Rosborough, D. v. Carmel Developments, Inc.

J-A21024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIELLE ROSBOROUGH AND RYAN : IN THE SUPERIOR COURT OF
BATEMAN : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 253 EDA 2022
CARMEL DEVELOPMENTS, INC. :

Appeal from the Judgment Entered March 8, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 190201917

DANIELLE ROSBOROUGH AND RYAN : IN THE SUPERIOR COURT OF
BATEMAN : PENNSYLVANIA
:
:
v. :
:
:
CARMEL DEVELOPMENTS, INC. :
: No. 418 EDA 2022
Appellant :

Appeal from the Judgment Entered March 8, 2022
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 190201917

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 7, 2022

Danielle Rosborough and Ryan Bateman (Appellants) appeal from the

judgment awarding them nominal damages in their ejectment action against

Carmel Developments, Inc. (Carmel). Carmel cross-appeals from the

judgment, which found Appellants owned a portion of Carmel’s property by
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means of the consentable boundary line doctrine (recognition and

acquiescence).1 Appellants have filed a motion to quash Carmel’s cross-

appeal as untimely filed. Motion to Quash Cross-Appeal, 2/16/22, ¶¶ 12-16.

Carmel has filed a motion to quash Appellants’ appeal, averring lack of service

of Appellants’ notice of appeal. Motion to Quash, 2/22/22, ¶¶ 3, 15-16. Upon

careful review, we deny the parties’ respective motions to quash, and affirm

the trial court’s judgment.

The trial court summarized the facts underlying this appeal as follows:

The parties contested the ownership of a portion of the backyard
used by the residents of 236 Fairmount Avenue, that occupied
land deeded and belonging to 628 N. Bodine Street in Philadelphia,
Pennsylvania. In 2018-2019, [Carmel] demolished the existing
house of 628 N. Bodine and erected a larger building up to the
limit of the meets and bounds in its deed. [Appellants] contended
that Carmel’s new building encroached upon part of the backyard
of 236 Fairmount[,] which they owned by virtue of recognition and
acquiescence.

The properties at issue - 628 N. Bodine Street and 236
Fairmount Avenue – are adjacent to each other. The
southernmost portion of the backyard of 236 Fairmount abuts a
portion of the northern side wall of the new building at 628 N.
Bodine. The backyard “was not particularly large.” The distance
from the back of [Appellants’] house to the north side wall of the
original house at 628 N. Bodine was about five to five and a half
feet.

The backyard of 236 Fairmount has always been fully
enclosed. The north side of the backyard is [Appellants’] house.
____________________________________________

1 “Based upon a rule of repose sometimes known as the doctrine of
consentable line, the existence of such a boundary may be proved either by
dispute and compromise between the parties or recognition and acquiescence
by one party of the right and title of the other.” Moore v. Moore, 921 A.2d
1, 4 (Pa. Super. 2007).

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The backyard has a fence running along its east side. The south
side of the backyard was at first the north wall of the
former house at 628 N. Bodine and later the north wall of
Carmel’s new building, which was alleged to have
encroached upon the backyard owned by [Appellants]. The
west side of the backyard is a brick wall painted blue, that
separates 236 Fairmount from the backyard of the house at 238
Fairmount.

Trial Court Opinion, 12/13/21, at 1-2 (emphasis added).

On February 19, 2019, Appellants filed a complaint in ejectment

claiming ownership of a portion of the 628 North Bodine Street property, by

application of the consentable lines doctrine (recognition and acquiescence).

On February 21, 2019, Appellants filed a petition for a preliminary injunction.

Appellants claimed:

From at least 1996 until about December 28, 2018, the respected
division as a boundary line between the properties was along the
northernmost wall of 628 North Bodine Street, north of which wall
was [Appellants’] rear yard, an open piece of ground with poured
concrete on the land and bounded on all sides with fencing and/or
walls that completely enclosed the rear yard.

Petition for Preliminary Injunction, 2/21/19, at 3, ¶ 4. Appellants asserted

that Carmel,

trespassed upon their real property by encroaching with
construction activities that included digging out the land in
[Appellants’] rear yard and laying a foundation for a wall, and
damaging and partly destroying a fence and a wall that are wholly
upon [Appellants’] property, without permission and in violation
of [Appellants’] fee simple ownership.

Id. at 3, ¶ 5. Further, Appellants claimed irreparable harm would result if

Carmel continued construction on Appellants’ property. Id. at 3, ¶ 7. On April

23, 2019, following a hearing, the trial court denied Appellants’ petition for a

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preliminary injunction. Trial Court Order, 4/8/19. Appellants did not appeal

this order.

