Colony, C. v. Doberman Group, Inc.

J. A25010/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHARLES MAYNARD COLONY AND : IN THE SUPERIOR COURT OF
PAUL MARKLEY, LATE, TRADING AS : PENNSYLVANIA
HAWKWING PARTNERSHIP :
:
v. :
:
DOBERMAN GROUP, INC., :
WALTER DOBOZYNSKI, :
CLARENCE KAUFFMAN, STEVEN CONN :
AND HENRY OBER, :
:
Appellants :
:
BRUMBAUGH LUMBER CO., : No. 590 MDA 2016
MIFFLIN COUNTY COMMISSIONERS, & :
HARRIET CLARK :

Appeal from the Judgment Entered April 7, 2016,
in the Court of Common Pleas of Mifflin County
Civil Division at No. CP-44-CV-1361-1996

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 03, 2017

Doberman Group, Inc., Walter Dobozynski, Clarence Kauffman,

Steven Conn, and Henry Ober (collectively, “appellants”) appeal from the

$242,326 judgment entered in favor of Charles Maynard Colony and

Paul Markley, late, trading as Hawkwing Partnership (collectively,

* Former Justice specially assigned to the Superior Court.
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“appellees”), following the denial of appellants’ post-trial motions. After

careful review, we affirm.1

The trial court set forth the relevant facts and procedural history of

this case as follows:

In this action, which was filed September 12,
1996 [and amended on January 13, 1997],
[a]ppellees sought to quiet title to real estate located
partially in Granville Township, Mifflin County, and
partially in Derry Township, Mifflin County. In
addition, they sought compensatory and punitive
damages for timber cut and removed by [a]ppellants
on the property they claimed to own. Finally[,] they
asked that the corporate veil be pierced and that
judgments be entered against the individual
[appellants]. [Appellants, in turn, filed an answer
with a new matter and counterclaim on February 14,
1997.]

As we have noted in prior opinions, this
litigation spawned at least five (5) other cases. This
fact is set forth as a partial explanation for the long
delay in this case since the attitude of counsel has
always been that resolution of the collateral litigation
was necessary to a final resolution of this case.

Procedurally, Mifflin County President Judge
Timothy S. Searer by order dated June 1[6], 1997,
bifurcated the issues relating to the ownership and
location of the real estate and liability for damages.
The issues of ownership and location were tried to
the Court [on] June 16[-]17, 1997. Thereafter on
August 24, 1998, Judge Searer filed his adjudication
concerning the real estate. [(See trial court opinion
(“Searer opinion”), 8/25/98; certified record at 37.)]
Appellants filed a timely Motion for Post-Trial Relief

1
The record reflects that intervenor Brumbaugh Lumber Company
terminated its action in 2015, and the claims of the Mifflin County
Commissioners and intervenor Harriet Clark were resolved prior to this
appeal.

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on September 3, 1998. After argument
Judge Searer entered an order on December 15,
1998, in which he amended his prior order [entered
August 25, 1998] in two (2) particulars. Both of the
adjudicatory orders made by Judge Searer have
been appealed by [a]ppellants.

The damage phase of this case as well as the
request that the corporate veil be pierced was tried
before [the Honorable Stewart L. Kurtz] on
October 7, 2014. [The record reflects that
appellants Kauffmann and Ober died prior to the
October 7, 2014 trial.] By Order and Memorandum
[dated] September 4, 2015 [and filed September 8,
2015], judgment was entered in favor of [a]ppellees
and against [appellants], and damages in the
amount of Two Hundred Forty-Two Thousand Three
Hundred Twenty-Six and No/100 ($242,326.00)
Dollars were awarded. [(See trial court opinion
(“Kurtz opinion”), 9/8/15; certified record at 152.)]

Rule 1925(a) opinion, 5/19/16 at 2-4 (footnote omitted); certified record at

169.

