J-A19029-14

* Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

PENNSYLVANIA ELECTRIC COMPANY IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

WAYNE H. BORING AND PATRICIA A. 

BORING 

 Appellants No. 1829 WDA 2013 

Appeal from the Judgment Entered November 4, 2013 

In the Court of Common Pleas of Indiana County 

Civil Division at No(s): 50260 CD 2010 

PENNSYLVANIA ELECTRIC COMPANY IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

WAYNE H. BORING AND PATRICIA A. 

BORING 

 Appellees No. 1863 WDA 2013 

Appeal from the Judgment Entered November 4, 2013 

In the Court of Common Pleas of Indiana County 

Civil Division at No(s): 50260 CD 2010 

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ. 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 04, 2014 

Wayne H. Boring and Patricia A. Boring (“the Borings”) appeal from 

the judgment entered on November 4, 2013. Pennsylvania Electric 

Company (“Penelec”) cross-appeals from the same judgment. We affirm. 
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The trial court accurately summarized the factual background of this 

case as follows: 

At issue [in this case] is the location of [Penelec’s] access to a[n 

easement] it holds over the property of [the Borings]. 

The Borings own property in East Wheatfield Township, Indiana 

County. On June 29, 1965, the Borings granted a[n easement] 

to Penelec across their property for the purposes of Penelec to 

construct, maintain[,] and operate[] two [] electrical lines. The 

[easement] is of record in Indiana County at Deed Book Volume 

547, Page 516. Thereafter, Penelec placed a 230 k[ilovolt] 

electric transmission line on the property. The transmission line 

was installed in 1966. The [easement] is 305 feet in width. 

Since installation of the transmission line Penelec has periodically 

entered onto the [easement] for the purposes of construction 

and maintenance, including b[ut] not limited to vegetation 

maintenance. The Borings claim that a portion of their property 

is not included in the [easement]. . . . 

On September 8, 2008, a representative of Penelec sent a letter 

to the Borings informing them that Penelec was going to conduct 

vegetation maintenance on the [easement]. Included with the 

letter was a copy of the work plan. [Penelec] contracted with K. 

W. Reese, Inc. to perform the vegetation maintenance.[1]

 On 

December 15, 2008, [Penelec] entered the [easement] to 

perform the vegetation maintenance. Access was by way of

what has been identified in this litigation as the “dirt road.” The 

road crosses lands of the Borings. [Wayne] Boring had the road 

constructed and he maintains the road. . . . 

On December 15, 2008, [Penelec] entered via the dirt road 

without incident[, although no advance notice was given that 

they would be working that day.] Sometime later [that day, 

Wayne] Boring, using his pick-up truck, blocked the dirt road 

preventing [Penelec] from exiting with their equipment. As a 

result the workers had to walk out of the [easement] leaving 

their equipment behind. The next day Penelec was given one 

 

1

 For convenience, we refer to K.W. Reese, Inc. as Penelec because they 

were acting on behalf of Penelec. 
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time permission by a neighbor of the Borings to utilize [his or 

her] land to remove the equipment. 

Findings of Fact and Conclusions of Law, 9/4/13, at 1-2 (certain internal 

quotation marks omitted). 

 The procedural history of this case is as follows. On February 18, 

2010, Penelec filed a complaint in equity against the Borings seeking a 

declaration that the easement covered the length of the Borings’ land, 

damages for Wayne Boring’s actions in blocking Penelec’s contractor from 

leaving the property, and attorney fees. On March 17, 2011, the Borings 

filed an answer and counterclaim. In their counterclaim, the Borings sought 

damages for the value of the trees that were removed and for damage done 

to the dirt road. On May 19, 2011, the trial court granted Penelec partial 

summary judgment and declared that the easement at issue covered the 

entire length of the Borings’ property. 

On June 9, 2011, the trial court certified its May 19, 2011 grant of 

partial summary judgment as a final order pursuant to Pennsylvania Rule of 

Appellate Procedure 341(c). On June 20, 2011, the trial court vacated its 

Rule 341(c) certification. Therefore, we quashed the Borings’ appeal. Pa. 