On May 20, 2019, Appellants filed an amended complaint in ejectment

averring Carmel’s construction trespassed upon Appellants’ property.

Amended Complaint, 5/20/19, at 3-4, ¶ 11. Appellants described the southern

boundary of their property at 236 Fairmont Avenue, upon which Carmel

encroached, as follows:

The south side of the rear yard of 236 Fairmount Avenue was the
northernmost wall of the house at 628 N. Bodine Street, which
formed a continuous, straight wall that ran westward from N.
Bodine Street for approximately 15 feet. The wall that was the
boundary between the backyard of 236 Fairmount Avenue and
628 N. Bodine Street was unbroken, and there were no points of
access from 628 N. Bodine Street into the backyard at 236
Fairmount Avenue, whether through the wall or in any other way.

Id. at 4-5, ¶ 14(c). According to their Amended Complaint, Appellants and

their predecessors, and Carmel and its predecessors, recognized and

acquiesced to this wall as the boundary line between the properties. Id. at 5-

6, ¶¶ 15-20.

Carmel filed an answer to Appellants’ amended complaint denying

encroachment, and asserting “the referenced wall has never served as a

boundary line.” See Answer and New Matter, 5/31/19, ¶¶ 9, 15. Carmel

further denied

that it recognized or acknowledged that the boundary line was the
pre-existing wall. To the contrary, [Carmel] stated that it would
abide by the boundary line as set forth in the parties’ respective
deeds.

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Id. ¶ 18. In a new matter, Carmel claimed it is a bona fide purchaser of the

North Bodine Street property, and it agreed to accept only the boundary lines

described in the parties’ respective deeds. Id. ¶¶ 30-37.

The matter proceeded to a nonjury trial on November 30, 2020, after

which the parties submitted proposed findings of fact and conclusions of law.

On June 28, 2021, the trial court entered its decision (a) finding in favor of

Appellants on their claim of a consentable boundary line established by

recognition and acquiescence; and (b) awarding nominal damages of one

dollar ($1.00) to Appellants. Trial Court Decision, 6/28/20, at 1-3. Appellants

and Carmel filed post-trial motions on July 16, 2021. On December 13, 2021,

the trial court denied all post-trial motions.

Appellants filed a notice of appeal on January 12, 2021. On February 1,

2022, Carmel filed a cross-appeal.2 Appellants filed a motion to quash

Carmel’s appeal as untimely filed on February 16, 2022. See Motion to Quash

Cross-Appeal (Appellants), 2/16/21, ¶¶ 12-13. On February 22, 2021, Carmel

filed a motion to quash, claiming Appellants failed to serve Carmel with their

notice of appeal. Motion to Quash Appeal (Carmel), 2/22/22, ¶¶ 3, 12, 15-

16. Carmel also filed an application for permission to appeal, nunc pro tunc,

on March 1, 2022. Our review of the record discloses that the parties’ motions

were premature.

____________________________________________

2 This Court consolidated the appeal sua sponte. Order, 4/25/22.

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On March 7, 2022, this Court entered an order indicating the trial court

had not entered final judgment. Order, 418 EDA 2022 (Pa. Super. March 7,

2022); see Prime Medica Assoc. v. Valley Forge Ins. Co., 970 A.2d 1149

(Pa. Super. 2009) (explaining an order denying post-trial motions is

interlocutory and not appealable until entry of final judgment). We directed

Appellants to praecipe for entry of judgment, and file with this Court a copy

of the certified record reflecting entry of judgment. See id. Appellants

complied with this Court’s directive. We therefore consider the previously filed

notices of appeal as if filed on the day the trial court entered judgment.3 See

Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”). Consequently, we deny the

parties’ respective motions to quash. See id.

The parties and the trial court complied with Pa.R.A.P. 1925. Appellants

present the following issues for our review:

1. Did the trial court err when it failed to correctly apply the law
of Pennsylvania to recognize the sufficient, competent and
uncontradicted evidence of record of the location of the
boundaries of the parcel of land that Appellants are out of
possession of, but to which they have a superior right to possess,
and award the appropriate relief that returns Appellants to
possession of their land?

2. Did the trial court err in failing to correctly apply the law of
Pennsylvania to appropriately weigh the equities in this case,

____________________________________________

3 We corrected the caption to reflect entry of judgment.

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where the evidence presented at trial demonstrates that the
equities weigh in favor of the return of the land to Appellants?

