           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                      :
                                          :
             v.                           :   No. 1953 C.D. 2016
                                          :   Argued: October 17, 2017
Francis Galdo,                            :
                          Appellant       :


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



OPINION BY JUDGE BROBSON                      FILED: March 28, 2018

             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


                                            2
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 rule1 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


       1
          “[U]nder the coordinate jurisdiction rule, judges of coordinate jurisdiction sitting in the
same case should not overrule each other’s decisions.” Riccio v. Am. Republic Ins. Co.,
705 A.2d 422, 425 (Pa. 1997). The coordinate jurisdiction rule does not apply where the motions
are of a different type and does not bar a judge on summary judgment from overruling another
judge’s decision on preliminary objections or judgment on the pleadings, even on an identical legal
issue. Garzella v. Borough of Dunmore, 62 A.3d 486, 497 (Pa. Cmwlth.), appeal denied,
72 A.3d 605 (Pa. 2013).



                                                 3
              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


       2
          “Our standard of review of a non-jury trial is to determine whether the findings of the
trial court are supported by competent evidence, and whether an error of law was committed.”
Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007), appeal denied,
950 A.2d 270 (Pa. 2008).

                                               4
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 be
            made or recorded under the provisions of this act.
Act of May 31, 1901, P.L. 352, 68 P.S. § 88.
            In Evans v. Erie County, 66 Pa. 222 (1870), the Pennsylvania Supreme
Court addressed adverse possession in the context of a fact pattern similar to the
instant case. In Evans, the Borough of Erie brought an ejectment action against the
defendant-possessor, James Evans, who, for over thirty-one years, adversely
possessed a strip of land owned by the Borough. Our Supreme Court held that the
Borough of Erie was susceptible to a claim of title by adverse possession. In so
doing, the Court limited the nullum tempus doctrine to claims against the
Commonwealth:
            That the Statute of Limitations runs against a county or
            other municipal corporation, we think cannot be doubted.
            The prerogative is that of the sovereign alone: Nullum
            tempus occurrit reipublicae. Her grantees, though
            artificial bodies created by her, are in the same category
            with natural persons.




                                         5
Evans, 66 Pa. at 228.3 Because the doctrine was available to the sovereign (the
Commonwealth) alone, the Supreme Court held that Evans successfully obtained
title to the strip of land through adverse possession. Thus, applying Evans, political
subdivisions, such as counties, townships, municipalities, and boroughs, are not
immune from claims of adverse possession, although the Commonwealth is. Torch
v. Constantino, 323 A.2d 278, 279 (Pa. Super. 1974). Moreover, claims of title by
adverse possession cannot be made against any entity, public or private, where the
land in question is devoted to public use. Bruker v. Burgess & Town Council of
Borough of Carlisle, 102 A.2d 418, 422 (Pa. 1954); Torch, 323 A.2d at 279.
              In concluding that Galdo could not claim title by adverse possession,
the trial court relied upon the Superior Court’s decision in Torch and our decision in
Lysicki v. Montour School District, 701 A.2d 630 (Pa. Cmwlth. 1997). Neither
Torch, which concerned property determined to be held for public use, nor Lysicki,
which concerned property determined to be held in furtherance of the
Commonwealth’s responsibility to provide education, however, support this
conclusion.
              In Torch, the Superior Court addressed the question of whether the
twenty-one-year prescriptive period for adverse possession could run during the
period that the county held the property for tax sale for the nonpayment of taxes.
The Superior Court concluded that it could not. While the litigants in Torch were
private parties, the property in question was returned to Lackawanna County for a
portion of the alleged prescriptive period. Initially, the Superior Court noted that a
claim of title by adverse possession can be asserted against political subdivisions,


