J-S27013-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HAROLD K. CRONER, JAMES E. 

CRONER, AND JONATHAN H. 

CRONER

v.

SAMUEL G. POPOVICH AND CATHY J. 

POPOVICH, HUSBAND AND WIFE, 

JOSEPH POPOVICH, SINGLE, AND 

FRANK POPOVICH, JR. SINGLE 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1232 WDA 2018

Appeal from the Order Entered August 21, 2018

In the Court of Common Pleas of Somerset County Civil Division at 

No(s): No. 221 Civil 1991

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 7, 2019

Appellants, Samuel G. Popovich and Cathy J. Popovich, husband and 

wife, Joseph Popovich and Frank Popovich, Jr., appeal from the order entered 

on August 21, 2018. We affirm.

As the trial court explained:

On May 15, 1991, Plaintiffs, Harold K. Croner[, James E. 

Croner, and Jonathan H. Croner (hereinafter, collectively, 

“the Croners”), filed a Petition for Appointment of Fence 

Viewer [(hereinafter “the Petition”),] pursuant to the 

provisions of 29 P.S. § 41.[1] The Petition concerned the 

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1 We quote 29 P.S. § 41 at pages 11-12 of this memorandum. At this point, 

we merely note that Section 41 “addresses the sharing of costs for [line or 

division] fences constructed on farms and ranches” and the procedure by 
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repair and reconstruction of a division fence that marks the 

boundary between the adjacent [lands of the Croners and 

Appellants]. . . . At the time of the Petition, the fence was 

alleged to be over [21] years old and [] had fallen into 

disrepair. [The Croners] wished to repair or replace the fence 

and receive reimbursement from [Appellants] for one-half of 

the attendant costs pursuant to 29 P.S. § 41. . . .

The [trial court] entered an order on May 15, 1991[,] 

appointing Roland Fogle as the Fence Viewer in accordance 

with [Section 41]. Fogle conducted a field viewing of the line 

fence on May 23, 1991 and began reconstructing the 

boundary line. Fogle then prepared a Report and Probable 

Cost Estimate regarding the repair or reconstruction of the 

fence. On or about April 20, 1992, [Appellants] began 

reconstruction of a replacement fence as close as possible to 

the sketch prepared by Fogle in his report. [The Croners 

were] dissatisfied with the placement and sufficiency of the 

replacement fence[] and filed a Notice of Objection to the 

placement of Fence Line with the [trial] court on March 14, 

1995. Nearly three years later, [the Croners] filed a Motion 

Directing [Appellants] to Reconstruct Fence Line in 

Accordance with Viewer’s Certificate. Thereafter, the case 

was inactive and continued until a hearing was held on [the 

Croners’ Motion Directing Appellants to Reconstruct Fence 

Line in Accordance with Viewer’s Certificate].

[The trial court] issued a memorandum and order on 

September [20,] 2016[,] granting in part [the Croners’] 

motion and also denying it in part. [The trial court] held that 

[Appellants] had, in fact, not constructed the replacement 

fence along the originally marked certificate line at certain 

sections, but that (a) the replacement fence was sufficient for 

the purpose of containing livestock, (b) the deviations from 

the certificate line were either necessary (due to the presence 

of a [15-]foot spoil bank on the certificate line, over which 

the fence physically could not be built) or were de minimis

(in the case of three- to four-foot deviations from the 

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which one landowner may compel an adjoining landowner to share in the costs 

of repairing or replacing an insufficient line or division fence. Fogle v. 

Malvern Courts, Inc., 722 A.2d 680, 684 (Pa. 1999); 29 P.S. § 41.
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certificate line), and (c) [the Croners] had enjoyed the benefit 

of the sufficient replacement fence from the time that it was 

constructed in 1992 until it was damaged in June 2014, or 

[22] years later. . . .

