J-S50012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW M. BELANSKY, TRUSTEE,

ON BEHALF OF THE ANDREW M.

BELANSKY AND PATRICIA E.

BELANSKY REVOCABLE TRUST

AGREEMENT

v.

WALTER ZABELSKI AND PATRICIA

GLADOWSKI

Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 22 WDA 2019

Appeal from the Judgment Entered December 4, 2018

In the Court of Common Pleas of Venango County Civil Division at No(s):

C.D. No. 809-2015

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.* MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 15, 2019

Walter Zabelski and Patricia Gladowski (collectively Appellants) appeal

from the judgment, entered in the Court of Common Pleas of Venango County,

following a non-jury trial in which the court found in favor Andrew M. Belansky, Trustee on behalf of the Andrew M. Belansky and Patricia E. Belansky

Revocable Trust Agreement, by shifting a disputed property line five feet in

Belansky’s favor based on the doctrine of consentable lines. After careful

review, we quash.

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* Retired Senior Judge assigned to the Superior Court.
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The instant dispute concerns members of the extended Belansky

family.1In 1957, Aurel Belansky purchased a quarter-acre plot (the Belansky

property) with fifty feet of riverfront access along the Allegheny River. The

Belansky property was directly south of, and adjacent to, a similarly-sized

riverfront property (the Zabel property) owned by Aurel’s brother-in-law,

Walter Zabel.2In 1958, the Belansky brothers built a cabin on the Belansky

property. In the 1960s, Aurel bought a boat and decided to build a boat ramp

on the Belansky property. The Belansky brothers believed a row of hedges

marked the southern boundary of their property. They used those hedges as

the starting point from which they measured forty-five feet north, demarcating

a five-foot strip on which they constructed a path and boat ramp, believing

both to be entirely south of the Zabel property line. From that time, the Belanksy brothers used the path to park, and the

ramp to fish and launch boats. Zableski also used the ramp as he pleased.

Belansky maintained the yard up to the edge of the ramp and along the path

to the river. The parties came into conflict after Belansky hired Gary Stover

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1 The Belansky family includes Belansky, his four brothers, Aurel, Michael,

Thomas, and Vincent, and his sister, Ella. Ella is the mother of Walter Zabelski

and Patricia Gladowski, the Appellants herein.

2 Walter Zabel later changed his last name to Zabelski.
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to survey the properties in 2015.3 The survey showed the path and ramp line

properly actually lay on the Zabel property. On June 30, 2015, Belanksy filed the instant action, asserting a right to

the boat launch based on various causes of action. On March 24, 2017, the

Honorable Robert L. Boyer presided over a non-jury trial in which the court

heard testimony from Belansky, the Appellants, and Gladowski’s husband. On

September 12, 2017, the court issued findings of fact and a corresponding

order awarding Belansky “a portion of the Appellants’ property that runs five

(5) feet north from the survey of the [Belansky’s] property” under the doctrine

of consentable lines. Order, 9/12/17, at 1. On September 15, 2017, the

prothonotary docketed court’s findings and corresponding order. The same

day, the prothonotary provided notice of the order to the Appellants. The

prothonotary, however, did so by facsimile without first having received a

written request for notice by facsimile or a legal filing listing a facsimile

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3 The instant action is not the first time the parties have sought the court’s

intervention vis-à-vis these properties. In 2008, Belansky owned three- quarters of the Belansky property and Zabelski owned the remaining quarter.

Additionally, Belansky owned one-third of the Zabel property, and the

Appellants owned the remaining two thirds. A partition action ensued,

resulting in Belansky transferring his one-third interest in the Zabel property

to the Appellants and Zabelski transferring his one-quarter interest in the

Belansky property to Belansky.
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address, technically rendering the notice non-compliant under Pa.R.C.P

236(d).4

The Appellants subsequently filed a notice of appeal from the trial court’s

September 12, 2017 order on October 6, 2017. Seventeen days later, on

October 23, 2017, the appellants filed post-trial motions. On November 14,

2017, the trial court issued an opinion stating, inter alia, that the Appellants’ notice of appeal deprived the court of jurisdiction to rule on the outstanding

post-trial motions.5 This Court, sua sponte, quashed the appeal as

interlocutory, as judgment had not been entered. Belansky v. Zabelski, 1462 WDA 2017 (Pa. Super. filed June 6, 2018) (unpublished memorandum).

This Court recommended the Appellants seek relief by requesting the trial

court’s permission to file post-trial motions nunc pro tunc. Id. at 6–7 n.5

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4 A previous panel of this Court stated the notice provided by facsimile “was

not in technical compliance with [Rule] 236.” Belansky v. Zabelski, 1462

WDA 2017 at 5 n.4 (Pa. Super. filed June 6, 2018) (unpublished

memorandum); see also Pa.R.C.P. 236(d) (“The prothonotary may give the

notice required . . . by facsimile transmission . . . if . . . the party’s attorney

has filed a written request for such method of notification or has included a

facsimile . . . address on a prior legal paper filed in the action.”).

