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ARTHUR P. SCHLAGEL AND MABEL SCHLAGEL v. JULIUS M. LOMBARDI AND FRANCES C. LOMBARDI (12/19/84)

filed: December 19, 1984.

ARTHUR P. SCHLAGEL AND MABEL SCHLAGEL, APPELLANTS,
v.
JULIUS M. LOMBARDI AND FRANCES C. LOMBARDI



No. 3638 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 74-5367.

COUNSEL

Michael C. Rainone, Philadelphia, appellants.

Joseph P. Phelps, Jr., Norristown, appellees.

Wickersham, Wieand and Hoffman, JJ. Wieand, J., filed a concurring and dissenting statement.

Author: Wickersham

[ 337 Pa. Super. Page 85]

Arthur and Mabel Schlagel brought this action against Julius and Frances Lombardi to quiet title to a specific parcel of land located in Montgomery County. The Schlagels contended that they had acquired title by adverse possession.

The original complaint was filed on April 18, 1974, to which appellees, the Lombardis, interposed preliminary objections. An amended complaint was filed on November 27, 1974, to which the appellees again interposed preliminary objections. By opinion and order dated January 28, 1980, two other separate lawsuits concerning the disputed land were consolidated with the instant suit in order to dispose of the entire controversy between the parties in one action. A second amended complaint was filed on February 29, 1980. Appellees then filed an answer and new matter.

The case proceeded to trial on April 29, 1981, before the Honorable Louis D. Stefan, sitting without a jury. At the conclusion of appellants' case, appellees moved for the entry of a non suit. The non suit was granted in a memorandum and order dated April 30, 1981. Appellants filed exceptions to the court's memorandum and order, which exceptions were argued before the court en banc. Appellants' exceptions were subsequently dismissed by order dated November 16, 1982. This appeal followed.

In reviewing the propriety of a compulsory non-suit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa. Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa. Super. 348, 349-350,

[ 337 Pa. Super. Page 86]

445 A.2d 788, 789 (1982). A non-suit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa. Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa. Super. 58, 62, 478 A.2d 1348, 1350 (1984).

Instantly, appellants maintain that they took possession of and occupied the disputed tract commencing in 1940, when they purchased it for $200 in an oral agreement with Augustus Baumgart. The tract in question connects with a much larger parcel of land which appellants had previously purchased from Mr. Baumgart. In 1968, appellees purchased a parcel of land from the estate of Augustus Baumgart, which parcel included the disputed tract. In the early 1970's, a dispute arose between the parties concerning the ownership of ...


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