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VINCENT LISOWSKI v. CARLO MASTROMARCO (03/18/80)

submitted: March 18, 1980.

VINCENT LISOWSKI, APPELLANT,
v.
CARLO MASTROMARCO, LUIGI MASTROMARCO, FRANCIS MASTROMARCO, T/A MASTROMARCO BROTHERS V. ALICE KOTLAREK



No. 439 October Term, 1979, Appeal from the Court of Common Pleas of Philadelphia County, Civil Division-Trespass, No. 2675 April Term, 1978.

COUNSEL

Morton B. Wapner, Philadelphia, for appellant.

William T. Coleman, III, Philadelphia, for Mastromarco Brothers, appellees.

Stanley F. Mankas, Philadelphia, for Kotlarek, appellee.

Hester, Wickersham and Lipez, JJ.

Author: Hester

[ 281 Pa. Super. Page 304]

The only issue raised by this appeal is the necessary length of time one must possess property in the City and County of Philadelphia in order to perfect a claim by adverse possession. Following our study of antiquated statutes of this Commonwealth over 120 years old, we are persuaded, as was the court below, that the required time period is 40 years.

The facts are not in dispute. On April 14, 1978, appellant Vincent Lisowski instituted this action to quiet title against appellees Carlo, Luigi, and Francis Mastromarco in the Court of Common Pleas of Philadelphia County. Appellant alleged that the Mastromarco brothers were the record owners of a plot of land in Philadelphia, but that appellant had acquired title thereto by adverse possession in that he had been in actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the premises for a period in excess of twenty-one years. The Mastromarco brothers filed an answer and counterclaim and brought a third party action against appellee Alice Kotlarek, Mastromarcos' predecessor in title. Appellees then moved for summary judgment contending that in the City of Philadelphia, forty years is required to ripen rights of adverse possession. Conversely, appellant Lisowski claimed that twenty-one years was sufficient under the applicable statutes. From the pleadings and deposition, it was undisputed, and has been stipulated on appeal, that appellant was in possession of the premises in

[ 281 Pa. Super. Page 305]

    question for a period no longer than thirty-two years. There being no genuine issue of material fact, the court granted appellees' motion for summary judgment, finding that the applicable period is forty years. This appeal ensued.

The foundation for title by adverse possession in this Commonwealth is Act of March 26, 1785, 2 Sm.L. 299, § 2 (12 P.S. § 72) which provides:

§ 72. No entry or right of action allowed after twenty-one years.

From henceforth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her of their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ of right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, ...


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