J-S74032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CASIMIR M. TOCZYLOWSKI                             IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellant

                     v.

SAMANTHA G. GIULIANO AND PAUL P.
PALLADINO

                                                      No. 1550 EDA 2017


               Appeal from the Judgment Entered June 1, 2017
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 1134 of September 2013


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 27, 2018

      Appellant, Casimir M. Toczylowski, appeals from the judgment entered

June 1, 2017, in favor of Appellees Samantha G. Giuliano and Paul P. Palladino.

We affirm.

      We base the following statement of facts on the opinion of the trial court,

which in turn is supported by the record.      See Trial Court Opinion (TCO),

7/18/17, at 1-4.   Appellant and Appellees are neighbors, owning adjacent

properties located at 807 S. 2nd Street, Philadelphia, Pennsylvania, and 802

S. Hancock Street, Philadelphia, Pennsylvania, respectively.          Appellees’

property is north of Appellant’s property. Between the properties, south of

Appellees’ property and north of Appellant’s property, is a small stretch of

land, approximately six feet wide. The land is entirely enclosed by Appellees’
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home to the north, a locked gate to the east, a cinderblock wall to the south,

and Appellees’ backyard to the west.

      Appellant, who has lived in his home over seventy years, last recalled

stepping on the stretch of land when he was ten years old. Appellant recalled

a gate enclosing the land and restricting access to the Hancock Street property

in place at least forty or fifty years ago. When Appellees bought the home in

2000, the stretch of land was advertised as a driveway; accordingly, Appellees

believed the land, including the northern face of the cinderblock wall, was part

of their property.   They utilized the land as a driveway and for storage.

Although Appellant considered this land “un-owned,” he did not dispute

Appellees’ use until, in 2011, they decided to construct an addition to their

home on the stretch of land.

      Appellees consulted with an architect and contractor, obtained

construction permits from the City of Philadelphia, and began construction.

Appellees approached Appellant and requested access to and use of his

courtyard for construction purposes. Testimony differed as to the conditions

of this use. Appellant claimed it was conditioned on the addition remaining

separate from his home. Appellees testified that Appellant never required a

condition at all.     Regardless of the      agreement, Appellant filed an

administrative complaint with the Philadelphia Department of Licenses and

Inspections (“L&I”), averring that Appellees had attached flashing to the roof

and side of his home. L&I issued a violation notice stating that the addition

encroached upon Appellant’s property and directed Appellees to remove the

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encroachment. Appellees were then directed to conduct a survey to determine

the boundaries of their property.

      Appellees hired a professional land surveyor who, following a thorough

investigation, identified the boundary line in accordance with deeds of record

and a city survey conducted in 1964. The surveyor concluded that Appellees’

southern property line is located in the middle of the cinderblock wall, and the

southern face of the addition was located more than two inches north of the

property line. Thus, the strip of land upon which the addition was constructed

was not on Appellant’s property. L&I subsequently closed the violation and

noted Appellees’ compliance.

      In September 2013, Appellant commenced a civil action by writ of

summons. He retained the services of a former surveyor and regulator for

the Second District of the City of Philadelphia. This surveyor concluded that

the Appellees’ addition encroached upon his property. Appellant then filed a

complaint, raising counts of ejectment and trespass.           Appellees filed a

counterclaim for abuse of process.      Litigation commenced and eventually,

following a failed settlement attempt, proceeded to a bench trial.

      At trial, Appellant stated he has lived in his home for his entire life. The

last time he set foot on the disputed strip of land was more than sixty years

ago. Appellant admitted that a gate enclosing the land and restricting access

has been in place for forty or fifty years. Additionally, Appellant admitted he

never thought he owned the land north of the wall.




