J-S34018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MARJORIE STEIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD F. GRABOWSKI AND SALLY :
L. GRABOWSKI, HUSBAND AND :
WIFE : No. 242 WDA 2023
:
Appellants
Appeal from the Judgment Entered July 13, 2023
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD-15-018110
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: March 25, 2024
Appellants, Richard F. Grabowski and Sally L. Grabowski (the
“Grabowski’s”), appeal from the July 13, 2023 judgment quieting title in favor
of Appellee, Marjorie Stein. We affirm.
This Court set forth the facts at length in a prior memorandum. Stein
v. Grabowski, 291 A.3d 233 (table), 556 WDA 2019 (Pa. Super. June 1,
2019), unpublished memorandum at 1-3. For purposes of the present appeal,
we offer the following condensed summary. The parties own adjacent
properties on Old Washington Road in Pittsburgh, Pennsylvania. The
Grabowski’s lot is immediately north of Stein’s lot. A portion of the driveway
leading from Stein’s house westward to Old Washington Road extends north
of the legal boundary between the two properties, and has done so since the
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early 1950’s. Along the north side of the driveway is a short slope leading
upward toward the Grabowski’s property. The slope presumably is the result
of excavating that was done to create Stein’s driveway many years ago. As
per our prior memorandum, the record establishes that the parties and their
predecessors in interest have for decades treated the top of that slope (the
“Top of the Slope”) as the boundary between their properties, with Stein and
her predecessors owning the land to its south and the Grabowski’s and their
predecessors owning the land to its north.
A dispute arose in 2015 while Stein and her husband were mulching
around some trees that the Grabowski’s believed to be on their property. On
August 15, 2016, Stein filed this quiet title and ejectment action. Her theory,
pursuant to the doctrine of consentable lines,1 was that the Top of the Slope
is the boundary between the parties’ properties, based on the respective
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1 The doctrine of consentable lines is as follows:
The establishment of a boundary line by acquiescence for
the statutory period of twenty-one years has long been recognized
in Pennsylvania to quiet title and discourage vexatious litigation.
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. Since there is no evidence of a compromise in this
case, the trial court based its decision upon recognition and
acquiescence.
Moore v. Moore, 921 A.2d 1, 4–5 (Pa. Super. 2007), appeal denied, 934
AS.2d 1278 (Pa. 2007).
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owners’ consent and recognition over many decades. The trial court
conducted a non-jury trial on September 7 and 8, 2017. On January 17, 2018,
the trial court issued a verdict in favor of Stein. The verdict specified a new
legal description of Stein’s property and directed that the legal description of
the Grabowski’s property be altered accordingly. The trial court denied the
Grabowski’s timely post-trial motion by order of March 19, 2018. The verdict
was reduced to judgment on March 19, 2018, and the Grabowski’s filed a
timely appeal.
On June 12, 2019, this Court affirmed in part, vacated in part, and
remanded. We affirmed the trial court insofar as it found that the evidence
supported the establishment of a new legal boundary between the parties’
properties at the Top of the Slope pursuant to the doctrine of consentable
lines. We vacated the judgment because the new boundary granted to Stein
more land than was supported by the evidence. In particular, the January 17,
2018 verdict delineated a straight boundary line, slightly to the north of the
Top of the Slope, dividing the two properties. But the proven consent line
follows the contours of the Top of the Slope, and the Top of the Slope does
not proceed in a straight line. We therefore vacated the verdict and remanded
for a new verdict providing a boundary that conforms to the evidence
introduced at trial, i.e., a boundary that conforms to the contours of the Top
of the Slope.
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On remand, the trial court ordered the parties to submit documentation
of a boundary that complies with this Court’s remand instructions. On
December 15, 2022, the trial court entered its verdict on remand, in which it
adopted a property line that follows the course established by Stein’s
surveyor. That verdict was reduced to judgment on July 13, 2023. The
Grabowski’s have appealed, arguing that the trial court once again erred in
establishing a boundary line that grants to Stein more property than is
supported by the evidence.
First, we address the parties’ dispute regarding the Grabowski’s failure
to file post-trial motions following the remand verdict. We agree with the
Grabowski’s that no motion was required. Our remand merely directed the
trial court to enter a verdict in accordance with the evidence adduced at trial.
We permitted, but did not require, additional hearings. The trial court did not
conduct any. In any event, the applicable procedural rule is clear:
(i) When an appellate court has remanded a case for further
proceedings, a motion for post-trial relief relating to subsequent
rulings in the trial court shall not be required unless
(1) the appellate court has specified that the remand is for
a complete or partial new trial, or
(2) the trial court indicates in its order resolving the remand
issues that a motion for post-trial relief is required pursuant to
this rule.
Pa.R.C.P. No. 227.1(i). This Court did not remand for a new or partial new
trial, but rather the entry of a corrected verdict. The trial court did not indicate
in its verdict after remand that post-trial motions were required. Therefore,
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no post-trial motion was required to preserve the argument the Grabowski’s
present on appeal.
We now turn to the merits.
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of fact
of the trial judge must be given the same weight and effect on
appeal as the verdict of a jury. We consider the evidence in a light
most favorable to the verdict winner. We will reverse the trial
court only if its findings of fact are not supported by competent
evidence in the record or if its findings are premised on an error
of law. However, [where] the issue ... concerns a question of law,
our scope of review is plenary.
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court because
it is the appellate court’s duty to determine if the trial court
correctly applied the law to the facts of the case.
Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.
Super. 2009) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.
Super. 2005)).