On September 17, 2015, appellants filed a timely post-trial motion,

challenging the trial court’s establishment of the boundary line, the amount

of damages awarded, and the fact that the trial court failed to join

indispensable parties. (See “Motion for Post-Trial Relief,” 9/17/15 at 2-3,

¶¶ A-C.) The trial court heard arguments on December 11, 2015. On

March 28, 2016, the trial court entered an order denying appellants’

post-trial motion and filed an 11-page opinion in support of its order. (See

trial court opinion, 3/28/16; certified record at 158.) Appellants filed a

praecipe to enter judgment on April 7, 2016. On April 13, 2016, appellants

filed a notice of appeal. On April 20, 2016, the trial court directed appellants

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to file a concise statement of errors complained of on appeal, in accordance

with Pa.R.A.P. 1925(b). Appellants filed a timely Rule 1925(b) statement on

May 5, 2016. Thereafter, on May 19, 2016, the trial court filed its

Rule 1925(a) opinion.

Appellants raise the following issues for our review:

1. [Whether t]he trial court’s decision is
unsupported by the evidence when the original
Warrants indicated the correct acreage and
boundaries[?]

2. [Whether t]he trial court committed an error of
law or abused its discretion by concluding that
the Township line as established by the [trial]
court constituted the boundary line between
the McCormick and Reiley Warrants[?]

....

3. Assuming the trial court correctly decided the
revised Township boundary line was the
correct boundary line as stated in its December
1998, Opinion, [did] the trial court err[] as a
matter of law or abuse[] its discretion when it
did not consider the fact that the parties’
predecessors in title recognized and consented
to the boundary line[?]

[4]. [Whether t]he trial court erred as a matter of
law or abused its discretion by awarding
[a]ppellees double the amount of damages
under the Timber Trespass law[, 42 Pa.C.S.A.
§ 8311?]

....

[5]. [Whether t]he trial court erred as a matter of
law or abused its discretion in calculating the
underlying amount of damages for the
harvested timber[?]

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[6]. [Whether t]he trial court erred as a matter of
law by failing to join indispensable parties
whose property lines were changed by the
decision when the decision impaired the rights
of those persons and entities[?]

Appellants’ brief at 4 (headings omitted; numeration amended).2

Preliminarily, we note that our standard of review in non-jury cases is:

limited to a determination of whether the findings of
the trial court are supported by competent evidence
and whether the trial court committed error in the
application of law. Findings of the trial judge in a
non-jury case must be given the same weight and
effect on appeal as a verdict of a jury and will not be
disturbed on appeal absent error of law or abuse of
discretion. When this Court reviews the findings of
the trial judge, the evidence is viewed in the light
most favorable to the victorious party below and all
evidence and proper inferences favorable to that
party must be taken as true and all unfavorable
inferences rejected.

Christian v. Yanoviak, 945 A.2d 220, 224 (Pa.Super. 2008) (citation

omitted).

Appellants’ first three claims concern Judge Searer’s determination of

the boundary line between the parties’ respective properties. The record

reflects that Judge Searer made the following findings of fact with regard to

the ownership and location of the disputed property:

1. [Appellees] and [appellants] both claim the
same tract of wild, uncultivated, unenclosed
mountain ground.

2
To the extent appellants’ issues are interrelated, we will address them
simultaneously.

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2. The lands at issue consist of lands originally
warranted in the names of William [Reiley][3]
and James McCormick. See [appellees’]
Exhibits 2 and 3.

3. [Appellees’] Exhibit 1 is a [September 18,
1996] survey of the lands at issue and is an
accurate depiction of the lands originally
warranted in the names of William [Reiley] and
James McCormick.

4. The land from the [Reiley] warrant is depicted
as the western portion of the lands claimed by
the [appellees] in [appellees’] Exhibit 1.

5. The land from the McCormick warrant is
depicted as the eastern portion of the lands
claimed by the [appellees] in [appellees’]
Exhibit 1.

6. [Appellees’] Exhibit 4 sets forth the official
legal boundary line between Derry Township
and Granville Township.[4]

7. [Appellees’] Exhibit 1 accurately depicts the
position of the boundary line between Derry
Township and Granville Township.

Searer opinion, 8/25/98 at 2 (emphasis added).

