Tesauro, C. v. Schroyer, C. ( 2017 )

J. A16025/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CATHLEEN M. TESAURO AND : IN THE SUPERIOR COURT OF
JOSEPH W. TESAURO, JR., : PENNSYLVANIA
HUSBAND AND WIFE :
:
v. :
:
CYNTHIA SCHROYER AND :
ADAM T. SCHROYER, : No. 1655 WDA 2016
:
Appellants :
Appeal from the Order Entered September 26, 2016,
in the Court of Common Pleas of Fayette County
Civil Division at No. 2572 of 2014 G.D.
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2017
Cynthia Schroyer and Adam T. Schroyer appeal the September 26,
2016 order in which the Court of Common Pleas of Fayette County declared
Cathleen M. Tesauro and Joseph W. Tesauro the fee simple owners of a
parcel of land of 0.2033 acres acquired by adverse possession and legal and
* Retired Senior Judge assigned to the Superior Court.
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equitable owners of a parcel of land of 0.1618 acres. 1 After careful review,
we affirm.
The relevant facts, as found by the trial court, are as follows:
Before the Court is a Complaint in Action to
Quiet Title filed by [appellees], involving two
adjacent parcels of land in South Connellsville,
Fayette County, Pennsylvania.
In the Complaint, the ownership of the first
parcel, identified as “Disputed Property I,” is being
1 Appellants’ brief incorrectly indicates that appellants appeal from the
October 24, 2016 order that modified the trial court’s order of October 7,
2016 and denied appellants’ motion for post-trial relief. (Appellants’ brief
at iv.) An appeal, however, properly lies from the entry of judgment, not
from an order denying post-trial motions. See Hart v. Arnold, 884 A.2d
316, 343 n.1 (Pa.Super. 2005) (citation omitted). We have corrected the
caption accordingly.
After judgment was entered, appellants moved for post-trial relief on
October 4, 2016. At the same time, appellant moved for leave to specify
additional grounds for post-trial relief after they had the opportunity to
review the trial transcript. On October 7, 2016, the trial court denied the
motion for post-trial relief and granted the motion for leave to specify
additional grounds for post-trial relief and gave appellants 30 days from the
receipt of the transcript to file amended post-trial motions. On October 21,
2016, appellants moved to vacate their motion for post-trial relief because
the denial of the original or Post Trial Relief is
inappropriate in as much as, if that motion is not
vacated, then an appeal must be had to the Superior
Court before the [trial] Court would have a chance to
receive the additional grounds for Post Trial Relief
after receipt of the transcript and within 30 days
thereof to file an amended Post Trial Motion.
Petition to Vacate Motion for Post Trial Relief, 10/21/16 at 1, ¶ 4.
On October 24, 2016, the trial court denied the petition to vacate “as
well as the Order extending time to file petition for Reconsideration of
additional reasons pending transcript.” (Order, 10/24/16 at 1.)
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claimed by [appellees] by way of adverse possession
beginning in or about January 1957. [Appellees]
seek to be declared the legal and equitable owners of
Disputed Property I and request that [appellants] be
forever barred and estopped from having or claiming
any right, title, or interest therein.
The ownership of the second parcel, identified
as “Disputed Property II,” is alleged by [appellees] to
be their property through title ownership of deeds of
record. [Appellees] request this Court to enter an
Order compelling [appellants] to commence an
action of ejectment within thirty (30) days or in the
alternative declare that [appellees] are the legal and
equitable owners of this parcel and that [appellants]
be forever barred and estopped from having or
claiming any right, title, or interest therein.
By way of Answer and Counterclaim,
[appellants] deny the allegations of [appellees’]
alleged ownership of the disputed properties and
move this Court to eject [appellees] from the
disputed lands and declare the rights to the lands as
belonging to [appellants].
Following bench trial, we make the following:
FINDINGS OF FACT
1. [Appellees], Cathleen M. Tesauro and
Joseph W. Tesauro, Jr., husband and
wife, are the owners of property located
at 1513 East Gibson Avenue, South
Connellsville, Pennsylvania.
2. [Appellants] and siblings, Cynthia L.
