Opinion
J-A29032-15 No. 1932 WDA 2014
02-05-2016
KENNETH SUCHMA AND JANICE SUCHMA, Husband and Wife, Appellants v. DAVID LASOTA AND CAROLINE LASOTA, Husband and Wife
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered October 28, 2014 in the Court of Common Pleas of Allegheny County, Civil Division, No. GD-12-010229 BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Kenneth Suchma and his wife, Janice Suchma (collectively "Suchma"), appeal from the Order directing David LaSota and Caroline LaSota (collectively "LaSota") to remove a fence and abate water discharging from their shed into Suchma's property. We affirm.
David LaSota died after the commencement of the action, and prior to the non-jury trial of this matter.
The trial court summarized the relevant factual and procedural history as follows:
The parties in this dispute are next door neighbors residing at 26 and 24 John Street in Crafton Borough, Allegheny County, Pennsylvania. The dispute is over storm water drainage and a small flower garden [planted by LaSota]. The non-jury trial of the dispute was held before [the Honorable Alan Hertzberg on October 2, 2014], and [Judge Hertzberg] thereafter ordered [LaSota] to remove a fence in the flower garden[,] and abate water discharging from their shed on to the property of
[Suchma]. Suchma has appealed [Judge Hertzberg's] ruling to the Superior Court [] because [Judge Hertzberg] did not also order La[S]ota to remove the rest of the flower garden. ....Trial Court Opinion, 1/27/15, at 1-2 (footnote omitted, citations omitted).
The flower garden that Suchma wants removed is located on an unpaved and unimproved portion of John Street, bordering the La[S]ota front yard, and near the Suchma property. [The garden] consist[s] of a wooden post and rail fence, small flower-producing plants and 12 decorative flat stones, covering an area of approximately 20 to 40 square feet. [Judge Hertzberg] ordered La[S]ota to remove the fence, but not the rest of the garden. Suchma wants La[S]ota to remove the rest of the flower garden because it allegedly interferes with Suchma's water line and with their use of the John Street public right-of-way.
John Street is a public street[,] paved with asphalt [and] wide enough for two lanes of vehicular traffic to the point where it reaches the Suchma land, as Crafton Borough left John Street unopened at that point for over 21 years. .... Suchma or a prior owner paved a short portion of the unopened part of John Street approximately one lane in width, and Suchma uses this paved area for parking cars. The portion of John Street in front of Suchma's residence otherwise is unpaved.
We make the following procedural clarification to the trial court's recitation. After trial, the trial court entered a verdict awarding Suchma nominal damages in the amount of $1.00, directing LaSota to remove the fence, and prohibiting LaSota from placing or erecting a fence within the John Street right-of-way. See Non-Jury Verdict 10/2/14, at 1. Suchma filed a Motion for post-trial relief. On October 29, 2014, the trial court granted in part and denied in part the Motion, and modified the Non-Jury Verdict by ordering LaSota to immediately abate the discharge of water from a shed on their property. See Order 10/29/14, at 1.
Suchma filed a court-ordered Concise Statement of Errors Complained of on Appeal, and the trial court thereafter issued an Opinion.
This Court initially quashed Suchma's appeal as interlocutory because the non-jury verdict, as modified by the trial court, had not been reduced to judgment. However, after this procedural defect was cured, we granted Suchma's Motion to Reinstate the appeal.
On appeal, Suchma raises the following issue for our review:
Did [Suchma] prove that [LaSota] committed trespass by [LaSota's] admittedly placing and maintaining a raised earthen berm or planting area, large landscaping stones, and vegetation in the public right-of-way, immediately adjacent to [Suchma's] property, and directly over top of [Suchma's] private water line, which limited [Suchma's] access and obstructed parking in the public right of way and the private "paper street" with which it was continuous?Brief for Appellants at 4.
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.Wyatt Inc. v. Citizens Bank of Pa., 976 A.2d 557, 564 (Pa. Super. 2009) (citations omitted).
Suchma contends that the trial court erred by not finding that the garden area constitutes a trespass, despite its finding that the fence atop the garden area constitutes a trespass. Brief for Appellants at 10. Suchma asserts that there is no relevant distinction between the garden and the fence, and claims that both constitute an encroachment on the public right-of-way and on access between Suchma's property and the right-of-way. Id. Suchma claims that LaSota has no right to assert dominion and control over the right-of-way. Id. Suchma argues that LaSota has deprived Suchma of reasonable ingress and egress to the Suchma property from John Street by placing the garden in the right-of-way. Id. at 11. Suchma contends that, per the Suchma property deed, John Street was designed to continue through the Suchma property, but was never opened by Crafton Borough. Id. at 12. Suchma asserts that the deed created a "private contractual right" for Suchma to use the right-of-way and the John Street extension as a private "paper street." Id. Suchma claims that the trial court erred by using an easement theory with regard to Suchma's access to the right-of-way, given Suchma's rights in and to the right-of-way and the paper street extention. Id. According to Suchma, by using an easement theory, the trial court held Suchma to an "unreasonable interference" standard to show a legal violation by LaSota, rather than finding that LaSota's encroachment on the right-of-way constituted an interference with Suchma's property rights as a matter of law. Id. at 13.
Suchma also attempts to rely on events that purportedly occurred after the non-jury trial had concluded and after Suchma had commenced this appeal. See Brief for Appellants at 10. However, such events are not part of the record and, hence, are not evidence that may be considered in our determination.
The trial court addressed Suchma's issue and determined that it lacks merit. See Trial Court Opinion, 1/27/15, at 2-4. We discern no error of law or abuse of discretion by the trial court, and affirm on this basis. See id.
Order affirmed.
Ford Elliott, P.J.E., joins the memorandum.
Bowes, J., files a dissenting statement. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/5/2016
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