3
We note that at various places in the extensive record in this case,
William Reiley’s surname is incorrectly spelled as both “Riley” and “Reily.”
On the October 10, 1906 survey of the warrants in question, however, his
surname is indicated as William Reiley.
4
Appellees’ Exhibit 4, entitled “1837 Board of Viewers Report,” is a record of
proceedings of the Court of Quarter Sessions of Mifflin County that created
Granville Township from Derry Township. This record includes a survey
detailing the exact location of the township boundary line and was
introduced by appellees at the June 1997 trial.

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As noted, Judge Searer entered an order on August 25, 1998,

determining that the boundary between the parties’ portions of the disputed

property was the boundary line between Derry Township and Granville

Township depicted in appellees’ Exhibit 1. (Trial court order, 8/25/98 at

¶¶ 2-3.) Following argument on appellants’ post-trial motions, Judge Searer

amended his August 25th order on December 15, 1998, finding that “[t]he

border between Granville Township and Derry Township may not be

accurately depicted by [appellees’] Exhibit 1” and it “is not to be used to

establish the boundary between [the parties’] portions of the disputed

land[.]” (Trial court order, 12/15/98 at ¶ 1.) Rather, Judge Searer found

that the boundary between the parties’ disputed property was the boundary

line between Derry Township and Granville Township as depicted in

appellees’ Exhibit 4. (Id. at ¶ 2 (emphasis added).)

Appellants contend that the trial court’s determination “is unsupported

by the evidence when the original Warrants indicated the correct acreage

and boundaries.” (Appellants’ brief at 16.) Appellants argue that “[t]he

evidence and the prior deeds indicated the McCormick Warrant was in Derry

Township[,]” and the trial court’s boundary line essentially “nullified the

grant of acreage as surveyed and stated in the Warrant for the McCormick

property.” (Id. at 17.) Appellants further contend that the trial court

abused its discretion “by concluding that the Township line as established by

the [trial] court constituted the boundary line between the McCormick and

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Reiley Warrants.” (Id.) Appellants also argue that the trial court abused its

discretion in failing to “consider the fact that the parties’ predecessors in title

recognized and consented to the boundary line.” (Id. at 26.) For the

following reasons, we disagree.

Appellants’ arguments are premised on their belief that they acquired

the warrant initially issued to James McCormick on March 12, 1794 (“the

McCormick warrant”) from their predecessor in title, Sherrie A. Macknair.

Appellants contend “[i]t is the McCormick [w]arrant that was sold at a tax

sale [by the Mifflin County Tax Claim Bureau] and acquired by [Robert G.

Macknair and Sherrie A. Macknair (collectively, “the Macknairs”)] and

subsequently conveyed to Doberman.” (Appellants’ brief at 21.) The

record, however, belies this claim.

Preliminarily, we note that the trial court never concluded that the

township boundary line “constituted the boundary line between the

McCormick and Reiley Warrants.” (See appellants’ brief at 17.) Rather, the

trial court merely determined that the boundary between the parties’

disputed property was the official boundary line between Derry Township

and Granville Township as depicted in appellees’ Exhibit 4. (See trial court

order, 12/15/98 at ¶ 2.)

Here, the record reflects that the land issued via warrant to McCormick

in 1794 existed in Derry Township until 1837, when Granville Township was

created. (See “1837 Board of Viewers Report”; appellees’ Exhibit 4.) By

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deed dated January 14, 1983 (the “Macknair deed”), the Mifflin County Tax

Claim Bureau conveyed the property to appellants’ predecessors in title, the

Macknairs. There is no mention of the McCormick warrant in the Macknair

deed, and this deed only refers to property located in Derry Township, as

follows:

That land situate on Jacks Mountain, bounded
by Granville Township and Brown Township, and by
land corresponding to Derry Township Tax Map
Numbers 16 -01-119, 16-01-121, 16-01-115, and
16-01-120.

No record of title found.

Deed, 1/14/83, Schedule A; Amended Complaint, 1/13/97 at Exhibit M;

certified record at 14.

