J-A14034-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BERNARD A. GAYOSKI AND MICHELE 

GAYOSKI, HIS WIFE,

 Appellants

 v.

RONALD MARK KUKOWSKI AND KAREN 

L. KUKOWSKI, HIS WIFE,

 Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1292 MDA 2014

Appeal from the Judgment Entered November 7, 2014

in the Court of Common Pleas of Luzerne County,

Civil Division, at No(s): 10224 of 2008

BEFORE: BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 23, 2015

Bernard and Michele Gayoski appeal from the November 7, 2014 

judgment entered against them and in favor of Ronald and Karen Kukowski 

in this boundary dispute case. We affirm.

The trial court summarized the underlying facts as follows.

The instant matter involves a property dispute between 

two adjoining neighbors. The [Gayoskis] own and reside at 77 

Austin Avenue, Wilkes-Barre, Pa. while the [Kukowskis] own and 

reside at 75 Austin Avenue, Wilkes-Barre, Pa. The [Gayoskis’] 

title was purchased in 1999, some fifteen years prior to this 

case. [Karen Kukowski’s] parents owned their property from 

1972 with transfer of title to the [Kukowskis] in 1989.

Both properties abut a twenty (20’) foot alley in the rear. 

The dispute involves the use of an access area to the alley along 

a boundary of the two adjoining parcels.
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The [Kukowskis’] parents had accessed the alley along the 

strip of land since the purchase of the property in 1972. There 

correspondingly exists a narrow paved walkway traversing the 

boundary and ending at the alley. The parents established an 

oral agreement with the [Gayoskis’] predecessor in title to place 

a “boundary fence” partially along the property line. As [placing 

all of the fencing along] the boundary line as surveyed would 

interfere with both parties’ use of the rear access[,] the fence 

was constructed in 1976 [partially on the property of the 

Gayoskis’ predecessor1]. Said fence exists at present and was 

viewed by the [trial c]ourt.

Although not extending to the rear alley, the fence, if 

extended, distinguishes the agreed line and allows both parties 

access to their properties from the rear alley. In exchange, the 

 

1 We offer the following visual aid: an excerpt of a survey offered at trial 

(which we have modified by labeling the parties’ properties and identifying in 

several spots the boundary line, fence, and paved area) showing the rears of 

the properties adjacent to the alley.
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[Kukowskis’] parents allowed the [Gayoskis’] predecessor in title 

a portion of their front property bordering Austin Avenue.[2]

This physical arrangement has existed since the late 

1970’s.

The [Gayoskis] acquired their property in 1999. Until 2007 

the neighbors lived peacefully and access to the rear alley 

continued for [the Kukowskis].

Late in 2007 the [Gayoskis] applied for a Zoning Variance 

before the City of Wilkes-Barre Zoning Hearing Board. The 

[Kukowskis] appeared at the Hearing and opposed the 

application and the City of Wilkes-Barre Zoning Hearing Board 

denied the [Gayoskis’] application. The parties hereto thence 

 

2 An excerpt of the survey noted in footnote 1 (modified to highlight the 

boundary line and the fence) showing the portions of the properties adjacent 

to Austin Avenue.
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ended their neighborly co-existence and the relationship 

deteriorated.

Early in 2008 the [Gayoskis] began the construction of a 

new fence from the rear alley extending along the property 

boundary line. The boundary was surveyed and pinned by a 

registered land surveyor (Glen J. Johnson). The location of the 

proposed fence is the surveyed boundary line. The line shows a 

twenty-three (23') foot strip of land which has been open and 

used by the [Kukowskis] as belonging to the [Gayoskis]. The 

fence as to be constructed would not allow the [Kukowskis] to 

access the rear alley as they had since 1972 and [would deny] 

them access from the alley to the paved walkway.

Subsequently and as expected in these neighbor disputes, 

the [Kukowskis] undertook to remove the supporting posts 

placed by the [Gayoskis] to construct the fence. The [Gayoskis] 

responded with this case filing seeking the establishment of their 

survey boundary and the establishment of their fence and 

monetary damages for the [Kukowskis’] interference and 

removal of the fence posts.

Trial Court Opinion, 6/30/2014, at 1-2 (footnotes added).

The Kukowskis raised counterclaims seeking a declaration of their 

rights under the doctrine of consentable boundaries or by a prescriptive 

easement, and an injunction against the Gayoskis’ trespass. 

The parties presented their claims at a non-jury trial on November 25, 

2013. The trial court permitted the parties to file supplemental proposed 

findings of fact and conclusions of law following their receipt of the trial 

transcript. On June 30, 2014, the trial court entered an order granting the 

Kukowskis’ counterclaim for declaratory relief under the doctrine of 

consentable boundaries; denying the Gayoskis’ request for declaratory 
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judgment; and awarding the Gayoskis $895 in damages from the Kukowskis 

for damage done to the Gayoskis’ personal property. 