Additionally, as a result of [the fence’s] age and [the] 

damage to the fence wires, [the trial court] held in the 

[September 20, 2016] memorandum and order that the 

fence had once again become insufficient for its intended 

purpose of containing livestock[. The trial court] ordered 

another report detailing a fence viewing, a survey, a 

determination as to whether the fence was again in need of 

repair or replacement, and the estimated costs associated 

therewith [(hereinafter “the Fence Viewer’s Report”). The 

trial court] authorized [the Croners] to repair or replace the 

fence where necessary in accordance with the Fence Viewer’s 

Report, and ordered [Appellants] to pay for one-half of the 

costs, minus a credit to [Appellants] of $579.86. This credit 

represented one-half of the cost previously incurred by 

[Appellants] in constructing the replacement fence in 1992, 

and for which, pursuant to 29 P.S. § 41, [the Croners were] 

responsible.

Trial Court Opinion, 11/19/18, at 1-3 (some capitalization omitted).

Appellants filed a notice of appeal from the trial court’s September 20, 

2016 order and claimed that the trial court erred in holding that Appellants

had “a duty to pay any portion of the erection and maintenance of a line fence 

when they do not keep livestock on their property.” Croner v. Popovich, 

175 A.3d 1042 (Pa. Super. 2017) (unpublished memorandum) at 2, appeal 

denied, 179 A.3d 4 (Pa. 2018). On August 1, 2017, a panel of this Court 

affirmed the trial court’s order on the merits. We concluded that, pursuant to 

29 P.S. § 41 and the Pennsylvania Supreme Court’s opinion in Fogle v. 

Malvern Courts, Inc., 722 A.2d 680 (Pa. 1999), Appellants were obligated 

to pay for one-half of the cost of the line fence. Croner v. Popovich, 175 
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A.3d 1042 (Pa. Super. 2017) (unpublished memorandum) at 1-10, appeal 

denied, 179 A.3d 4 (Pa. 2018). The Pennsylvania Supreme Court denied 

Appellants’ petition for allowance of appeal on January 11, 2018. Id.

The Croners then “had the fence reconstructed along the line set forth 

by the surveyor.” See the Croners’ “Motion to Establish Damages and Compel 

Payment” (hereinafter “Motion to Compel”), 6/5/18, at ¶ 4.

On June 5, 2018, the Croners filed their Motion to Compel. Within the 

motion, the Croners requested that the trial court order Appellants to pay 

$5,175.24, as that amount constituted Appellants’ “one-half [] share of the 

fence reconstruction costs.” Motion to Compel, 6/5/18, at ¶ 11 and 

“Wherefore” Clause. Further, the Croners attached a “cost share calculation”

to their Motion to Compel. See id. at Exhibit “A”. The cost share calculation 

declared that the total fence replacement expenses comprised $7,484.20 in 

engineering costs and $4,026.00 in labor and materials. Id. After allowing 

for Appellants’ $579.86 court-ordered credit, the cost share calculation stated 

that Appellants’ one-half share of the fence replacement costs was $5,175.24. 

Id.

The trial court scheduled argument on the Motion to Compel for August 

21, 2018. Trial Court Order, 6/11/18, at 1.

On August 21, 2018, the trial court heard argument on the Croners’ 

Motion to Compel. During the argument, the Croners’ attorney (hereinafter 

“the Croners’ Attorney”) referred the court to the Fence Viewer’s Report, which 
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was prepared by Registered Professional Land Surveyor John Joseph Cenkner, 

Jr. This report declared:

FENCE VIEWER’S REPORT

Line Fence Between

James E. Croner and Jonathan H. Croner, Owners

& Samuel Popovich, et al, Owners

Brothersvalley Township, Somerset County, PA

I, JOHN JOSEPH CENKNER, JR., a Registered Professional 

Land Surveyor, do hereby certify that:

1. On Tuesday, November 22, 2016, I have viewed and 

examined the line fence as it currently exists separating the 

property of Messrs. James E. Croner and Jonathan H. Croner, 

co-owners, and the property of Samuel G. Popovich and 

Cathy J. Popovich, husband and wife, Joseph Popovich, 

single, and Frank Popovich, Jr., single, owners, located in 

Brothersvalley Township, Somerset County. I performed my 

fence viewing for the purposes of determining the status of 

the line fence as directed by Order dated September 19, 

2016, of the Court of Common Pleas of Somerset County, PA, 

case 221 Civil 1991.