Elec. Co. v. Boring, 995 WDA 2011 (Pa. Super. July 26, 2011) (per 

curiam). 

On September 4, 2012, the trial court denied summary judgment as to 

the remainder of Penelec’s claims. The case proceeded to a non-jury trial on 

August 9, 2013. As part of the non-jury trial, the trial court personally 
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examined the subject property. On September 4, 2013, the trial court 

issued findings of fact and conclusions of law along with its verdict. It found 

that: Penelec was entitled to use the Borings’ dirt road to access its 

easement on the Borings’ land; Wayne Boring had interfered with Penelec’s 

use of its easement on December 15, 2008; that interference resulted in 

$2,170.78 in damages to Penelec; Penelec damaged the dirt road; the 

Borings were entitled to $3,380.00 in damages to repair the dirt road; the 

Borings were not entitled to recover for the trees removed by Penelec; 

Penelec was not entitled to attorney fees; and a stay was not appropriate. 

Both Penelec and the Borings filed post-trial motions. On October 22, 2013, 

the trial court denied both parties’ post-trial motions. Judgment was 

entered on November 4, 2013. The Borings timely appealed to this Court 

and Penelec timely cross-appealed.2

 

The Borings raise four issues for our review: 

1. Whether the trial court erred in determining that the 

[easement] encompasses the entirety of the subject property 

owned by [the Borings]? 

2. Whether the trial court erred and/or manifestly abused its 

discretion in determining that Penelec’s access to the [easement] 

shall be via the dirt road? 

 

2

 On November 19, 2013, the trial court ordered the Borings to file a concise 

statement of errors complained of on appeal (“concise statement”), see

Pa.R.A.P. 1925(b), however, it did not order Penelec to file a concise 

statement. On December 2, 2013, the Borings filed their concise statement. 

On January 21, 2014, the trial court issued its Rule 1925(a) opinion. All 

issues raised by the Borings on appeal were included in their concise 

statement. 
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3. Whether the trial court erred and/or manifestly abused its 

discretion in awarding damages in the amount of $2,170.78 in 

favor of Penelec and against Wayne H. Boring, relative to 

Penelec’s claim of intentional interference with the use of the 

[easement]; and whether the trial court erred in determining 

that the proof offered by Penelec in support of said damages was 

not inadmissible hearsay? 

4. Whether the trial court erred and/or manifestly abused its 

discretion in denying the claim made by Wayne H. Boring and 

Patricia A. Boring for damages caused by Penelec to trees owned 

by Wayne H. Boring and Patricia A. Boring which were situated 

outside the confines of the at-issue [easement]? 

Borings’ Brief at 7 (internal quotation marks omitted). 

 Penelec also raises four issues for our review: 

1. Is Wayne Boring qualified to render an opinion as to the cost 

of repairs to the dirt road? 

2. Did the Borings use the wrong measure of damages and fail to 

present any evidence that the cost of repairs did not exceed the 

diminution in fair market value of the property? 

3. Did the Borings use the wrong measure of damages and fail to 

provide any evidence or testimony as to the necessity of repairs 

or reasonableness of the cost? 

4. Is the [trial] court’s finding that the damages to the dirt road 

totaled [$3,380.00] supported by substantial, competent

evidence? 

Penelec’s Brief at 4 (capitalization removed). 

 The Borings first contend that the trial court erred by granting Penelec 

summary judgment relating to the scope of the easement. As we have 

stated: 

Our scope of review of an order granting summary judgment is 

plenary. We apply the same standard as the trial court, 

reviewing all the evidence of record to determine whether there 
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exists a genuine issue of material fact. We view the record in 

the light most favorable to the non-moving party, and all doubts 

as to the existence of a genuine issue of material fact must be 

resolved against the moving party. Only where there is no 

genuine issue as to any material fact and it is clear that the 

moving party is entitled to a judgment as a matter of law will 

summary judgment be entered. 

Nat'l Cas. Co. v. Kinney, 90 A.3d 747, 752 (Pa. Super. 2014) (internal 

quotation marks and citations omitted). 

“It is well established that the same rules of construction that apply to 

contracts are applicable in the construction of easement grants.” 

