City of Phila. v. Galdo

181 A.3d 1289

CITY OF PHILADELPHIA

v.Francis GALDO, Appellant

No. 1953 C.D. 2016

Commonwealth Court of Pennsylvania.

Argued October 17, 2017

Decided March 28, 2018

David J. Scaggs, Paoli, for appellant.

Craig R. Gottlieb, Senior Attorney, Philadelphia, for appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON

Francis Galdo (Galdo) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court). The City of Philadelphia (City) filed a complaint against Galdo for continuing trespass, permanent trespass, and ejectment, and Galdo filed a counterclaim to quiet title, claiming ownership by adverse possession. Following a bench trial, the trial court found in favor of the City and ordered Galdo ejected from the disputed property. Galdo appeals from the trial court's order denying post-trial relief. For the reasons set forth below, we vacate the trial court's order and remand the matter for further proceedings.

I. BACKGROUND

Between the streets of Lee, Front, Wildey, and Girard Avenue in Philadelphia is a rectangular lot of undeveloped land (Property) that is the subject of the instant appeal. In July 1962, the City entered into an agreement with the Commonwealth of Pennsylvania (Commonwealth) to assist in the development of various state roads. (Reproduced Record (R.R.) at 922a–934a.) In furtherance of that agreement, on November 13, 1974, the City obtained title to the Property by condemnation, in order to reroute the Elevated Frankfort train line (Elevated Frankfort) to provide additional space for construction of Interstate 95 (I–95). Then on January 19, 1976, the Commonwealth filed a notice of condemnation against several of the City's lots in the area, including the Property. The notice of condemnation indicated that the Commonwealth would permanently retain the land in the I–95 right-of-way, and that the Commonwealth would have a temporary easement on the Property for the period that the Elevated Frankfort was rerouted. The parties agree that the City has not physically occupied or provided any maintenance of the Property since the completion of the construction that rerouted the Elevated Frankfort in the late 1970s.

In September 1989, Galdo purchased his house on Lee Street, across from the Property. Shortly after purchasing the house, Galdo began using a portion of the Property that the parties refer to as the "Galdo Parcel." It appears that over the years, Galdo used the Galdo Parcel in a variety of ways, including for storage, parties, and parking. It also appears that he made various improvements or alterations to the Galdo Parcel, including, but not limited to, pouring concrete slabs, installing and (later) removing a fence, installing two large trailers for storage, building a fire pit/brick barbeque and pavilion, and creating a volleyball court, horseshoe pits, and treehouse.

On February 5, 2013, the City posted a public notice on the Property, notifying the public to remove all personal property within 30 days. Galdo refused to comply with the notices and removed them.

The City filed its ejectment action on April 24, 2014. Galdo responded with a counterclaim to quiet title, claiming ownership by virtue of adverse possession. The parties filed cross-motions for summary judgment, and on February 24, 2016, the trial court, via the Honorable Nina W. Padilla, denied both motions. On March 24, 2016, the matter went to a bench trial, and on April 21, 2016, the trial court, via the Honorable Robert P. Coleman, issued findings of fact and conclusions of law, finding in favor of the City. The trial court determined that Galdo could not claim title to the Property because the City condemned it at the behest of the Commonwealth, and because claims of adverse possession cannot lie against the Commonwealth or its agents. The trial court further determined that Galdo could not sustain a claim for adverse possession against the City because the Property was devoted to public use. The trial court also rejected Galdo's argument that the City waived its immunity defense from suit because, according to the trial court, the City could and did raise it in a preliminary objection. Finally, the trial court held that the coordinate jurisdiction rule¹ did not apply because the standard for a motion for summary judgement is different from the standard in a civil trial.

Galdo filed a motion for post-trial relief, which the trial court denied on April 29, 2016. This appeal followed.

II. DISCUSSION

On appeal,² Galdo argues that the trial court erred by determining that a claim of adverse possession cannot lie against the City for the Property because (1) the Property was dedicated to public use and (2) the City was an agent of the Commonwealth when it condemned the Property in the 1970s. Galdo argues that the trial court erred by determining that the City did not waive its immunity defense by not raising it in a new matter to Galdo's counterclaim. Galdo further argues that the coordinate jurisdiction rule prevented the trial court from finding the City immune, because another judge denied summary judgment to the City and the City presented no additional evidence after the summary judgment stage. Finally, Galdo argues that he met all the elements of adverse possession and, therefore, acquired title to the Galdo Parcel.

