Piazza Realty v. Moscariello Dev.

J-A13039-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
PIAZZA REALTY COMPANY, INC., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MOSCARIELLO DEVELOPMENT, LLC, :
:
Appellant : No. 2710 EDA 2018
Appeal from the Judgment Entered July 11, 2018
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2015-08400
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 06, 2019
Moscariello Development, LLC (Moscariello) appeals from the July 11,
2018 judgment entered against it and in favor of Piazza Realty Company,
Inc. (Piazza), following a two-day trial. The judgment quieted title based
upon adverse possession. We affirm.
The trial court provided the following background.
The instant matter commenced on April 20, 2015, when
Piazza filed [a] complaint in quiet title alleging claims for title by
adverse possession and for prescriptive easement concerning
real property located in Limerick Township, Montgomery County,
Pennsylvania.
Piazza is a Pennsylvania corporation which, in February
1980, acquired an equitable interest in 3387 Ridge Pike,
Montgomery County Parcel No. 37-00-00838-00-7, using
purchase money financing through the Montgomery County
Industrial [Development] Authority [(MCIDA)]. Since that time,
Piazza has owned, operated, maintained and used said property
as an automobile dealership.
* Retired Senior Judge assigned to the Superior Court.
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Moscariello is a Pennsylvania limited liability company[,]
which acquired real property on the borderline of 3387 Ridge
Pike on May 23, 2005. By that time, Piazza had control and
possession of a certain “bump-out” on the mutual property line,
being a trapezoidal[-]shaped property containing 1,236 square
feet or 2.8% of an acre [].
The [bump-out] was used, paved, and graveled by Piazza.
It is used as [a] turning radius for vehicles going into and out of
garage bays facing Piazza’s property and for parking. In early
2015, ten years after Moscariello acquired the property, counsel
for Moscariello made certain demands for money and threats to
close off the [bump-out]. As a result, Piazza commenced the
underlying action to quiet title.
The trial court conducted a bench trial on May 29 and May
30, 2018. Following the trial, the trial court held the matter
under advisement pending the receipt of written legal argument
concerning the effect, if any, of Moscariello’s failure to observe,
or otherwise know, the parameters of the entire property in
question at the time Moscariello acquire[d] title to same on …
May 23, 2005.
Moscariello and Piazza submitted said written arguments
on June 29, 2018. Then, on July 11, 2018, the trial court
awarded quiet title of the bump-out to Piazza by virtue of
adverse possession.
Trial Court Opinion, 1/8/2019, at 1-2, 4 (party designations and unnecessary
capitalization altered; citations and some quotation marks omitted).
On July 21, 2018, Moscariello filed a post-trial motion for judgment
notwithstanding the verdict (JNOV) or a new trial, which the trial court
denied. This timely-filed appeal followed.1 On appeal, Moscariello raises
four issues, though they all encompass a single claim: the trial court erred in
1 Both Moscariello and the trial court have complied with Pa.R.A.P. 1925.
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denying JNOV2 because Piazza failed to establish adverse possession of the
bump-out. Moscariello’s Brief at 2-3.
We begin with our standard of review. “We will reverse a trial court’s
grant or denial of [JNOV] only when we find an abuse of discretion or an
error of law that controlled the outcome of the case.” Corvin v. Tihansky,
184 A.3d 986, 990 (Pa. Super. 2018).
When examining the propriety of a trial court’s decision to deny
[JNOV], we must determine whether there is sufficient
competent evidence to sustain the verdict. We will review all of
the evidence in the light most favorable to the verdict-winner
and will give that party the benefit of every reasonable inference
arising from that evidence while rejecting all unfavorable
testimony and inferences. [JNOV] may be entered where: (1)
the moving party is entitled to judgment as a matter of law
and/or (2) the evidence is such that no two reasonable minds
could disagree that the verdict should have been rendered for
the moving party. Our scope of review is plenary concerning any
questions of law. Regarding questions of credibility and the
weight accorded the evidence at trial, however, we will not
substitute our judgment for that of the fact-finder. [JNOV]
should be entered only in a clear case, and any doubts must be
resolved in favor of the verdict winner.
Murray v. Janssen Pharm., Inc., 180 A.3d 1235, 1241 (Pa. Super. 2018)
(internal quotation marks omitted).
According to Moscariello, Piazza failed to establish adverse possession
because (1) the time period for adverse possession had not run; (2) tacking
was unavailable; (3) Piazza did not occupy or possess the bump-out; and (4)
Piazza should not have been allowed to change unilaterally the legal
2On appeal, Appellant has abandoned his argument regarding his right to a
new trial.
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description and landmarks in its deed to deprive Moscariello of property.