Schroyer and Adam T. Schroyer, are the
record owners of the land in dispute.
4.[2] From 1957 through the present,
[appellees] and their predecessors in title
2 The trial court did not include a paragraph enumerated “3” in its findings of
fact.
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came into use and possession of
Disputed Property I, an area containing
0.2033 acres.
5. [Appellees] and their predecessors in
title maintained Disputed Property I by
cutting the grass, maintaining and
trimming the trees, building and
maintaining a shed, repairing and storing
motor vehicles, cultivating a garden,
constructing and maintain[ing] a pigpen,
and utilizing the land for ingress and
egress to the garden and shed.
6. [Appellees] are the sole owners in fee
simple of Disputed Property I by way of
adverse possession accruing with
predecessors in title since 1978.
7. The metes and bounds description of
[appellees’] 1.433 acre tract requires the
first call point as “beginning at an iron
pin in Gibson Avenue at a place where an
alley intersects on said Avenue.”
8. The boundary line of the [appellees’]
1.433 acre tract is established by deeds
of record, by the surveys of L.J. Swisher,
dated September 24, 1956, Reid
Pendleton, dated September 15, 1962,
and Fayette Engineering, dated October
8, 2014, and by the monumentation on
the ground as found by Rusty Mechling
of Fayette Engineering.
9. [Appellees] are the legal and equitable
owners of Disputed Property II by deeds
of record.
DISCUSSION
[Appellee] Cathleen M. Tesauro is the daughter
of Lester and Nellie Greenawalt. The Greenawalts
acquired the property located at 1513 East Gibson
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Avenue, South Connellsville, Fayette County,
Pennsylvania, by way of Deed, dated January 9,
1957, and recorded in the Recorder of Deeds of
Fayette County at Record Book 874, Page 530, from
Grantors, George E. Schroyer and wife, Vivian J.
Schroyer.
Lester Greenawalt died in 1986 and
Nellie Greenawalt was vested as the fee owner in
1513 East Gibson Avenue. Nellie Greenawalt
continued to reside there and married
William Blackburn in 1989. [] Cathleen M. Tesauro
moved to Gibson Avenue with her parents in 1957 at
the age of five years old. She remained a resident
until she married, but maintained daily visits with
her parents thereafter. Nellie Greenawalt died in
2011. By Deed, dated August 15, 2012, The Estate
of Nellie P. Blackburn and others conveyed 1513 East
Gibson Avenue, South Connellsville, Fayette County,
Pennsylvania, to [appellees], recorded at Record
Book Volume 3196, Page 1197.
....
[Appellees] assert that they are the fee simple
owner[s] of Disputed Property I by virtue of adverse
possession. Disputed Property I lies adjacent to and
south of the [sic] 1531 Gibson Avenue as acquired
by [appellees] by Deed, recorded at Record Book
874, Page 530. [Appellees] alleged they and their
predecessors in title have been in actual, continuous,
exclusive, visible, notorious, distinct, and hostile
possession of the land since 1957. Here, the
testimony adduced at trial establishes that
[appellees] have exercised such dominion and
control over Disputed Property I to be declared as
the legal and equitable owners of this tract.
Cathleen M. Tesauro testified that her father,
Lester Greenawalt, and also her predecessor in title,
cleared the property identified as Disputed Property I
by removing boulders and clearing tree limbs. The
tree line has remained unchanged since
Lester Greenawalt began maintenance. According to
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Cathleen Tesauro, Lester Greenawalt also planted
fruit trees, cut and maintained the grass, and
gardened on the disputed land. Lester Greenawalt
placed a shed on Disputed Property I, as depicted by
Exhibit 8 in approximately 1968 which shows
Cathleen in front of the shed. The shed was used to
store car parts, tools, and lawn and gardening
equipment.
When Lester Greenawalt died,
Nellie Greenawalt and her second husband,
William Blackburn, maintained Disputed Property I in
a similar manner by gardening, cutting the grass,
trimming the trees, and utilizing the shed.
