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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
HAROLD K. CRONER, JAMES E. : IN THE SUPERIOR COURT OF
CRONER AND JONATHAN H. CRONER : PENNSYLVANIA
:
v. :
:
SAMUEL G. POPOVICH AND CATHY J. :
POPOVICH, HUSBAND AND WIFE, :
JOSEPH POPOVICH, SINGLE, AND :
FRANK POPOVICH, JR., SINGLE, :
:
APPEAL OF: SAMUEL G. POPOVICH : No. 1595 WDA 2016
AND CATHY J. POPOVICH, HUSBAND :
AND WIFE :
Appeal from the Order Entered September 16, 2016,
in the Court of Common Pleas of Somerset County
Civil Division at No. 221 Civil 1991
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 01, 2017
Samuel G. Popovich and Cathy J. Popovich1 (“the Popoviches”) appeal
the order of the Court of Common Pleas of Somerset County that granted in
part and denied in part the motion of Harold K. Croner,2 James E. Croner,
and Jonathan H. Croner (“the Croners”) which sought to require the
Popoviches to construct a fence line in accordance with a viewer’s certificate.
The trial court ordered the appointment of a fence viewer to view and
1
The other two named Popovich parties are no longer part of the case.
2
Harold Croner is deceased.
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examine the division fence between the parties’ land for purposes of
determining the status of the fence and costs, if any, of repairing or
replacing the fence. The trial court ordered the fence viewer to issue a
report of his findings. In accordance with these findings, the Croners were
then authorized to repair the fence where necessary in order to make the
fence sufficient to contain livestock, and the Popoviches were ordered to pay
one-half of the cost of repair less a credit of $579.86 for earlier repairs. If
the viewer’s report indicated that a new fence had to be constructed, the
Croners were authorized to construct a new fence on the “certificate line”
established by the viewer with the Popoviches responsible for one-half the
cost less the $579.86 credit. The trial court denied the portion of the motion
in which the Croners sought to have the Popoviches remove the current
fence and reconstruct one on the “certificate line” at the Popoviches’
expense.
Before this court, the only issue presented on appeal is whether the
Popoviches have a duty to pay any portion of the erection and maintenance
of a line fence when they do not keep livestock on their property. The
Popoviches essentially argue that under 29 P.S. § 41 and the case law
interpreting it, they do not have to pay for the cost of erecting and
maintaining the fence because the Croners have livestock and they do not.
The record reflects the history of this case. The Croners and the
Popoviches owned adjoining farms in Brothersvalley Township, Somerset
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County. The Croners’ farm has been used as pastureland for cattle since
approximately 1948. A fence that had been in place between the two
properties for many years fell into disrepair in 1991. On May 15, 1991, the
Croners petitioned for appointment of a fence viewer. The Croners wished
to repair the fence and sought an order that the Popoviches pay one-half of
the cost. On May 23, 1991, Roland Fogle, a registered professional
engineer, conducted a field viewing of the line fence between the parties’
land and determined that the fence or at least a portion of it was insufficient
and needed to be repaired or replaced. On or about April 20, 1992, the
Popoviches removed all or a substantial portion of the old fence and began
to construct a new fence as close to the fence line as possible at their own
expense because cattle kept entering their property from the Croners’
property. In 2014, someone cut the fence in five or six places, so that the
fence would no longer contain cattle. (Trial court opinion, 9/20/16 at 1-4.)
Hence, the Croners filed this instant motion.
When reviewing the results of a non-jury trial, we
give great deference to the factual findings of the
trial court. We must determine whether the trial
court’s verdict is supported by competent evidence in
the record and is free from legal error. For
discretionary questions, we review for an abuse of
discretion. For pure questions of law, our review is
de novo.
Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa.Super. 2008),
citing In re Scheidmantel, 868 A.2d 464, 478-479 (Pa.Super. 2005).
