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KAMINSKI BROTHERS v. GRASSI (12/01/75)

decided: December 1, 1975.

KAMINSKI BROTHERS, INC.
v.
GRASSI, APPELLANT ET UX.



Appeal from judgment of Court of Common Pleas of Luzerne County, March T., 1969, No. 1234, in case of Kaminski Brothers, Inc., a Pennsylvania Corporation, v. John Grassi and Theresa Grassi, his wife.

COUNSEL

Francis P. Burns, for appellant.

Joseph J. Ustynoski, Conrad A. Falvello, Anthony C. Falvello, and Falvello, Ustynoski, Giuliani & Bernstein, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, J., dissents.

Author: Van Der Voort

[ 237 Pa. Super. Page 480]

On March 20, 1969, plaintiff Kaminski Brothers, Inc. instituted an action in ejectment against defendant John Grassi and his wife. A default judgment was entered in favor of plaintiff on September 23, 1969, but the judgment was opened by the lower court on October 4, 1970, with defendant raising the defense of adverse possession. A jury returned a verdict for defendant on April 28, 1971, but the trial judge granted plaintiff's motion for judgment n.o.v. Pursuant to defendant's post-trial motions, the Luzerne County Court en banc rendered a 3-2 opinion upholding the grant of judgment n.o.v. for plaintiff, with the trial judge who originally granted plaintiff's motion joining in the dissenting opinion. Appeal was taken to our Court by John Grassi from the judgment n.o.v. for plaintiff.

Appellant's argument is basically that there was sufficient evidence to support his claim of adverse possession, and that the lower court was therefore in error in granting judgment n.o.v. for plaintiff. It has long been the law in Pennsylvania that one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594, 66 A.2d 828 (1949). The adverse possessor "'must intend to hold the land for himself, and that intention must be made manifest by his acts . . . . No particular act, or series of acts, is necessary to demonstrate an intention to claim ownership. Such a purpose is sufficiently shown where one goes upon the land and uses it openly and notoriously, as owners of similar lands use their property, to the exclusion of the true owner.'" Robin v. Brown et ux., 308 Pa. 123, 126, 162 A. 161 (1932). Although the burden is on appellant John Grassi to prove title by adverse possession, we must review the record giving the verdict winner the benefit of every inference

[ 237 Pa. Super. Page 481]

    of fact. In Pfeiffer v. Kraske, 139 Pa. Superior Ct. 92, 97, 11 A.2d 555, 556 (1939), a jury found for defendant, but the lower court granted plaintiff's motion for judgment n.o.v. On appeal to our Court, we stated: "the testimony should not only be read in the light most advantageous to the successful party, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issue involved which may reasonably be deduced from the evidence: Kissinger et al. v. Pittsburgh Railways Co., 119 Pa. Superior Ct. 110, 180 A. 137." See also Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). Viewing the evidence in the light most favorable to the verdict winner, we find that there is sufficient evidence in the record to support a conclusion by the jury that appellant John Grassi obtained title to the property in question by adverse possession.

The property in question is approximately 1/3 of an acre of ground adjacent to a double house, half of which house is owned by appellant John Grassi. (The house itself and the land on which it stands are not involved in the dispute). Appellant testified that he was born on the property in 1919, but that the family moved to Hughestown when appellant was eight years old. In 1939, appellant began working on the house and yard, preparatory to seeking a tenant for the place. From 1939 to 1941, the property was rented to one Joseph Sarte; from 1941 to 1943, the property was occupied by Joseph Kozak (half-brother to the owners of plaintiff corporation), who paid no rent; from 1944 to 1948, the property was rented to Everisto Grassi, a cousin of appellant, who did pay rent to appellant. While Everisto Grassi was occupying the premises, appellant's home in Hughestown burned down, and appellant decided to move to the property in question. Appellant then occupied the premises with his wife from early 1949 continuously to the present.

[ 237 Pa. Super. Page 482]

Appellant testified that he painted the house in 1939, and also did some work on the outside of the house before renting it out. During the period 1939 to 1949, "[w]henever repairs or maintenance came up, I always went up to the property on the weekends and either took care of it or seen [sic] to it that it was taken care of." Appellant also testified that the tenants had the use of the land around the house, including some sheds, a garage, and fruit trees. Dominick A. Lussi, owner of the other half of the double house, testified that he observed tenants living in the Grassi house before 1949, and that he always saw John Grassi fixing up the house and property: "It was like a dump around there and he fixed it all up." Mr. Lussi testified that he saw appellant remodel the house, clean up the shrubberies, clean up the yard, and build a patio and fireplace. Another witness called by appellant, Helen B. Gammaitoni, lived across the street from the Grassi home since June of 1944, and testified that John Grassi moved to the property in 1949. The witness testified that during the period 1949-1971, she observed the Grassis landscaping the grounds and making improvements to the house.

Appellant testified himself regarding various improvements he made to the house and yard since taking possession in 1939. When asked on direct examination about his connection with the property during the years 1939 to 1949, appellant replied that he had made repairs and had done general maintenance work on weekends, even during the several months he was living in New Jersey. Appellant stated that when he and his wife moved to the property in early 1949, they did extensive work to both the house and the grounds:

"Q Now, what part of that land and house did you use, all of it?

A I used all of it. It was the same land that was ...


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