Schlagel v. Lombardi

486 A.2d 491, 337 Pa. Super. 83, 1984 Pa. Super. LEXIS 7118
CourtSupreme Court of Pennsylvania
DecidedDecember 19, 1984
Docket3638
StatusPublished
Cited by19 cases

This text of 486 A.2d 491 (Schlagel v. Lombardi) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schlagel v. Lombardi, 486 A.2d 491, 337 Pa. Super. 83, 1984 Pa. Super. LEXIS 7118 (Pa. 1984).

Opinions

WICKERSHAM, Judge:

Arthur and Mabel Schlagel brought this action against Julius and Frances Lombardi to quiet title to a specific parcel of land located in Montgomery County. The Schla-gels contended that they had acquired title by adverse possession.

The original complaint was filed on April 18, 1974, to which appellees, the Lombardis, interposed preliminary objections. An amended complaint was filed on November 27, 1974, to which the appellees again interposed preliminary objections. By opinion and order dated January 28, 1980, two other separate lawsuits concerning the disputed land were consolidated with the instant suit in order to dispose of the entire controversy between the parties in one action. A second amended complaint was filed on February 29, 1980. Appellees then filed an answer and new matter.

The case proceeded to trial on April 29, 1981, before the Honorable Louis D. Stefan, sitting without a jury. At the conclusion of appellants’ case, appellees moved for the entry of a non suit. The non suit was granted in a memorandum and order dated April 30, 1981. Appellants filed exceptions to the court’s memorandum and order, which exceptions were argued before the court en banc. Appellants’ exceptions were subsequently dismissed by order dated November 16, 1982. This appeal followed.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-[86]*86350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa.Super. 58, 62, 478 A.2d 1348, 1350 (1984).

Instantly, appellants maintain that they took possession of and occupied the disputed tract commencing in 1940, when they purchased it for $200 in an oral agreement with Augustus Baumgart. The tract in question connects with a much larger parcel of land which appellants had previously purchased from Mr. Baumgart. In 1968, appellees purchased a parcel of land from the estate of Augustus Baumgart, which parcel included the disputed tract. In the early 1970’s, a dispute arose between the parties concerning the ownership of the subject tract. In June, 1974, appellants recorded a declaration of title acquisition by virtue of adverse possession of the tract.

[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title. Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts. Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). He must keep his flag flying and present a hostile front to all adverse pretensions. Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908).

Reed v. Wolyniec, 323 Pa.Super. 550, 555, 471 A.2d 80, 84 (1983), quoting Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978) (quotations omitted).

Instantly, Arthur Sehlagel, plaintiff below and appellant herein, testified that in 1940 he purchased approximately five and one-half acres of land from Augustus Baumgart. [87]*87Sometime later, Baumgart and Schlagel allegedly agreed to extend the back boundary line of this property in exchange for the payment of $200 by Mr. Schlagel. Mr. Schlagel further testified that within the next few years, the $200 was paid in full and that he then started to use the land as his own. Plaintiffs-appellants presented evidence that they planted fruit trees, mowed the grass, operated an archery range, and conducted other activities indicating ownership of the tract throughout the years since the early 1940s. In granting appellees’ motion for non suit the lower court stated:

With respect to his assertion that he has possession by adverse activity, or has adverse possession, although the time frame would be appropriate, the fact is that all of the testimony that I heard yesterday was to the effect that the property was not taken on an adverse basis; but, rather, that he and Mr. Baumgart went out to the pear tree, or adjacent to the pear tree, and there drove a stake for the purpose of extending the backline some ninety feet. And thereafter, and through the pleadings and through the testimony concerning his payments of the sum of two hundred dollars in installments — if I accept all of that, which I think I do on the motion for a non-suit, then we have Mr. Schlagel, whether through Art’s Amusements, or whatever — but then I have no evidence at all to show that at any time there was an adverse or purported adverse holding until after such time as Mr. Lombardi came into title, which was not until the late 1960s, so, obviously, twenty-one years have not run since then.

Brief for Appellants at 23-24, Appendix “1.” 1

Thus, it appears that the lower court held that since Mr. Schlagel was under the impression that he had “purchased” the disputed tract from Mr. Baumgart, he did not hold the land “adversely” to Mr. Baumgart. We interpret this lan[88]*88guage to mean that the lower court felt that appellants’ possession was not “hostile.” In other words, since Mr. Schlagel was under the mistaken belief that he owned the land (mistaken because an oral agreement for the sale of land is not valid), he did not hold the land with a hostile intent to exclude Mr. Baumgart, the true owner. Because we feel that the lower court incorrectly interpreted the “hostile” intent element of adverse possession, we reverse and remand.

When considered as an element of adverse possession, “hostile” is a word of art. “While the word ‘hostile’ has been held not to mean ill will or hostility, it does imply the intent to hold title against the record title holder.” Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174, 177 (1955). Possession may be hostile even though the claimant knows of no other claim. 1 P.L.E. Adverse Possession § 41, 433-34. The question in this case, then, is whether appellants intended to hold title against Baumgart.

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Schlagel v. Lombardi
486 A.2d 491 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
486 A.2d 491, 337 Pa. Super. 83, 1984 Pa. Super. LEXIS 7118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schlagel-v-lombardi-pa-1984.