Zettlemoyer v. Transcon. Gas Pipeline Corp., 657 A.2d 920, 924 (Pa. 

1995) (citation omitted). When interpreting a contract, “the intent of the 

parties is the writing itself. If left undefined, the words of a contract are to 

be given their ordinary meaning. When the terms of a contract are clear and 

unambiguous, the intent of the parties is to be ascertained from the 

document itself.” W.A.M. v. S.P.C., 2014 WL 2959157, *3 (Pa. Super. July 

2, 2014) (citation omitted). 

 The relevant language of the easement provides that:

Grantors[, the Borings,] hereby grant and convey to Grantee, 

[Penelec,] its successors and assigns, the right to construct,

maintain and operate two electric lines consisting of wood and or 

metal structures, conductors, overhead and underground 

lightning, protective wires, private communication wires, guys, 

push braces and other accessory apparatus and equipment 

deemed by Grantee to be necessary therefor, upon, over, across 

and under the lands of Grantors situated in the Township of East 

Wheatfield County of Indiana, Commonwealth of Pennsylvania, 

bounded as follows: Being the same lands as described in deed 

recoded in the Indiana County Recorders Office in deed book vol. 

473 at page 82 and being conveyed by Chester E. Hunt et ux by 
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article of agreement to Wayne H. Boring et ux recorded in the 

Indiana County Recorders Office in deed book vol. 543 at page 

244. Said electric lines enter lands of Grantors from lands now 

or formerly of Gilbert P. Switzer and continuing across same to 

lands of Edward Mroczka as shown on Grantees drawing No

E4961 to be attached hereto and made a part hereof. 

Complaint, 2/18/10, at Exhibit 1. 

Drawing E4961, which was attached to Penelec’s complaint as Exhibit 

1, includes a shaded portion of land that the Borings argue is not a part of 

the easement. Thus, the Borings argue that the easement ends 

approximately 350 feet short of the lands of Edward Mroczka.3

 Penelec 

contends that the drawing contained an error that caused a portion of the 

easement to be unintentionally shaded. 

“As a general rule, if maps are referred to in a grant or conveyance 

they are to be regarded as incorporated into the instrument and are given 

considerable weight in determining the true description of the land.” 

Appeals of Dallas, 82 A.2d 676, 680 (Pa. Super. 1951) (citation omitted). 

In this case, the language of the easement and the drawing attached and 

incorporated by reference differ as to the true description of the easement 

granted to Penelec. The language of the easement is clear that the 

easement runs the full length of the Borings’ land from Switzer’s land 

through to Mroczka’s land. However, the drawing shows that the easement 

ends approximately 350 feet short of Mroczka’s land. 

 

3 As Exhibit 1 of Penelec’s complaint demonstrates, the Borings acquired the 

Hunt’s property that is identified in the drawing. Both the Borings and Hunts 

signed the easement conveyed to Penelec. 
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As our Supreme Court has stated, “Before a court will interpret a 

provision in a . . . contract in such a way as to lead to an absurdity or make 

the . . . contract ineffective to accomplish its purpose, it will endeavor to find 

an interpretation which will effectuate the reasonable result intended.” 

Pocono Manor Ass'n v. Allen, 12 A.2d 32, 35 (Pa. 1940). The 

interpretation of the easement advanced by the Borings is both absurd and 

fails to accomplish the purpose of the easement. It is absurd that an electric 

company would choose to have a 350 foot gap in a power line. 

Furthermore, it would make the easement ineffective because the purpose of 

the easement was to allow for the power line to pass over the Borings’ land 

from Switzer’s land through to Mroczka’s land. That goal would not be 

accomplished if the power line stopped suddenly in the middle of the 

Borings’ land. 

Thus, we conclude that the trial court correctly interpreted the 

easement to run the full length of the Borings’ land from Switzer’s land 

through to Mroczka’s land. This is the only reasonable interpretation of the 

competing textual and graphical descriptions of the land over which Penelec 

was granted an easement. Accordingly, we conclude that the trial court did 

not err by granting Penelec partial summary judgment and declaring that the 

easement ran the length of the Borings’ land. 