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      Two surveyors testified for Appellant. Paul Lonie testified that at the

time Appellant’s survey was performed, he was not employed by the City of

Philadelphia, though he did involve the City of Philadelphia Second District’s

surveyor to assist him by marking a property boundary. He stated that it is

the responsibility of the survey district to put deed information together; his

responsibility was simply to “locate the different things from there.” Mr. Lonie

conducted his survey and determined that the cinderblock wall separating the

properties was six inches south of Appellant’s property line. He admitted that

he did not review Appellees’ deed, take measurements of Appellees’ property,

and could not see or access Appellees’ property. Mr. Lonie stated that the

survey was accurate “for what it is.” Mr. Lonie also stated that the records

relied upon by city surveyors are not available to the public and that, following

his retirement, he no longer had access to them either.

      Allen Bommentre, Jr., testified that at the time of the survey, he was

the City of Philadelphia’s surveyor for the Second District.         He further

described the method used to determine property lines, including placing a

mark in the field and calculating boundaries from that mark. The property

lines he used were fixed by a prior survey of 2nd Street in Philadelphia,

Pennsylvania, made in 1964. Mr. Bommentre did not review Appellees’ deed.

He stated he did not need to review the deeds to conduct a survey, and that

the measured lines should “correspond pretty closely to the deeds.” He took

no measurements of Appellees’ property.        Mr. Bommentre noted that city

surveyors may correct and regulate deeds, especially where the language is

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imprecise (i.e. “more or less”). Mr. Bommentre admitted that Appellees’ deed

is precise, but Appellant’s deed is not. Regardless, Mr. Bommentre concluded

that the property line was actually north of Appellant’s cinderblock wall.

      At the conclusion of the trial, the court found in favor of Appellees and

against Appellant for trespass and ejectment, and in favor of Appellant and

against Appellees on their counterclaim for abuse of process. Specifically, the

trial court noted the deficiencies of Appellant’s survey and the methodology

used by his surveyors, finding he had not met his burden of proof. Appellant

filed a post-trial motion, which was denied. Appellees did not file a post-trial

motion.

      Appellant timely appealed.      The court did not order him to file a

Pa.R.A.P. 1925(b) statement. Appellees filed a cross-appeal but appear to

have abandoned their claims before this Court.        The trial court issued an

opinion.

      Before this Court, Appellant raises the following questions for our

review:

      1. Did the trial judge commit an error of law, or abuse his
      discretion as the trier of fact, by considering the substantive
      contents of a survey prepared by a surveyor who was not in court,
      the judge having allowed use of the survey at trial (after a hearsay
      objection) “not . . . for its truth but only for the limited purposes
      for which it had been shown to a different surveyor?

      2. Did the trial judge commit reversible error by ignoring the
      settled “original survey” principle used uniformly by surveyors to
      determine the location of a boundary in physical space and by
      basing his boundary finding instead on factors that were irrelevant
      to the determination of the boundary in physical space?


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     3. Did the judge commit reversible error by basing his decision as
     to   [Appellees’]    “adverse     possession”     defense   on    a
     misunderstanding of the size and location of land at issue in the
     case—specifically, by thinking that the width of the area was
     approximately seven feet (encompassing all of the open area
     south of [Appellees’] original residential structure) when, in fact,
     width of the “sliver of land” in dispute was less than a foot (with
     only two or three inches being north of the wall), that area being
     the space between the different boundary determinations reached
     by two surveyors, and then basing his conclusion that the
     defendants had “adversely possessed” the property on activities
     conducting on the entire seven-foot-wide area?

     4. Did the trial judge commit reversible error by overlooking the
     fact that [Appellees] presented no evidence in support of an
     essential element of their adverse-possession defense: that their
     immediate predecessors-in-title, back through the 21-year
     prescriptive period, had “adversely possessed” the property at
     issue in the same manner as the defendants?

Appellant’s Brief at 4-6 (suggested answers omitted).

