Kasmoch, D. v. Lorrello, V. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
DAVID KASMOCH AND EDNA MAE : IN THE SUPERIOR COURT OF
KASMOCH, HUSBAND AND WIFE, : PENNSYLVANIA
:
Appellants :
:
v. :
:
VINCENZA LORRELLO A.K.A. :
VINCENZA LORRELLA, FRANCIS E. :
CONFORTI AND MICHELLE E. :
CONFORTI, VERENA CONFORTI, LINDA :
J. BENNETT, GEORGE LOUISE, BARRY :
LOUISE, RONALD LOUISE AND PAULA :
LOUISE, :
:
v. :
:
FRANCIS CONFORTI AND MICHELE :
CONFORTI, HUSBAND AND WIFE, :
:
v. :
:
DAVID KASMOCH AND EDNA MAE :
KASMOCH, : No. 1792 WDA 2013
Appeal from the Order dated October 9, 2013,
Court of Common Pleas, Venango County,
Civil Division at No(s): Civ No. 1367-2009, Civ No. 1369-2009
and Civ No. 580-2008
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 15, 2014
appeal from the October 9, 2013 order entered by the Venango County
Court of Common Pleas following a consolidated non-jury trial regarding the
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Michelle C
Bennett, George Louise, Barry Louise, Ronald Louise and Paula Louise (the
ejectment against the Kasmochs for
the
record reflects that the Kasmochs did not file post-trial motions in this case,
we are compelled to dismiss the appeal.1
The record reflects the following relevant procedural history. On June
30, 2011, after a bench trial, the trial court entered an opinion detailing its
findings of fact and conclusions of law. In an accompanying order, the trial
findin
the Kasmochs filed an appeal from that order, but withdrew the appeal on
August 11, 2011, as the June 30 order was not a final, appealable order.
See Notice of Appeal, 7/25/11; Application to Withdraw Appeal, 8/11/11.
1
Although not raised by any party, this Court may dismiss an appeal sua
sponte -trial motions. See, e.g.,
Bilec v. Auburn & Associates, Inc. Pension Trust, 588 A.2d 538, 540
(Pa. Super. 1991).
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On September 2, 2011, the Kasmochs filed a motion to reconsider
before the trial court raising five issues,2 none of which corresponds to any
of the issues raised on appeal.3 Motion to Reconsider, 9/2/11. Appellees
2
The Kasmochs requested reconsideration of the following: (1) the width
of the right of way for Meadowsweet Road; (2) the width of the right of way
on Cripps Farm Road; (3) a declaration that the area between a split rail
fence an
property is owned by the Kasmochs; (4) a finding that the Kosmochs have a
nonexclusive prescriptive easement for buried telephones and natural gas
h home; and (5) the best
way for Appellees to access the east and west fields. Motion to Reconsider,
9/2/11, at ¶¶ 1-5.
3
The Kasmochs raise the following issues on appeal:
1. Did the [trial c]ourt abuse its discretion or commit an
error of law when [it] determined that the
Louises and the Confortis and not the Kasmochs and
in determining that the western side of the stream
was the boundary between the Cripps Property and
the Louise/Lorrello Property?
2. Did the [trial c]ourt abuse its discretion or commit an
error of law when [it] determined that the cart path
of Meadowsweet Road and the Cripps Right of Way
could only be tarred and chipped and could not be
paved?
3. Did the [trial c]ourt abuse its discretion or commit an
error of law when [it] determined that Meadowsweet
Lane and the Cripps Right of Way were non-exclusive
rights of way and the [trial c]ourt determined that
maintain[ing] and repairing Meadowsweet Lane and
the Cripps Right of Way?
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file
requests for reconsideration made.4
On October 9, 2013, the trial court entered an order detailing its
decision as to the rights and obligations of the parties regarding the property
in question, relying on its prior findings of fact and conclusions of law in its
June 30, 2011 order. Trial Court Order, 10/9/13. The Kasmochs did not file
any motions following the issuance of that order, and instead filed a notice
of appeal on November 7, 2013.
Pennsylvania Rule of Civil Procedure 227.1(c) requires the filing of
post-
present here, post-trial motions are required following bench trials for
actions at law and in equity, as well as in declaratory judgment actions.
Chalkey v. Roush, 805 A.2d 491, 496 (Pa. 2002) (actions at law and in
equity); Motorists Mut. Ins. Co. v. Pinkerton, 830 A.2d 958, 964 (Pa.
2003) (declaratory judgment action). If an appellant fails to file post-trial
preserved for appellate review. Estate of Hicks v. Dana Companies, LLC,
984 A.2d 943, 976 (Pa. Super. 2009) (en banc), appeal denied, 19 A.3d
1051 (Pa. 2011).
4
to reconsider. See Response to Motion to Reconsider, 9/16/11, at ¶¶ 1-5;
supra n.2.
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The Kasmochs failed to file a post-trial motion preserving any of the
issues raised on appeal. We cannot decide issues raised on appeal that have
not been preserved. See Bensinger v. Univ. of Pittsburgh Med. Ctr., __
A.3d __, 2014 WL 4072021, *8 (Pa. Super. Aug. 19, 2014) (stating
-trial motion waives appellate review of
court, Appellees,
happened. Instead, the parties, through their counsel, appeared for oral
argument and admirably presented their positions before this panel.
In the absence of waiver, however, we nonetheless would affirm the
detailed and well-reasoned opinion and conclusions
reached in its June 30, 2011 opinion and order. See McEwing v. Lititz
Mut. Ins. Co., 77 A.3d 639, 646 (Pa. Super. 2013) (Our review of an appeal
from a non- he findings of the
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
findings lack evidentiary support or that the court capriciously
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limitation that Meadowsweet Road and the Cripps right of way may only be
tarred and chipped, not paved, and assigning exclusive financial
responsibility for the maintenance of the two easements to the Kasmochs,
the Kasmochs have not developed any legal argument to provide us grounds
to reverse the trial court on these issues. See 11-15.
Because their combined argument on these issues solely relates to the
authority,5
See Pa.R.A.P. 2119(a) (requiring citation to pertinent authority in the
argument section of an appellate brief); see also Commonwealth v.
Kearney
develop an argument with citation to pertinent authority results in waiver of
the issue raised on appeal).
Appeal dismissed. Jurisdiction relinquished.
5
In support of their remaining two issues, the Kasmochs cite to one case,
Borgel v. Hoffman, 280 A.2d 608 (1971), which addresses the
responsibility for maintaining a driveway shared by several landowners.
Borgel as
e most reasonable, expedient and equitable rule is to require
each of the owners to be responsible for the maintenance and repair of only
Id. (citing
Borgel, 280 A.2d at 265). The Kasmochs go on to recognize that the
Id. The
easement and will be using the easement by [sic] heavy farming equipment,
is only equitable for [] Appellees to be responsible for the wear and
Id. As stated herein, the holding of
Borgel recited by the Kasmochs does not stand for that proposition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:9/15/2014
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