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10/03/97 DONALD W. FOGLE AND CHARLOTTE A. FOGLE v.

October 3, 1997

DONALD W. FOGLE AND CHARLOTTE A. FOGLE
v.
MALVERN COURTS, INC. AND ROGER BUETTNER AND JOAN BUETTNER, APPELLANTS



Appeal from the Order entered October 16, 1996, Court of Common Pleas, Chester County, Civil Division at No. 95-09082. Before SHENKIN, J.

Before: Beck, Kelly and Johnson, JJ. Opinion BY Johnson, J.

The opinion of the court was delivered by: Johnson

OPINION BY JOHNSON, J:

Filed October 3, 1997

In this appeal, we are asked to decide whether the Fence Law, 29 P.S. § 41, requires an adjoining landowner who does not keep livestock to share the cost of a fence for the benefit of a neighbor. Because we conclude that it does not apply to such a situation, we reverse.

Donald W. Fogle and Charlotte A. Fogle ("the Fogles") own property located in the town of Frazer, Pennsylvania, which is bordered on three sides by property of Malvern Courts, Inc., Roger Buettner and Joan Buettner (collectively, "the Buettners"). The neighborhood in which the properties are located consists of single family residential homes with some nearby commercial uses. During the time of the parties' ownership of the properties, no fence has ever existed on or near the boundary lines between the parties' properties.

In 1995, the Fogles filed a "Petition to Appoint Surveyor Pursuant to 29 P.S. § 41" and requested that the court enter an order requiring the Buettners to pay an equal share of the cost of erecting a division fence between the properties. In their reply, the Buettners denied any liability and claimed that the Fence Law does not apply to the neighborhood in which the parties' properties exist or to circumstances where a division fence has not already been constructed.

The case was submitted to the trial court on cross-motions for summary judgment. The court subsequently entered an order granting the Fogles' motion for summary judgment and denying the Buettners' motion for summary judgment. This appeal followed.

Essentially, the Buettners raise two issues for our review on appeal. First, the Buettners argue that the Fence Law should not be construed to require landowners to erect a division fence on their property and contribute to its cost where there is no pre-existing division fence or livestock on their property. Second, the Buettners argue, in the alternative, that the Fence Law, as applied to them, violates the Fifth and Fourteenth Amendments of the United States Constitution. Since we resolve this matter on the basis of the Buettners' first argument, we need not address their second issue.

This Court's scope of review from the grant of a motion for summary judgment is plenary. Phico Ins. Co. v. Presbyterian Med. Serv., 444 Pa. Super. 221, 663 A.2d 753 (1995). Moreover:

"In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Moreover, in summary judgment proceedings, it is not the court's function to determine the facts, but only to determine if an issue of material fact exists. Summary judgment should only be granted in those cases which are free and clear from doubt.

Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court's Conclusion that no genuine issue of material fact exists and [that] the moving party is entitled to judgment as a matter of law."

Id. at 224, 663 A.2d at 755 (quoting Acme Markets v. Federal Armored Express, 437 Pa. Super. 41, 45, 648 A.2d 1218, 1220 (1994)). In addition, the grant of a motion for summary judgment will not be disturbed on appeal absent an error of law. Id. In this instance, the parties do not dispute the relevant facts. Therefore, our only task is to determine the proper construction of the Fence Law, 29 P.S. § 41.

In reading the language of a statute, we keep in mind the basic tenet of statutory construction that requires a court to construe the words of a statute according to their plain meaning. 1 Pa.C.S. § 1903(a). Additionally, the object of statutory interpretation and construction is to ascertain the intention of the legislature and to give effect to all the statute's provisions. 1 Pa.C.S. § 1921(a). We may consider the consequences of a particular interpretation, 1 Pa.C.S. § ...


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