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City of Philadelphia v. Galdo

Commonwealth Court of Pennsylvania

March 28, 2018

City of Philadelphia
v.
Francis Galdo, Appellant

          Argued: October 17, 2017

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

          OPINION

          P. KEVIN BROBSON, JUDGE

         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 rule[1] 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., 439 A.2d 101, 103 (Pa. 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 ...

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