5 The trial court stated it was deprived of jurisdiction pursuant to Pa.R.A.P.

1701(a), which provides, “after an appeal is taken . . . the trial court or other

government unit may no longer proceed further in the matter.” Pa.R.A.P.

1701(a). A prior panel of this Court noted, though the trial court’s conclusion

was correct, it was within the trial court’s discretion to rule on the Appellees’

post-trial motions, as “Pa.R.A.P. 1701(b)(6) permit[ted the] trial court to

‘[p]roceed further in any matter in which a non-appealable interlocutory order

has been entered, notwithstanding the filing of a notice of appeal.’” Belansky

v. Zabelski, 1462 WDA 2017, at 6 (Pa. Super. June 6, 2018) (unpublished

memorandum) (quoting Pa.R.A.P. 1701(b)(6)).
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(citing Lenhart v. Cigna Companies, 824 A.2d 1193, 1198 (Pa. Super.

2003) (“[T]he decision to allow the filing of post-trial motions nunc pro tunc

is vested in the sound discretion of the trial court.”).

On July 23, 2018, the Appellants filed a motion requesting the trial court

“reconsider the previously filed [m]otion for [p]ost-[trial] [r]elief . . . or

otherwise permit [their substantively identical] [m]otion for [p]ost-[t]rial

[r]elief—[n]unc [p]ro [t]unc.” Motion, 7/23/18, at 2 n.1. In a single order on

December 4, 2018, the trial court denied the Appellants’ motion to file posttrial motions nunc pro tunc and directed the prothonotary to enter judgment

in favor of Belansky. Order, 12/4/18, at 1. Pursuant to Pa.R.C.P. 236, the

prothonotary sent written notice of entry of judgment to the Appellants. The

prothonotary’s written notice, however, informed the Appellants only of the

entry of judgement and did not mention the court’s order denying nunc pro

tunc relief. See Notice, 12/4/19, at 1 (“You are hereby notified that a

judgment in the amount of [blank space] has been entered against you on

December 4[,] 2018[,] in the Court of Common Pleas of Venango County[.]”)

The Appellants filed the instant notice of appeal on January 2, 2019.

Both Appellants and the court below complied with Pa.R.A.P. 1925. The

Appellants present the following issues for our review:

1) Whether the trial court committed an error of law and

abused its discretion in finding a consentable line?

2) Whether the trial court abused its discretion in shifting the

burden of proof to the Appellants as to ownership title of the

disputed area?
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3) Whether the trial court abused its discretion in weighing the

evidence as to the meaning of the familial interaction

v[ersus] acquiescence regarding the disputed area?

Brief of Appellants, at 5.

Before examining Appellants’ claims, we must first determine whether

the orders from which they appeal are final. See Flowers v. Flowers, 612

A.2d 1064, 1065 (Pa. Super. 1992) (“[W]e must first determine whether

appellant has filed a timely appeal from a final order. These questions are

jurisdictional and may be raised sua sponte by an appellate court.”).

Our Supreme Court previously examined the crucial role of Pa.R.C.P.

236 notice in the context of Pa.R.A.P. 301(a) and Pa.R.A.P. 108(b), stating as

follows:

Rule of Appellate Procedure 301(a) provides that “[n]o order of a

court shall be appealable until it has been entered upon the

appropriate docket in the lower court.” Further, Rule of Appellate

Procedure 108(b) designates the entry of an order, for the

purposes of appeal, as follows:

(b) Civil orders. The date of entry of an order in a

matter subject to the Pennsylvania Rules of Civil

Procedure shall be the day on which the clerk makes

the notation in the docket that notice of entry of the

order has been given as required by Pa.R.Civ.P.

236(b).

As . . . noted, Rule of Civil Procedure 236(b) describes the

prothonotary’s obligation to “note in the docket the giving of

notice and, when a judgment by confession is entered, the mailing

of the required notice and documents.”

Thus, pursuant to the express terms of the rules, an order is not

appealable until it is entered on the docket with the required

notation that appropriate notice is given. That the parties may
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have received notice of the order does not alter the formal date of

its entry and the associated commencement of the period allowed

for appeal for purposes of the rules.

Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (emphasis

added) (citations omitted); see In re L.M., 923 A.2d 505, 509 (Pa. Super.

