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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 : : : : : : : : : : : : : 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, hu sband and wife, Joseph Popovich and Frank Popovich, Jr. , appeal from the order entered on August 2 1 , 2018. We affirm. As the trial court explained: On May 15, 1991, Plaintiffs, Harold K. Croner[, James E. Croner, and Jonathan H. Cron er (hereinafter, collectively,

“ the Croner s ”) , filed a Petition for Appointment of Fence Viewer [(hereinafter “the Petition”) , ] pursuant to the provisions of 29 P.S. § 41. [ 1 ] The P etition concerned the

_________________ __________ ______ ____ _______
1 We quote 29 P.S. § 41 at page s 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 byJ

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- repair and reconstruction of a division fence that ma rks the boundary between the adjacent [lands of the Croner s and Appellant s ].

. . . 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 rec onstruction 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 hearin g 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 live stock, (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 dev iations from the

_________________ __________ ______ ____ _______ which one la ndowner 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 an other 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 c osts 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 previ ously 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 . W e concluded that , pursuant to 29 P.S. § 41 and the Pe nnsylvania Supreme Court’s opinion in Fogle v. Malvern Courts, Inc. , 72 2 A.2d 680 (Pa. 1999), Appellants were obligated to pay for one

- half of the cost of the line fence. Croner v. Popovich , 175J

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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, t he Croners requested that the trial court order Appellants to p ay $5,175.24, as that amount constitute d Appellants’ “one

- half [] share of the fence reconstruction costs.” Motion to Compel , 6/5/18, at ¶ 11 and “Wherefore” Clause. Further, t he Croners attached a “cost share calculation” to their Motion to Compel. Se e 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. Tr ial C ourt Order, 6/11/18, at 1. On August 2 1, 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 , whichJ

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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 JOSEP H 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, c o - 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. Fogl e 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 cond ition. The fence posts ar e deteriora ted 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.J

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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’ A ttorney att ested 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, t he Croners’ A ttorney 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’ Co unsel 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 Ap pellants were obligated to pay for one

- half of the line fence reconstruction costs, the engineering fee was capped at $25.00. Id. at 6

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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 f ence] 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 constru ction on that fence

. Id. at 9 (some capitalization omitted). As to Appellants’ claim that the engineering fees are statutorily capped at $25.00, t he 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, th e engineering work performed in this case co st a substantial amount money, wa s 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 Appella nts as the cost of the line fence. See id.J

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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;” t he $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 : 2

[1.] When the [trial] c ourt did not hear t estimony as to whether or not the [Croners] had served the Appellants with the Fence Viewer Report prior to the h earing, did the [trial] court commit a procedural error, err as a matter of f act and l aw, was arbitrary and capricious and based the [trial] court’s d ecision on facts not supported by the record when the [trial] court determine d 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' d ue p rocess r ights when the [trial] court a dmitted the Fence Viewer Report into the record without t estimony of an e xpert w itness and a h earing to allow the Appellants to cross examine witnesses and experts, when the Appellants lodged a timely o bjection 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 o f fact and law, was arbitrary and capricious and based the [trial] court’s decision on facts not supported

_________________ __________ ______ ____ _______ 2 For ease of discussion, we have re

- numbered App ellants’ claims on appeal.J

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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 l aw and f act, w as arbitrary and capricious, and based the [trial] court’s d ecision 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 prov ide 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.
A t 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 be fore 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, Appellant s waived any appellate claim th at 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] tJ

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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 tha t 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 correct ions 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 Appellant s ’ third claim on appeal, Appellant s 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. O n appeal, Appellants do not claim that the trial court erred
in arriving at this factual conclusion. See Appellants’ Brief at 11

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Appellants simply ignore the trial court’s express factual finding and base their entire argument upon the faulty premise t hat the Croners “did not produce the Report until the day of the” argumen t

. See id. S ince Appellants’ claim is based upon a fundamentally erroneous proposition, the claim necessarily fails. Finally, Appellants claim that the trial court erred w hen 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 surv eyor 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 se rvice; 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 t he 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 fo und by the surveyor, be erectedJ

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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, inclu ding 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 twenty

fi ve 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 delinq uent 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 con strued to apply to railroad companies. [fn.1] Now magisterial district ju dge. See 2004, Nov. 30, P.L. 1618. No. 207, § 28(1). 29 P.S. § 41.
O ur Supreme Court explained the history and purpose behind Pennsylvania’s Fence Law :

During the eighteenth and n ineteenth 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 encoura ge 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 t he 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:J

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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, Appellant s 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, Appellant s claim, the language of Section 41 limits the surveyor’s permissible actions to the mere “ins pect [ion of] the condition of the fence .” Id. at 18. According to Appellant s , the surveyor in this case exceeded his statutory authority by conducting a “survey [of] the property line.” Id. Appellant s claim that, since “[t]he surveyor did more than rev iew 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 whe n the surveyor is “ acting as a fence viewer .” Id. (emphasis added). Thus, t he statute does not capJ

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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. . . . T he surveyor did more than review the cond ition 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 vi ewer – the fees for that work mustJ

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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, w hatever 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