Toczylowski, C. v. Giuliano, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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