2. I viewed and examined the fence line, assisted by Ms. 

Jeanne Johnson, also of R.D. Fogle Engineering. My fence 

viewing began at approximately 9:00 a.m. and ended at 

approximately 11:00 a.m. on November 22, 2016. Messrs. 

James E. Croner and Jonathan H. Croner were present during 

my fence viewing, along with two representatives from a 

fence contracting company.

3. Based upon my viewing on November 22, 2016, I have 

concluded that the line fence is beyond repair and is in need 

of reconstructing along its entire length of 1278 ft. The entire 

fence is in very poor condition. The fence posts are 

deteriorated and/or rotting and the barbed wire strands are 

badly rusted or missing in several sections. The age of the 

fence is approximately [25] years and in my professional 

opinion has outlived its useful life and is no longer sufficient 

to contain livestock.
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4. I have estimated probable costs of reconstructing the line 

fence as set forth in EXHIBIT A attached to this Report.

. . .

Fence Viewer’s Report, 5/17/17, at 1 (bolding omitted).

During the August 21, 2018 argument, the Croners’ Attorney attested 

that “the actual cost of the [fence] reconstruction [by Green Mountain 

Construction] was [$4,027.26]” and that Appellants’ “one-half share of the 

construction costs is $2,013.” N.T. Argument, 8/21/18, at 4-5. Further, the 

Croners’ Attorney attested that Appellants were also responsible for paying

$3,742.10, which constituted “one-half of the adjusted engineering fee.” Id.

After subtracting Appellants’ allowable credit, the Croners’ Attorney requested 

that the trial court order Appellants to pay a total of $5,175.24 for their 

one-half share of the cost of reconstructing the fence. Id. at 5.

At argument, Appellants’ counsel (hereinafter “Appellants’ Counsel”)

objected to or contested the Fence Viewer’s Report on three grounds. First, 

Appellants’ Counsel declared: “[m]y client did not receive [the Fence Viewer’s 

Report] until today; and, quite frankly, my client objects – or objects to that 

report being used as for not having time to respond to that report.” Id. at 6. 

Second, Appellants’ Counsel claimed that the Fence Viewer’s Report was 

inaccurate, as “not all portions of that fence were unusable.” Id. Finally, 

Appellants’ Counsel argued that 29 P.S. § 41 limits the Fence Viewer’s fee to 

$25.00; therefore, Appellants’ Counsel argued, even if Appellants were 

obligated to pay for one-half of the line fence reconstruction costs, the 

engineering fee was capped at $25.00. Id. at 6-7. 
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The Croners’ Attorney responded to Appellants’ Counsel’s arguments. 

First, the Croners’ Attorney informed the trial court: “my file reflects that . . 

. [the Fence Viewer’s Report] had been previously provided to [Appellant’s 

Counsel] in correspondence dated August of last year when we gave notice 

that we were intending to begin construction [of the fence] in the near future.” 

Id. at 8. In support of this assertion, the Croners’ Attorney read the court a 

letter, dated August 22, 2017, which he sent to Appellants’ Counsel. The 

Croners’ Attorney stated that the letter read:

It’s been 11 months since [the trial court] entered an order. 

The [Croners] were permitted to repair the fence pursuant to 

the Fence Viewer [R]eport previously supplied to you. Please 

consider that your client knows that my client . . . [does] 

intend to begin construction on that fence.

Id. at 9 (some capitalization omitted).

