Opinion
J-A27010-16 No. 764 EDA 2016
01-31-2017
JEREMY D. WITNER AND RACHEL A. WITNER, HIS WIFE, ROBERT BRIAN SELERT AND MICHELLE A. SELERT, HIS WIFE Appellants v. KYLE G. TITUS AND ALLYSON M. TITUS, HIS WIFE, ROBERT G. PUGH AND DEBORAH PUGH, HIS WIFE, ROBERT JOSEPH PUGH, BRANDON PUGH AND KAREN PUGH, HIS WIFE
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered February 8, 2016
In the Court of Common Pleas of Carbon County
Civil Division at No(s): 13-0597 BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J. JUDGMENT ORDER BY PANELLA, J.
Former Justice specially assigned to the Superior Court.
Appellants, Jeremy D. Witner and Rachel A. Witner, his wife, Robert Brian Selert and Michelle A. Selert, his wife, appeal from the judgment entered after a non-jury verdict in favor of Appellees, Kyle G. Titus and Allyson M. Titus, his wife, Robert G. Pugh and Deborah Pugh, his wife, Robert Joseph Pugh, Brandon Pugh and Karen Pugh, his wife, and against Appellants. Appellants challenge the trial court's determination that Appellants failed to establish either a prescriptive easement or an easement by implication over Appellees' property. We affirm.
Appellants purport to appeal from the denial of post-trial motions on February 8, 2016. See Notice of Appeal, filed 3/9/16. This is simply incorrect. "Orders denying post-trial motions . . . are not appealable. Rather it is the subsequent judgment that is the appealable order when a trial has occurred." Harvey v. Rouse Chamberlin , Ltd., 901 A.2d 523, 525 n.1 (Pa. Super. 2006) (citations omitted). Here, judgment was entered by order on February 8, 2016. Despite this error, this Court will address the appeal because judgment has been entered on the verdict. See Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division , 781 A.2d 1263, 1266 n.3 (Pa. Super. 2001). We have corrected the caption accordingly.
The trial court accurately summarized the history of this case. See Trial Court Opinion, 6/26/15, at 1-8. Therefore, a detailed recitation of the factual and procedural history is unnecessary. We review a verdict following a non-jury trial as follows.
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 of 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.Stephan v. Waldron Elec. Heating and Cooling , LLC , 100 A.3d 660, 664 (Pa. Super. 2014) (citation and brackets omitted). Further, the fact-finder is free to accept or reject the testimony of both expert and lay witnesses, and to believe all, part or none of the evidence. See Terwilliger v. Kitchen , 781 A.2d 1201, 1210 (Pa. Super. 2001).
On appeal, Appellants raise two issues. The trial court, in its June 26, 2015 opinion, as well as its February 8, 2016 opinion, has thoroughly reviewed the claims on appeal and disposed of all arguments on the merits. We have reviewed the parties' briefs, the relevant law, the certified record, and the well-written opinion of the Honorable Roger N. Nanovic. We have determined that the trial court's opinions, as well as its findings of fact and conclusions of law supporting the March 4, 2015 verdict, comprehensively disposes of Appellants' issues on appeal, with appropriate references to the record and without legal error. Therefore, we will affirm based on those decisions. See Trial Court Opinion, dated 6/26/15; Trial Court Opinion, dated 2/8/16.
Through their brief, Appellants argue that the trial court erred in finding that the 68-acre tract was acquired by John and Mary Gerhard on March 1, 1940, as both John and Mary Gerhard were deceased as of that date. See Appellants' Brief, at 20. The trial court concedes that it erred in making this finding, however, the trial court concludes, and we agree, that this error does not in any way impact the trial court's ultimate finding. See Trial Court Opinion, 2/8/16, at 4 n. 2. It was harmless.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/31/2017
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