     On appeal from a non-jury trial, this Court’s scope and standard of

review are as follows:

     Our appellate role in cases arising from non-jury trial verdicts is
     to determine whether the findings of the trial court are supported
     by competent evidence and whether the trial court committed
     error in any application of the law. The findings of fact of the trial
     judge must be given the same weight and effect on appeal as the
     verdict of a jury. We consider the evidence in a light most
     favorable to the verdict winner. We will reverse the trial court
     only if its findings of fact are not supported by competent evidence
     in the record or if its findings are premised on an error of law.
     However, where the issue concerns a question of law, our scope
     of review is plenary.

     The trial court’s conclusions of law on appeal originating from a
     non-jury trial are not binding on an appellate court because it is
     the appellate court’s duty to determine if the trial court correctly
     applied the law to the facts of the case.



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Bank of New York Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017),

appeal denied, No. 281 MAL 2017 (Pa. Aug. 29, 2017) (internal citations

omitted).

      Additionally, in a nonjury trial, the trial court sitting as the finder of fact

is free to believe all, part, or none of the evidence, and this Court will not

disturb the trial court’s credibility determinations. Voracek v. Crown Castle

USA Inc., 907 A.2d 1105, 1108 (Pa. Super. 2006). “The trial court's findings

are especially binding on appeal, where they are based upon the credibility of

the witnesses, unless it appears that the court abused its discretion or that

the court's findings lack evidentiary support or that the court capriciously

disbelieved the evidence.” Shaffer v. O'Toole, 964 A.2d 420, 422–423 (Pa.

Super. 2009).

      Initially, we note that while Appellant’s brief contains a thirty-eight-page

statement of the case, which has references to the reproduced record, and a

“general overview” of the law, Appellant’s argument is generally devoid of

citations to the record and to relevant authority.         See In re Estate of

Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012) (noting that the argument

portion of the appellate brief must contain a discussion and citation of

pertinent authorities and failure to cite relevant legal authority constitutes

waiver of the claim on appeal); see also Pa.R.A.P. 2101; Pa.R.A.P. 2119(b)-

(c). Accordingly, he risks waiver on his issues, as will be discussed further

herein.




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      Further, we note with disapproval the insulting and dismissive tone

Appellant takes in his brief. Appellant characterizes the trial court as “failing

to acknowledge,” “misunderstanding,” “ignoring,” or “forgetting” evidence, or

refers insultingly to the time taken to author the opinion. While Appellant’s

frustration with the outcome of the trial is understandable, this language goes

far beyond mere advocacy. We remind counsel that the Pennsylvania Code of

Civility, Art. II(1)-(2), requires that a lawyer speak and write in a civil and

respectful manner in all communications with the court, and treat all

participants in the legal process in a civil, professional, and courteous manner

at all times. See Pa. Code of Civility, Art II. With those principles in mind,

we now turn to Appellant’s issues.

      First, Appellant claims that the trial court committed an error of law and

abuse of discretion by considering the contents of Appellees’ surveyors’ report.

See Appellant’s Brief at 52. Appellant contends that the report was introduced

at trial solely for the limited purpose of cross-examination, and the court could

not consider it “for its truth” but only for the limited purpose for which it had

been shown to the witness following Appellant’s hearsay objection. Id.

      In his argument, Appellant cites to no pertinent authority except the

Pennsylvania Code of Judicial Conduct Rule 2.9(C), which states that “A judge

shall . . . consider only the evidence presented and any facts that may be

properly judicially noticed.” We note that our Code of Judicial Conduct “set[s]

a norm of conduct for all our judges and do[es] not impose substantive legal

duties on them.” Commonwealth v. Druce, 848 A.2d 104, 109 (Pa. 2004)

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(citation omitted).   Appellant has cited no law regarding the admission of

evidence, hearsay, or any hearsay exceptions which may have been relevant

to this case. Thus, Appellant has waived this argument for purposes of appeal,

due to his failure to develop it with citations to pertinent authority. See In

re Estate of Whitley, 50 A.3d at 209-10.

      Second, Appellant claims that the trial court committed reversible error

by ignoring the settled “original survey” principle used by surveyors to

determine the location of a boundary in physical space. See Appellant’s Brief

at 55. Essentially, Appellant takes issue with the trial court’s finding of fact

that Appellant’s expert report was not complete or reliable. Id.