Moscariello’s Brief at 2-3, 12, 14, 25.
One who claims title by adverse possession must prove 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.
A sporadic use of land, by one without title to it, will
not operate to give him a title, no matter how often
repeated[.] It is true that residence is not necessary
to make an adverse possession within the statute of
limitation; the possession may be adverse by
enclosing and cultivating the land; but nothing short
of an actual possession, permanently continued, will
take away from the owner the possession which the
law attaches to the legal title; temporary acts on the
land, without an intention to seat and occupy it for
residence and cultivation or other permanent use
consistent with the nature of the property, are not
the actual possession required[.] Such occupation
must be exclusive, and of such a character as
compels the real owner to take notice of the
possession of the disseisor[.]
In other words, only acts signifying permanent occupation of the
land and done continuously for a [21] year period will
confer adverse possession. The burden of proving adverse
possession rests upon the claimant by credible, clear and
definitive proof.
Johnson v. Tele-Media Co. of McKean Cty., 90 A.3d 736, 740-41 (Pa.
Super. 2014) (citations and quotation marks omitted). “To establish visible
and notorious possession, [claimants are] required to prove that their
conduct was sufficient to place a reasonable person on notice that his land is
being held by [claimants] as their own.” Brennan v. Manchester
Crossings, Inc., 708 A.2d 815, 821 (Pa. Super. 1998) (citation omitted).
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“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.”
Flannery v. Stump, 786 A.2d 255, 259 (Pa. Super. 2001), quoting Tioga
Coal Co. v. Supermarkets General Corp., 546 A.2d 1, 3 (Pa. 1988).
“[H]ostility may be implied where all of the remaining elements of adverse
possession have been established and where there is no evidence tending to
prove or disprove hostility.” Id. at 258, citing Myers v. Beam, 713 A.2d
61, 62 (Pa. 1998), and Tioga, 546 A.2d at 5. Thus, “[t]he element of
hostility requires that the court examine not just the physical facts of
possession but also the evidence, if any, probative of the intent with which
the land in question was possessed.” Id. at 259 (footnote omitted).
“[P]ossession may be hostile even if the claimant knows of no other claim
and falsely believes that he owned the land in question[.]” Tioga, 546 A.2d
at 3, citing Schlagel v. Lombardi, 486 A.2d 491, 494 (Pa. Super. 1984).
In denying Moscariello’s motion for JNOV, the trial court first found
that Piazza was the legal owner of 3387 Ridge Pike. Trial Court Opinion,
7/11/2018, at ¶ 2. Further, the court found that Piazza and/or one of its
business entities had been using the bump-out for parking and moving
vehicles since 1984. Id. at ¶ 5. The court found Piazza’s use to be
actual, visible, notorious, exclusive and distinct, hostile and
continuous for over [21] years. Specifically, the bump-out has
been paved with asphalt; has cars parked on it; is used as a
turnaround to enable cars to enter the adjacent building; since
1990 has housed a tractor-trailer, which is used for storage; and
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was occupied in a hostile manner … as [Piazza] knew of no other
claim and believed [Piazza] owned the land in question.
Id. at ¶ 6.
The trial court further found that Moscariello observed the asphalt
bump-out when it purchased its property on May 23, 2005, but did not
review the property lines or walk the property. Id. at ¶¶ 7-8. Had
Moscariello done so and asserted an ownership interest at that time, the trial
court calculated that such an objection would have interrupted the 21 years
of continuous use of the bump-out by Piazza. Id. at ¶ 10. However,
Moscariello did not assert such an ownership interest until 2014, when the
zoning code was changed to allow Moscariello to develop a portion of the
property, including the bump-out, into townhomes. Id. at ¶¶ 17-18. By
2014, the trial court calculated that Piazza “had been continuously,
exclusively, and actually using the asphalt bump-out for [30] years for
parking cars, transporting cars[,] and stationing a tractor-trailer for storage
in a manner that was visible, notorious, distinct and hostile.” Id. at ¶ 19.
Accordingly, the trial court found that Piazza had established title to the
bump-out by virtue of adverse possession. Id. at 2 (unnumbered).
Upon review of the record, we conclude that the trial court’s findings
are supported by the record and comprise “sufficient competent evidence” to
sustain the grant to Piazza of title to the bump-out based upon adverse
possession.
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Piazza3 purchased 3387 Ridge Pike on February 6, 1980 via a low-
interest financing installment sales agreement with MCIDA. Until the
mortgage was satisfied, MCIDA remained the owner of record, while Piazza
was the equitable owner with the same rights as a normal property owner.
Once the mortgage was satisfied, legal title reverted to Piazza in 1996.
Thus, from February 6, 1980 to the present, Piazza owned 3387 Ridge Pike.
