Andrien, L. v. Gerber, H. ( 2022 )

J-A04028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LEONARD R. ANDRIEN AND VAUNE : IN THE SUPERIOR COURT OF
LOUISE ANDRIEN : PENNSYLVANIA
:
:
v. :
:
:
HEATHER G. GERBER :
: No. 966 EDA 2021
Appellant :
Appeal from the Judgment Entered May 6, 2021
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-08686-RC
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 21, 2022
Appellant Heather G. Gerber appeals from the judgment entered on May
6, 2021,1 in favor of Appellees Leonard R. Andrien and Vaune Louise Andrien
on all claims set forth in their complaint to quiet title and/or for ejectment and
trespass, and against Appellant on her counterclaim for adverse possession
pursuant to 42 Pa.C.S. § 5530. We affirm.
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1 Appellant purports to appeal from the April 23, 2021 order denying her post-
trial motion instead of from the judgment entered on May 6, 2021.
“Ordinarily, an appeal properly lies from the entry of judgment subsequent to
the trial court’s disposition of any post-trial motions, not from an order
denying a post-trial motion.” Nitardy v. Chabot, 195 A.3d 941, 944 n.1 (Pa.
Super. 2018) (citation omitted). Here, the trial court entered judgment on
May 6, 2021, prior to Appellant’s filing of her notice of appeal on May 7, 2021.
Therefore, we have jurisdiction to address the appeal on the merits. Id. We
have corrected the appeal paragraph to reflect that this is an appeal from the
entry of judgment of May 6, 2021.
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Appellant and Appellees are owners of adjoining parcels of land engaged
in a property dispute over the boundary lines between 1239 Greenhill Road
and 1241 Greenhill Road, Westchester, Pennsylvania. See, e.g., N.T. Trial,
11/9/20, at 7-9. The trial court set forth the background of this matter as
follows:
Generally, the property that [Appellant] claims by adverse
possession is set forth in the red thatched lines on Exhibit D-4, as
those lines were placed by counsel for [Appellant]. [Appellant]
contends that [Appellee’s] father, James Andrien, verbally
described the property lines of [Appellant’s] parcel as generally
set forth in the red thatched area. [Appellant’s] testimony was
also generally supported by testimony of her father, George
Gerber, and that of her friend, Susan Horner, that [Appellant]
periodically cut the grass in the red thatched area and
planted/removed trees, shrubbery and flowers in the red thatched
area as set forth in Exhibit D-4. This testimony does not present
sufficient credible, clear and definitive proof of adverse possession
because there was credible testimony presented by [Appellees]
that they, and their father, maintained the same property and
[Appellees] further disputed their father’s claimed property line
concessions.
[Appellant] purchased her property in 1984. At some point in the
past, her property was land belonging to the Andrien family.
[Appellant] and the Andrien family were very friendly and
[Appellant] attended Andrien family gatherings since her purchase
of the property. Additionally, [Appellant] testified that [Appellee,]
Leonard Andrien, as well as his father, James Andrien, were very
helpful to her since she was a single woman trying to renovate
and maintain her property and that they provided help to her since
they were familiar with home maintenance and repairs.
[Appellant’s] father also asked the Andrien family to help her.
[Appellant] testified that she and [Appellee,] Vaune Louise
Andrien, were very friendly throughout the years. It appears from
the credible testimony offered at trial that [Appellant] had a very
friendly supportive relationship with [Appellees] and [Appellees’]
parents. The record supports that between 1984 and 2003, there
were no significant boundary disputes relating to the respective
properties.