      Appellant argues that the “original survey” principle controls the instant

matter. According to him, the surveyor must conduct such title research as

is necessary to identify the “original survey” that fixed the location of the

boundaries, and then conduct field measurements, following the original

surveyor’s stated direction and distances, to determine the locations of the

boundaries in issue. See Appellant’s Brief at 55. Here, the surveyors hired

by Appellant relied upon a 1964 city survey that did not depict the area at

issue – i.e. the Hancock Street property – but instead, the area along South

Second Street.    Appellant argues that this survey nevertheless fixed the

boundaries of the properties, and that the survey Mr. Lonie conducted from

the fixed point was accurate.     See Appellant’s Brief at 56-57.     Appellant

contends that the trial court “ignored” his experts’ testimony and “failed” to

acknowledge the correct procedure for determining boundaries. Id. at 60-61.

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      The only case law cited by Appellant in this section of his argument

refers to the legal effect of a deed description and cites, generally, to the case

rather than to the specific point within it. See Appellant’s Brief at 58; see

also Baker v. Roslyn Swim Club, 213 A.2d 145 (Pa. Super. 1965). He does

not cite case law as to why the “original survey” principle should control the

trial court’s analysis or why this Court should ignore the trial court’s

determination that the survey was not complete or accurate. Thus, Appellant

has waived this argument for purposes of appeal, due to his failure to develop

it with citations to pertinent authority. See In re Estate of Whitley, 50 A.3d

at 209-10.

      In his third issue, Appellant argues that the trial court committed

reversible error by “mistakenly thinking that the area in dispute was the entire

seven-foot-wide area north of Appellant’s cinderblock wall. See Appellant’s

Brief at 61. Appellant argues that the area in dispute was really only the two

or three inches of space north of the cinderblock wall. Id. Based upon this

alleged misunderstanding, Appellant contends that the court’s adverse

possession analysis is flawed. Id.

      Again, Appellant does not cite to a single case in support of his position.

Although Appellant has included, generally, some of the standards for adverse

possession in his “overview” of case law at the outset of the brief, his

argument section does not tie pertinent authority to the facts of this argument.

Thus, Appellant has waived this argument for purposes of appeal, due to his




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failure to develop it with citations to pertinent authority. See In re Estate

of Whitley, 50 A.3d at 209-10.

      Finally, Appellant argues that the trial court committed reversible error

by overlooking the fact that Appellees did not present evidence establishing

the “continuous possession” element of their adverse possession defense.

See Appellant’s Brief at 64. Appellant claims that because Appellees did not

present evidence that their immediate predecessors in title had adversely

possessed the property in the same manner as Appellees during the twenty-

one-year period, they could not establish the required elements of the

defense. Id.

      Initially, we note that while there are exceptions, “it has long been

established that the plaintiff in a civil action has the burden of proof – a burden

which must be met by a preponderance of the evidence.”             See Johns v.

Shaler Twp., 368 A.2d 339, 339-40 (Pa. Super. 1976). Appellant appears to

have misplaced the burden of proof on Appellees.         Regardless, Appellant’s

brief cites only to one case in support of his argument, namely, to state that

“an adverse possession claimant must satisfy all elements; lacking only one

will defeat a claim.”   See Appellant’s Brief at 66 (citing Recreation Land

Corporation v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008).

      However, Appellant has cited to no applicable case law regarding the

concept of “tacking” or any further law in support of his claims regarding

adverse possession. See Appellant’s Brief at 64-68. He has not developed

this claim in any meaningful way. Thus, Appellant has waived this argument

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for purposes of appeal, due to his failure to develop it with citations to

pertinent authority. See In re Estate of Whitley, 50 A.3d at 209-10.

     Judgment affirmed. Jurisdiction relinquished.

     Judge Lazarus joins the memorandum.

     Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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