Franzosa, R. & T. v. Lazo, M. & K. ( 2014 )

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NON-PRECEDENTIAL DECISION– SEE SUPERIOR COURT I.O.P. 65.37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