[Appellee], Joseph W. Tesauro, Jr. assisted his
mother-in-law and step-father-in-law and the
Greenawalt-Blackburn grandchildren also assisted
Nellie and William Blackburn in maintaining the
disputed property. The continued maintenance of
Disputed Property I is depicted in photograph
Exhibits 9, 10, and 11.
Cathleen Tesauro credibly testified that neither
[appellant] nor any other Schroyer previous in title
ownership has ever acted in a manner to take
possession or control of Disputed Property I. No
other person has ever used the shed, mowed the
grass, cut the trees, or maintained a garden on this
tract of land.
Joseph W. Tesauro, Jr. testified that his
father-in-law, Lester Greenawalt, worked on vehicles
by the shed, cut car parts up near the shed, and
kept spare motors and parts in and around the shed
for the several cars parked on Disputed Property I.
Joseph W. Tesauro affirmed that the lands over
Disputed Property I were cleared and maintained
prior to his involvement with the Greenawalt family,
beginning in approximately 1969. Joseph W.
Tesauro also denied that anyone has ever demanded
that he not use [the] land or that the shed be
removed. Upon this factual basis, the period in time
from January 1957 until August 15, 2012, the date
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of the vesting Deed to the Tesauros shall be included
in calculating the twenty-one[-]year requirement.
[Appellants] presented fact witnesses
Jeff Schroyer, Richard E. Schroyer, Donald J. Evans,
Eric Schroyer, Kevin B. Schroyer, and [appellant]
Adam Schroyer. The substance of [appellants’]
factual evidence focused on the relationship between
Lester Greenawalt as being friends with George E.
Schroyer, the patriarch of the Schroyer family and
the Grantor of the vesting deed to the Greenawalts
as is recorded at Record Book 874, Page 530.
The Schroyers testified that they maintained
farm animals and would deliver eggs and manure to
the Greenawalts. Several of the Schroyer children
remembered spreading the manure on the garden in
Disputed Property I, but doing so as an act beneficial
to Lester Greenawalt. The Schroyer family did not
maintain the garden on Disputed Property I for
themselves and did not reap the benefits of the
garden. Several Schroyers testified that their family
maintained their own garden throughout their
childhood and that garden was not located on
Disputed Property I.
Jeff Schroyer placed the location of the
Greenawalt garden within the pink and blue sections
of Exhibit 7 -- the blue being claimed by adverse
possession. Jeff Schroyer stated that the size of the
garden varied but grew larger with time.
Jeff Schroyer also confirmed that the shed on
Disputed Property I was built for Lester Greenawalt
and that Lester Greenawalt kept “fifteen to twenty”
cars around the shed where he performed
mechanical work on the cars. The Schroyer family
members testified that Lester Greenawalt kept a pig
pen. Jeff Schroyer believed part of the pig pen
likewise overlapped the blue section on Exhibit 7.
On direct examination, Richard E. Schroyer
alleged that his father, George Schroyer gave
Lester Greenawalt permission to use the lands of
Disputed Property I. On cross examination, Richard
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E. Schroyer testified the permission was known as “a
common thing” and could not pinpoint a time when
verbal permission occurred, rather he “assumed” his
father gave permission to Greenawalt. When
re-directed by [appellants’] counsel, Richard E.
Schroyer admitted that he never heard a property
line discussion between his father, George Schroyer,
and Lester Greenawalt, but that it was an “unspoken
thing” between “neighbors.” Richard E. Schroyer
was never personally a title owner to the disputed
properties and never told the Greenawalts or
Tesauros not to use the land.
....
[Appellant] Cynthia L. Schroyer did not testify.
[Appellant] Adam Schroyer testified that he jointly
owns the property with his sister, Cynthia L.
Schroyer. Adam Schroyer admitted that he has
never denied the use of the land in the blue area to
the Tesauros, Blackburn, or Greenawalts. Adam
Schroyer alleged that he did not deny the use of the
land because he was told by his father that as long
as Mr. and Mrs. Greenawalt lived there, they could
use that ground. Adam Schroyer took no actions
and uttered no words to prevent the Tesauros or
predecessors in title from using Disputed Property I.
