Lickman, R., et al. v. Eminhizer, E., et al (memorandum)

Annotate this Case

Download PDF

J-A10018-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 RONALD LICKMAN, KOCHER COAL COMPANY, AND RAUSCH CREEK LAND, L.P., AS ASSIGNEE OF EASTERN EQUITIES, INC., AND AS ASSIGNEE OF GARRETT GROUP, L.P., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants v. ERIC E. EMINHIZER, DOROTHY I. COLONY, AND CHARLES M. COLONY, T/D/B/A FERGUSON VALLEY HARDWOODS, Appellees No. 1439 MDA 2013 Appeal from the Order entered July 29, 2013, in the Court of Common Pleas of Schuylkill County, Civil Division, at No(s): S-1168-2004 BEFORE: DONOHUE, ALLEN, and STABILE, JJ. MEMORANDUM BY ALLEN, J.: FILED MAY 22, 2014 Ronald Lickman, Kocher Coal Company, and Rausch Creek Land, L.P., as assignee of Eastern Equities, Inc., and as assignee of Garrett Group, L.P., court denied the removal of the nonsuit which was entered against Appellants and in favor of Eric E. Eminhizer, Dorothy I. Colony, and Charles Our review of the record indicates that Appellants and Ferguson Valley were parties to a contract which provided for the harvesting of trees by J-A10018-14 trees outside of designated timber established minimum tree diameters. blocks, and below contractually See generally Complaint, 8/31/05. Appellants further averred that Ferguson Valley failed to institute appropriate erosion sedimentation control standards while they harvested the trees. Id. The action was tried without a jury on March 25, 2013. At the conclusion of -in- Valley overcut trees outside of designated timber blocks, and cut trees below established diameters. N.T., 3/25/13, at 140-141. The trial court denied Ferguson Valley failed to institute erosion sedimentation control standards during their harvesting activities. Id. On April 4, 2013, Appellants filed a motion for post-trial relief seeking removal of the nonsuit. On June 21, 2013, Ferguson Valley filed a brief in opposition to Appell 1 On August 8, 2013, Appellants filed a notice of appeal. Appellants and the trial court ____________________________________________ 1 Vicari v. Spiegel, 936 A.2d 503, 508 n.5 (Pa. Super. 2007) (citation omitted). -2- J-A10018-14 complied with Pa.R.A.P. 1925. On September 3, 2013, the trial court opinion. Appellants present the following issues for our review: FOR COMPULSORY NONSUIT, THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION BY MISINTERPRETING AND MISAPPLYING THE LEGAL STANDARDS SET FORTH IN PA. R.C.P. 230.1(a)(2) AND RELATED CASELAW. B. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN GRANTING FERGUSON VALLEY'S MOTION FOR COMPULSORY NONSUIT BY HOLDING, IN EFFECT, THAT A PRIMA FACIE CASE CANNOT BE PRESENTED UNDER 42 PA. C.S.A. §8311 BASED UPON CIRCUMSTANTIAL EVIDENCE. C. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION IN GRANTING FERGUSON VALLEY'S MOTION FOR COMPULSORY NONSUIT NOTWITHSTANDING THE ADMISSION OF THE REPORT OF [APPELLANTS'] EXPERT, JEFFREY E. HUTCHINSON, ACF, INTO EVIDENCE. D. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION BY GRANTING FERGUSON VALLEY'S MOTION FOR COMPULSORY NONSUIT BASED UPON IRRELEVANT TESTIMONY OF ERIC EMINHIZER CONCERNING CUTTING IN THE AREA OF BLOCK 10. E. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW AND ABUSED ITS DISCRETION BY EXCLUDING TESTIMONY BY FRANK KRAMMES AS TO THE IDENTITY OF PERSONS WHO WERE ENGAGED IN OVERCUTTING. -3- J-A10018-14 address them together. We recognize: The standard of review on appeal from the denial of a motion to remove a compulsory nonsuit is as follows: The plaintiff must be allowed the benefit of all favorable evidence and reasonable inferences arising therefrom, and any conflicts in the evidence must be resolved in favor of the plaintiff. Further, [i]t has been long settled that a compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established. However, where it is clear a cause of action has not been established, a compulsory nonsuit is proper. We must, therefore, review the evidence to determine whether the order entering judgment of compulsory nonsuit was proper. Braun v. Target Corp., 983 A.2d 752, 764 (Pa. Super. 