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[Appellees] herein obtained title to the Andrien property in
question when their father, James Andrien[,] died in 2007. The
credible testimony of [Appellee] Leonard Andrien, who resided at
the Andrien homestead at least since 1953, was that in 1997, on
a portion of the Andrien property, [Appellant] constructed a trash
enclosure. Leonard Andrien testified that he removed that new
trash enclosure structure in 2019. The credible testimony also
offered by both [Appellees] was that [the] red thatched area, as
set forth in Exhibit D-4, was always maintained by [Appellees]
from at least 1953 until [Appellant] placed stockade and post and
rail fencing on [Appellees’] property in 2003 that prevented them
from engaging in further maintenance. [Appellees] presented
credible testimony that when that fencing was erected by
[Appellant] in 2003 in conjunction with the installation of
[Appellant’s] in-ground pool, [Appellees], and primarily Leonard
Andrien, confronted [Appellant] about the fence encroachments
and attempted to work out the dispute with [Appellant], to no
avail. [Appellee,] Leonard Andrien, attempted to work out the
fencing issues with [Appellant] as a good neighbor and as one who
got along with [Appellant] “famously[.”] These attempts included
sharing the costs of a surveyor, which were rejected by
[Appellant]. [Appellees] then hired their own surveyor resulting
in the creation of Exhibit P-17 (a smaller version of that plan was
modified in red ink by counsel for [Appellant] and introduced as
Exhibit D-4). In 2008, [Appellant] expanded her driveway two (2)
feet into the Andrien property. In 2010, she increased the
trespass to approximately ten (10) feet of pavement. See
Exhibits P-5 and P-6. [Appellees] confronted [Appellant] about
these trespasses. In approximately 2019, [Appellees] put up a
private property sign [Exhibit P-6] and further removed
[Appellant’s] pavers and border stones from the Andrien property.
[Exhibits P-7 and P-8.]. [Appellees] engaged in formal opposition
after receiving a letter from [Appellant’s] attorney, which
[Appellees] considered threatening. See Exhibit P-9. [Appellees]
filed this action in an attempt to avoid adverse possession based
upon conflicts arising in 2003.
Specifically, [Appellant] contends that [Appellee,] Leonard
Andrien, during his deposition testimony taken January 14, 2020,
stated that his boundary conflicts with [Appellant] initiated in
2009 and therefore the requisite twenty-one . . . . year period
necessary for adverse possession was unsatisfied since
[Appellees] did not dispute [Appellant’s] possession from the time
of her purchase in 1984 until 2008. However, the trial testimony
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offered by [Appellees] was that expressed boundary conflicts with
[Appellant] occurred in 2003 (with regard to the installation of an
in-ground pool, pool house and fencing); 2008 (when [Appellant]
paved her driveway which extended [two] feet onto the Andrien
property); 2014 (removed [Appellant’s] 1997 installed trash
enclosure); and 2019 (removed [Appellant’s] second trash
enclosure on Andrien property north of [Appellant’s] parcel, as
well as other paving/stone borders on the western portion of the
Andrien parcel). Leonard Andrien further testified that he and his
sister were unable to formally dispute these boundar[y] issues
with [Appellant] until 2008 since neither had a life estate in the
property until after their father’s death.
Trial Ct. Order, 11/24/20, at 2-3 n.2.
With regard to the procedural history of this matter, on August 27, 2019,
Appellees filed their complaint against Appellant, raising claims of ejectment
and/or quiet title and trespass to land. See Compl., 8/27/19, at 1-5.
Appellant filed an answer and counterclaim, seeking adverse possession of the
land. See Answer and Counterclaim, 10/15/19, at 1-6. On November 20,
2019, Appellees filed an answer in opposition to the counterclaim. See
Answer to Counterclaim, 11/20/19, at 1-3. Both parties filed motions for
summary judgment, which the court denied on May 28, 2020. The court
presided over a bench trial on November 9, 2020, and on November 24, 2020,
rendered a decision in favor of Appellees. See Order, 11/24/20, at 1.
On December 4, 2020, Appellant filed a timely motion for post-trial
relief, which read in full:
1. [Appellant] requests this Honorable Court modify or change the
decision entered on November 24, 2020, based upon this
Court’s error and/or abuse in discretion in applying the
undisputed facts presented at trial to the law regarding Adverse
Possession.
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2. [Appellant] requests this Honorable Court reconsider the
decision entered on November 24, 2020, after review of all
evidence entered at trial, including sworn depositions taken of
the [Appellees] which significantly and substantially differ from
the testimony offered by [Appellees] at trial and upon which
[Appellant’s] counsel relied to impeach their credibility based
upon an abuse of discretion and/or an error of law and against
the weight of the evidence.
