J-A33011-16
                                 2017 PA Super 49


RODGER WEIBLE                                   ¦      IN THE SUPERIOR COURT OF
                                                ¦            PENNSYLVANIA
                   Appellee                     ¦
                                                ¦
         v.                                     ¦
                                                ¦
WILLIAM P. WELLS AND ELIZABETH                  ¦
LOUISE WELLS                                    ¦
                                                ¦
                   Appellants                   ¦      No. 46 WDA 2016

                      Appeal from the Order December 8, 2015
                 in the Court of Common Pleas of Jefferson County
                        Civil Division at No(s): 923-2009 CD

BEFORE:        LAZARUS, SOLANO, and STRASSBURGER,* JJ.

DISSENTING OPINION BY STRASSBURGER, J.:FILED FEBRUARY 27, 2017

         “Adverse possession is an extraordinary doctrine which permits one to

achieve       ownership   of    another’s   property    by   operation    of   law.”

Pennsylvania Servs. Corp. v. Texas E. Transmission, LP, 98 A.3d 624,

634 (Pa. Super. 2014) (quoting Flannery v. Stump, 786 A.2d 255, 258

(Pa. Super. 2001)). “It is a serious matter indeed to take away another’s

property. That is why the law imposes such strict requirements of proof on

one who claims title by adverse possession.” Edmondson v. Dolinich, 453

A.2d 611, 614 (Pa. Super. 1982).

         There is no Pennsylvania authority directly on point.           However, I

believe this Court’s decision in Showalter v. Pantaleo, 9 A.3d 233 (Pa.

Super. 2010), is instructive. In that case, a vacant lot was owned by LTV

Steel.     LTV filed for bankruptcy in 1986, and the lot remained in the


*Retired Senior Judge assigned to the Superior Court.
J-A33011-16


bankruptcy estate until it was sold to ALA in 1993. Shortly thereafter, ALA

sold it to another company which then sold it to Pantaleo in 2008. Id. at

234.

       In the meantime, in 1979, the Showalters had purchased a home

adjacent to the lot. The Showalters immediately cleared the lot, and then

continuously for almost 30 years thereafter treated the property as their

own, planting and removing trees, removing part of a fence, placing a swing

set and pool, and allowing their children and pets to play in the lot. They

sued Pantaleo in 2008, claiming that they had acquired ownership of the lot

by adverse possession. Id.

       The trial court ruled in favor of Pantaleo, finding that the Showalters

filed to establish 21 years of continuous possession because the inclusion of

the property in LTV’s bankruptcy estate interrupted the Showalters’

“continuity of possession.” Id. at 235. This Court agreed, holding that for

the period between 1986 and 1993 when LTV was in bankruptcy, the lot was

held in custodia legis (in the custody of the law). Id. at 236.

       As such, [the Showalters’] possession of the subject property
       was interrupted. [The Showalters] cannot establish that they
       have met the requirements for adverse possession for a
       continuous period of 21 years, because the subject property was
       part of the estate in bankruptcy for seven of those years.
       Therefore, the trial court committed no error of law or abuse of
       discretion in entering judgment in favor of [Pantaleo].4
             ______
             4
                [The Showalters] argue that, pursuant to 42 Pa.C.S.A.
             § 5535(b) (concerning stays in civil proceedings), LTV’s
             filing for bankruptcy tolled their claim for adverse


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              possession. At the time that LTV filed for bankruptcy, [the
              Showalters] had no claim that could be tolled. The earliest
              time at which [the Showalters] arguably had a claim for
              adverse possession was July 31, 2000, 21 years after
              [they] purchased the property adjacent to the subject
              [lot].

Id. at 237.

      Thus, the Showalters actually used the lot in question continuously for

30 years for all the world to see; however, for purposes of the legal

requirements of adverse possession, the bankruptcy was an interruption that

thwarted the legal requirement of 21 years of continuous use. Nor were the

Showalters permitted to tack the 7 years of possession before LTV’s

bankruptcy to the 15 years afterwards to achieve the necessary 21 years.

      I see no reason why, for purposes of determining the continuity of

hostile possession, the Commonwealth’s ownership of property for a public

use should be treated any differently than the law’s custody of property in a

bankruptcy estate. The Wellses’ claim should fail for the same reason the

Showalters’ claim failed.

      Considering the extraordinary nature of the privilege of acquiring

ownership of another’s land through adverse possession in light of the

guidance offered by Showalter, I cannot join the Majority’s holding.

Rather, I would adopt the approach of those jurisdictions that have held that

the statutory period for adverse possession begins to run anew after the

land is owned by the state. See, e.g., Armstrong v. Morrill, 81 U.S. 120



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J-A33011-16


(1871) (holding ownership by state “destroys the efficacy of all prior

possession, so that to gain a title under the statute, a new adverse

possession for the time limited must be taken” (emphasis in original));

Home Land Co. v. Bryant, 6 La. App. 130, 132 (1927) (same). See also

Greene v. Esquibel, 272 P.2d 330, 333 (N.M. 1954) (holding that adverse

possession for necessary ten-year period was not established, where “ten

years had not elapsed since the state parted with title”); Winstead v.

Winstead, 38 So. 2d 118, 119 (Miss. 1948) (holding ownership by State

constituted a “breach of the continuity of adverse possession” such that only

possession following state’s ownership was available to possessor “to build

up his prescriptive title”); Fordham Operating Corp. v. Westchester

Cty., 370 N.Y.S.2d 977, 984 (N.Y. Sup. Ct. 1975), aff’d sub nom., Fordham

Operating Corp. v. Cty. of Westchester, 382 N.Y.S.2d 292 (N.Y. App.

Div. 1976) (“[A] new adverse possession for the period of the statute of

limitations must be commenced and continued for the statutory period after

the City surrendered title.”).

      Therefore, I respectfully dissent.




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