Adam Schroyer admitted that the area shaded in
blue, representing Disputed Property I, has been
used continuously by the Greenawalts and Tesauros
since 1957 as their own. Adam Schroyer denied that
he or any members of his family ever took
possession of Disputed Property I in any way. Adam
Schroyer admitted that the Tesauros, Blackburns,
and Greenawalts cut the grass for all those years,
planted fruit trees, placed a shed, and maintained a
garden on Disputed Property I.
Based upon the testimony and as admitted by
[appellant], Adam Schroyer, there remains no
question of fact that [appellees] have continuously
used Disputed Property I as their own lands since
1957.
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Trial court opinion, 9/26/16 at 1-9 (citations to the record omitted).
DISPUTED PROPERTY II
[Appellees] are the fee simple owners of
1513 East Gibson Avenue, South Connellsville,
Fayette County, Pennsylvania as fully described and
bounded in the Deed, dated August 15, 2012, from
the Estate of Nellie P. Blackburn and others to
[appellees] recorded at Record Book Volume 3196,
Page 1197. [Appellants] claim an interest in
0.1618 acres, referred to as “Disputed Property II,”
which lies on the southern edge of [appellees’] lands
and is depicted in a pink shaded area on Exhibit 7.
[Appellees] presented the testimony of
Rusty Mechling, a civil engineer and surveyor
employed by Fayette Engineering, and who was
recognized by the Court as an expert in the field of
civil engineering and surveying. Mechling detailed
the title history of the subject tract from which he
relied as follows:
1. Deed, dated August 20, 1955, recorded
at Record Book 841, Page 354, from
Charles E. Schroyer to George E.
Schroyer and Vivian J. Schroyer, his
wife, containing 6.847 acres.
2. Survey of L.J. Swisher dated
September 24, 1956, identifying
1.433 acres.
3. Deed, dated January 9, 1957, recorded
at Record Book 874, Page 530, from
George E. Schroyer and Vivian J.
Schroyer, his wife, to Lester F.
Greenawalt and Nellie Greenawalt, his
wife, containing 1.433 acres.
4. Survey of Reid Pendleton, dated
September 15, 1962, identifying
1.43 acres.
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5. Deed, dated August 15, 2012, recorded
at Record Book 3196, Page 1197, from
the Estate of Nellie P. Blackburn and
others to Cathleen M. Tesauro and
Joseph W. Tesauro, her husband.
Mechling first relied on the Swisher survey with
a call point located at the center of Gibson Avenue
with the intersection of an alley. Mechling explained
the parent tract of land is 6.847 acres as was vested
in George E. Schroyer and Vivian J. Schroyer, his
wife. Prior to subdividing the property, a survey was
prepared by L. J. Swisher. The Swisher survey
identified a point at the center of Gibson Avenue.
Mechling credibly explained that this point is now
referred to as a beginning point on the Tesauro
property, since the metes and bounds description in
the subsequent vesting deeds state[s] “beginning at
an iron pin in Gibson Avenue at a place where an
alley intersects on said Avenue.” A subsequent
survey by Reid Pendleton, dated September 15,
1962, confirmed the point in the middle of Gibson
Avenue.
Mechling personally surveyed the tract of land,
but was not able to physically observe the iron pin in
Gibson Avenue as a result of the asphalt on the road.
However, Mechling did identify the location of that
pin with a metal detector. Mechling, on behalf of
Fayette Engineering, prepared for [appellees] the
Exhibits 6 and 7, which were admitted into evidence.
Mechling opined that the boundary lines by the
deeds of record, by the surveys of Swisher and
Pendleton, and by investigating the monumentation
on the ground by personal survey, the current
boundary of the Tesauro tract is as shown on
Exhibits 6 and 7. Mechling bases his opinion on the
original outconveyance from the Schroyers to the
Greenawalts with a call point specifically in Gibson
Avenue. Based upon the first call, with the metes
and bounds ran from that call, Mechling was able to
follow the footsteps of the original surveyors.
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Mechling further opined [appellants] own no
part of the Tesauro property based on the metes and
bounds description. In support of this opinion,
[appellees] cite that the subdivision creating their
parcel was the first execute [sic] deed and should be
given priority.
