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TORCH ET UX. v. CONSTANTINO ET UX. (04/03/74)

decided: April 3, 1974.

TORCH ET UX., APPELLANTS,
v.
CONSTANTINO ET UX.



Appeal from judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1972, No. 937, in case of Joseph Torch and Rosella Torch, his wife, v. Jack Constantino and Genevieve Constantino, his wife.

COUNSEL

Robert Casey, with him Frank J. DeSanto, for appellants.

Robert W. Munley, with him Edward Delaney, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J.

Author: Watkins

[ 227 Pa. Super. Page 428]

This is an appeal from the judgment of the Court of Common Pleas of Lackawanna County, Civil Division, in an ejectment action, entered after a trial without a jury and a decision in favor of the defendant-appellees, Jack Constantino and Genevieve Constantino, his wife, and against the plaintiff-appellant, Joseph Torch and Rosella Torch, his wife, sustaining a claim of title by adverse possession; and from the dismissal of exceptions filed by the appellants to this finding. The dispute

[ 227 Pa. Super. Page 429]

    involves 0.65 acres of land in Lackawanna County. Appellees claim the parcel of land by virtue of adverse possession. It is admitted by the appellants that adverse possession was established for more than 21 years.

The appellants claim title to the land by virtue of a tax deed granted to them by Lackawanna County after a treasurer's tax sale. Both parties have recorded their respective titles. Appellees recorded their claim of title by adverse possession on December 21, 1970. The appellants recorded a quit claim deed from the county on August 31, 1971. The deed had been delivered on September 27, 1966.

Included in the period making up the prescribed period is the time period during which the land in question had been returned to the county for nonpayment of taxes. The appellants contend that the prescription period does not run against property owned by the county after return for nonpayment of taxes and removal from the assessment list.

There is no question that adverse possession will not lie against lands held by the Federal Government. U.S. v. Oglesby, 163 F. Supp. 203 (W.D. Ark. 1958). Nor can a claim of adverse possession be asserted against the Commonwealth. Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951). As to political subdivisions, such as counties, townships and boroughs the rule seems to be that title by prescription by such governing bodies, and in this case, may be asserted unless the land in question is devoted to public use. City of Philadelphia v. Philadelphia & R.R. Co., 58 Pa. 253 (1868). Guerra v. Galatic, 185 Pa. Superior Ct. 385, 137 A.2d 866 (1958). This rule is far from unanimous throughout the country. However, Pennsylvania does recognize that local governments have immunity from a claim of adverse possession when the land in question is devoted to public use.

[ 227 Pa. Super. Page 430]

Thus, the question before us is whether land held for tax sale after return for nonpayment of taxes tolls the prescription period. The court below in an able opinion held that the statutory period is not tolled but continued to run against land held by the county. The court said: "Since the county held title to the land involved by virtue of County Treasurer's deeds when the defendants took possession in 1944 until the conveyance to the plaintiffs August 31, 1966, the ...


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