Kasmoch, D. v. Lorrello, V.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2014
• Docket: 1792 WDA 2013
• Status: Unpublished

Opinion

J-A23002-14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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 J-A23002-14

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).

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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