As to Appellants’ claim that the engineering fees are statutorily capped 

at $25.00, the Croners’ Attorney argued that, while 29 P.S. § 41 limits a 

surveyor’s fees to $25.00 when the surveyor is “acting as a fence viewer,” the 

statute does not limit all engineering fees. Id. at 10-11. The Croners’ 

Attorney argued that, in this case, the engineer was required to reestablish 

the “certificate line” over which the line fence would follow. Id. Further, the 

Croners’ Attorney argued, the engineering work performed in this case cost a 

substantial amount money, was not included in the surveyor’s duties as a 

“fence viewer,” and, pursuant to 29 P.S. § 41, must be shared between the 

Croners and Appellants as the cost of the line fence. See id.
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At the end of the argument, the trial court concluded that: “the Fence 

Viewer’s [R]eport was provided to [Appellants] in a reasonable time frame and 

that [Appellants] had notice of the findings of the report and the proposed 

work to be done;” the $25.00 cap only applied to the surveyor’s duties as a 

“fence viewer” – not to all of the engineering work necessary for 

reconstructing the fence; and, Appellants were liable to the Croners in the 

amount of $5,175.24. Id. at 13-17. 

Appellants filed a timely notice of appeal. They number four claims in 

their statement of questions presented:

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[1.] When the [trial] court did not hear testimony as to 

whether or not the [Croners] had served the Appellants with 

the Fence Viewer Report prior to the hearing, did the [trial] 

court commit a procedural error, err as a matter of fact and 

law, was arbitrary and capricious and based the [trial] court’s 

decision on facts not supported by the record when the [trial] 

court determined that the Appellants had received said 

document without said facts being properly placed and 

admitted into the record?

[2.] Did the [trial] court violate the Appellants' due process 

rights when the [trial] court admitted the Fence Viewer 

Report into the record without testimony of an expert witness 

and a hearing to allow the Appellants to cross examine 

witnesses and experts, when the Appellants lodged a timely 

objection that was overruled by the [trial] court that the 

Appellants did not previously receive the report?

[3.] When the Appellants did not receive the Fence Viewer 

Report prior to the construction of the fence as required by 

29 P.S. [§] 41, did the [trial] court commit a procedural error, 

err as a matter of fact and law, was arbitrary and capricious 

and based the [trial] court’s decision on facts not supported 

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2 For ease of discussion, we have re-numbered Appellants’ claims on appeal.
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by the record when the [trial] court ruled that the Appellants 

had obeyed the statute?

[4.] Did the [trial] court err as a matter of law and fact, was 

arbitrary and capricious, and based the [trial] court’s decision 

on facts not supported by the record when the [trial] court 

awarded the [Croners] the cost of surveying of the fence line, 

when 29 P.S. [§] 41 allows for the charge of the surveyor to 

provide a report of the fence line not to survey the property 

lines?

Appellants’ Brief at 2-4 (some capitalization omitted).

Appellants’ first two claims on appeal contend that the trial court erred 

when it did not hold an evidentiary hearing on: “whether or not [Appellants] 

received the [Fence Viewer’s] Report prior to” the August 21, 2018 argument 

and the actual merits of the case. See id. at 8-11 and 15-17. These claims 

are waived. 

At no time prior to or during the August 21, 2018 argument did 

Appellants’ Counsel ever object to the current matter being adjudicated 

through argument and attorney attestations - and at no time did Appellants’ 

Counsel ever demand a hearing on any matter before the trial court. See N.T. 

Argument, 8/21/18, at 1-17; see also Trial Court Order, 6/11/18, at 1 (the 

trial court order clearly scheduled the matter for an August 21, 2018 argument 

– not a hearing). Therefore, Appellants waived any appellate claim that the 

trial court erred when it did not hold an evidentiary hearing on either the 

merits of the case or the issue of whether Appellants received the Fence 

Viewer’s Report prior to the August 21, 2018 argument. State Farm Mut. 

Auto. Ins. Co. v. Dill, 108 A.3d 882, 885 (Pa. Super. 2015) (en banc) (“[i]t 
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is axiomatic that in order to preserve an issue for appellate review, a party 

must make a timely and specific objection at the appropriate stage of the 

proceedings before the trial court. Failure to timely object to a basic and 

fundamental error will result in waiver of that issue. On appeal, we will not 

consider assignments of error that were not brought to the tribunal's attention 

at a time at which the error could have been corrected or the alleged prejudice 

could have been mitigated”) (quotations, citations, and corrections omitted); 

Commonwealth v. Chamberlain, 30 A.3d 381, 405 (Pa. 2011) (defendant 

waived appellate review of state due process claim that was not directly raised 

before the trial court); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”).

