Toczylowski, C. v. Giuliano, S., 1550 EDA 2017

Background

Neighbors dispute a narrow strip of land (~6 feet wide) between properties at 807 S. 2nd St. (Appellant Toczylowski) and 802 S. Hancock St. (Appellees Giuliano & Palladino); strip bounded by Appellees’ house, a locked gate, a cinderblock wall, and Appellees’ backyard.
Appellees bought their house in 2000, used the strip as a driveway, and began construction of an addition in 2011; Appellant had not used the strip in decades and believed it unowned.
Philadelphia L&I issued a violation alleging encroachment; Appellees commissioned a survey (relying on deeds and a 1964 city survey) showing the property line in the middle of the cinderblock wall and no encroachment; L&I closed the violation.
Appellant sued for ejectment and trespass, presenting his own surveyors who located the line south of the wall; Appellees counterclaimed for abuse of process.
Bench trial: trial court credited Appellees’ evidence, found Appellant failed to prove boundary encroachment, ruled for Appellees on ejectment/trespass and for Appellant on abuse-of-process counterclaim; post-trial motions denied and judgment affirmed on appeal.

Issues

Issue	Toczylowski's Argument	Giuliano/Palladino's Argument	Held
Whether the trial judge erred by considering contents of a survey not authored by an in-court witness (hearsay concern)	Court improperly considered out-of-court survey for its truth beyond the limited cross-examination purpose	Trial court permissibly considered the evidence in assessing credibility and weight; appellant waived detailed hearsay challenge	Court rejected appellant’s claim; argument waived for lack of authority and record citations
Whether the court ignored the “original survey” method and improperly discredited appellant’s surveyors	Original-survey principle fixes boundary; appellant’s survey followed that method and was reliable	Trial court found appellant’s survey incomplete/unreliable and permissibly discredited it	Court affirmed trial court’s factual finding; appellant waived legal development of the claim
Whether the court misconceived the size/location of disputed land affecting adverse-possession analysis	Actual dispute was only a 2–3 inch sliver north of the wall; court erroneously treated a wider 7-foot area as relevant	Trial court’s factual findings about the area and use were supported by the record; its adverse-possession analysis stands	Court found issue waived for inadequate legal development and affirmed the factual/adverse-possession findings
Whether appellees failed to prove continuity/tacking for adverse possession (missing predecessors’ possession evidence)	Appellees did not show predecessors possessed the land continuously for the prescriptive period, so adverse possession fails	Burden lies with claimant; trial court found sufficient evidence of continuous, hostile possession by appellees (and predecessors as applicable)	Court held appellant misplaced burden and waived argument by failing to develop legal support; adverse-possession finding stands

Key Cases Cited

Bank of New York Mellon v. Bach, 159 A.3d 16 (Pa. Super. 2017) (standard of review on appeal from non-jury trial)
Voracek v. Crown Castle USA Inc., 907 A.2d 1105 (Pa. Super. 2006) (trial court free to accept or reject witness testimony in nonjury trial)
Shaffer v. O'Toole, 964 A.2d 420 (Pa. Super. 2009) (deference to factual findings based on credibility in nonjury trials)
In re Estate of Whitley, 50 A.3d 203 (Pa. Super. 2012) (failure to cite pertinent authority may waive appellate claims)
Johns v. Shaler Twp., 368 A.2d 339 (Pa. Super. 1976) (plaintiff bears burden of proof in civil actions)
Recreation Land Corp. v. Hartzfeld, 947 A.2d 771 (Pa. Super. 2008) (adverse-possession claimant must satisfy all elements)
Commonwealth v. Druce, 848 A.2d 104 (Pa. 2004) (scope and role of the Code of Judicial Conduct)
Baker v. Roslyn Swim Club, 213 A.2d 145 (Pa. Super. 1965) (effect of deed descriptions on boundary disputes)