 The Borings next contend that the trial court erred by determining that 

Penelec could use the dirt road to access the easement. As we have stated: 
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[O]ur standard of review of a decree in equity is particularly 

limited and [] such a decree will not be disturbed unless it is 

unsupported by the evidence or demonstrably capricious. The 

findings of the chancellor will not be reversed unless it appears 

the chancellor clearly abused the court’s discretion or committed

an error of law. The test is not whether we would have reached 

the same result on the evidence presented, but whether the 

chancellor’s conclusion can reasonably be drawn from the 

evidence. 

 Nat'l Cas. Co., 90 A.3d at 752 (internal quotation marks and citations 

omitted). 

 Furthermore, 

Where the grant of an easement is unrestricted, the grantee is 

given such rights as are necessary for the reasonable and proper 

enjoyment of the thing granted. Thus, our cases tell us that 

when a grant of an easement is ambiguous we must determine if 

the grantee’s asserted use is a reasonable and necessary use in 

relation to the original purpose of the grant. 

Matakitis v. Woodmansee, 667 A.2d 228, 232 (Pa. Super. 1995), appeal 

denied, 682 A.2d 311 (Pa. 1996) (ellipsis and citation omitted; emphasis 

removed). Thus, the question is whether Penelec’s use of the dirt road is 

reasonable and necessary in order for it to enjoy its easement on the 

Borings’ land. 

 In its findings of fact and conclusions of law, the trial court found that: 

The following three [] access routes are proposed by the parties. 

1. Penelec maintains that reasonable access should be on the dirt 

road. 

2. The Borings propose access via a road/ATV trail4

 that enters the 

[easement] via Falcon Hollow [R]oad. 

 

4

 The parties dispute whether this is an ATV trail or a road. 
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3. The Borings also propose that access could be obtained off State 

Route 56 where the [easement] abuts the road. 

* * * 

After a review of the testimony, exhibits and the view of the 

subject premises the [trial c]ourt f[ound] that the reasonable 

access is by way of the dirt road. It is the safest and easiest 

access to the [easement]. 

The Borings claim that access should be via the road/ATV trail. 

The topography of the subject premises in that area is classic 

ridge and valley. There are hills with steep valleys between. 

While the road/ATV trail could be a means of access, the [trial 

c]ourt f[ound] that it is not reasonable due to the steep 

topography. Use of the road by trucks and equipment would be 

difficult and dangerous. 

The Borings also claim that Penelec could gain access to the 

[easement] via Route 56. Route 56 has been widened in this 

area to accommodate a passing lane. To gain access the 

guiderail would have to be removed. Beyond the guiderail is an 

extremely sharp drop off, clearly this is not a reasonable means 

of access. 

The [trial c]ourt f[ound] that the dirt road is the most reasonable 

means of entry. There are no issues with a steep grade, there 

are no safety issues[,] and the trucks and equipment could 

easily reach the [easement]. The [trial c]ourt f[ound] that it is a 

reasonable and necessary means of access. 

Findings of Fact and Conclusions of Law, 9/4/13, at 1-2 (internal quotation 

marks omitted). 

 We ascertain no abuse of discretion on the part of the trial court. The 

trial court personally examined the topography of the land at issue and 

determined that the two access roads proposed by the Borings were not 

reasonable. Thus, it concluded that the only reasonable access road was the 
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dirt road. The trial court’s reasoning was sound. Accordingly, we conclude 

that the Borings’ second issue on appeal is without merit. 

 In their third issue, the Borings argue that the trial court erred by 

awarding $2,170.78 in damages for Wayne Boring’s intentional interference 

of Penelec’s use of its easement. The Borings also contend that the 

evidence admitted to support the damages was hearsay. We begin by 

analyzing the Borings’ claim that the evidence presented was hearsay. 

 The Borings contend that the trial court erred by admitting evidence 

relating to the amount of damages suffered by Penelec. “[E]videntiary 

decisions are left to the trial court’s discretion and will not be reversed 

absent a clear abuse of that discretion.” Commonwealth v. Hicks, 91 A.3d 

47, 52 (Pa. 2014) (citation omitted). The Borings argue that Penelec’s 

witness, Richard Scott (“Scott”), relied upon a document which was hearsay 

when testifying as to the amount of damages incurred by Penelec as a result 

of Wayne Boring’s intentional interference. 