With respect to Disputed Property II,
[appellants] presented two witnesses --
Donald Waxter, a title examiner and Terald McMillen,
Jr., a Registered Professional Land Surveyor.
Donald Waxter testified that he reviewed the
property records of the disputed parcel and that the
location of Gibson Avenue was not able to be
ascertained of record since there were no
right-of-ways found in the title examination and no
recorded plan for South Connellsville which would
identify the disputed portion of East Gibson Avenue.
Waxter agreed that the Tesauro property of 1.433
acres was the first parcel conveyed out of the
Schroyers’ 6.847 acre parent tract. Waxter also
agreed that the same metes and bounds description
is found throughout the deeds for the 1.433 acres
and the description begins at an iron pin in Gibson
Avenue.
Terald McMillen, Jr. of McMillen Engineering
was recognized as an expert for [appellants] in the
field of surveying. McMillen presented Exhibit C
which depicted a survey prepared by McMillen
Engineering for Nellie Blackburn (nee Greenawalt),
dated February 1992. This survey had located
various pins that were uncovered by McMillen as
having been set in 1992. McMillen opined that
Gibson Avenue has moved and that McMillen
Engineering by survey has re-established the correct
location for Gibson Avenue. McMillen did not have []
the benefit of the Swisher survey in his file in the
preparation of the McMillen Engineering survey.
McMillen based his 2015 survey on points and pins
that were previously located by McMillen Engineering
for the 1992 survey. McMillen opined that the
correct boundary between the Tesauros and
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Schroyers is identified on Exhibit B -- the McMillen
survey.
Under questioning by this Court as to how
McMillen believed that Gibson Avenue had moved,
McMillen testified that information was at the
McMillen Engineering office, but no such evidence
was admitted at trial or provided to this Court.
Id. at 11-14 (citations to the record omitted).
On March 7, 2016, appellants petitioned to strike the testimony of
Russell B. Mechling, III (“Mechling”), because Mechling was not a licensed
land surveyor in Pennsylvania which made his testimony illegal under the
Engineer, Land Surveyor and Geologist Registration Law (“Law”).3 By order
dated March 14, 2016, the trial court denied the petition.
3Section 3 of the of the Engineer, Land Surveyor and Geologist Registration
Law provides in pertinent part:
Practice of engineering, land surveying or geology
without licensure and registration prohibited
(a) In order to safeguard life, health or
property and to promote the general
welfare, it is unlawful for any person to
practice or to offer to practice
engineering in this Commonwealth,
unless he is licensed and registered
under the laws of this Commonwealth as
a professional engineer, for any person
to practice or to offer to practice land
surveying, unless he is licensed and
registered under the laws of this
Commonwealth as a professional land
surveyor or for any person to practice or
to offer to practice geology unless he is
licensed and registered under the laws of
this Commonwealth as a professional
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On September 26, 2016, the trial court ruled in favor of appellees on
both disputed parcels and entered judgment in their favor. With respect to
Disputed Property I, the trial court awarded appellees the parcel based on
adverse possession. With respect to Disputed Property II, the trial court
declared appellees the legal and equitable owners of the tract and barred
geologist. Individuals licensed as
professional engineers, professional land
surveyors or registered landscape
architects may perform geological work
which is incidental to their engineering,
surveying or landscape architecture
without being licensed as a professional
geologist.
(b) A person shall be construed to practice
or offer to practice engineering, land
surveying or geology who practices any
branch of the profession of engineering,
land surveying or geology; or who, by
verbal claim, sign, advertisement,
letterhead, card, or in any other way
represents himself to be an engineer,
land surveyor or geologist, or through
the use of some other title implies that
he is an engineer, land surveyor or
geologist or that he is registered under
this act; or who holds himself out as able
to perform, or who does perform any
engineering, land surveying or geological
service or work or any other service
designated by the practitioner or
recognized as engineering, land
surveying or geology.
63 P.S. § 150.
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and estopped appellants from having or claiming any right, title, or interest
in and to the tract.