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This case involves the interpretation of Section 1 of the Fence Law, 29
P.S. § 41, which provides:
§ 41. Division fences; proceedings to compel
erection or part payment
From and after the passage of this act, owners of
improved and occupied land shall erect and maintain
an equal part of all line or division fences between
them, nor shall any such owner be relieved from
liability under the provisions of this act except by the
consent of the adjoining owner. And if any owner of
such improved and occupied land shall fail or neglect
to erect or maintain his, her, or their share of such
line or division fence the party aggrieved shall notify
the county surveyor or, if there is no county
surveyor in the county, then a county surveyor of
any adjoining county, or, if the county surveyor in
any adjoining county refuses to act, a surveyor
appointed by a judge of the court of common pleas,
who shall act as a fence viewer and whose duty it
shall be to examine such line or division fence, so
complained of; and if he finds said fence sufficient,
the complainant shall pay the cost of his service; but
if he finds such fence insufficient, he shall so report
to a justice of the peace or alderman, residing in the
county where such fence is located, designating
points and distances of such fence, whether a new
fence is required or whether the old one can be
repaired, and the probable costs of a new, or the
repair of the old, fence; and said justice or alderman
shall notify the delinquent owner of such improved
and occupied land of the surveyor’s report, and that
his part of said fence, as found by the surveyor, be
erected or repaired within forty days from the date
of such notice; and if such notice be not complied
with, the aggrieved party may cause said line or
division fence to be erected or repaired, and the
costs thereof collected, including the charge of the
surveyor, from the delinquent owner of such
improved and occupied land, as other debts are
collected by law. The surveyor shall be entitled to
such payment for acting as a fence viewer as he may
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fix, not, however, exceeding twenty-five dollars.
Where the surveyor reports that he finds the fence
complained of sufficient, the amount payable to the
surveyor shall be paid by the complainant, but where
he reports the fence insufficient, the amount payable
to him shall be paid by the delinquent owner of such
improved or occupied land: Provided, That no owner
of improved land shall be compelled to build or repair
fence during the months of December, January,
February, and March: And provided further, That
nothing herein contained shall be construed to apply
to railroad companies.
29 P.S. § 41.
Both parties and the trial court rely on Fogle v. Malvern Courts,
Inc., 701 A.2d 265 (Pa.Super. 1997), affirmed, 722 A.2d 680 (Pa. 1999).
In Fogle, Donald W. Fogle and Charlotte A. Fogle (“the Fogles”)3 owned
property in Frazer, Pennsylvania. The property was bordered on three sides
by property of Malvern Courts, Inc., Roger Buettner, and Joan Buettner
(“the Buettners”). The properties were located in a single family home
residential neighborhood with some commercial uses nearby. No fence
existed on the boundary lines between the Fogles’ and the Buettners’
properties. In 1995, the Fogles petitioned to appoint a surveyor pursuant to
29 P.S. § 41 and requested that the Court of Common Pleas of Chester
County order the Buettners to pay an equal share of the cost of erecting a
division fence between their properties. The Buettners denied that they
were liable to pay any of the cost of constructing a fence and asserted that
3
As far as this court can discern, it is a mere coincidence that the Fogles
have the same last name as the fence viewer in the present case.
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the Fence Law did not apply to residential neighborhoods or where a fence
had not already been constructed. Fogle, 701 A.2d at 265.
Each side moved for summary judgment. The Court of Common Pleas
of Chester County granted the Fogles’ motion and denied the Buettners’.
The Buettners appealed to this court. The one issue on which this court
based its decision was whether the Fence Law should be construed to
require landowners to erect a division fence on their property and contribute
to its cost where there is no pre-existing fence or livestock on their property.
Id. at 266.
This court reviewed the Fence Law, its predecessor statutes, and
applicable case law. This court reversed and remanded to the Court of
Common Pleas of Chester County with the direction to enter summary
judgment in favor of the Buettners. Id. at 268. This court reasoned:
Finding no other discernible purpose but to
protect property from trespassing livestock, we
conclude that the 29 P.S. § 41 does not require an
adjoining landowner who does not keep livestock to
share the cost of a fence for the benefit of a
neighbor.
We also note that our interpretation avoids the
unreasonable result of requiring every owner of
improved and occupied land in Pennsylvania to pay a
portion of the cost of a division fence which he or
she neither wants nor needs. See 1 Pa.C.S.
§ 1922(1) (“the General Assembly does not intend a
result that is absurd, impossible of execution or
unreasonable”). The unreasonableness of such a
result has also been recognized by courts of other
states. See Choquette v. Perrault, 153 Vt. 45,
569 A.2d 455 (1989); Sweeney v. Murphy, 31
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N.Y.2d 1042, 342 N.Y.S.2d 70, 294 N.E.2d 855
(1973). Most recently, the Vermont Supreme Court
held that their state fence law could not be applied
to landowners without livestock. Choquette,
supra, at 460. After finding that the primary
purpose of the law was to benefit landowners with
livestock, the court concluded that the statute was
burdensome and arbitrary as applied to landowners
without livestock. Id. Likewise, we also find such a
result arbitrary and unreasonable.