       3
        The Supreme Court swapped the word regi, meaning king, for reipublicae, meaning state.
Evans, 66 Pa. at 228.

                                              6
unless the land in question is devoted to public use. The Superior Court determined,
however, that the prescriptive period was tolled in Torch during the time that the
county held the disputed property because the county did so in furtherance of a
mandate by the General Assembly. Specifically, the Superior Court explained that
the legislature intended counties to collect “delinquent taxes as a trustee for the
taxing district so that real estate does not lie fallow and that tax titles are so improved
as to attract buyers and restore real estate to the tax lists.” Torch, 323 A.2d at 281.
Accordingly, the Superior Court held that the land was devoted to public use and,
thus, the prescriptive period could not run against the county during that time.
              In Lysicki, this Court reached a similar conclusion, though not through
a public use theory. We held that property owners adjacent to school district
property could not maintain a claim of adverse possession against the school district.
This Court’s holding relied on precedent in which our Supreme Court stated that
“‘[i]t is well established that the local school districts are merely agents of the
Commonwealth to which the legislature has delegated authority in order to fulfill the
state’s responsibility to provide public education.’”          Lysicki, 701 A.2d at 632
(emphasis added) (quoting Pennsylvania Fed’n of Teachers v. Sch. Dist. of
Philadelphia, 484 A.2d 751, 753 (Pa. 1984)). We explained that because the school
district was fulfilling the Commonwealth’s responsibility, the school district fell
under the Commonwealth’s protection from claims of title by adverse possession.
Id.; see also Pennsylvania Fed’n of Teachers, 484 A.2d at 753 (noting that through
a “comprehensive legislative scheme governing the operation and administration of
public education,” the Commonwealth has granted “broad power” to school districts
to act on behalf of the Commonwealth to educate public school students).




                                            7
               Seemingly due to this Court’s description of a school district in Lysicki
as an “agent of the Commonwealth,” Lysicki, 701 A.2d at 632, the City appears to
argue that Lysicki supports the proposition that adverse possession can never lie
against political subdivisions because they are agents of the Commonwealth. That
is a misreading of our holding in Lysicki. In holding that the school district in Lysicki
was immune from adverse possession, this Court emphasized the reason that the
school district held the land in question. We determined that the school district held
the land in question in furtherance of the Commonwealth’s constitutional
responsibility to provide public education. Indeed, this Court in Lysicki quoted the
Superior Court’s determination in Torch that adverse possession “may be asserted”
against political subdivisions. Lysicki, 701 A.2d at 632 (emphasis added) (quoting
Torch, 323 A.2d at 279).            The school district in Lysicki only received the
Commonwealth’s protection from adverse possession because it held the disputed
land as part of its obligation, bestowed upon it by the Commonwealth, “‘to fulfill the
state’s responsibility to provide public education.’”             Lysicki, 701 A.2d at 632
(quoting Pennsylvania Fed’n of Teachers, 484 A.2d at 753). Particularly in light of
the Supreme Court’s holding in Evans that adverse possession can be asserted
against political subdivisions, our holding in Lysicki did not provide political
subdivisions with total immunity from claims of adverse possession. Instead, our
holding is best understood as reiterating the Commonwealth’s protection from
adverse possession, including a situation where the Commonwealth obligates a
school district to facilitate its constitutional duty to educate.4

       4
         Both the City and the trial court contend that the City was an agent of the Commonwealth,
and the City should receive the Commonwealth’s protection from adverse possession, because the
City condemned the Property at the Commonwealth’s behest. There is a temporal reason to reject



                                                8
               Here, the lack of a legal obligation of the City to hold the Property
distinguishes this case from Torch and Lysicki. While the parties dispute whether
the City and the Commonwealth had formed an agency relationship, the holdings in
Lysicki and Torch actually pertained primarily to the legal obligation of the political
subdivision—the county in Torch and the school district in Lysicki—to hold the
disputed property as the basis for the immunity from a claim of adverse possession.
In Torch, it was the legislative mandate—that counties act as trustee, holding
property for tax sale for the nonpayment of taxes—on which the Superior Court
based its holding that the property was devoted to public use. Torch, 323 A.2d
at 281. Likewise, in Lysicki, we explained that school districts hold and use school
district property pursuant to the legal responsibility to provide education to public
school students.       Lysicki, 701 A.2d at 632; Pennsylvania Fed’n of Teachers,
484 A.2d at 753. The City does not provide any analogous obligation imposed by