On November 2, 2016, appellants appealed to this court. On
November 4, 2016, the trial court ordered appellants to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On November 22, 2016, appellants complied with the request. On
December 27, 2016, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellants raise the following issues for this court’s review:
I. Whether the Trial Court erred in considering
illegal testimony of [appellees’] surveyor when
the court became aware that the surveyor was
not licensed in Pennsylvania?
II. Whether the Trial Court erred in excluding
evidence of Witnesses, Family Members, and
[appellants’] predecessor in title and letters
form [sic] [appellants’] prior lawyer regarding
[appellants’] prior position concerning the
ownership of the property?
Appellants’ brief at 2.
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 the trial judge
in a non-jury case must be given the same weight
and effect on appeal as the verdict of a jury, and the
findings will not be disturbed on appeal unless
predicated upon errors of law or unsupported by
competent evidence in the record. Furthermore, our
standard of review demands that we consider the
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evidence in a light most favorable to the verdict
winner.
Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citation omitted).
Initially, appellants contend that Mechling should not have been
permitted to testify because he was not licensed in the Commonwealth of
Pennsylvania as a land surveyor or engineer. For support, appellants refer
to Section 3 of the Law, 63 P.S. § 150(a), which states that it is unlawful to
practice land surveying without a license in the Commonwealth.
The decision to permit a witness to testify as
an expert rests with the sound discretion of the trial
court, and, absent an abuse of discretion, the
decision will not be disturbed on appeal. Miller v.
Brass Rail Tavern, Inc., 541 Pa. 474, 481, 664
A.2d 525, 528 (1995). To be qualified to testify in a
given field, a witness normally needs only to possess
more expertise than is within the ordinary range of
training, knowledge, intelligence, or experience. Id.
at 481, 664 A.2d at 528. Ordinarily, therefore, the
test to be applied is whether the witness has a
reasonable pretension to specialized knowledge on
the subject matter in question. Id. at 480-81, 664
A.2d at 528; Ruzzi v. Butler Petroleum Co., 527
Pa. 1, 10, 588 A.2d 1,5 (1991).
Flanagan v. Labe, 690 A.2d 183, 185 (Pa. 1997).
Appellants challenge the qualifications of Mechling as an expert.
However, at the commencement of the trial on September 25, 2015,
appellants’ counsel stipulated to the qualifications of Mechling. (Notes of
testimony, 9/25/15 at 5.) Furthermore, the record reflects that when
appellees offered Mechling as an expert in civil engineering survey,
appellants had no objection. (Id. at 7.)
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“Parties are bound by their stipulations made in judicial proceedings.
‘[C]oncessions made in stipulations are judicial admissions, and accordingly
may not later in the proceedings be contradicted by the party who made
them.’” Fierst v. Commonwealth Land Title Ins. Co., 535 A.2d 196, 199
(Pa.Super. 1987), quoting, Tyler v. King, 496 A.2d 16, 21 (Pa.Super.
1985).
Because of appellants’ earlier stipulation, they cannot at a later time
challenge Mechling’s qualifications as an expert. They had the opportunity
to do so at trial and chose not to avail themselves of this opportunity. The
trial court did not abuse its discretion or commit an error of law when it
denied appellants’ motion to strike Mechling’s testimony.
Appellants next contend that the trial court erred when it excluded
evidence of witnesses, family members, and appellants themselves
concerning permission given by the appellants’ predecessor in title to use
the land.
Adverse possession is a doctrine that permits one to obtain ownership
of another’s property by operation of law. The grant of adverse possession
must be based on clear evidence. Flannery v. Stump, 786 A.2d 255(Pa.Super. 2001). A person who claims title by adverse possession must
establish that he or she had actual, continuous, exclusive, visible, notorious,
distinct, and hostile possession of the land for 21 years. Recreation Land
Corp. v. Hartzfeld, 947 A.2d 771 (Pa.Super. 2008). The use must be
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adverse to that of the record owner of the property. If the use is permitted
by a lease, license, indulgence, or other grant from the owner, it is not
adverse. Flannery, 786 A.2d at 258-259.