2009), appeal denied a motion to remove a nonsuit only if the court abused its discretion or made Brinich v. Jencka, 757 A.2d 388, 402 (Pa. Super. 2000) (citation omitted), appeal denied, 771 A.2d 1276 (Pa. 2001). Pennsylvania Rule of Civil Procedure Rule 230.1 governs compulsory nonsuits, and provides in pertinent part: Rule 230.1. Compulsory Nonsuit at Trial (a)(1) In an action involving only one plaintiff and one defendant, the court, on oral motion of the defendant, may enter a nonsuit on any and all causes of action if, at the close of the plaintiff's case on liability, the plaintiff has failed to establish a right to relief. -4- J-A10018-14 (2) The court in deciding the motion shall consider only evidence which was introduced by the plaintiff and any evidence favorable to the plaintiff introduced by the defendant prior to the close of the plaintiff's case. *** (c) In an action involving more than one defendant, the court may not enter a nonsuit of any plaintiff prior to the close of the case of all plaintiffs against all defendants. The nonsuit may be entered in favor of (1) all of the defendants, or (2) any of the defendants who have moved for nonsuit if all of the defendants stipulate on the record that no evidence will be presented that would establish liability of the defendant who has moved for the nonsuit. Pa.R.C.P. 230.1(a)(1)-(2), (c). Here, the trial court explained: We granted [Ferguson Valley's] Motion for a Compulsory Nonsuit at the clo failed to present any evidence demonstrating the identity of the person or persons who cut the trees that were outside of the approved logging area. [Appellants] also failed to present any evidence demonstrating the identity of the person or persons who cut trees which were too small and not to be cut within that area. We may only enter a compulsory nonsuit in a clear case, after giving [Appellants] the benefit of all evidence in their favor and all reasonable inferences therefrom. Volpe v. Atlantic Crushed Coke Co., 208 Pa.Super. 11, 14, 220 A.2d 393, 395 (1966). [Appellants] sued [Ferguson Valley] for conversion. No nor [Ferguson Valley], could identify the person or persons who cut down the trees. In fact, Defendant Eric Eminhizer, who was he went to an agent of the [Appellants] and informed him that someone else (and not [Ferguson Valley]) was cutting down trees on the property. [Appellants'] agent replied that those persons were cutting trees for the [Appellants]. See Notes of -5- J-A10018-14 Testimony dated [March 25, 2013] (N.T.) at 80-82. Eminhizer testified that he watched [App down trees and haul them away, trees that he had intended to cut himself. N.T. at 82-83. [Appellants] also offered the testimony of Frank Krammes, who attempted to testify that he questioned people regarding who they were working for, but that testimony was inadmissible hearsay, and Mr. Krammes was not able to identify where expert's map. N.T. at 119-23. [Appellants] wish to pin liability on [Ferguson Valley] because the trees which were improperly cut were either next to giving rise to an inference that it must have been [Ferguson Valley] who did it. This is simply not enough evidence to establish that [Ferguson Valley was] the perpetrator. Without any evidence of who actually cut these trees, together with evidence that other loggers were working on the property with the knowledge and consent of [Appellants], we conclude that we properly entered a compulsory nonsuit in this matter and that be denied. Trial Court Opinion, 7/29/13, at 1-3. rty in, or use or possession of, a chattel, or other McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 659 n.3 (Pa. Super. 