the argument that the City should receive the Commonwealth’s protection from adverse possession
based on the condemnation. Even if the Commonwealth did direct the City for purposes of the
expansion of I-95 and even if the City was at one point acting at the behest of the Commonwealth,
the relationship for the agreement was temporary. It would not protect the City in perpetuity. In
contrast to, for example, a school district’s responsibility to educate, which does not cease to exist
on any certain day, a construction project ends. Here, the parties agree that the expansion of I-95
was complete by the late 1970s and that the Commonwealth has had no involvement with the
Property since. “The authority of an agent to perform a specified act or to accomplish a specified
result terminates when the act is done or the result is accomplished.” Restatement (Second) of
Agency § 106 (1958). While the Supreme Court has not adopted this section of the Second
Restatement of Agency, we are persuaded that an agency relationship necessarily terminates upon
completion of the act for which the principal delegated authority in the first place. In this case,
while the City may have condemned the Property at the Commonwealth’s behest, it certainly did
not hold the Property for decades at the Commonwealth’s behest. Even if the City was able to
establish an agency relationship based on its agreement with the Commonwealth, that relationship
from that agreement would have ended when the Commonwealth completed the expansion of I-95
in the late 1970s.



                                                  9
law or evidence of any public use of the Property to justify holding and neglecting
it for decades.5      Furthermore, were we to determine that a municipality that
condemns and holds previously private property for possible future sale did so for a
public use, we would essentially hold that municipalities could institute a taking of
private property for a land bank, keeping the property until the market provides a
considerable profit upon its sale. Such a holding would be detrimental to private
property rights. The City is not, therefore, immune from Galdo’s counterclaim for
adverse possession because it did not hold the Property pursuant to a legal obligation,
or for public use.
               The City does not cite to any case, nor is this Court aware of any, in
which the Pennsylvania Supreme Court held that a claim of title by adverse
possession cannot lie against municipal property, based solely on the municipality’s
status as a political subdivision. In fact, any determination by this Court to the
contrary would be at odds with our Supreme Court’s holding in Evans. See Evans,
66 Pa. at 228. Absent any legal authority to support the argument that the Supreme
Court’s holding in Evans is no longer good law, as an intermediate court, we are
bound to apply its holding. Accordingly, the trial court erred by concluding that
Galdo’s counterclaim sounding in adverse possession could not lie against the City.
                           B. Elements of Adverse Possession

       5
         Our conclusion is also consistent with the application of the nullum tempus doctrine in a
similar context—where a political subdivision initiates a suit and the applicable statute of
limitations governs the initiation of the suit (as opposed to a prescriptive period, which is an
element of Galdo’s counterclaim). The Pennsylvania Supreme Court explained that the nullum
tempus doctrine only applies to political subdivisions in such cases if “the cause of action accrues
to them in their governmental capacity and the suit is brought to enforce an obligation imposed by
law.” City of Philadelphia v. Holmes Elec. Protective Co. of Philadelphia, 6 A.2d 884, 887 (1939)
(emphasis added). The common denominator in Lysicki and Torch and the analogous line of cases,
like City of Philadelphia, is the requirement that a legal obligation compels the political
subdivision to proceed in a certain way.

                                                10
              Because this Court concludes that the City is not immune from an
action for adverse possession, the only issue remaining is whether Galdo has
established that he is entitled to adverse possession. Adverse possession is an
extreme doctrine, which permits one to achieve ownership of another’s property by
operation of law. Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010), appeal
denied, 20 A.3d 489 (Pa. 2011). One who claims title by adverse possession must
prove actual, continuous, exclusive, visible, notorious, distinct, and hostile
possession of the land for twenty-one years. Baylor v. Soska, 658 A.2d 743, 744
(Pa. 1995).
              As discussed above, because the trial court made its decision based on
Galdo’s supposed inability to assert adverse possession against the City under the
facts of this case, the trial court made no factual findings and reached no legal
conclusions regarding the elements of Galdo’s adverse possession claim. Thus, a
remand is necessary so that the trial court may determine whether Galdo proved his
entitlement to adverse possession.
                                III.   CONCLUSION
              Accordingly, we must vacate the trial court’s order and remand the
matter to the trial court for further consideration of Galdo’s claim of adverse
possession.




                                P. KEVIN BROBSON, Judge




                                         11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                     :
                                         :
            v.                           :   No. 1953 C.D. 2016
                                         :
Francis Galdo,                           :
                         Appellant       :



                                     ORDER


            AND NOW, this 28th day of March, 2018, the order of the Court of
Common Pleas of Philadelphia County is VACATED, and the matter is
REMANDED for further proceedings consistent with this opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                     :
                                         :
                v.                       : No. 1953 C.D. 2016
                                         : Argued: October 17, 2017
Francis Galdo,                           :
                      Appellant          :


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


DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI                                FILED: March 28, 2018


                The majority holds that Francis Galdo (Galdo) adversely possessed City
of Philadelphia (City) property even though it was originally condemned at the behest
of the Commonwealth for an indisputable public purpose and then, as was always
envisioned, retained by the City for eventual disposition. I dissent because the City
retained that property for a public purpose – i.e., to offset governmental expenses and
restore real estate to the City’s tax assessment list. Just like the tax-sale property, I
would hold that condemned property is immune from adverse possession so long as it
was always retained for eventual disposition.