In response, the City argues that it was immune from a claim of adverse possession, both because it condemned the Property at the Commonwealth's behest and because it held the Property for public use. The City further argues that this Court should reject an adverse possession claim that is based on unlawful conduct and that the coordinate jurisdiction rule is inapplicable because the standard in a motion for summary judgment is distinct from the standard in a bench trial.

A. Claims of Adverse Possession Against Municipalities

The primary issue in the instant appeal is whether a claim of adverse possession can lie against the City, a municipality, when the City's only use of the Property during the statutory period was to hold the Property for possible future sale. As mentioned above, the City seeks the protection that the Commonwealth enjoys from claims of adverse possession. The rule in Pennsylvania that "a claim of title by adverse possession does not lie against Commonwealth property," originates from the doctrine nullum tempus occurrit regi , which means "[t]ime does not run against the king." Dep't of Transp. v. J. W. Bishop & Co. , 497 Pa. 58, 439 A.2d 101, 103 (1981). The General Assembly has codified the preclusion of claims of adverse possession against the Commonwealth:

Nothing contained in this act shall be construed to give any title to any lands by a claim of title adverse to that of the Commonwealth of Pennsylvania, and no claim of title adverse to the Commonwealth of Pennsylvania shall be made or recorded under the provisions of this act.

Act of May 31, 1901, P.L. 352, 68 P.S. § 88.

In Evans v. Erie County , 66 Pa. 222 (1870), the Pennsylvania Supreme Court addressed adverse possession in the context of a fact pattern similar to the instant case. In Evans , the Borough of Erie brought an ejectment action against the defendant-possessor, James Evans, who, for over thirty-one years, adversely possessed a strip of land owned by the Borough. Our Supreme Court held that the Borough of Erie was susceptible to a claim of title by adverse possession. In so doing, the Court limited the nullum tempus doctrine to claims against the Commonwealth:

That the Statute of Limitations runs against a county or other municipal corporation, we think cannot be doubted. The prerogative is that of the sovereign alone: Nullum tempus occurrit reipublicae . Her grantees, though artificial bodies created by her, are in the same category with natural persons.

Evans, 66 Pa. at 228.³ Because the doctrine was available to the sovereign (the Commonwealth) alone, the Supreme Court held that Evans successfully obtained title to the strip of land through adverse possession. Thus, applying Evans , political subdivisions, such as counties, townships, municipalities, and boroughs, are not immune from claims of adverse possession, although the Commonwealth is. Torch v. Constantino , 227 Pa.Super. 427, 323 A.2d 278, 279 (1974). Moreover, claims of title by adverse possession cannot be made against any entity, public or private, where the land in question is devoted to public use. Bruker v. Burgess & Town Council of Borough of Carlisle , 376 Pa. 330, 102 A.2d 418, 422 (1954) ; Torch , 323 A.2d at 279.

In concluding that Galdo could not claim title by adverse possession, the trial court relied upon the Superior Court's decision in Torch and our decision in Lysicki v. Montour School District , 701 A.2d 630 (Pa. Cmwlth. 1997). Neither Torch , which concerned property determined to be held for public use, nor Lysicki , which concerned property determined to be held in furtherance of the Commonwealth's responsibility to provide education, however, support this conclusion.

In Torch , the Superior Court addressed the question of whether the twenty-one-year prescriptive period for adverse possession could run during the period that the county held the property for tax sale for the nonpayment of taxes. The Superior Court concluded that it could not. While the litigants in Torch were private parties, the property in question was returned to Lackawanna County for a portion of the alleged prescriptive period. Initially, the Superior Court noted that a claim of title by adverse possession can be asserted against political subdivisions, unless the land in question is devoted to public use. The Superior Court determined, however, that the prescriptive period was tolled in Torch during the time that the county held the disputed property because the county did so in furtherance of a mandate by the General Assembly. Specifically, the Superior Court explained...