2000) (citation omitted). testimony of their forestry expert, On appeal, Appellants cite the Jeffrey Hutchinson, neighboring landowner Frank Krammes, and general manager, Robert Feldman, to d designated cutting blocks and with -6- J-A10018-14 At trial, Appellants called forestry expert, Jeffrey Hutchinson, who Valley. N.T., 3/25/13, at 9, 11. During his Bear Mountain [timber] blocks 9 and 10 were areas of great concern [and various places outside of the blocks such as they were laid out in the contra Id. Id. at 13. Mr. Id. at 13-14. Id. at 15. Mr. Hutchinson explained that blocks 9 and Id. rred Id. at 30. -7- J-A10018-14 Id. at 46. On cross-examination, Mr. Hutchinson was asked if he had ever seen report. Id. Id. Mr. Hutchinson conceded that Id. at 53. Significantly, Mr. Hutchinson admitted [damage Id. at 60. Appellants next called defendant/appellee Eric Eminhizer as on cross. Mr. Eminhizer testified to being a partner in Ferguson Valley along with Dorothy I. Colony and Charles M. Colony. Id. at 64. Mr. Eminhizer testified Id. at 80, see also id. at 99-100. Mr. Eminhizer testified that he Id. Mr. Eminhizer stated: I ran to them on their behalf to tell them there was someone timber for us. Id. at 82. Appellants also called neighboring landowner, Frank Krammes. Mr. ions in the vicinity of blocks -8- J-A10018-14 Id Ferguson Valley objected on the basis of hearsay, and the trial court sustaine admissible as an exception to hearsay under Pa.R.E. 803(25)(D), which against an opposing party and was made by the initially note that Appellants have not cited any case law to support their argument, such that this argument is undeveloped and waived. See, e.g., Commonwealth v. Genovese, 675 A.2d 331 (Pa. Super. 1996) (portion of appellate brief must be developed with pertinent discussion of point which includes citations to relevant authority). evidence Further, Appellants presented no other than Mr. Krammes bare assertions that the statements by the hearsay exception in Pa.R.E. 803(25)(D). made broad assertions about observing timbering operations by Ferguson specific dates for his observations, other than recalling they occurred during the four year contract period between the parties, and he did not describe or detail the individuals who he perceived as overcutting the trees. N.T., 3/25/13, at 116-124. Also, Mr. Krammes conceded that in his deposition, he -9- J-A10018-14 had been unable to specify on a field map where he had observed the purported Ferguson Valley designated timber blocks. workers harvesting Id. at 122-123. trees outside of the With regard to Mr. Krammes inadmissible hearsay. Id. at 126-129. In -jury trial, Mr. Feldman was referencing 2012 August 31, 2005 complaint. Further, in his rebuttal testimony, Mr. Eminhizer denied cuttin Id. at 132. and over-cut those [timber] blocks, [Ferguson Valley] put nothing in place to make certain that they stayed within the perimeters of those blocks; and as ck of] controls, those people cut outside Id. at 135. liability] is that the [over]cutting was done at the same time [as Ferguson - 10 - J-A10018-14 performed]. There was no other cutting being done other than the cutting being done at that time by the people working under the authority, the contract between Ferguson Valley and [Appellants]. And so one can conclude that that timbering could have been done by no one else but those Id. court granted the nonsuit in part. Specifically, the trial court determined identity of the person who did the cutting outside [of] the approved area, the area contemplated by the contract; and furthermore...[Appellants] have not proven by a preponderance of the evidence the identity of the person Id. at 140-141. Given the foregoing, we discern no abuse of discretion by the trial -in-chief did not employees or agents, were the parties that improperly harvested trees. This Dietzel v. Gurman, 806 A.2d 1264, 1268 (Pa. Supe compulsory nonsuit is proper where the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action, and it is the duty of the trial court to make a determination prior to see also Pittsburgh Const. Co. v. - 11 - J-A10018-14 Griffith, 834 A.2d 572, 581 (Pa. Super. 2003) (In a common law action for conversion, a plaintiff must prove that the defendant deprived the plaintiff of Feingold v. Hendrzak, 15 A.3d 937, 942-43 (Pa. Super. 2011) (emphasis and internal citation accusations simply do not state a cause of action pursuant to any theory of trees outside of designated blocks and cut undersized trees. Order affirmed. Judge Stabile concurs in the result. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/22/2014 - 12 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.