Following her husband’s death, Sherrie A. Macknair conveyed the

same premises to appellant Doberman Group, Inc. (“Doberman”) by deed

dated May 30, 1996 (the “Doberman deed”). The Doberman deed does not

reference the McCormick warrant and contains the following description of

property situated solely in Derry Township:

BEING the same premises of which Robert G.
Macknair and Sherrie A. Macknair, husband and wife,
became seized by deed of the Mifflin County Tax
Claim Bureau, dated January 14, 1983, and recorded
in the Recorder’s Office of Mifflin County,
Pennsylvania, in Record Book 268, page 21, and
upon the death of Robert G. Macknair on August 2,
1984, complete title vested in Sherrie A. Macknair,
by right of survivorship; AND any other land in which
Sherrie A. Young, formerly Sherrie A. Macknair has
an interest in situate in Derry Township, Mifflin
County, Pennsylvania.

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Deed, 5/30/96, Schedule A; Amended Complaint, 1/13/97 at Exhibit L;

certified record at 14.

Accordingly, it is clear that Sherrie Macknair did not have title to any

land located in Granville Township, including the aforementioned McCormick

warrant parcel, and could not convey any title to land located in Granville

Township to Doberman. Appellee Hawkwing’s title, on the contrary,

stemmed from the November 4, 1847 conveyance of the McCormick and

Reiley warrants to Robert A. Means. (Searer opinion, 8/25/98 at 2, finding

of fact no. 8.) Hawkwing ultimately obtained its title to the land situated

“partly in Granville Township and partly in Derry Township” by deed dated

July 26, 1996. (See Deed, 7/26/96 at 1; Amended Complaint, 1/13/97 at

Exhibit B; certified record at 14.)

Based on the foregoing, we conclude that the findings of the trial court

are supported by competent evidence. Contrary to appellants’ contention,

Doberman never acquired the land specified in the McCormick warrant.

Accordingly, we discern no abuse of the trial court’s discretion in determining

that the boundary line between Derry Township and Granville Township as

depicted in appellees’ Exhibit 4 constituted the boundary between the

parties’ property.

Appellants’ next two claims concern Judge Kurtz’s award of damages

to appellees for the removal of timber from their property. Appellants first

argue that the trial court abused its discretion by awarding appellees double

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the amount of damages under the “Timber Trespass” law, 42 Pa.C.S.A.

§ 8311, based upon a finding of negligence. (Appellants’ brief at 29.)

Appellants maintain that the evidence presented at trial “established that

Doberman had a reasonable basis for believing that the land on which the

timber was harvested was its land[,]” and thus, the finding of negligence

cannot stand. (Id. at 29-30.) We disagree.

Section 8311, Damages in actions for conversion of timber,

provides as follows:

(a) General rule.--In lieu of all other damages or
civil remedies provided by law, a person who
cuts or removes the timber of another person
without the consent of that person shall be
liable to that person in a civil action for an
amount of damages equal to:

(1) the usual and customary costs of
establishing the value of the timber
cut or removed and of complying
with the erosion and sedimentation
control regulations contained in 25
Pa. Code Ch. 102 (relating to
erosion control);

(1.1) the cost of any surveys obtained in
connection with the civil action;
and

(2) one of the following:

(i) three times the market value
of the timber cut or removed
if the act is determined to
have been deliberate;

(ii) two times the market
value of the timber cut or

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removed if the act is
determined to have been
negligent; or

(iii) the market value of the
timber cut or removed if the
defendant is determined to
have had a reasonable basis
for believing that the land on
which the act was committed
was his or that of the person
in whose service or by whose
direction the act was done.

42 Pa.C.S.A. § 8311(a) (emphasis added).

Instantly, Judge Kurtz determined that the double damages clause set

forth in Section 8311(a)(2)(ii) applied in this case and awarded appellees

two times the market value of the timber cut, totaling $242,326.00. In

support of this conclusion, Judge Kurtz reasoned as follows:

The question then is whether or not
[appellees] are entitled to enhanced damages. In
this case we are persuaded that [appellants] acted
negligently in cutting the trees when they had been
placed on notice that title to the property where they
were cutting was in dispute. In this regard there is
no argument that on July 31, 1996, [appellees’]
attorney wrote to [appellants’] attorney and gave
him notice of the fact of [appellees’] claim of
ownership to the land. To continue cutting in our
view was therefore negligent . . . .