3. [Appellant] preserved the issues by properly introducing the
sworn depositions into evidence at the trial, by impeaching the
witnesses based on prior inconsistent statements made
therein, and by presenting the facts as necessary to a just
determination in closing argument.
See Post-Trial Mot., 12/4/20, at 1. On December 9, 2020, Appellees filed a
response in opposition to the motion. See Response in Opposition, 12/9/20,
at 1-3. The court issued an order scheduling oral argument for January 25,
2021. See Order, 1/25/21, at 1.
On January 4, 2021, Appellant filed a brief in support of her motion for
post-trial relief. In her brief, Appellant expanded the grounds for relief she
originally sought in her motion, listing specific findings of the trial court with
which she disagreed and citing to the record. See Brief in Support, 1/4/21,
at 1-5. Additionally, the motion listed at great length various instances of the
transcript where Appellant disagreed with the trial court’s credibility findings.
Id. at 5-11. Appellees filed their response opposing Appellant’s arguments
on January 16, 2021. See Brief in Opposition, 1/16/21, at 1-40. Oral
argument on the post-trial motion was rescheduled numerous times and
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eventually held on April 15, 2021.2 On April 23, 2021, the trial court entered
an order denying Appellant’s post-trial motion. See Order, 4/23/21, at 1.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, raising nine issues which are
nearly identical to those raised in her brief on appeal. See Concise Statement
of Errors Complained of on Appeal, 5/25/21, at 1-2. On June 11, 2021, the
trial court issued a Pa.R.A.P. 1925(a) opinion, finding that all of Appellant’s
issues were waived due to her failure to appropriately preserve them in her
motion for post-trial relief. See Trial Ct. Op., 6/11/21, at 1. The trial court
noted that although Appellant’s brief on her post-trial motion contained more
specific grounds for relief, the brief was filed well beyond the 10-day time
period provided by Pa.R.C.P. 227.1. Id. at 2.
On appeal, Appellant raises the following issues:
1. Whether the trial court erred as a matter of law and/or abused
its discretion in “crediting” [Appellees’] trial testimony given
the evidence presented and record as a whole?
____________________________________________
2 We observe that the notes of testimony from the oral argument for
Appellant’s post-trial motion were not included in the certified record in this
appeal. Further, it is not clear whether the notes were transcribed.
Additionally, we note that the ultimate responsibility for providing the
complete record rests with the party raising the issue that requires an
appellate court access to record materials. See Pa.R.A.P. 1911(a); Pa.R.A.P.
1921; see also Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa.
1998) (addressing obligation of appellant to purchase transcript and ensure
its transmission to the appellate court).
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2. Whether the trial court erred as a matter of law by finding that
trial exhibit D-4 constituted insufficient evidence for the
adversely claimed property?3
3. Whether the trial court erred as a matter of law and/or abused
its discretion in disallowing [Appellant’s] testimony, and the
entire ensuing line of questioning therefrom, concerning the
discussion she had with James Andrien?
4. Whether the trial court erred as a matter of law and/or abused
its discretion in finding that [Appellees] owned, controlled, and
maintained the disputed property since 1984?
5. Whether the trial court erred as a matter of law and/or abused
its discretion in finding that [Appellees] were unable to formally
dispute the boundary issues until 2008?
6. Whether the trial court erred as a matter of law and/or abused
its discretion in failing to find that [Appellees] failed to
pursue/obtain a judgment in an action in ejectment against
[Appellant] for the area in dispute by [Appellant] prior to the
lapse of twenty-one years of consecutive possession, control,
and use by [Appellant]?
7. Whether the trial court erred as a matter of law when it failed
to apply the doctrine of laches when it ordered [Appellant] to
remove structures, fencing, and macadam, or other
encroachments on [Appellees’] property?
8. Whether the trial court erred as a matter of law and/or abused
its discretion by failing to properly apply the facts of this case
to Pennsylvania’s law on adverse possession?