The Gayoskis timely filed a motion for post-trial relief, seeking 

judgment notwithstanding the verdict (JNOV) or a new trial. The trial court 

denied the motion by order of July 16, 2014. The Gayoskis timely filed a 

notice of appeal.3 The trial court ordered them to file a concise statement of 

errors complained of on appeal, and the Gayoskis timely responded with a 

four-page, 24-issue statement of errors. The Gayoskis have condensed their 

complaints to the following four issues on appeal, which we have reordered 

for ease of disposition:

[1.] Whether the trial court committed plain error in its finding 

that 23 feet of land was involved in this matter, and not the 23 

inches as was determined by testimony at trial?

[2.] Whether the trial court erred in its findings regarding the 

doctrine of consentable boundaries and by permitting tacking?

[3.] Whether the trial court erred and abused its discretion by 

denying [the Gayoskis’] request for a declaratory judgment?

[4.] Whether the trial court erred in its failure to award [the 

Gayoskis] the attorney’s fees and full measure of their damages?

Gayoskis’ Brief at 3 (unnecessary capitalization and suggested answers 

omitted).

Our standard of review of the denial of post-trial relief is as follows:

 

3

Judgment was subsequently entered on November 7, 2014.
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A JNOV can be entered upon two bases: (1) where the movant is 

entitled to judgment as a matter of law; and/or, (2) the evidence 

was such that no two reasonable minds could disagree that the 

verdict should have been rendered for the movant. When 

reviewing a trial court’s denial of a motion for JNOV, we must 

consider all of the evidence admitted to decide if there was 

sufficient competent evidence to sustain the verdict. In so 

doing, we must also view this evidence in the light most 

favorable to the verdict winner, giving the victorious party the 

benefit of every reasonable inference arising from the evidence 

and rejecting all unfavorable testimony and inference. 

Concerning any questions of law, our scope of review is plenary. 

Concerning questions of credibility and weight accorded the 

evidence at trial, we will not substitute our judgment for that of 

the finder of fact. If any basis exists upon which the [court] 

could have properly made its award, then we must affirm the 

trial court’s denial of the motion for JNOV. A JNOV should be 

entered only in a clear case.

Our review of the trial court’s denial of a new trial is limited to 

determining whether the trial court acted capriciously, abused its 

discretion, or committed an error of law that controlled the 

outcome of the case. In making this determination, we must 

consider whether, viewing the evidence in the light most 

favorable to the verdict winner, a new trial would produce a 

different verdict. Consequently, if there is any support in the 

record for the trial court’s decision to deny a new trial, that 

decision must be affirmed.

Grossi v. Travelers Pers. Ins. Co., 79 A.3d 1141, 1147-48 (Pa. Super. 

2013) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568–569 (Pa. 

Super. 2005)). 

The Gayoskis first complain that the trial court committed a clear error 

in making a factual finding that the strip of land at issue was 23 feet wide, 

arguing that the “clear, undisputed testimony” showed that the strip was 23 

inches wide. Gayoskis’ Brief at 12-13. 
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The trial court did state in one place in its opinion that the survey 

showed “a twenty-three (23’) foot strip of land.” Trial Court Opinion, 

6/30/2014, at 2. However, the same opinion later refers to “the contested 

approximately two (2) feet strip of land.” Id. at 3. Furthermore, the trial 

court found that the new boundary was established “by the long standing 

access walkway and the position of the 1976 fence,” items which no one 

disputes are 23 inches, not 23 feet, from the boundary line indicated by the 

deeds. We are convinced that the single reference to a 23’ strip of land was 

a mere typographical error which ultimately had no impact on the verdict or 

judgment.4 Accordingly, the Gayoskis are entitled to no relief. Accord 

Com., Dep’t of Transp. v. Sutton, 660 A.2d 46, 49 (Pa. 1995) (holding 

argument was meritless where erroneous listing of a date was immaterial).

We next consider the Gayoskis’ second and third issues: whether the 

trial court erred in determining that the Kukowskis gained title to the land 

between the fence and their house, as well as to the paved area, by the 

doctrine of consentable boundaries rather than holding that the Gayoskis 

were entitled to a declaration that they owned the 23-inch strip of land in 

question. Gayoskis’ Brief at 14-21. The Gayoskis’ argument is composed of 

a confusing amalgamation of various doctrines of property law. See, e.g., 

 

4

Indeed, the Gayoskis in their brief to this Court committed the same 

typographical error. See Gayoskis’ Brief at 16 (“The Deed to the Kukowskis 

granted their house and lot, but did not convey land, a license or easement 

across the 23’ strip of land in question.”). 
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Gayoskis’ Brief at 14-15 (“In order for the lower court to find that the 

Kukowskis should win lands actually deeded to the Gayoskis by way of the 

doctrine of consentable boundaries, the [Kukowskis] were required to 

establish adverse possession by actual, open, notorious, exclusive and 

continuous possession of the Gayoski property which is hostile and under 

claim of right or color of title.”) (unnecessary capitalization omitted). 