For Appellants’ third claim on appeal, Appellants argue that the trial 

court erred when it accepted the Fence Viewer’s Report, as the Croners “did 

not produce the Report until the day of the” argument. Appellants’ Brief at 

12. According to Appellants, this caused them unfair surprise and prejudice, 

as they were “unable to produce an expert report to refute the report of” the 

Croners. Id. at 14. 

Appellants’ claim on appeal immediately fails because the trial court 

specifically concluded that “the Fence Viewer’s [R]eport was provided to 

[Appellants] in a reasonable time frame and [Appellants] had notice of the 

findings of the report and the proposed work to be done.” N.T. Argument, 

8/21/18, at 14. On appeal, Appellants do not claim that the trial court erred 

in arriving at this factual conclusion. See Appellants’ Brief at 11-15. Rather, 
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Appellants simply ignore the trial court’s express factual finding and base their 

entire argument upon the faulty premise that the Croners “did not produce 

the Report until the day of the” argument. See id. Since Appellants’ claim is 

based upon a fundamentally erroneous proposition, the claim necessarily fails.

Finally, Appellants claim that the trial court erred when it “awarded [the 

Croners] the cost of surveying [] the fence line, when 29 P.S. § 41 allows for 

. . . the surveyor to provide a report of the fence line[,] not to survey property 

lines.” Appellants’ Brief at 4 and 17. This claim fails.

29 P.S. § 41, entitled “Division fences; proceedings to compel erection 

or part payment,” provides:

From and after the passage of this act, owners of improved 

and occupied land shall erect and maintain an equal part of 

all line or division fences between them, nor shall any such 

owner be relieved from liability under the provisions of this 

act except by the consent of the adjoining owner. And if any 

owner of such improved and occupied land shall fail or neglect 

to erect or maintain his, her, or their share of such line or 

division fence the party aggrieved shall notify the county 

surveyor or, if there is no county surveyor in the county, then 

a county surveyor of any adjoining county, or, if the county 

surveyor in any adjoining county refuses to act, a surveyor 

appointed by a judge of the court of common pleas, who shall 

act as a fence viewer and whose duty it shall be to examine 

such line or division fence, so complained of; and if he finds 

said fence sufficient, the complainant shall pay the cost of his 

service; but if he finds such fence insufficient, he shall so 

report to a justice of the peace[fn.1] or alderman, residing in 

the county where such fence is located, designating points 

and distances of such fence, whether a new fence is required 

or whether the old one can be repaired, and the probable 

costs of a new, or the repair of the old, fence; and said justice 

or alderman shall notify the delinquent owner of such 

improved and occupied land of the surveyor's report, and that 

his part of said fence, as found by the surveyor, be erected 
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or repaired within forty days from the date of such notice; 

and if such notice be not complied with, the aggrieved party 

may cause said line or division fence to be erected or 

repaired, and the costs thereof collected, including the charge 

of the surveyor, from the delinquent owner of such improved 

and occupied land, as other debts are collected by law. The 

surveyor shall be entitled to such payment for acting as a 

fence viewer as he may fix, not, however, exceeding twentyfive dollars. Where the surveyor reports that he finds the 

fence complained of sufficient, the amount payable to the 

surveyor shall be paid by the complainant, but where he 

reports the fence insufficient, the amount payable to him 

shall be paid by the delinquent owner of such improved or 

occupied land: Provided, That no owner of improved land 

shall be compelled to build or repair fence during the months 

of December, January, February, and March: And provided 

further, That nothing herein contained shall be construed to 

apply to railroad companies.

[fn.1] Now magisterial district judge. See 2004, Nov. 30, 

P.L. 1618. No. 207, § 28(1).