We begin our analysis by acknowledging that the factual and legal
disputes in this case were finally resolved, almost in their entirety, by the prior
panel of this Court. That is, a consent line exists, and it supersedes the legal
boundary between the two properties. Further, the consent line follows the
contours of the Top of the Slope. The only thing that remained for the trial
court to do was enter a verdict defining the Top of the Slope as the boundary
between the two properties, rather than defining a straight boundary line just
to the north of the Top of the Slope.
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Presently in dispute is a narrow strip of land at the western end of the
properties, where they abut Old Washington Road. We gather that the precise
contours of the Top of the Slope are somewhat less apparent near its western
end, where the properties abut Old Washington Road. The Grabowski’s claim
the post-remand verdict draws “an arbitrary line from the end of the [T]op of
the [S]lope [westward] to Stein’s mailbox.” Grabowski’s Post-Remand Brief,
at 28. They claim this arbitrary line places the boundary too far north, and
once again grants Stein more property that was warranted by the evidence
introduced at trial. The Grabowski’s claim that a pear tree near the end of
Stein’s driveway is on their property, whereas the remand verdict places the
tree on Stein’s property. Stein counters that the pear tree is planted beneath
the Top of the Slope, and that the Grabowski’s now argue, for the first time,
that the consent line follows a path between the Top of the Slope and the
northern edge of Stein’s driveway (the Grabowski’s theory at trial was that a
consent line, if it existed, followed the northern edge of Stein’s driveway).
To aid in its compliance with our remand instructions, the trial court
requested documentation of from each party depicting a boundary that follows
the contours of the Top of the Slope. The court reviewed the parties’ post-
remand submissions, viewed them in comparison to the evidence submitted
at trial, considered this Court’s prior memorandum, and explained its post-
remand verdict as follows:
There were several reasons why I had adopted the [pre-
remand] line. First and foremost, Grabowski took the position
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that there was no consent line except for the Stein’s driveway,
and he provided no contrary proposed consent line after the non-
jury trial. Second, the Stein’s proposed line that I had adopted
attempted to follow the [Top of the Slope2] as closely as possible,
while utilizing a straight line to avoid a boundary line that would
zig zag and possibly cause more confusion for future owners.
However, in order to follow the Superior Court’s direction on
remand, I reviewed and compared both parties’ surveys and
exhibits with their respective proposed [Top of the Slope] lines in
relation to the diagram the Superior Court utilized in its
Memorandum Opinion on page 17.[3] I also took into consideration
that the Superior Court, per footnote 5 of its opinion, relied on
Stein’s survey as the source of its [Top of the Slope] found on the
page 17 diagram. Grabowski submitted two documents for
consideration both from Gen3 Surveying, the first dated 3/5/2020
titled Plot of Exhibits and the other dated 9/20/2020 titled Plan of
Proposed Line.
The Gen3 documents provide proposed lines that
purportedly follow the [Top of the Slope]. I then compared them
to Stein’s documents, the Liadis Engineering survey dated
12/15/2015, the Survey of the Top [of the] Slope, Exhibit A1 to
the Non-Jury Verdict on Remand, and the Superior Court’s page
17 diagram. After reviewing them it was clear that Grabowski’s
Gen3 Plot of Exhibits and Stein’s Survey of the Top of [the] Slope
were almost identical except for a slight deviation from the
mailbox to the [Top of the Slope]. I found the Stein survey
more credible and gave it more weight since it entailed an
actual survey of the [Top of the Slope] whereas
Grabowski’s Gen 3 documents were derived from using
prior diagrams and they did not go out and survey the [T]op
of the [S]lope.
A close review of the Stein slope survey reveals that the
course of the [Top of the Slope] changes at least eight times
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2 The trial court’s post-remand opinion refers to the “top of the bank.”
Throughout these proceedings, the parties and the court used several phrases
to refer to the Top of the Slope. We have chosen one for consistency of
reference.
3 The trial court’s references are to our memorandum at 556 WDA 2019, cited
in the main text above.
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before it merges with the original boundary line. The Gen3
Proposed Line changes course one time and amounts to a straight
line which appears to be south of the [Top of the Slope] that
appears in the prior Gen 3 Plot of Exhibits and the Stein slope
survey.
Trial Court Opinion, 4/6/23, at 4-5 (emphasis added).
In our view, the trial court’s analysis and conclusion complies with the
remand instructions of our prior panel. In particular, we discern no error in
the trial court’s decision to give more weight to Stein’s survey than to
Grabowski’s post-remand documents, which were not based on an on-site
survey of the Top of the Slope. This is particularly important because the
precise contours of the western end of the Top of the Slope, particularly at its
western end, are not readily apparent from the parties’ documentary trial
evidence. Further, testimony from the trial, read in a light most favorable to
Stein as verdict winner, supports a conclusion that the pear tree near the end
of Stien’s driveway falls below the Top of the Slope. In specific, Stein testified
at trial that her husband planted several trees, including the pear tree, on the
slope (and therefore below the top of the slope). N.T. 9/7-8/17, at 126.
Finally, as the trial court noted, the Grabowski’s post-remand proposed
boundary fails to comply with this Court’s remand instructions in that it
proceeds mostly in a straight line rather than attempting to follow the precise
contours of the Top of the Slope. In essence, the Grabowski’s post-remand
proposed boundary line commits the same error as the pre-remand boundary,
except that it falls slightly too far south instead of slightly too far north. For
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these reasons, we discern no error in the trial court’s post-remand verdict,
and we affirm the judgment.
Judgment affirmed.
3/25/2024
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