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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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