Appellants’ Brief at 7 (some capitalization omitted).

In its cross-appeal, Carmel presents the following issue:

Did the trial court err upon finding that Appellants/Cross-
Appellees proved [Carmel] trespassed on [Appellants’]
property pursuant to their theory of acquiescence of boundary?

Carmel’s Brief at 2.

Before addressing the parties’ claims, we recognize our scope and

standard of review:

Our review in a non-jury case is limited to whether the findings of
the trial court are supported by competent evidence and whether
the trial court committed error in the application of law. We must
grant the court’s findings of fact the same weight and effect as
the verdict of a jury and, accordingly, may disturb the non-jury
verdict only if the court’s findings are unsupported by competent
evidence or the court committed legal error that affected the
outcome of the trial. It is not the role of an appellate court to pass
on the credibility of witnesses; hence we will not substitute our
judgment for that of the factfinder. Thus, the test we apply is not
whether we would have reached the same result on the evidence
presented, but rather, after due consideration of the evidence
which the trial court found credible, whether the trial court could
have reasonably reached its conclusion.

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super. 2012)

(citations omitted).

To prevail in an ejectment action:

the plaintiff must show title at the commencement of the action
and can recover, if at all, only on the strength of his own title, not
because of weakness or deficiency of title in the defendant. If a
plaintiff in ejectment has presented at trial prima facie evidence
that it has title to the property at issue, the burden then shifts to
the defendant, unless the plaintiff’s proof necessarily defeats the

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plaintiff’s claim of title. Conversely, if the plaintiff’s claimed chain
of title is faulty, the plaintiff has not shown a prima facie case, and
the plaintiff’s ejectment case fails. An ejectment action likewise
fails if the plaintiff is not a bona fide purchaser.

Becker v. Wishard, 202 A.3d 718, 722 (Pa. Super. 2019) (citation omitted).

We first address Carmel’s issue, as it challenges the trial court’s finding

of a consentable boundary line.

Carmel’s Cross-Appeal

Carmel challenges the trial court’s finding that a consentable boundary

line was formed through recognition and acquiescence. Carmel’s Brief at 11.

Carmel asserts:

(1) It is a bona fide purchaser of the Bodine Street property, and
that Jet Stream, Appellants’ predecessor in title, lost its claim to
the disputed land upon Carmel’s purchase. Therefore, Jet Stream,
Appellants’ predecessor in title, had no power to convey to
Appellants title to property not described in its deed. See id. at
13.

(2) There is no evidence of consent or dispute/compromise to
establish a consentable boundary line. Id. at 13-16.

(3) There is no evidence of an “adverse or hostile claim.” Id. at
16. Carmel claims “acquiescence” denotes conduct by the lawful
owner “consisting of failure on his part to assert his paramount
rights or interests against the hostile claims of the adverse user.”
Id. (emphasis in original, citation omitted).

(4) There is no case law supporting a consentable line established
by the exterior wall of a building. Id. at 18.

(5) Appellants failed to prove 21 years of continuous adverse
possession or tacking to establish the 21-year period. Id. at 19-
21.

(6) Appellants waived their right to contest the recorded boundary
lines, based upon a contingency in their Agreement of Sale for the

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Fairmont Avenue property which acknowledged: “Any fences,
hedges, walls and other natural or constructed barriers may or
may not represent the true boundary lines of the property.”

Id. at 22 (citation and emphasis omitted).

The doctrine of consentable line, which is a separate and distinct theory

from adverse possession, is a rule of repose for the purpose of

quieting title and discouraging confusing and vexatious litigation. Plott v.

Cole, 547 A.2d 1216, 1220 (Pa. Super. 1988). To establish a binding

consentable line by recognition and acquiescence, a party must prove: (1)

each party has claimed the land on his side of the line as his own; and (2) the

occupation has occurred for the statutory period of twenty-one years. Id. at

1221.