29 P.S. § 41.

Our Supreme Court explained the history and purpose behind 

Pennsylvania’s Fence Law:

During the eighteenth and nineteenth centuries, almost every 

landowner kept some form of livestock on his property and 

the common law did not require such landowners to fence 

their land in the absence of an agreement between the 

adjoining owners. However, the common law did encourage 

landowners to fence their properties by applying the rule of 

strict liability for any damages caused by their animals if they 

trespassed onto another's land. Eventually, many states, 

including Pennsylvania, enacted laws combining a duty to 

fence with the concept of strict liability to create a firm set of 

rules which would prevent disputes concerning the liability for 

damages to crops or other property caused by livestock. 

Specifically, the only discernible purpose of Pennsylvania's 

Fence Law has been to resolve disputes involving trespassing 

livestock. This purpose is indicated in the preamble of the 

first such law:
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For preventing all disputes and differences that may arise 

through the neglect or insufficiency of fences in this 

province and counties annexed, Be it enacted, that all 

cornfields and grounds kept for enclosures . . . shall be 

well fenced. . . .

1700 Pa. Laws 13, § 1.

Fogle v. Malvern Courts, Inc., 722 A.2d 680, 682-683 (Pa. 1999)

(quotations and citations omitted).

On appeal, Appellants claim that 29 P.S. § 41 limits the surveyor’s 

permissible actions in any proceeding under the Fence Law. See Appellants’ 

Brief at 18-19. Specifically, Appellants claim, the language of Section 41 limits 

the surveyor’s permissible actions to the mere “inspect[ion of] the condition 

of the fence.” Id. at 18. According to Appellants, the surveyor in this case

exceeded his statutory authority by conducting a “survey [of] the property 

line.” Id. Appellants claim that, since “[t]he surveyor did more than review 

the condition of the fence line . . . and surveyed the property line, which is 

not covered by the statute,” the surveyor exceeded his statutory authority 

and the trial court erred in requiring Appellants to pay for one-half of the 

surveyor’s fee. Id. at 18-19. This claim cannot succeed.

At the outset, we note that – while Section 41 defines the duties of a 

surveyor who is “act[ing] as a fence viewer” – Section 41 does not, in any 

way, limit a surveyor’s general authority to act. We further note that Section 

41 only places a $25.00 cap on surveyor fees when the surveyor is “acting 

as a fence viewer.” Id. (emphasis added). Thus, the statute does not cap 
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the fees that a surveyor may charge for surveying and engineering work that 

fall outside of his express and statutorily-delineated duties as “fence viewer.” 

See id. 

Within Appellants’ brief, Appellants acknowledge that the engineering 

fee was for work that fell outside of the surveyor’s statutorily-delineated duties 

as “fence viewer.” Appellants’ Brief at 18 (“[t]he statute states that the 

[surveyor’s] ‘duty shall be to examine such line or division fence,’ meaning 

the surveyor is to examine the fence line and report on the condition of the 

fence. . . . The surveyor did more than review the condition of the fence line, 

the surveyor surveyed the property line, which is not covered by the statute”). 

Therefore, on appeal, we assume (without deciding) that the engineering fee

was for work that fell outside of the surveyor’s duties as a “fence viewer.” 

See Steiner v. Markel, 968 A.2d 1253, 1256 (Pa. 2009) (“[the Pennsylvania 

Supreme Court] has consistently held that an appellate court cannot reverse 

a trial court judgment on a basis that was not properly raised and preserved 

by the parties”). 

Given the posture of this case, Appellants’ claim that the trial court erred 

in requiring that they share in the engineering costs simply cannot succeed. 

To be sure, Section 41 demands that owners of adjacent land share, equally, 

in the costs of erecting, repairing, and maintaining a line fence. See 29 P.S. 

§ 41. Where surveying or engineering work is necessary to erect or repair a 

line fence – and where that work falls outside of the surveyor’s

statutorily-defined duties as a fence viewer – the fees for that work must 
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necessarily be shared equally between the land owners, just as the land 

owners must share, equally, in the labor and material costs for the fence. 

Certainly, whatever the label, the fees for the work constitute “the costs” of

erecting or repairing the fence. See id. Appellants’ claim to the contrary fails.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2019