Kurtz opinion, 9/8/15 at 12.

Upon review of the evidence in the light most favorable to appellees,

we conclude that the trial court’s finding of negligence is clearly supported

by the evidence of record. See Yanoviak, 945 A.2d at 224. The record

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reveals that appellant Walter Dobozynski (“Dobozynski”) acknowledged that

Doberman received a letter from appellees dated July 31, 1996, that warned

appellants not to cut timber on the disputed property, but evidently elected

to disregard this warning. (See notes of testimony, 10/7/14 at 95.)

Dobozynski testified that he based his decision to remove timber from the

disputed property on his belief that the January 14, 1983 deed between the

Mifflin County Tax Claim Bureau and Doberman’s predecessors in title, the

Macknairs, was for 1100 acres. (Id. at 92; notes of testimony, 6/16-17/97

at 160-161.) The record, however, reflects that appellants failed to ensure

that a survey of the land they acquired by deed was fully completed prior to

removal of the timber. (Id.) Additionally, our review of the property

description in both the Macknair deed and the Doberman deed reveals that

they only reference land located in Derry Township. (See Deed, 1/14/83,

Schedule A and Deed, 5/30/96, Schedule A; Amended Complaint, 1/13/97 at

Exhibits L, M; certified record at 14.) Lastly, we note that Dobozynski

testified that he was concerned after Doberman encountered a yellow line

“blazing” the trees on the disputed property, but appellants nonetheless

elected to continue cutting timber after their attorney informed them to

“[k]eep going unless someone can stop you.” (Notes of testimony, 10/7/14

at 102.)

Based on the foregoing, we discern no abuse of the trial court’s

discretion in concluding that appellants’ removal of the timber from the

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property in question was negligent. Accordingly, the trial court’s award of

$242,326 in damages to appellees pursuant to Section 8311(a)(2)(ii) was

entirely warranted.

We now turn to appellants’ claim that the trial court abused its

discretion “in calculating the underlying amount of damages for the

harvested timber.” (Appellants’ brief at 41.) In support of this contention,

appellants take issue with the fact that the trial court found that expert

witness James M. Cowan (“Cowan”) utilized a more accurate methodology

for estimating the value of the harvested timber than that of appellants’

expert witness, Robert S. Bingman (“Bingman”). (Id. at 42-51; see also

trial court opinion, 9/8/15 at 4.)

We note that,

[t]he [trial] court’s findings are especially binding on
appeal, where they are based upon the credibility of
the witnesses, unless it appears that the court
abused its discretion or that the court’s findings lack
evidentiary support or that the court capriciously
disbelieved the evidence.

Yanoviak, 945 A.2d at 225 (citations and internal quotation marks

omitted). Market value is defined under Section 8311 as “[t]he value of the

standing timber at local market prices for the species and quality of timber

cut or removed at the time it was cut or removed.” 42 Pa.C.S.A. § 8311(c).

Here, our review of the record reveals that Bingman estimated that

the total value of the timber harvested by appellants in 1996 was $43,482.

(Kurtz opinion, 9/8/15 at 5, finding of fact no. 11.) Cowan, in turn,

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estimated that the total value of the harvested timber was $121,163. (Id.

at 6, finding of fact no. 16.) Appellants do not contend that Cowan was

unqualified to offer expert testimony as to the fair market value of the

timber in question. Rather, appellants claim that Bingman utilized “the most

reliable and accurate method to count and value trees” and the trial court

should have credited his testimony over that of Cowan. (Appellants’ brief at

14, 41-50.)

This court has long recognized that in a bench trial, matters of

credibility are within the province of the trial court, and its findings will not

be disturbed if they are supported by competent evidence in the record.