We explained:

“Acquiescence,” in the context of a dispute over real
property, “denotes passive conduct on the part of the lawful owner
consisting of failure on his part to assert his paramount rights or
interests against the hostile claims of the adverse user.” Zeglin
[v. Gahagen], 812 A.2d [558,] 562 n.5 [(Pa. 2002)] (quoting
Edward G. Mascolo, A Primer On Adverse Possession, 66 CONN.
B.J. 303, 312-13 (Aug. 1992)). A determination of consentable
line by acquiescence requires a finding 1) that each party has
claimed the land on his side of the line as his own and 2) that he
or she has occupied the land on his side of the line for a continuous
period of 21 years. See Zeglin, 812 A.2d at 561. Significantly,
because the finding of a consentable line depends upon possession
rather than ownership, proof of the passage of sufficient time may
be shown by tacking the current claimant’s tenancy to that of his
predecessor. See id. at 566. To do so, however, the claimant
must show “sufficient and credible proof of delivery of possession
of land not within (but contiguous to) property described by deed
of conveyance, which was previously claimed and occupied by the
grantor and is taken by the grantee as successor in such
interest.” Id. “[W]hen a consentable line is established, the land

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behind such a line becomes the property of each neighbor
regardless of what the deed specifies. In essence, each neighbor
gains marketable title to that land behind the line, some of which
may not have been theirs under their deeds.” Soderberg v.
Weisel, 455 Pa. Super. 158, 687 A.2d 839, 843 (Pa. Super. 1997)
(internal citation omitted).

Moore, 921 A.2d at 5; see also Plauchak v. Boling, 653 A.2d 671, 675 (Pa.

Super. 1995) (“If adjoining landowners occupy their respective premises up

to a certain line[,] which they mutually recognize and acquiesce in for the

period of time prescribed by the statute of limitations, they are precluded from

claiming that the boundary line thus recognized and acquiesced in is not the

true one.” (citation omitted)).

The Supreme Court further distinguished the consentable line doctrine

as follows:

[T]he doctrinal roots of acquiescence are grounded in adverse
possession theory; indeed, occupancy with open manifestations of
ownership throughout the statutory period will generally satisfy
the traditional elements of adverse possession. Decisions
involving acquiescence are frequently distinguishable from
adverse possession cases only in that possession in the former are
often based on a mistake as to the location of property lines.

Zeglin, 812 A.2d at 562 (citation and footnotes omitted).

Instantly, our review of the record discloses that Appellants, at trial,

presented deeds establishing the continued ownership of the Fairmont Avenue

property by Appellants and their predecessors:

(1) The 1997 deed to Sandra Frazier (Frazier), the grantee, see
N.T., 11/30/21, at 15 (Exhibit 1);

(2) The 2016 deed from Frazier to Jet Stream Realty Group, LLC,
see id. (Exhibit 2); and

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(3) The 2018 Deed from Jet Stream Realty Group to Appellants,
see id. (Exhibit 3).

Appellants further demonstrated continued possession of the Fairmont

Property’s cement backyard up to the northern wall of the now demolished

Bodine Street property. Appellants’ counsel read Frazier’s October 14, 2019,

deposition testimony into the record. See id. at 9-36. Frazier testified that

she and her husband rented the Fairmont Avenue property from 1996 through

their purchase of the property on October 23, 1997. Id. at 22. Frazier lived

at the property continuously during that time period. Id. at 23-24.

Frazier described Appellants’ Exhibit C as a photograph of the backyard

of the property as it existed in 2016. Id. at 26-27. Frazier explained that her

husband had replaced an older wooden fence with the chain link fence

depicted in the photograph. Id. at 26. Throughout the time she resided at

the Fairmont Avenue property, Frazier explained, a fence ran parallel to

Bodine Street, starting from the back of her house and continuing, unbroken,

to a post next to the house at 628 North Bodine Street. Id. at 27. Frazier

confirmed that both the wooden and chain link fence were secured by a locked

gate. Id. at 28-29. According to Frazier, she and her husband only unlocked

the gate to take out the trash. Id. at 29. Frazier confirmed she and her

husband had keys to the lock. Id.

Regarding the property’s boundaries, Frazier identified the Bodine Street

property’s wall as forming the southern border of their Fairmont Avenue

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property. Id. at 29-30. Frazier explained this border formed the southern

boundary of their concrete backyard throughout their possession of the

property. Id. at 30. She indicated that she and her husband used their

enclosed backyard for grilling and for their plants. Id. at 34. Frazier also

used the backyard to dry clothes. Id.

Jesse Sutow (Sutow), the owner of Jet Stream Realty Group, LLC (Jet

Stream), the predecessor-in-title to Appellants, testified about the boundary

line between the North Bodine Street and Fairmont Avenue properties. Sutow

explained that Jet Stream had purchased the Fairmont Street property from

Frazier, and following renovation, sold it to Appellants. Id. at 41-42. Sutow

confirmed the boundaries of the Fairmont Street property remained consistent

throughout Jet Stream’s ownership. Id. at 42-44. According to Sutow, no

one was allowed to enter the enclosed backyard of the Fairmont Street

property without his permission. Id. at 50. Throughout Jet Stream’s

ownership, Sutow maintained the backyard, cleaned debris, performed

exterior work, and replaced the cellar door. Id. at 59.