N.T., 5/29/2018, at 16-17, 19, 42, 50, 52-54, 57.
Piazza, as a property owner, leased land to automobile dealerships
operating under the Piazza Management Company umbrella. Specifically for
3387 Ridge Pike, Piazza had oral and written leases with Pottstown Auto
Sales, Inc. (Piazza Honda) beginning in 1980, and with Pottstown Auto
Enterprises (Piazza Hyundai) beginning in 2006. Currently, 3387 Ridge Pike
houses the accounting departments for both Piazza Honda and Piazza
Hyundai, storage for excess inventory for both Piazza Honda and Piazza
Hyundai, and some service operations for Piazza Honda. Id. at 24, 30, 33-
34, 43, 45-46, 70, 97, 103, 111; N.T., 5/30/2018, at 338-43, 345-46.
The bump-out at issue is visible from Ridge Pike. Beginning in at least
August 1984, and continuing to the present, Piazza Honda has used the
asphalt bump-out daily as a turnaround, as well as to park and clean cars.
3 At the time of this purchase, Piazza operated under the name Piazza and
McNamara Realty Company, Inc. Piazza changed its name to Piazza Realty
Company, Inc. in February 1990. See N.T., 5/29/2018, at 53, 68-69; N.T.,
5/30/2018, at 338-39; Articles of Amendment, 2/26/1990.
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In 1990, a tractor-trailer was permanently parked on the bump-out to store
parts. From 1984 until the present, the bump-out has been used in
substantially the same manner on a daily basis by Piazza Honda. Piazza
Hyundai joined this usage in 2006. Prior to 2014, Piazza assumed that it
owned the bump-out, and possessed the bump-out with the intent to control
it against the claim of all others. N.T., 5/29/2018, at 65-67, 70-73, 83, 89,
94, 98-99.
Moscariello purchased the bordering property on May 23, 2005, which
included the bump-out. By that time, approximately 20 years and 9 months
had passed since Piazza began using the bump-out. When Moscariello
purchased his property, he did not walk the property line near the bump-out
because he was not yet developing that portion of his property. It was not
until 2014 that Americo Moscariello, Moscariello’s president, personally
became aware of the bump-out and Piazza’s use thereof. Id. at 161, 177,
211, 226-29; 5/30/2018, at 256-57, 265.
As demonstrated at trial, Piazza’s acts “signif[ied] permanent
occupation of the land and [were] done continuously for a [21-]year
period[.]” Johnson, 90 A.3d at 741. Piazza has been the legal and
equitable owner of 3387 Ridge Pike since 1980. As the property owner,
Piazza has allowed Piazza Honda, a related company and the lessee of 3387
Ridge Pike, to possess and use the bump-out from at least August 1984
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through August 2005,4 a period of 21 years, in a manner that was actual,
continuous, exclusive, visible, notorious, distinct, and hostile.5 Thus, tacking
was unnecessary, and Piazza adversely possessed the bump-out as of
August 2005.6 Accordingly, because there is sufficient competent evidence
to sustain the grant of title for the bump-out to Piazza based on adverse
possession, we conclude that the trial court did not err in denying
Moscariello’s JNOV motion.7
Judgment affirmed.
4 Piazza Honda still uses the property in the same manner, and Piazza has
allowed Piazza Hyundai to join in this usage in 2006.
5 Piazza’s mistaken belief that it owned the bump-out does not defeat the
hostility requirement. Piazza unequivocally asserted ownership rights of the
bump-out adverse to all others for 21 years, and did not act with permission
or exhibit a belief that someone else held superior title. Thus, we conclude
that the hostility element is satisfied. Contra Flannery, 786 A.2d at 260(concluding element of hostility not satisfied where evidence established
claimant believed use of land was with permission as a tenant farmer);
Myers, 713 A.2d at 62 (concluding that claimant’s seeking a quitclaim deed
for the disputed property from the rightful owners prior to the running of the
statute of limitations for adverse possession defeated continuous hostility
requirement).
6 Moscariello’s failure to notice that the bump-out was being used by
someone else until 2014 is of no moment. Piazza’s use was clearly visible
from Ridge Pike and sufficiently notorious to put Moscariello on notice.
Rather, Moscariello failed to investigate the property line until nine years
after the purchase. Thus, by the time Moscariello asserted an ownership
claim in 2014, Piazza had already gained ownership by adverse possession.
7 Once adverse possession was established, the surveyors’ disagreement
over the property line became irrelevant because the edge of the bump-out
became the new property line between Piazza’s property and Moscariello’s
property. Thus, Moscariello’s argument regarding the calculation of the
property line is moot and we need not address it.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/19
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