                The pertinent facts of this case are best summarized by Galdo’s counsel
in his brief:

                In 1974[,] the City obtained record title to the Property by
                condemnation. Prior thereto, the City Council Committee
                of Public Property and Public Works held a hearing.
             Therein, it was discussed that the Property was needed to
             provide land necessary for the construction of a temporary
             detour of the Frankford Elevated, and thereafter the
             Property would be available for disposition once the
             permanent structure was complete and the temporary
             structure demolished. It was also discussed that most of
             the land to be taken would be retained by the City and the
             City (not the Commonwealth) would ultimately pay for any
             lands it retained after construction was finished, which
             lands included the Property. It was further stated at the
             hearing that there was no need for the Property after the
             Frankford Elevated was returned to its original location.

                                         ***

             Since completion of the rerouting of the Market-Frankfort
             line in the 1970s, the City has not physically occupied the
             Property. Nor has it performed any maintenance, grass
             cutting, grading, or landscaping on the Property at any
             relevant time.

                                         ***

             It was not until February 5, 2013 that the City posted
             notices on the Property . . . all personal property be
             removed within thirty (30) days. Mr. Galdo refused to
             vacate the Galdo Parcel and instead removed the signs.


(Galdo’s Brief at 11-12, 21) (emphasis added, citations and footnotes omitted).


             Ultimately, in 2014, the City filed an ejectment and trespass action
against Galdo, who in response filed a counterclaim for quiet title, contending that he
adversely possessed the property. Relying in part on Torch v. Constantino, 323 A.2d
278, 281 (Pa. Super. 1974), the trial court held that Galdo could not sustain a claim
for adverse possession against the property and found in favor of the City. The
majority now vacates the trial court’s order, concluding that the City’s retention of


                                       DRP - 2
the property for eventual resale does not constitute a “public use” because “were we
to determine that a municipality that condemns and holds previously private property
for possible future sale did so for a public use, we would essentially hold that
municipalities could institute a taking of private property for a land bank, keeping the
property until the market provides a considerable profit upon its sale.” (Majority
opinion at 10.)


               In Torch, our Superior Court held that adverse possession does not run
against a local government retaining tax-sale property for eventual disposition.1
While the Court acknowledged that local governments do not enjoy blanket immunity
from claims of adverse possession, it explained that an exception to this rule is that
claims of title by adverse possession cannot be made against any entity – public or
private – if the land in question is devoted to a public use/purpose. Focusing on the
government’s need to resell tax-sale property so as to generate revenue and return
real estate to the tax list, the Court held that the retention of such property until its
disposition constituted a public use meriting immunity from adverse possession.


               In this case, it is undisputed that the property was always intended to be
resold by the City after it served its initial public use.                 I see no reason why
condemned property, when taken with the intent to resell, should be treated any
different than tax-sale property.           Similar to tax-sale property, a municipality’s

       1
          Since Torch, there have been a line of cases reiterating that adverse possession does not lie
against land held by a non-state government entity when it is in connection with a tax sale. See
Fred E. Young, Inc. v. Brush Mountain Sportsmen’s Association, 697 A.2d 984, 992 (Pa. Super.
1997) (“Adverse possession does not lie against land held by the county in connection with a tax
sale.”); see also Weible v. Wells, 156 A.3d 1220, 1224-25 (Pa. Super.), appeal denied, 170 A.3d
1031 (Pa. 2017) (same).



                                              DRP - 3
retention of condemned property for eventual disposition serves the obvious goal of
offsetting expenses otherwise incurred by its taxpayers. That goal, however, can only
be achieved if the title of condemned property remains “attractive to prospective
purchases so that land owned by local government . . . can be more promptly sold and
the land restored to the assessment lists.” Torch, 323 A.2d at 280.


             Accordingly, because the retention of condemned property for eventual
disposition constitutes a public use, I respectfully dissent from the majority’s opinion.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge




                                        DRP - 4
