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Zitney v. Appalachian Timber Products, Inc.

Superior Court of Pennsylvania

July 3, 2013


Appeal from the Order Dated February 25, 2011 In the Court of Common Pleas of Fayette County Civil Division at No: 2642 of 2002 G.D.




Steve and Jeannine Zitney ("Appellants") appeal from the trial court's February 25, 2011 order denying Appellants' post-trial motion seeking judgment notwithstanding the verdict ("JNOV") and a new trial. We affirm.

On August 8, 2000, Appalachian Timber Products ("ATP") entered into a written contract to purchase and remove timber from property owned by Carl and Yasmin Brown ("the Browns") in Redstone Township, Fayette County, Pennsylvania ("the property").[1] The timber contract provided that ATP would harvest timber that was twelve inches in diameter or larger from the property. ATP agreed to harvest the timber within twenty-four months from the date that the contract was executed, and to do so in compliance with all Pennsylvania standards governing the removal of timber. The contract was not recorded.

Shortly after executing the contract, the Browns defaulted on the property's mortgage. The property was foreclosed upon, and the mortgagee bank received the deed to the property. The deed was recorded on February 20, 2001. On September 11, 2001, Appellants purchased the property. The deed conveying the property to Appellants, which contained no warranty of title, was recorded on October 30, 2001.

On October 7, 2001, within twenty-four months of executing the contract, ATP directed John Appleby and Appleby Logging (collectively, "Appleby") to enter the property and commence harvesting the timber. At the time that the harvesting began, Appellants were not occupying the property and had not yet recorded their deed. Upon learning of the harvesting operation, Appellants demanded that Appleby quit the property. Appleby immediately ceased the timber removal and left the property.

On November 15, 2002, Appellants filed a complaint in the Court of Common Pleas of Fayette County, averring that they were deprived of the value and use of the timber that was removed by Appleby. Appellants further alleged that the timber harvesting resulted in damage to: the remaining trees on the property; the potential for additional tree growth; the topsoil covering the property; a stream that runs through the property; and the aesthetic quality of the property. ATP and Appleby answered the complaint, arguing that they were entitled by contract to harvest the timber and that they did so in a commercially reasonable manner.

Both ATP and Appleby filed motions for summary judgment. The trial court granted the motions in part, and denied them in part. The trial court found that the contract governed the removal of timber and that, as a result of that contract, Appellants could not recover the value of the removed timber. However, the trial court found that factual issues remained concerning whether Appleby's harvesting caused damage to the property and the value of any such damage. Appellants filed a motion for reconsideration of the trial court's order insofar as it granted the summary judgment motions in part. The trial court denied Appellants' motion for reconsideration.

The trial court next addressed a motion in limine filed by ATP and Appleby regarding damages. Appellants sought damages for Appleby's alleged negligence, the value of the timber, the removal of slash, [2] and the loss of value of the forest. Following briefing, the trial court limited damages to those arising from Appleby's failure to comply with the relevant terms of the timber contract, which contract required Appleby to observe all Pennsylvania laws governing the harvesting of timber.

Thereafter, the case proceeded to a jury trial. The facts presented at trial established the factual background presented above, as well as the following pertinent information. Marilyn Dugan, of the Fayette County Conservation District, conducted earth-moving inspections of the property for the Pennsylvania Department of Environmental Protection ("DEP") and for the Fayette County Conservation District. After Appellants complained about the logging being done on their property, Ms. Dugan inspected Appellants' property on five separate occasions from October 2001 to July 2002. With each inspection, Ms. Dugan prepared a report to be submitted to the DEP. Each report indicated the various failures and defects that Ms. Dugan observed in the harvesting operation. Ms. Dugan repeatedly found that Appelby, whom she listed as the responsible party, failed to develop and have on hand an erosion and sediment control plan, failed to permanently stabilize the site, failed to implement the best management practices to prevent damage to the land, and failed to prevent sediment or other pollutant discharge into the waters.

Despite these findings, Ms. Dugan testified that, while she submitted the reports to the DEP, she never recommended that the DEP take any remedial actions because the property had healed itself. Indeed, neither Ms. Dugan nor the DEP (nor any other agency) filed any enforcement or punitive actions against Appleby as a result of the timber removal.

Appellant Steven Zitney testified that the land was not repairable, causing a decline in the market value of his property amounting to approximately $30, 000. No other evidence was presented regarding the value of the property or the amount that it would cost to repair the alleged damage.

John Appleby testified that, because he was ordered off the property by Appellants, while he performed his duties in compliance with state law, he initially was unable to complete not only the timber removal per the terms of the contract, but also any additional remedial work that the law does not require but that he normally would do under these circumstances. However, Appleby later met with Appellants, Ms. Dugan, and, eventually, a member of the Pennsylvania Fish and Game Commission, and discussed what needed to be done to stabilize the property. Once the work details were determined, Appleby returned to the property and performed work in an attempt to ensure that the property was stabilized.

At the charging conference, Appellants requested instructions on negligence and the special value of the property, which they first had sought in a written motion. The trial court denied both requests. Thereafter, the trial judge instructed the jury. The jury returned a verdict for ATP and Appleby. Appellants filed motions for JNOV and for a new trial, alleging that the verdict was not supported either by the law or the evidence. Moreover, Appellants alleged that it was error for the trial court to deny their requested jury instructions. On February 24, 2011, the trial court denied all of Appellants' requests for post-trial relief in an order that the court declared to be final and immediately appealable.

On March 28, 2011, Appellants filed a notice of appeal. On March 30, 2011, the trial court directed Appellants to file a concise statement of errors complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On April 21, 2011, Appellants timely complied. On January 30, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). This matter has been briefed and argued, and is ripe for our review.

Appellant raises the following six questions for our consideration:

1. Are [Appellants] entitled to recover damages for timber removed from their property under an unrecorded timber contract between [ATP] and the prior owner of the property when [Appellants] are subsequent bona fide purchasers?
2. Are [Appellants] entitled to recover damages for removal of slash (tree waste), remediation of slopes and streams, restoration of the property, and for the replacement costs for the forest?
3. Are [Appellants] entitled to proceed under a negligence theory against the [Appellees] for destroying [Appellants'] property as alleged in [Appellants'] complaint?
4. Are [Appellants] entitled to damages, and a jury instruction thereof [sic], based on the special value of the property?
5. Are [Appellants] entitled to judgment nov because the evidence established [that Appellants] violated the laws and regulations of the Commonwealth?
6. Are [Appellants] entitled to judgment nov because [Appellants] breached the contract?

Brief for Appellants at 3.

As a preliminary matter, we must address whether we have jurisdiction to consider this appeal. Our review of the docket entries in the certified record reveals that, following the trial court's denial of Appellants' post-trial motions, both ATP and Appleby praeciped the trial court to enter judgment. However, the docket is not clear that judgment was ever entered. The docket reflects only that "notice of entry of judgment sent to plaintiffs on ...

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