verdict is so contrary to the
     evidence as to shock one’s sense of justice. In determining
     whether this standard has been met, appellate review is limited
     to whether the trial court’s discretion was properly exercised,
     and relief will only be granted where the facts and inferences of
     record disclose a palpable abuse of discretion. When a fact-
     finder’s verdict is so opposed to the demonstrative facts that
     looking at the verdict, the mind stands baffled, the intellect
     searches in vain for cause and effect, and reason rebels against
     the bizarre and erratic conclusion, it can be said that the verdict
     is shocking.

Brown v. Trinidad, 111 A.3d 765, 770 (Pa. Super. 2015).

     Although we are bound to review the evidence in the light most

favorable to Campbell, doing so in this case would provide no meaningful

account of the alleged facts underlying the Harchicks’ claims, because, put

simply, the trial court concluded that the determinative events alleged

simply did not happen. Accordingly, we begin by reviewing the Harchicks’

allegations as pleaded.




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         In the Harchicks’ two-page complaint, they contended that they owned

150 acres in Burnside Township, Clearfield County, Pennsylvania (i.e., the

Property).     They averred that Campbell asked Harchick for permission to

hunt on the Property. Harchick denied Campbell permission to do so. The

Harchicks further alleged that, in late 2007, Campbell erected a hunting

stand on the Property and cut down at least 109 trees to create shooting

lanes.     The Harchicks alleged that Campbell cut down sixty-seven trees

measuring one inch to one and one half inches in diameter, and forty-two

trees measuring two to two and one half inches in diameter. Based upon

these allegations, the Harchicks asserted damages of $18,493.91, providing

a nursery’s replacement estimate for 109 trees.

         After various delays and the eventual completion of discovery, the

parties proceeded to a bench trial on August 15, 2014. The Harchicks and

three additional witnesses testified for the Harchicks. Campbell testified and

presented two additional witnesses on his own behalf.        Harchick testified1

that, in November or December of 2007, Robert Neff, an individual who

hunted in the area, told him that he had observed a hunting stand and cut

trees on the Property.        Harchick visited the Property, observed a hunting

stand just over the boundary separating the Property from a parcel



____________________________________________


1
         See Notes of Testimony, 8/15/2014, at 46-89.




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belonging to one Mr. McDermott (“the McDermott Property”),2 and also saw

freshly cut trees in what appeared to be a number of shooting lanes

radiating out from the hunting stand.             Approximately one week later, he

returned to the Property and found Campbell, Campbell’s son, and

McDermott together, standing roughly on the property line dividing the

Property from the McDermott Property.                Harchick approached them and

asked Campbell to identify himself.            Harchick told Campbell that Campbell

owed him money for the trees that had been cut down. Campbell asked how

much money Harchick believed the trees to be worth, and Harchick indicated

a value of $5,000.         Campbell indicated that he would not remunerate

Harchick in that or any amount.3               The Harchicks introduced photographs

depicting the stand and various freshly cut trees.

       Harchick’s wife testified briefly that she had never given Campbell

permission to hunt on the Property.                   Notes of Testimony (“N.T.”),

8/15/2014, at 80-82. Their son, Kenneth A. Harchick, testified that he had

observed the cut trees after the fact, and that he did not know who had cut

them, because he had not observed anyone doing so.               Id. at 82-85. The

Harchicks also called a certified forester to testify as an expert, and he


____________________________________________


2
      Mr. McDermott, who was deceased at the time of trial, is identified
only as Mr. McDermott in the trial transcript.
3
     On this basis, Harchick understood Campbell to admit that he was
responsible for cutting the trees.



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testified regarding the trees that had been cut on the Property. Id. at 4-28.

Additionally, they called the licensed owner of a nursery, who discussed the

cost of replacing the trees. Id. at 29-35.

       The defense began its presentation by calling Campbell to the stand.

Campbell testified4 that he regularly hunted in the vicinity of the Property.

He further testified that he was aware of the location of the bounds of the

Property.    Campbell testified that he had one conversation with Harchick,

approximately twenty years before the events at issue in this litigation,

when Harchick observed Campbell and his brother on an adjacent parcel

near the Property. Harchick approached the men and asked why they were

hunting on the Property. Campbell responded that they were not within the

bounds of the Property and were not hunting. Harchick requested, and was

shown, Campbell’s and/or his brother’s hunting licenses, and he recorded

identifying information.

       Regarding the alleged 2007 encounter with Harchick, Campbell

testified that, in the past, he had hunted on the McDermott Property, where

he undisputedly had the encounter with Harchick, the substance of which the

parties disputed. At that time, the hunting stand undisputedly was located

on the McDermott Property.           Campbell testified that he had never asked

Harchick for permission to hunt on the Property, had never entered the


____________________________________________


4
       See N.T. at 87-106.



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Property, had never hunted on the Property, had never erected a hunting

stand on the Property, and had never cut trees on the Property. Campbell

denied that he had admitted to cutting trees on the Property or discussed

compensating the Harchicks for those trees.         According to Campbell,

Harchick asked him why Campbell was hunting “so close to” the Property.

Id. at 93.    Campbell responded that he was not hunting on the Property.

Wishing to avoid conflict, Campbell exited the situation with his son in tow.

He testified that he had no further contact with Harchick.     Campbell also

testified that he later moved his hunting stand from the McDermott Property

to another acquaintance’s property specifically to avoid further conflict with

Harchick.5

       Campbell also called Neff, the same gentleman who, Harchick testified,

informed Harchick about the presence of the hunting stand and the cut trees

on the Property.      Neff averred6 that he sometimes hunted with Campbell,

and otherwise corroborated Campbell’s testimony. Specifically, he testified

____________________________________________


5
      Campbell’s desire to avoid conflict was a recurring theme in his
testimony. Regarding his first encounter with Harchick, he testified that he
and his brother were not on the Property. However, he and/or his brother,
when approached by Harchick, produced their licenses when asked to do so.
When counsel for the Harchicks asked why they would produce their licenses
at Harchick’s request when they were not trespassing, he quipped, “When
you’re standing there without a gun and someone has a high-powered rifle
and you’re in the woods you don’t, you know—you just try to be courteous.”
N.T. at 105-06.
6
       See N.T. at 107-17.