Appellants argue that the trial court erred when it did not permit their
witnesses and family members to testify that George Schroyer told them
that he gave permission to appellees and their predecessors to use Disputed
Property I because such statements were hearsay. Appellants assert that
these statements were admissible as a present sense impression exception
to hearsay.
Section 803(1) of the Pennsylvania Rules of Evidence provides:
Present Sense Impression. A statement
describing or explaining an event or condition, made
while or immediately after the declarant perceived it.
Comment: This rule is identical to F.R.E.
803(1).
For this exception to apply, declarant need
not be excited or otherwise emotionally
affected by the event or condition
perceived. The trustworthiness of the
statement arises from its timing. The
requirement of contemporaneousness, or
near contemporaneousness, reduces the
chance of premeditated prevarication or
loss of memory.
Pa.R.E. 803(1).
Appellants argue that George Schroyer, based on his impression, told
his family members and other witnesses about the permission that he gave
to use the land. The family members and other witnesses perceived the
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event based on George Schroyer’s description or, in the case of appellants,
provided permission again to appellees based on what their father,
George Schroyer, told them. Appellants argue that because
George Schroyer told them about granting permission, this information was
perceived by appellants and other family members and witnesses and should
be admitted under the present-sense impression exception to the rule
excluding hearsay.
This court does not agree. The exception states that the statement
must have been made at the time of the event or immediately after the
declarant perceived it. Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270,
1279 (Pa.Super. 2005).
In Croyle v. Smith, 918 A.2d 142, 150 (Pa.Super. 2007), this court
held that a statement given approximately ten minutes after a motorcycle
accident was not a present sense impression because the statement was not
issued so close to the event that the declarant did not have the opportunity
to decide to make a false statement.
Here, nothing in the record sets forth when George Schroyer allegedly
made such a statement or its relation to the alleged grant of permission to
the Greenawalt family. This exception to hearsay does not apply.
Appellants next contend that the trial court erred when it excluded as
hearsay evidence of a prior survey which had been given to a witness by
appellants’ predecessors in title in violation of Pa.R.E. 803(15).
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Section 803(15) of the Pennsylvania Rules of Evidence provides that
the following is not excluded by the rule against hearsay:
Statements in Documents That Affect an
Interest in Property. A statement contained in a
document, other than a will, that purports to
establish or affect an interest in property if the
matter stated was relevant to the document’s
purpose--unless later dealings with the property are
inconsistent with the truth of the statement or the
purport of the document.
Pa.R.E. 803(15).
Although appellants admit that the survey which was marked as
Exhibit C was admitted into evidence, appellants claim that their expert
witness, Terald McMillen, Jr. (“McMillen”), was not permitted to testify
regarding it. This survey was prepared by McMillen’s father for
Nellie Greenawalt Blackburn. Appellees objected to the offering of this
document. The trial court overruled the objection. (Notes of testimony,
9/25/15 at 64-65.) Reviewing McMillen’s testimony, it appears that
appellants’ attorney questioned him about the survey labeled Exhibit C
without objection. It is not exactly clear what issue appellants attempt to
raise.
Appellants also assert that the exclusion of additional evidence
regarding this survey harmed appellants’ right to defend what they believed
was their property. Apparently, appellants are referring to letters written
from a deceased attorney who represented appellants’ parents. The trial
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court sustained appellees’ objection to these letters. It does not appear that
these letters would qualify as exceptions to hearsay under Pa.R.E. 803(15).
Finally, appellants assert that the disputed land holds its reputation as
Schroyer land based on earlier surveys that testimony should have been
permitted as an exception to hearsay contained in Pa.R.E. 803(20) which
provides:
Reputation Concerning Boundaries or General
History. A reputation in a community--arising
before the controversy--concerning boundaries of
land in the community or customs that affect the
land, or concerning general historical events
important to that community, state or nation.
Pa.R.E. 803(20).
Here, there were already surveys which represented boundaries of the
land in question that were admitted into evidence. Also, testimony
regarding the permission to use land in Disputed Property I is not reputation
evidence nor does it establish boundaries. The surveys of 1956 and 1962,
referred to by appellants, are not the reputation of boundaries but represent
the boundaries themselves. This issue has no merit.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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