9. Whether the trial court erred as a matter of law and/or abused
its discretion by failing to grant [Appellant’s] motion for post-
trial relief?
Appellant’s Brief at 5-7 (formatting altered).
Prior to determining the merits of Appellant’s issues, we must first
determine whether she has preserved her appellate issues. Appellant avers
____________________________________________
3Appellant’s brief notes that she is no longer raising this issue for purposes of
appeal.
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that she has preserved her issues in “[Appellant’s] pleadings, including her
Counterclaim; the discovery responses; the deposition of Leonard Andrien;
[Appellant’s] responses/arguments to [Appellees’] Motions in Limine and the
trial court’s Order thereon; the trial transcript, and [Appellant’s post-trial
motion.” Appellant’s Brief at 11. Appellant further argues that:
Notably, in its response to [Appellant’s] timely appeal and concise
statement of errors, errors, the trial court, in its 1925(a) opinion,
assiduously avoided all of [Appellant’s] carefully documented
arguments set forth in her brief that supported her Motion for
Post-Trial Relief, including the contradictions of [Appellee’s] trial
testimony versus the deposition testimony. Instead, the trial
court opined that [Appellant’s] Concise Statement of Errors were
not specified in [Appellant’s Motion for Post-Trial Relief and
therefore are waived . . . . However, [Appellant’s] Motion For Post-
Trial Relief, including her brief in support thereof, clearly and
specifically identifies all of the reasons the trial court’s
determination was improper and for which [Appellant’s] Concise
Statement of Errors encompasses.
Appellant’s Brief at 13. Appellant does not address the untimely filing of her
brief.
Pa.R.C.P. 227.1 “requires parties to file post-trial motions in order to
preserve issues for appeal,” and “[i]f an issue has not been raised in a post-
trial motion, it is waived for appeal purposes.” Board of Supervisors of
Willistown Twp. v. Main Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017)
(quoting Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54, 54 (Pa.
1998)).
Rule 227.1(b)(2) provides that the grounds for post-trial relief
must be “specified in the motion,” and that any grounds not so
specified are deemed waived unless leave is subsequently granted
upon cause shown to specify additional grounds. Pa.R.C.P.
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227.1(b)(2). The Explanatory Comment to Rule 227.1(b)(2)
makes clear that specification of the grounds for relief requires
more than mere “boilerplate” language, and that the motion must
instead provide the theories in support “so that the lower court
will know what it is being asked to decide.” Pa.R.C.P. 227.1(b)(2)
(Explanatory Comment--1983) (quoting Frank v. Peckich, [391
A.2d 624, 632-33 (Pa. Super. 1978)]).
Main Line Gardens, Inc., 155 A.3d at 44; see also Kennel v. Thomas,
804 A.2d 667, 668 (Pa. Super. 2002) (per curiam) (finding the appellant’s
issues waived where they were raised in an untimely motion that the trial
court refused to address).
This Court has further observed that:
A boiler[ ]plate motion, either that “the evidence was
insufficient to support the verdict,” or that “the verdict was
against the weight of the evidence,” is not a “precise
statement of issues and grounds relied upon.” Such
assignments of error not only do not “foster” but discourage
“alert and zealous advocacy,” for anyone may make them
without giving thought to what the issues really are.
Commonwealth v. Holmes, [461 A.2d 1268, 1273 (Pa.
Super. 1983) (en banc)] . . . .
[As such,] a post-verdict motion, either that “the evidence
was insufficient to support the verdict,” or that “the verdict
was against the weight of the evidence,” will preserve no
issue for appellate review unless the motion goes on to
specify in what respect the evidence was insufficient, or
why the verdict was against the weight of the evidence. Id.
at 1270 (emphasis in original).
Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super.
