Franzosa, R. & T. v. Lazo, M. & K.

• Court: Superior Court of Pennsylvania
• Decided: October 2, 2014
• Docket: 1656 MDA 2013
• Status: Unpublished

Opinion

J. A14010/14

NON-PRECEDENTIAL DECISION– SEE SUPERIOR COURT I.O.P. 65.37

RICHARD L. FRANZOSA AND : IN THE SUPERIOR COURT OF TRACY FRANZOSA, HIS WIFE : PENNSYLVANIA : v. : : MARK LAZO AND : KAREN LAZO, HIS WIFE, : No. 1656 MDA 2013 : Appellants :

Appeal from the Order Entered September 3, 2013, in the Court of Common Pleas of Luzerne County Civil Division at No. 2011-11575

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 02, 2014

Appellants appeal from the order of the trial court granting appellees’

complaint in ejectment and denying appellants’ counterclaim based upon

adverse possession. Finding no error, we affirm.

Appellants and appellees own adjoining properties in Hazle Township.

Appellees purchased their property on December 15, 1990. Appellants first

obtained possession of their property on August 18, 1989, when it was

purchased by Clarence W. Wolfe, III (“Clarence”), the former husband of

appellant Karen Lazo (“Karen”). Karen was added to the deed on

December 18, 1989, and acquired it in her name alone on January 25, 2005

through a Bankruptcy Trustee deed. Appellant Mark Lazo (“Mark”) was

added to the deed on January 28, 2005. Appellants claim that in August

* Retired Senior Judge assigned to the Superior Court. J. A14010/14

1989, they first cleared a section of the appellees’ property and thereafter

used it as a lawn.

Over the years, a number of disputes have arisen between the parties

as to appellants’ use of the disputed parcel. On September 3, 1998, an

attorney for Clarence sent the following letter to appellees:

Dear Mr. Franzosa:

As I am sure you will recall, you and I had a telephone conversation on August 4, 1998 relative to the possible purchase by Clarence Wolfe, my client, of your lot on Main Street in Pardeesville. You had indicated to me at that time the problems you have had with Clarence Wolfe in the past and your reasons for being upset with him. You had also indicated to me that you would think about the possibility of a sale to Mr. Wolfe and let me know if you are willing to sell the property to him.

The purpose of this letter is just to inquire as to whether or not you have considered the possibility of selling the property to Mr. Wolfe and if you are willing to do so.

Very truly yours,

/s/

James A. Schneider

Letter, 9/3/98.

Ultimately, on September 12, 2011, appellees resorted to legal action,

filing a complaint in ejectment. Appellants responded on November 23,

2011, with an answer and new matter in which they raised their claim of

adverse possession. Appellants’ claim of adverse possession runs from

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August 1989 presumably until August 2010 which would have been when

the statutory 21-year period matured. See 68 P.S. §§ 81-88. The trial

court denied appellants’ claim by order entered August 12, 2013. Appellants

filed a motion for reconsideration which was denied by order entered

September 3, 2013. This timely appeal followed.

Appellants raise the following two issues on appeal:

A. Did the Trial Court err in holding that there was no adverse possession where there was clear uncontradicted evidence of clear cutting and cutting down trees, cultivating the lawn and establishing a lawn from August, 1989 (Conclusions of Law, Numbers 3 and 4, Record 33-34) and accordingly, this area was not a “woodland”, thereby utilizing the wrong standard to establish adverse possession.

B. Did the trial court err in holding an offer was made to purchase the property, negating continuity of adverse possession (Conclusions of Law, Number 7, Record 34)?

Appellants’ brief at 3.

We begin by noting our standard of review:

The case of Glenn v. Shuey, 407 Pa.Super. 213, 595 A.2d 606 (1991) thoroughly sets forth the standard of review to be applied today and the substantive law of adverse possession, as follows:

At the outset, we note that “the factual findings of a trial court sitting without a jury carry the same weight as a jury verdict, and we will not disturb those findings on appeal absent an error of law or abuse of discretion.” Arcadia Co., Inc. v. Peles, 395 Pa.Super. 203, 207-208, 576 A.2d 1114, 1116 (1990)

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(citing Pato v. Cernuska, 342 Pa.Super. 609, 612, 493 A.2d 758, 759 (1985)); see also Bigham v. Wenschhof, 295 Pa.Super. 146, 148, 441 A.2d 391, 392 (1982).

It is well settled that a party claiming title to real property by adverse possession must affirmatively prove that he or she had “actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty- one years.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citing Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 152 A. 682 (1930)); see also Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490 (1986); Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981), alloc. denied, 500 Pa. 555, 458 A.2d 1355 (1983). Each of these elements must exist, otherwise the possession will not confer title. Conneaut Lake, 362 Pa. at 594-595, 66 A.2d at 829. “An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts . . . He must keep his flag flying and present a hostile front to all adverse pretensions.” Klos, 355 Pa.Super. at 403, 513 A.2d at 492 (citations and quotations omitted).

Brennan v. Manchester Crossings, Inc., 708 A.2d 815, 817 (Pa.Super.

1998), appeal denied, 727 A.2d 1115 (Pa. 1998), quoting Glenn v.

Shuey.

We will address appellants’ second issue only, as it is dispositive of this

appeal. Simply stated, it is well settled that an attempt to purchase

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property from the titled owner constitutes an unequivocal recognition that

the offeror’s adverse title is subservient and breaks the required continuity

necessary to adverse possession. Pistner Bros., Inc. v. Agheli, 518 A.2d

838, 840-841 (Pa.Super. 1986). Clarence offered to purchase the property

in dispute in September 1998, and this broke the continuity of appellants’

present claim.

Appellants attempt to avoid this result by characterizing the letter

from Clarence’s attorney not as an offer to purchase, but as a mere

“invitation to negotiate.” We find this distinction to be specious. An offer to

purchase need not specify a price in order to constitute an offer to purchase.

Moreover, even a mere invitation to negotiate is sufficient to satisfy

Pistner Bros. An invitation to negotiate to purchase property carries the

same recognition that the offeror’s adverse title is subservient. There is no

merit here. The trial court properly found that appellants failed to

demonstrate adverse possession. Accordingly, we will affirm the order

below.

Order affirmed.

Judgment Entered.

JosephD.Seletyn,Esq. Prothonotary

Date: 10/2/2014

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