2007) (“Where there is no indication on the docket that Rule 236(b) notice

has been given, then the appeal period has not started to run. Our Supreme

Court has expressly held that this is a bright-line rule, to be interpreted

strictly.”); see also Pa.R.C.P. 236(a)(2) (“The prothonotary shall immediately

give written notice of the entry of . . . any other order or judgment to each

party’s attorney of record[.]”) (emphasis added). In accordance with Pa.R.A.P. 2115(a), the Appellants list two orders

from which they appeal: first, the court’s December 4, 2018 order denying

their motion for post-trial relief nunc pro tunc and entering judgment in favor

of Belansky; and second, the court’s September 12, 2017 order awarding the

disputed portion of property to Belansky by consentable line. Brief of

Appellant, at 2. The prothonotary, however, has yet to send or docket sending

written notice remedying the deficiencies in notice provided regarding the

court’s September 12, 2017 order.6 See Pa.R.C.P. 236(a)(2), (d) (requiring

written notice in absence of party’s filing containing “facsimile or other

electronic address on prior legal paper filed in the action” or written request

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6 See supra at n.4 (summarizing previous panel’s ruling)
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for such notice). Moreover, although the prothonotary provided notice of the

court’s December 4, 2018 order entering judgment, that notice, as previously

stated, fails to reference either the actual judgment entered or the order

denying nunc pro tunc relief with respect to post-trial motions. See Notice,

12/4/19, at 1 (“You are hereby notified that a judgment in the amount of

[blank space7] has been entered against you on December 4[,] 2018[,] in the

Court of Common Pleas of Venango County[.]”). Consequently, neither order

is final or appealable. See Frazier, supra at 115 (“[P]ursuant to the express

terms of the rules, an order is not appealable until it is entered on the docket

with the required notation that appropriate notice is given.”) (emphasis

added). We direct the prothonotary to correct these errors by performing the

following actions: 1) provide written notice to the parties of the court’s

September 12, 2017 order; 2) provide written notice of the court’s December

4, 2018 order, revised to reflect the actual judgment entered; and 3) docket

the fact that appropriate written notice has been provided. Appeal quashed.8

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7 There is no actual amount of judgment entered here, only a blank field that

was never filled out. Notice, 12/4/19, at 1. Moreover, the judgment rendered

by the court was quantified in terms of distance and direction, not dollars.

8 We limit our decision to quash the instant appeal to the facts of this case.

While this Court has previously overlooked the absence of Rule 236 notice, it

has never done so under circumstances where ignoring the prothonotary’s

errors would fatally undermine an appellant’s claim. See In the Interest of

R.W., 169 A.3d 129, 130 (Pa. Super. 2017) (overlooking absence of Rule 236
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____________________________________________ notice and addressing appeal on merits); see also Vertical Resources, Inc.

v. Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003) (same).

In spite of the fact that approximately two years have passed since the court

entered the order from which the Appellants intended to appeal, the ten-day

time period for post-trial motions remains open, as notice of the entry of that

order has never been properly provided; ergo, proper notice has never been

docketed. See Agostinelli v. Edwards, 98 A.3d 695, 703 (Pa. Super. 2014)

(“[Pa.R.C.P.] 227.1 requires parties to file post-trial motions within 10 days of

the filing of the decision in the case of a trial without jury. The date of filing

is the date the clerk makes the notation in the docket that notice of entry of

the order has been given as required by Pa.R.Civ.P. 236(b).”) (citations and

quotations omitted). Consequently, should Appellants still wish to file posttrial motions and a subsequent notice of appeal, such filings would be timely.

See Carr v. Downing, 565 A.22d 181, 181 (Pa. Super. 1989) (stating ten- day period for filing post-trial motions commences after notice has been

provided according to Rule 236); see also In re Estate of Karshner, 919

A.2d 252, 255 (Pa. Super. 2007) (“Even where the prothonotary does notify

the parties of an order, the thirty-day appeal period begins only after that

notification has been marked on the docket sheet by corrective entry.”).

We feel obligated to note, save for the prothonotary’s clerical errors, the

sloppiness with which the Appellants pursued their appeal would have resulted

in waiver of any and all claims, not only because they failed to properly file

post-trial motions before divesting the trial court of jurisdiction, but because

they failed to include any argument whatsoever concerning the trial court’s

denial of nunc pro tunc relief. See Lehnhart v. Cigna Companies, Inc., 824 A.2d 1193, 1196 (Pa. Super. 2003) (“[T]here is no excuse for . . . failure

to file post-trial motions as required by our procedural rules. The grant of

nunc pro tunc relief is not designed to provide relief to parties whose counsel

has not followed proper procedure in preserving appellate rights.”); see also

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224 (Pa. Super. 2014) (“Any issues not raised in a [Rule] 1925(b)

statement will be deemed waived.”). We further express our displeasure at

the waste inherent in having to quash this matter for a second time, only to

allow uncle, niece, and nephew to continue their contest regarding a formerly

shared boat launch.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2019