 Scott is an employee of FirstEnergy, the parent company of Penelec. 

See N.T., 8/9/13, at 5. He testified that the contractor who worked on the 

Borings’ land works on a fixed-fee arrangement and only bills Penelec if 

unforeseen circumstances arise. Id. at 30-31. Thus, Scott testified that all 

time billed from the contractor for work done on the Borings’ property was 

caused by Wayne Boring’s intentional interference. See id. Scott relied 

upon Plaintiff’s Exhibit 5, which includes, inter alia, a list of expenditures to 
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the contractor related to the work on the Borings’ land. See generally 

Plaintiff’s Exhibit 5. 

 Among the exceptions to the general hearsay rule is the business 

records exception, which provides that: 

A record (which includes a memorandum, report, or data 

compilation in any form) of an act, event or condition [is 

admissible] if, 

(A) the record was made at or near the time by—or from 

information transmitted by—someone with knowledge; 

(B) the record was kept in the course of a regularly conducted 

activity of a “business”, which term includes business, 

institution, association, profession, occupation, and calling of 

every kind, whether or not conducted for profit; 

(C) making the record was a regular practice of that activity; 

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification that 

complies with Rule 902(11) or (12) or with a statute permitting 

certification; and 

(E) neither the source of information nor other circumstances 

indicate a lack of trustworthiness. 

Pa.R.E. 803(6). 

Plaintiff’s Exhibit 5 clearly falls within the parameters of the business 

records exception. The record was made at the same time that the bill was 

paid, satisfying the first requirement. The record was clearly kept in the 

regularly course of a business conducted by FirstEnergy, satisfying the 

second element. FirstEnergy regularly keeps track of expenses, satisfying 

the third requirement. The conditions were shown by the testimony of a 
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qualified witness, Scott, satisfying the fourth requirement. Finally, there is 

no evidence of a lack of trustworthiness, satisfying the fifth requirement. 

The Borings’ argument is essentially that an employee of the 

contractor was required to testify in order to satisfy the fourth requirement. 

However, the business record in question was from FirstEnergy. It was not a 

bill from the contractor. Therefore, an employee of FirstEnergy, Scott, was 

qualified to testify as to the first through third requirements of Rule 803(6). 

Accordingly, the trial court did not err by admitting Plaintiff’s Exhibit 5 and 

Scott’s testimony. 

 The Borings also contend that there was insufficient evidence to 

support the trial court’s award of damages to Penelec. As noted above, we 

review the trial court’s decision for an abuse of discretion or error of law. 

Matakitis, 667 A.2d at 232 (citation omitted). The Borings essentially 

argue that because Penelec filed this equity action that they cannot recover 

for intentional interference. This argument is without merit. Merely because 

the Borings believed that Penelec did not possess an easement over the full 

length of the Borings’ property does not mean that Penelec is not entitled to 

damages. In essence, the Borings argue that the only way to recover on an 

intentional interference claim is if a competent court has already set forth 

the duties and obligations of the parties. This is simply not the case. A 

party can recover on a claim for intentional interference even when a court 

has not previously set forth the parties’ duties and obligations. Cf. Reading 
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Radio, Inc. v. Fink, 833 A.2d 199, 211–212 (Pa. Super. 2003), appeal 

denied, 847 A.2d 1287 (Pa. 2004) (sustaining jury verdict on intentional 

interference claim despite fact that no court had previously set forth the 

parties’ duties and obligations). Accordingly, there was sufficient evidence 

to award Penelec damages for Wayne Boring’s intentional interference, and, 

the Borings’ third issue on appeal is without merit. 

 In their final issue on appeal, the Borings claim that the trial court 

erred by denying their claim for damage done to trees not in the easement. 

As noted above, we review the trial court’s decision for an abuse of 

discretion or error of law. Matakitis, 667 A.2d at 232 (citation omitted). 