Ms. Rosborough, the current owner of the Fairmont Avenue property,

described the boundaries of Appellants’ backyard as

running north to south, so from the back of our house to the wall
at 628 North Bodine Street, to maybe five, five and a half feet,
and not much longer running width ways east to west from the
fence to the blue brick wall.

Id. at 77. Ms. Rosborough confirmed that a fence completely closed off the

backyard area from the street. Id.

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During Appellants’ negotiation to purchase the property, Carmel

requested Ms. Rosborough’s permission to use the Fairmont Avenue property’s

backyard, including the disputed portion. Id. at 97. Appellants and their

predecessor, Suttow, denied permission. Id.

After Appellants purchased the property, Amit Azoulay (Azoulay),

Carmel’s agent, contacted Ms. Rosborough for permission to use Ms.

Rosborough’s backyard. Id. at 89. Ms. Rosborough identified a July 3, 2018

email from Azoulay. Id. at 90. In that email, Azoulay acknowledged

construction of the new foundation for the North Bodine Street property would

require “about three feet of overdigging into [Appellants’] rear yard, at which

point I will relocate the construction fence five to six feet into your rear yard

for safety.” Id. at 91 (emphasis added). Azoulay indicated that upon

completion of the exterior siding of the North Bodine Street property, Carmel

would “have the scaffolding and construction fence removed and return your

rear yard to its original condition.” Id. Although Carmel already had caused

damage to the backyard, Ms. Rosborough denied permission. Id. at 101. In

a subsequent email, Azoulay apologized for his construction crew’s

encroachment on the property. Id. at 108. Azoulay further offered to replace

Appellants’ gate, and mount the “gate’s jam” onto Carmel’s new building. Id.

Nevertheless, Carmel continued its use of Appellants’ backyard throughout

construction. Id. at 112, 120.

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Azoulay continued to recognize Appellants’ claimed boundary line until

his December 31, 2018, email to Ms. Rosborough, when he stated, in part:

It appears that you have a misunderstanding about the location
of the boundary line separating our properties. We have not
encroached on your property. The wall we are building is situated
entirely on my property, per the measurement of our surveyor….

Id. at 132.

Carmel presented the testimony of Azoulay. Azoulay indicated that in

2018, he assumed the old wall of the North Bodine Street property marked its

boundary with Appellants’ property. Id. at 228. According to Azoulay, he

learned of the location of the actual boundary line in November 2018. Id.

Azoulay indicated that when the trial court denied an injunction, he continued

with the construction project, as approved. Id. at 236.

The evidence reflects that from Frazier’s ownership of the property in

1996 through December 31, 2018, each party claimed the land on their side

of the North Bodine Street building’s wall as their own, for a period of over 21

years. Regardless of the parties’ deeds, the wall of the now demolished North

Bodine Street property constituted the southern boundary between the

properties, by recognition and acquiescence. See Moore, 921 A.2d at 5

(“[W]hen a consentable line is established, the land behind such a line

becomes the property of each neighbor regardless of what the deed

specifies. In essence, each neighbor gains marketable title to that land behind

the line, some of which may not have been theirs under their deeds.”).

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Carmel’s claim of bona fide purchaser status does not negate the finding

of a consentable boundary line. Its agent, Azoulay, by email, recognized and

apologized for Carmel’s encroachment across the consentable boundary line.

See N.T., 11/30/21, 91, 108. Further, Carmel’s reliance on a contingency in

Appellants’ Agreement of Sale does not preclude the finding of a consentable

boundary line, as even the deed’s language cannot preclude such a finding.

See Moore, 921 A.2d at 5. Because the evidence supports the trial court’s

finding of a consentable boundary line by recognition and acquiescence,

Carmel’s issue does not merit relief.

Appellants’ Appeal

We address Appellants’ two issues together, as both challenge the trial

court’s verdict following its finding of a consentable boundary line. Appellants

first challenge the trial court’s failure to relocate the boundary line and “form

an award of relief.” Appellants’ Brief at 19. Appellants claim they presented

prima facie evidence of the extent to which Carmel’s new building encroaches

on their Fairmont Avenue property. Id. at 20-21. Appellants rely on the

testimony and report of their expert, Jonathan Tabas, P.E., P.L.S (Mr. Tabas).