This Court has summarized the law regarding the doctrine of 

consentable boundaries as follows:

The establishment of a boundary line by acquiescence for 

the statutory period of twenty-one years has long been 

recognized in Pennsylvania to quiet title and discourage 

vexatious litigation. Based upon a rule of repose sometimes 

known as the doctrine of consentable line, the existence of such 

a boundary may be proved either by dispute and compromise 

between the parties or recognition and acquiescence by one 

party of the right and title of the other. ...

“Acquiescence,” in the context of a dispute over real 

property, denotes passive conduct on the part of the lawful 

owner consisting of failure on his part to assert his paramount 

rights or interests against the hostile claims of the adverse user. 

A determination of consentable line by acquiescence requires a 

finding 1) that each party has claimed the land on his side of the 

line as his own and 2) that he or she has occupied the land on 

his side of the line for a continuous period of 21 years. ... 

[W]hen a consentable line is established, the land behind such a 

line becomes the property of each neighbor regardless of what 

the deed specifies. In essence, each neighbor gains marketable 

title to that land behind the line, some of which may not have 

been theirs under their deeds.

Moore v. Moore, 921 A.2d 1, 4-5 (Pa. Super. 2007) (quotations and 

citations omitted). Furthermore, “because the finding of a consentable line 
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depends upon possession rather than ownership, proof of the passage of 

sufficient time may be shown by tacking the current claimant’s tenancy to 

that of his predecessor.” Id. at 5. 

Here, the record contains the following evidence in support of the trial 

court’s verdict. In 1972, Judith Kryeski and her husband bought the house 

at 75 Austin Avenue. N.T., 11/25/2013, at 88. At the time, Albert and Mary 

Newman lived at 77 Austin Avenue, and no fences separated the properties. 

Id. at 88-89. 

In 1976, the Kryeskis got a large dog and decided to fence in their 

yard to keep the dog on their property. Id. at 89. However, because of the 

proximity of their house to the boundary line in the rear of the property, 

putting the fence along the surveyed boundary line would have prevented 

the Kryeskis from accessing the alley behind the house, which is where the 

garage is located and how the Kryeski children walked to school. Id. at 90-

91. Further, because of the proximity of the Newmans’ house to the 

boundary line in the front of the property, putting the fence along the 

surveyed line there would have interfered with the Newmans’ access to their 

gas meter and foundation of their house. Id. at 93-94. Therefore, the 

Kryeskis, with the Newmans’ approval, had the fence installed such that it 

deviated from the boundary line in the front and the rear of the properties. 
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From 1976 to 1989, when the Kryeskis sold their property to the 

Kukowskis, the Kryeskis and Newmans treated the fence as the boundary 

line, with each maintaining the property on their respective side. Id. at 95-

96, 103. This understanding of the fence as the boundary line continued 

when the Kukowskis became owners of 75 Austin Avenue. Id. at 111. 

When the Gayoskis purchased 77 Austin Avenue from the Newmans in 

1999, the Gayoskis believed that the fence delineated the boundary line 

between their property and that of the Kukowskis. Id. at 18, 29. From 

1999 to 2007, the Gayoskis and Kukowskis continued to treat the fence as 

the boundary line. Id. at 27. 

Thus, the undisputed evidence showed that the owners of the 

respective properties treated the fence as the boundary line, and maintained 

the land on their side of it, continuously, for the 31 years from 1976 to 

2007. Applying the doctrine of consentable boundaries quoted above to 

these facts, the trial court properly determined that the line of the 1976 

fence became the boundary between the properties. As a result, the 

Gayoskis and Kukowskis each hold marketable title to the land on their 

respective sides of the fence line, regardless of what the deeds provide. 

Moore, 921 A.2d at 5. See also Zeglin v. Gahagen, A.2d 558, 561 (Pa. 

2002) (quoting Reiter v. McJunkin, 33 A. 1012 (Pa. 1896) (“After 21 years 

of occupancy up to a fence on each side as a line fence, it is not material to 
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inquire whether the fence is on the right line or not.”); Plauchak v. Boling, 

653 A.2d 671, 677 (Pa. Super. 1995) (“We therefore conclude that the 

Bolings are estopped from denying the boundary line to which their 

predecessors in title acquiesced for more than twenty-one years.”). 

Accordingly, the Gayoskis’ second and third issues entitle them to no relief.

The Gayoskis’ final argument, that the trial court erred in failing to 

award them more money, is premised upon this Court having found 

reversible error as a result of one of their prior claims. See Gayoskis’ Brief 

at 22 (requesting remand for entry of additional damages and attorney fees 

if this Court reverses all or part of the trial court’s decision). Because we 

find no such error, remand for the award of damages or fees is unwarranted. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/2015