 The trial court found: 

The Borings next claim that trees were cut beyond the boundary 

of the [easement]. At the time of the view[ing] the [trial c]ourt 

had the parties agree as to the mid-point of the [easement]. 

The parties also agreed that the [easement] from the mid-point 

was 95 feet wide into the Boring[s’] property. A tape measure 

was utilized to measure the distance. At 75 feet from the midpoint of the [easement] the Penelec employee with the tape 

measure was in the woods on the Boring[s’] property and was 

barely visible. The location of the trees cut was communicated 

by [Wayne] Boring and Mr. William Paxton his expert as to the 

value of the trees. It [was] clear to the [trial c]ourt that the 

trees [that were] cut were within the [easement]; therefore, no 

damages are awarded. 

Findings of Fact and Conclusions of Law, 9/4/13, at 7. 

 The Borings challenge the factual finding of the trial court, arguing that 

there was no competent evidence upon which the trial court could conclude 

that the trees that were cut fell within the easement. We disagree. The 
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evidence is the land itself (and surrounding trees). The trial court examined 

the land and determined that it would not be practicable for Penelec to cut 

trees that were outside the easement. Thus it drew a reasonable inference 

from the evidence and concluded that Penelec did not cut down trees that 

were outside the easement. In essence, the Borings request that we make a 

credibility determination on appeal. However, we may not make such a 

credibility determination. Instead, we may only reverse the trial court if it 

abused its discretion or committed an error of law. We ascertain no abuse 

of discretion or error of law. Accordingly, the Borings’ final issue on appeal 

is without merit. 

 Having determined that the Borings are not entitled to relief on any of 

their four issues raised on appeal, we next turn to the issues raised by 

Penelec in its cross-appeal. Penelec first contends that Wayne Boring was 

not qualified to offer an opinion as to the cost to repair the dirt road. This 

argument is waived. “[I]n order to preserve a claim of error for appellate 

review, the party must make a specific objection to the alleged error before 

the trial court in a timely fashion and at the appropriate stage of the 

proceedings.” Law Office of Douglas T. Harris, Esq. v. Phila. 

Waterfront Partners, LP, 957 A.2d 1223, 1229 (Pa. Super. 2008) 

(citations omitted). During trial, Wayne Boring was asked by his counsel 

what it would cost to repair the dirt road. N.T., 8/9/13, at 47-48. He 

responded that it would cost around $3,000.00. Id. at 48. Penelec did not 
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object to this question or answer. See id. The first time it raised the issue 

was in its motion for compulsory non-suit. See id. at 79-80. That was not 

a timely objection nor was it the appropriate stage of the proceedings to 

object to Wayne Boring’s testimony. Accordingly, Penelec’s first issue on 

appeal is waived. See Pa.R.A.P. 302(a). 

 Penelec next contends that the measure of damages used by the trial 

court was incorrect. Specifically, it contends that the Borings were limited to 

recovering the lesser of the diminution in the value of the land or the cost of 

repair. Penelec contends that the diminution in the value of the land was 

less than the cost of repair. This issue presents a question of law. See 

Christian v. Yanoviak, 945 A.2d 220, 226 (Pa. Super. 2008). Therefore 

our standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014). 

 The law in this Commonwealth is that: 

Assuming the land is reparable, the measure of damage is the 

lesser of: (1) the cost to repair, or (2) the market value of the 

damaged property (before it suffered the damage, of course). If 

the land is not reparable, the measure of damage is the decline 

in market value as a result of the harm. 

Christian, 945 A.2d at 226 (citation omitted). In this case, the dirt road 

was repairable. Thus, the correct measure of damages was the lesser of the 

cost to repair it or the market value of the property. It does not take an 

expert to ascertain that the market value of the dirt road was over 
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$3,380.00. Accordingly, the trial court used the proper measure of 

damages. 