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that he was familiar with the bounds of the Property, and that the hunting

stand was situated on the McDermott Property. He testified that, during the

relevant time period, Campbell never moved the hunting stand. He further

testified that he had never hunted with Campbell on the Property, and that,

although he was aware that Harchick claimed that certain trees on the

Property had been cut down, he had never seen the trees and had no idea

who might have cut them, if anyone.

       Neff flatly denied the testimony of Harchick and his son that Neff had

told them that he had helped Campbell remove a hunting stand from the

Property to the McDermott Property.              He did acknowledge encountering

Harchick and his son posting notices where the Property abutted a road

around when Harchick maintained that Neff had alerted him to the hunting

stand on the Property, but indicated that the substance of the conversation

concerned only a discussion of where one of the Property’s boundaries was

located. Neff acknowledged that the topic of a hunting stand had come up

during that conversation. Specifically, Harchick asked him about the hunting

stand and Neff responded that the hunting stand had never been on the

Property.

       Finally, Campbell called his brother, Raymond Campbell, to testify.7

Raymond Campbell corroborated the other defense witnesses’ testimony as


____________________________________________


7
       See N.T. at 118-21.



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to the location of the hunting stand.       He also corroborated Campbell’s

account of their encounter with Harchick decades before the events at issue.

He further testified that he had never entered the Property and was unaware

of any cut trees on the Property.

      Following rebuttal testimony by Harchick and his son, the parties

rested.   The trial court accepted a trial memo from the Harchicks’ and

further granted the parties twenty days to prepare additional briefs for the

trial court to review, should they so desire.   The docket does not indicate

that either party filed additional briefs to the trial court, although the trial

court alluded to such briefs in its September 25, 2014 opinion and order. In

that opinion, the trial court noted correctly that Harchick’s claim that

Campbell had directly or implicitly admitted that he had cut down the trees

at issue, the core averment upon which the Harchicks’ claims depended, was

supported only by Harchick’s own testimony.           Conversely, Campbell’s

testimony and that of his other witnesses was consistent in contradicting the

Harchicks’ allegations. The trial court expressly found Campbell’s testimony

and that of his supporting witnesses “more weighty and credible than”

Harchick’s, and accordingly entered a defense verdict.

      On October 6, 2014, the Harchicks filed a post-trial motion.        After

receiving briefs and hearing argument, the trial court denied the Harchicks’

motion in an order entered on January 14, 2015.           After judgment was

entered on February 9, 2015, the Harchicks filed this timely appeal.        The

trial court entered an order directing the Harchicks to file a concise

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statement      of   the    errors    complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b), the Harchicks timely complied, and, on March 11, 2015,

the trial court issued a supplementary Rule 1925(a) opinion, wherein the

court reiterated that it had found Campbell and his witnesses more credible

than the Harchicks.

       As noted, supra, the Harchicks contest the trial court’s weighing of the

evidence. See Brief for the Harchicks at 4.8 Their arguments in support of

this claim consist of a lengthy recitation of the testimony reviewed above.

In particular, the Harchicks dispute the trial court’s assertion that the only

evidence in support of their claim that Campbell admitted to cutting the

trees was Harchick’s testimony, but they do not direct this Court’s attention

to any other evidence that supported Harchick’s account of the conversation.

       Notably, the Harchicks do not acknowledge the highly deferent

standard of review that we must apply to challenges to the fact-finder’s

weighing of the evidence, nor do they acknowledge that our carefully

circumscribed responsibility in this case is merely to determine whether the

trial court abused its discretion in rejecting their challenge to the weighing of

the evidence:

       The trial court may award a judgment notwithstanding the
       verdict or a new trial only when the jury’s verdict is so contrary
____________________________________________


8
     The essence of their argument being so simply stated, it is
unnecessary to quote at length the two issues into which the Harchicks
formulate their claims.



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      to the evidence as to shock one’s sense of justice.            In
      determining whether this standard has been met, appellate
      review is limited to whether the trial court’s discretion was
      properly exercised, and relief will only be granted where the
      facts and inferences of record disclose a palpable abuse of
      discretion. When a fact-finder’s verdict is so opposed to the
      demonstrative facts that looking at the verdict, the mind stands
      baffled, the intellect searches in vain for cause and effect, and
      reason rebels against the bizarre and erratic conclusion, it can
      be said that the verdict is shocking.

Brown, 11 A.3d at 770.

      The governing standard is easily applied in the instant case. The trial

court correctly recognized the Harchicks’ dependence upon Campbell’s

alleged admission to establish their entitlement to damages.             However,

Campbell flatly denied Harchick’s account of the conversation during which

Campbell was alleged to have made that admission.             Thus, the trial court

faced nothing more than a classic he said-he said dispute. Manifestly, the

trial court was free, based upon the record before it, to find either party’s

testimony credible or incredible. The trial court explicitly found Campbell’s

testimony   more    credible,   citing    in   support   Campbell’s   corroborating

witnesses, whose testimony the trial court also credited. This testimony was

sufficient to support the trial court’s findings of fact.             Under these

circumstances, the court clearly did not abuse its discretion in denying the

Harchicks’ challenge to the court’s weighing of the evidence. Consequently,

the Harchicks are entitled to no relief.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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