Since the Buettners have no livestock to be
enclosed, we conclude that the statute does not
apply. Accordingly, the Buettners are not required to
pay a portion of the costs should the Fogles erect a
fence between their adjoining properties. We must,
therefore, reverse the trial court order granting the
Fogles’ motion for summary judgment and remand
to the trial court with direction to enter summary
judgment in favor of the Buettners.
Fogle, 701 A.2d at 268.
The Fogles appealed to the Pennsylvania Supreme Court. As this court
did, our supreme court reviewed the Fence Law, its predecessor statutes,
and the case law interpreting the older statutes. Our supreme court
affirmed and concluded that the Fence Law did not apply because neither of
the properties contained livestock and were not farms or ranches:
Hence, even in their earliest forms, fence laws
had as their objective the containment of livestock
and the protection of crops.
This conclusion is reinforced by the statutes’
references to the “sufficiency” of fences. As did the
laws described in Barber v. Mensch [27 A. 708 (Pa.
1893), the present statute provides that the fence
between adjoining landowners, the cost of which is
to be collected in part from the neighboring owner,
must be a “sufficient” one. For the fence to be
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sufficient, it must be adequate for its intended
purpose. There being no other discernible purpose
than the containment of livestock, the term
“sufficient” must have been used by the legislature
to describe a fence in the context of ranch or farm
property, i.e., a fence that was sufficient to prevent
livestock from straying onto neighboring properties.
In short, the Fence Law addresses the sharing
of costs for fences constructed on farms and
ranches. It does not apply to single-family
residential neighborhoods in typical urban or
suburban settings, where the containment of
livestock is not a concern. Superior Court properly
held, therefore, that the Fence Law is inapplicable to
properties of the type presented here.
Fogle, 722 A.2d at 684 (footnotes omitted).
In the present case, the trial court relied on our supreme court’s
decision in Fogle that the Fence Law addresses the sharing of costs for
fences constructed on farms and ranches and does not apply to single family
residential neighborhoods where the containment of livestock was not a
concern. The trial court reasoned that both the Croners’ farm and the
Popoviches’ farm were located in rural Somerset County and had been used
to graze cattle. Further, when the action commenced in 1991, there clearly
was an issue with a division fence in need of repair as well as straying cattle.
The trial court concluded that the Fence Law applied and imposed the order
which is at issue here.
The Popoviches argue that because they no longer keep livestock on
their property and the Croners do, the Popoviches are not the party intended
by the General Assembly to come under the Fence Law. The Popoviches
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further argue that this court held in Fogle that the Fence Law does not
require an adjoining landowner who does not have livestock to share the
cost of a fence for the benefit of an adjoining landowner who does have
cattle or other livestock. The Popoviches also argue that forcing them to pay
for one-half the cost of the fence would constitute an absurd result that the
General Assembly did not intend, see 1 Pa.C.S.A. § 1922, because they do
not own livestock.
Jonathan Croner4 (“Croner”) argues that the trial court correctly
applied the Fence Law when it ordered the Popoviches to pay for one-half of
the cost of repairing or replacing the fence even though the Popoviches do
not currently raise livestock. Croner points to our supreme court’s decision
in Fogle for support in that our supreme court decided that the Fence Law
did not apply in Fogle because the properties in question were not farms
and/or ranches but were single family residences in an urban or suburban
setting where the containment of livestock is not a concern.
This court finds Croner’s argument persuasive. He asserts and the
record supports him that the fence has existed in one form or another for as
long as the parties can recall, both properties having been rural farms for
many years. Unlike Fogle, the containment of livestock here is a genuine
concern as the Croners had to stop renting out their pastureland to another
4
Jonathan H. Croner and James E. Croner filed separate briefs though each
sought the same outcome.
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farmer to graze cattle because the cattle would travel over to the
Popoviches’ property. While the Popoviches do not currently have livestock
on their property, there is no requirement in the Fence Law that both parties
own livestock in order for a fence to be required under the law. Further,
whether or not they own livestock, the Popoviches would benefit from the
installation of a fence that would keep any cattle grazing on the Croners’
land from coming over onto their land. In addition, the Popoviches ignore
our supreme court’s holding in Fogle that the Fence Law applies to farms
and ranches.
Croner also argues that affirming the trial court would not lead to an
absurd result because there is no “benefits” test in the Fence Law to
determine who pays the cost, and at any rate, the Popoviches do benefit
from the fence in that, if they resume raising livestock, the fence would keep
their livestock on their property. Also, the fence would keep others from
trespassing and would keep cattle from the Croners’ property from coming
onto the Popoviches’ property. This court agrees with the arguments of
Croner and determines that the trial court did not err.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2017
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