Id. at 21. According to Appellants:

The record evidence shows that the area of encroachment is a
slim, long rectangle, running along the two properties where they
meet. The rectangle is bounded on the east and the west by the
fence and the brick wall, respectively. These monuments mark
two sides of the rectangle. Running between them from fence to
brick wall are two parallel lines. Those two parallel lines make up
the other two sides of the rectangle. The evidence shows that one
of those parallel lines is the plane of the wall of [Carmel’s] new

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building, currently in place. The wall forms the third side of the
rectangle, the north side.

Id. Appellants argue:

This fourth side of the rectangle, the south side, is a line that is
parallel to the third side, is six inches across from the third side,
and which line is now located on the ground under the structure
that [Carmel] has built. The area inside this rectangle is the area
that the Appellants have a superior right to possess, but that
[Carmel has] encroached upon.

Id. (citing N.T., 11/30/20, at 197-200).

Appellants assert Mr. Tabas based his determination on a review of the

report of Carmel’s surveyor, the deeds, and city records used to confirm

information in the deeds. Id. at 21-22. Appellants direct our attention to Mr.

Tabas’s expert report “that includes the arithmetical calculations and photos

to explain how he came to his conclusion.” Id. at 22. According to Appellants,

Mr. Tabas determined the prior boundary line “by taking a six-inch

measurement from a fixed and certain monument: the location of the current

wall at 628 N. Bodine.” Id.

Appellants rely on photographs of the encroachment and testimony

establishing the encroachment is “at least six inches.” Id. Appellants state:

Th[e] prior wall was memorialized in many photographs, which
establish that it is a flat plane, another point that is not in dispute.

In order to complete the description of the boundaries of the
encroachment, … the evidence shows plainly that the existence
and location of the blue brick wall and the fence as boundaries is
not in dispute, and appear again and again in photographs and
the testimony of the witnesses. The testimony reflects these
monuments did not move before or after construction (though

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they were damaged by construction, their location as boundaries
did not shift).

Id. at 23.

In their second issue, Appellants dispute the trial court’s finding “that

the equities do not favor the award of relief.” Id. at 26. Appellants assert

the equities favor

the return of the land to them, and not in favor of permitting
[Carmel] to remain a permanent trespasser on land that the
evidence clearly shows the Appellants have a superior right to
possess.

Id. at 27. According to Appellants, there is no evidence that would support

applying the doctrines of laches, inducement or acquiescence. Id. at 28-30.

Further, Appellants claim Carmel’s actions “rendered an exact measurement

impossible.” Id. at 33.

Our review of the record discloses ample support for the trial court’s

award of nominal damages, and not an award of the disputed property. At

trial, Appellants presented no definitive testimony regarding the dimensions

of the disputed property, or any basis upon which to fashion an equitable

award.

Ms. Rosborough requested Carmel “return our property to the condition

that we purchased it in, as [Azoulay] promised way back in the indemnity

letter to the prior owners[.]” Id. at 137. Appellants did not identify or testify

about any alternative remedy. See id. at 137-39. When asked to describe

the dimensions of the disputed portion of the properties, Ms. Rosborough

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offered an estimate of approximately six to nine inches. Id. at 140. She

offered no evidence regarding the replacement cost of the fence demolished

by Carmel. See id. at 152 (stating “we have not chosen to expend thousands

of dollars to have a fence torn down and reinstalled at this point”). Ms.

Rosborough admitted Appellants continued to use the back yard, that her grill

remained in the same backyard location, and she can still exit the storm cellar

door located in the backyard. Id. at 169. Ms. Rosborough offered no

appraisals to reflect a diminution of the value of the property following

encroachment by Carmel’s new North Bodine Street building. Id. at 170.

Further, she offered no evidence of a change in her property taxes. Id.

Appellants’ expert, Mr. Tabas, confirmed he could not make a precise

measurement between the old wall and the new wall constructed between the

properties. Id. at 198. At best, “[w]ithin a reasonable margin of engineering

certainty, it’s at least six inches, might be even more than that, but six inches

is a reasonable estimate[.]” Id.

Thus, while there is evidence supporting the trial court’s finding of a

consentable line by recognition and acquiescence, there is no evidence

regarding the precise dimensions of the disputed portion of the property, or

that the equities support returning possession of the disputed property to

Appellants. Under these circumstances, Appellants’ issues do not merit relief.

Motions to quash denied. Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2022

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