2020). Our courts have extended this disapproval of “boilerplate”
motions to civil cases:
To permit the trial court to grant a new trial on the basis of
a very general assignment of error, such as “the verdict is
against the law” or “against the evidence,” would result in
losing the advantages of requiring specific assignments of
error. Furthermore, to permit the trial court to make its own
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selection of reasons for granting a new trial, and then
allocate those reasons under the rubric that the verdict was
“against the law” or “against the evidence,” would permit
the court to grant a new trial for a reason that counsel would
have been prevented from raising in the motion for new trial
because at the time the alleged error occurred, no objection
was made.
Cauthorn v. Owens Corning Fiberglas Corp., 840 A.2d 1028,
1033-34 (Pa. Super. 2004). See also Paul v. Lankenau
Hospital, [569 A.2d 346, 349 (Pa. 1990)] (finding post-trial
motion that contained boilerplate assertions regarding the
sufficiency of the evidence supporting the defamation count failed
to meet the specificity requirement of Rule 227.1).
Brown v. End Zone, Inc., 259 A.3d 473, 484 (Pa. Super. 2021).
In the instant case, the trial court observed:
[Appellant’s] Concise Statement of Errors contains nine (9) errors
complained of, all of which the trial [c]ourt considers waived for
failure to specify those issues in its motion for post-trial relief.
[Appellant’s] post-trial motion is non-specific and generally
challenges the [trial court’s] decision that [Appellant] did not
establish adverse possession; that the [trial court’s] credibility
determinations were erroneous and against the weight of the
evidence; and that the issues were preserved by introducing
deposition testimony into the record and by impeaching witnesses
based upon prior inconsistent statements.[fn4] See Brindley v.
Woodland Village Restaurant, Inc., 652 A.2d 865 (Pa. Super.
1995). Pa.R.C.P. 227.1 (b)(2). Although [Appellant’s] brief in
support of post-trial motion contains more specific grounds for
relief more closely mirroring those issues raised in the concise
statement, that brief was untimely filed outside of the required
ten (10) day period after verdict. Pa.R.C.P. 227.1(c)(1)4.
Furthermore, the [c]ourt did not address the specific post-trial
motion issues raised in [Appellant’s] brief in support of the post-
trial motion in its Order denying the motion.
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4 Pa.R.A.P. 227(c)(1) applies to jury trials; Pa.R.A.P. 227(c)(2) applies to
bench trials, as in this case. However, as both subsections have 10-day
deadlines, the difference is immaterial.
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[fn4]
Weight of the evidence challenges concede sufficient
evidence to sustain the verdict and should not be reviewed
on a “cold record” especially when determinations of
credibility are central to the verdict. See Armbruster v.
Horowitz, 744 A.2d 285 (Pa. Super. 1999).
It is also unclear whether [Appellant] adequately preserved any
issues raised post-trial as presumptively acknowledged in
paragraph number 3 of [Appellant’s] Post-Trial Motion.
[Appellant’s] Post-Trial Motion is non-specific and as such the
issues raised in [Appellant’s] Concise Statement of Matters
Complained of on Appeal are waived. To the extent that those
issues are addressed in [Appellant’s] brief in support of the Post-
Trial Motion, those issues were untimely filed.
Trial Ct. Op., 6/11/21, at 1-2.
Following our review of the record and the applicable case law, we agree
that Appellant’s post-trial motion was insufficient to preserve her issues for
appeal because it relied upon boiler-plate language and failed to meet the
specificity required by Pa.R.C.P. 227.1. See Brown, 259 A.3d at 484; see
also Main Line Gardens, Inc., 155 A.3d at 44. Further, Appellant’s
argument that her brief preserves her issues with sufficient specificity is
unavailing, because she filed it on January 4, 2021, far beyond ten days after
the verdict rendered on November 24, 2020, therefore it is time barred as
untimely pursuant to Pa.R.C.P. 227.1(c)(2). See Kennel, 804 A.2d at 668.
For these reasons, we find that Appellant has waived all of her appellate
issues.5 Accordingly, we affirm the trial court’s judgment in favor of Appellees
and against Appellant.
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5Even if we did not find waiver, we would affirm the entry of judgment based
on the reasoning of the trial court. See Trial Ct. Op., 6/11/21, at 1-2; see
also Order, 11/24/20, at 1-3 n.2
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2022
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