See Hollock v. Erie Ins. Exch., 842 A.2d 409, 413-414 (Pa.Super. 2004),

appeal dismissed as improvidently granted, 903 A.2d 1185 (Pa. 2006)

(citation omitted). Instantly, Judge Kurtz found that both parties “called a

qualified consulting forester to testify to the volume and value of the timber

harvested in 1996 by [appellants]” and that “both experts were credible[.]”

(Kurtz opinion, 9/8/15 at 3-4, findings of fact nos. 1, 2.) Judge Kurtz further

concluded that both Bingman and Cowan utilized a methodology “recognized

and used in the industry[,]” but that Cowan’s expert opinion was the more

accurate of the two. (Id. at 8.) Judge Kurtz set forth the following four

reasons in support of this conclusion:

First, Mr. Cowan’s work was done in 1997 and
2000 as opposed to 2014. The fact that Mr. Cowan’s
cruise of the timber was in close proximity to the
time of the cut gave him the advantage of being able

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to differentiate the various types of oaks and to
determine the size of the trees cut since for the most
part the tops were still there.

Next, Mr. Cowan had far more experience in
timber sales in Mifflin County at the time of the cut.
Thus, he testified that he had sold timber on both
sides of the property as well as for several property
owners who owned below the property. He also said
he’d sold all the timber on the other side of the
mountain. It was clear that he had an intimate
knowledge of the area where the timber was cut and
could better appraise its value in 1997 and 2000
because of this knowledge.

Third, Mr. Cowan was not employed by
[appellees] but rather by Brumbaugh Lumber
Company, the Intervenor, who had sued [appellees].

Finally, we could not help but consider the fact
that [appellants] know precisely the volume of the
timber cut in 1996 and the price they obtained for it
but elected to not introduce that evidence at trial.

Id. at 8-9 (citation to notes of testimony omitted). Judge Kurtz further

noted that, “Bingman acknowledged that a significant difficulty he faced was

the fact that eighteen (18) years had elapsed and the stumps had

deteriorated to the point where he could not differentiate the different types

of oak trees.” (Id. at 5, finding of fact no. 7.) Additionally, Bingman

“testified that the fact that the trees were removed made estimating board

feet problematic.” (Id. at 5, finding of fact no. 9.)

The record reflects that the trial court considered the testimony of

both experts. The trial court clearly articulated its reasons for accepting

Cowan’s testimony and methodology for valuing the timber in question over

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that of Bingman. We will not disturb the credibility determinations of the

trial court sitting as the finder-of-fact. See Yanoviak, 945 A.2d at 225;

Hollock, 842 A.2d at 413. Accordingly, appellant’s abuse of discretion claim

must fail.

Lastly, appellants argue that “the trial court erred as a matter of law

by failing to join indispensable parties whose property lines were changed by

the decision when the decision impaired the rights of those persons and

entities.” (Appellants’ brief at 51.)

We have summarized our standard of review with respect to

indispensable parties as follows:

Under Pennsylvania law, the failure to join an
indispensable party implicates the trial court’s
subject matter jurisdiction. Failure to join an
indispensable party goes absolutely to the court’s
jurisdiction and the issue should be raised
sua sponte. . . . Whether a court has subject
matter jurisdiction presents a question of law,
making our standard of review de novo and the
scope of our review plenary.

Orman v. Mortg. I.T., 118 A.3d 403, 406 (Pa.Super. 2015) (citations and

internal quotation marks omitted).

As noted, the trial court concluded that the boundary between the

parties’ disputed property was the official boundary line between Derry

Township and Granville Township as depicted in appellees’ Exhibit 4. (See

trial court order, 12/15/98 at ¶ 2.) Doberman received a deed for land

located only in Derry Township, with Granville Township as its boundary.

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Contrary to appellants’ contention, the trial court’s determination did not

“change” or redraw any parties’ property line. Accordingly, appellants’ final

claim is without merit.

Having determined that the trial court’s findings are supported by

competent evidence and that appellants have failed to demonstrate that the

trial court committed error in application of the law, we affirm the judgment

entered in favor of appellees.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/3/2017

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