Vantage Point: Notorious Once Again

Back in February 2018 I introduced readers to a Philadelphian who had argued that his use of a parcel and the City’s failure to stop him for the statutory period of time favored his claim of adverse possession (“Fighting City Hall Over Land”). Frank Galdo had been using a tract across the street from his house since 1989 that the City had acquired in 1974 for a highway project but had let lie neglected and dormant when that parcel wasn’t needed. Although considering selling this particular tract along with other land to an investment company in the mid-2000s (after Galdo’s occupation for more than Pennsylvania’s required 21 years), it wasn’t until 2013 that Philadelphia woke up to Galdo’s use and began trying to eject him.

Readers were updated on what is known locally as The Notorious Galdo Parcel in July 2018 (“The ‘Little Guy’ Fights Back (and Sometimes Wins)”): the appellate court had decided that while the Commonwealth of Pennsylvania is immune against adverse claims, municipalities and counties (Philadelphia is both) are not, so that the trial court had erred in dismissing Galdo’s claim of adverse possession.

Galdo reached another milestone September 26, 2019, when the Pennsylvania Supreme Court ruled in his favor: he deserves a hearing in trial court to weigh the merits of his adverse claim against Philadelphia. This particular development offers lessons in how the court system works, sending cases both up and down the ladder, as we follow its trajectory through the initial trial through various appeals and now the vacation of prior judgments to finally hear arguments to support the adverse claim.

It also tells us that not every snowball’s chance must be automatic condemnation to melt in that fiery place below. The single most repeated support for such snowballs is that sovereign immunity requires (1) actual occupation of the property for a public use, one that would benefit the public (Galdo mentions a public park as one such beneficial use) or (2) a legal obligation for the sovereign to hold the property for a public use. The PA Supreme Court notes that “what constitutes a public use is highly fact dependent”, and that the condemnation in 1974 was meant for a public use that no longer exists. Therefore the “abandoned property” (the court’s language) “offers no benefit to the public…, the public is not occupying the property in any away, no tax dollars are being received… [and the surrounding neighborhoods] risk the threat of becoming blighted. This scenario constitutes the opposite of devoting property to a public use…”

The affirmation of Commonwealth Court’s decision to vacate the trial court’s ruling of sovereign immunity allows Galdo another day in court to show if he has satisfied the requisites of open, notorious, hostile, and continuous possession for the statutory period of time to support his adverse claim. In upholding the appellate court reasoning, the Supreme Court wrote: “ …the ‘City does not [present any] obligation imposed by law or evidence of any public use of the [Parcel] to justify holding and neglecting it for decades.’ …the City was not immune from Galdo’s adverse possession claim because it did not hold the Parcel pursuant to a legal obligation, or for public use.”

For those believing Galdo’s snowball is an anomaly, consider that at least two other states have judgments running along the same lines, with similar outcomes. In Devins v. Borough of Bogota (592 A.2d 199, Supreme Court of NJ, 1991), Devins (like Galdo) used a municipally-owned lot for “parking, cookouts, lounging, and other recreational purposes.” New Jersey’s highest court affirmed that “municipally-owned property neither dedicated to nor used for a public purpose is subject to acquisition by adverse possession”, sending the case back down to Chancery court for review of whether the possession was open, notorious, and continuous enough to quiet title in Devins by adverse claim.

In Siejack v. Mayor and City Council of Baltimore (313 A.2d 843, Court of Appeals of MD, 1974), Baltimore only woke up to the Siejacks’ long-time use (a commercial dump site) when condemnation for Interstate Route 95 meant there were dollars to be awarded. The lower court judge first stated, “…the evidence clearly indicates to me that the City … has been divested of that title by adverse possession on the part of Siejack.” Somehow, on appeal by the City, “[t]he learned judge was persuaded to change his mind” and his second oral opinion favored the City. The higher court returned the verdict to the Siejacks, who had paid taxes on the parcel, paid the City for costs of extinguishing a fire on the parcel, and sold a piece of it to Baltimore. “[The Siejacks’] successive possessions were actual, open, visible, notorious, exclusive, hostile, and under color of title. Indeed, one would be hard pressed to find a case in which all of the elements of adverse possession so clearly appear… The history of parcel 4N seems to us sufficient to rebut any notion that the City had ever devoted it to public use and that it is unlikely it ever intends to do so.”

To read the latest decision (City of Philadelphia v. Francis Galdo):

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.