 Penelec next contends that there was no evidence presented as to the 

necessity of repairs. As noted above, we review the trial court’s decision for

an abuse of discretion or error of law. Matakitis, 667 A.2d at 232 (citation 

omitted). As to Penelec’s claim that there was no evidence that a repair was 

necessary, the trial court relied upon images of the dirt road, ostensibly 

Defendant’s Exhibit 2, in finding that the dirt road was damaged to the point 

of requiring repairs. See Findings of Fact and Conclusions of Law, 9/4/13, 

at 6. We have reviewed the exhibit and conclude that the exhibit provided a 

sufficient basis for the trial court to conclude that the damage to the dirt 

road required repairs. Furthermore, as has been noted above, the trial court 

personally visited the property and would have been able to see the damage 

to the road and conclude that the road required repairs. Thus, we ascertain 

no abuse of discretion on the part of the trial court in concluding that the dirt 

road needed repaired. 

Penelec also contends that Wayne Boring’s testimony was flawed 

because it was based on 2013 dollars instead of 2008 dollars. This 

argument is waived. As noted above, Penelec did not object when Wayne 

Boring testified that the cost of repairs was approximately $3,000.00. See

N.T., 8/9/13, at 47-48. If Penelec believed that this testimony was 

inadmissible because it was based on 2013 prices instead of 2008 prices, it 
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was required to lodge a timely objection. See Law Office of Douglas T. 

Harris, 957 A.2d at 1229 (citations omitted). Penelec’s failure to object to 

Wayne Boring’s testimony results in the issue being waived for appellate 

review. See Pa.R.A.P. 302(a).5

 

 Finally, Penelec contends that the trial court’s award of $3,380.00 in 

damages is not supported by the record. Penelec contends that the only 

evidence presented as to the cost of repairing the dirt road was Wayne 

Boring’s testimony that it would cost around $3,000.00. Thus, Penelec 

contends that the trial court erred by awarding damages in excess of 

$3,000.00. Penelec avers that the trial court relied upon evidence that was 

excluded at trial, i.e., the Five-R Excavating estimate, which listed the cost 

of repairs at $3,380.00. As noted above, we review the trial court’s decision 

for an abuse of discretion or error of law. Matakitis, 667 A.2d at 232 

(citation omitted). 

 Wayne Boring testified that the cost of repairing the dirt road was 

“around $3000[.00].” N.T., 8/9/13, at 48. This is not an exact estimate, 

but instead was a round figure. The trial court decided that the actual cost 

of repairs was $3,380.00. We acknowledge that it appears odd that the trial 

 

5

 Penelec raised the issue of 2008 prices versus 2013 prices in a motion in 

limine; however, that motion in limine did not address Wayne Boring’s 

testimony. See Motion in Limine to Exclude Fix-R Excavating Estimate and 

Proposed Testimony of Ray A Ritenour, 5/23/13, at 6. Instead, it addressed 

the testimony of a separate witness. See generally id. Accordingly, 

Penelec’s motion in limine was not sufficient to preserve this issue for 

appellate review. 
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court chose the same figure listed in the Five-R Excavating estimate; 

however, we conclude that the trial court’s decision was not an abuse of 

discretion. “[A] trial court, acting as the finder of fact, is presumed to . . . 

disregard inadmissible evidence.” Commonwealth v. Smith, 2014 WL 

3844118, *5 (Pa. Super. Aug. 6, 2014) (citation omitted). 

 A trial court has the ability to award damages in excess of the amount 

sought by a plaintiff (or in this case the counterclaimant). See Francis J. 

Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 877–878 (Pa. Super. 

1997). The trial court chose to do so in this case. The trial court’s award of 

$380.00 more than the specific amount testified to by Wayne Boring was 

well within the trial court’s discretion to interpret Wayne Boring’s use of the 

phrase “around $3000.00.” Accordingly, we conclude that the trial court did 

not abuse its discretion in awarding the Borings $3,380.00. 

 In sum, the trial court, sitting in equity, visited the subject property 

and examined the “lay of the land” for itself. It also heard evidence relating 

to the issues that were still pending and made reasoned decisions relating to 

each of those issues. We have reviewed the entire record and conclude that 

the trial court did not abuse its discretion or err as a matter of law. 

Accordingly, we affirm the trial court’s judgment in its entirety. 

 Judgment affirmed. 
J-A19029-14

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2014