IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 1953 C.D. 2016

: Argued: October 17, 2017

Francis Galdo, :

Appellant :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE BROBSON FILED: March 28, 2018

Francis Galdo (Galdo) appeals from an order of the Court of Common 

Pleas of Philadelphia County (trial court). The City of Philadelphia (City) filed a 

complaint against Galdo for continuing trespass, permanent trespass, and ejectment, 

and Galdo filed a counterclaim to quiet title, claiming ownership by adverse 

possession. Following a bench trial, the trial court found in favor of the City and 

ordered Galdo ejected from the disputed property. Galdo appeals from the trial 

court’s order denying post-trial relief. For the reasons set forth below, we vacate the 

trial court’s order and remand the matter for further proceedings.

I. BACKGROUND

Between the streets of Lee, Front, Wildey, and Girard Avenue in 

Philadelphia is a rectangular lot of undeveloped land (Property) that is the subject of 

the instant appeal. In July 1962, the City entered into an agreement with the 

Commonwealth of Pennsylvania (Commonwealth) to assist in the development of 

various state roads. (Reproduced Record (R.R.) at 922a-934a.) In furtherance of 
2

that agreement, on November 13, 1974, the City obtained title to the Property by 

condemnation, in order to reroute the Elevated Frankfort train line (Elevated 

Frankfort) to provide additional space for construction of Interstate 95 (I-95). Then 

on January 19, 1976, the Commonwealth filed a notice of condemnation against 

several of the City’s lots in the area, including the Property. The notice of 

condemnation indicated that the Commonwealth would permanently retain the land 

in the I-95 right-of-way, and that the Commonwealth would have a temporary

easement on the Property for the period that the Elevated Frankfort was rerouted. 

The parties agree that the City has not physically occupied or provided any 

maintenance of the Property since the completion of the construction that rerouted 

the Elevated Frankfort in the late 1970s.

In September 1989, Galdo purchased his house on Lee Street, across 

from the Property. Shortly after purchasing the house, Galdo began using a portion 

of the Property that the parties refer to as the “Galdo Parcel.” It appears that over 

the years, Galdo used the Galdo Parcel in a variety of ways, including for storage, 

parties, and parking. It also appears that he made various improvements or 

alterations to the Galdo Parcel, including, but not limited to, pouring concrete slabs, 

installing and (later) removing a fence, installing two large trailers for storage, 

building a fire pit/brick barbeque and pavilion, and creating a volleyball court,

horseshoe pits, and treehouse. 

On February 5, 2013, the City posted a public notice on the Property, 

notifying the public to remove all personal property within 30 days. Galdo refused 

to comply with the notices and removed them. 

The City filed its ejectment action on April 24, 2014. Galdo responded 

with a counterclaim to quiet title, claiming ownership by virtue of adverse 
3

possession. The parties filed cross-motions for summary judgment, and on 

February 24, 2016, the trial court, via the Honorable Nina W. Padilla, denied both 

motions. On March 24, 2016, the matter went to a bench trial, and on April 21, 2016, 

the trial court, via the Honorable Robert P. Coleman, issued findings of fact and 

conclusions of law, finding in favor of the City. The trial court determined that 

Galdo could not claim title to the Property because the City condemned it at the 

behest of the Commonwealth, and because claims of adverse possession cannot lie 

against the Commonwealth or its agents. The trial court further determined that 

Galdo could not sustain a claim for adverse possession against the City because the 

Property was devoted to public use. The trial court also rejected Galdo’s argument 

that the City waived its immunity defense from suit because, according to the trial 

court, the City could and did raise it in a preliminary objection. Finally, the trial 

court held that the coordinate jurisdiction rule1 did not apply because the standard 

for a motion for summary judgement is different from the standard in a civil trial. 

Galdo filed a motion for post-trial relief, which the trial court denied on 

April 29, 2016. This appeal followed.

II. DISCUSSION

 

1

“[U]nder the coordinate jurisdiction rule, judges of coordinate jurisdiction sitting in the 

same case should not overrule each other’s decisions.” Riccio v. Am. Republic Ins. Co., 

705 A.2d 422, 425 (Pa. 1997). The coordinate jurisdiction rule does not apply where the motions 

are of a different type and does not bar a judge on summary judgment from overruling another 

judge’s decision on preliminary objections or judgment on the pleadings, even on an identical legal 

issue. Garzella v. Borough of Dunmore, 62 A.3d 486, 497 (Pa. Cmwlth.), appeal denied, 

72 A.3d 605 (Pa. 2013). 
4

On appeal,2 Galdo argues that the trial court erred by determining that 

a claim of adverse possession cannot lie against the City for the Property 

because (1) the Property was dedicated to public use and (2) the City was an agent 

of the Commonwealth when it condemned the Property in the 1970s. Galdo argues 

that the trial court erred by determining that the City did not waive its immunity 

defense by not raising it in a new matter to Galdo’s counterclaim. Galdo further 

argues that the coordinate jurisdiction rule prevented the trial court from finding the 

City immune, because another judge denied summary judgment to the City and the 

City presented no additional evidence after the summary judgment stage. Finally, 

Galdo argues that he met all the elements of adverse possession and, therefore,

acquired title to the Galdo Parcel.

In response, the City argues that it was immune from a claim of adverse 

possession, both because it condemned the Property at the Commonwealth’s behest 

and because it held the Property for public use. The City further argues that this 

Court should reject an adverse possession claim that is based on unlawful conduct 

and that the coordinate jurisdiction rule is inapplicable because the standard in a 

motion for summary judgment is distinct from the standard in a bench trial.

A. Claims of Adverse Possession Against Municipalities

The primary issue in the instant appeal is whether a claim of adverse 

possession can lie against the City, a municipality, when the City’s only use of the 

Property during the statutory period was to hold the Property for possible future sale.

As mentioned above, the City seeks the protection that the Commonwealth enjoys 

 

2

“Our standard of review of a non-jury trial is to determine whether the findings of the 

trial court are supported by competent evidence, and whether an error of law was committed.” 

Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007), appeal denied, 

950 A.2d 270 (Pa. 2008). 
5

from claims of adverse possession. The rule in Pennsylvania that “a claim of title 

by adverse possession does not lie against Commonwealth property,” originates 

from the doctrine nullum tempus occurrit regi, which means “[t]ime does not run 

against the king.” Dep’t of Transp. v. J. W. Bishop & Co., 439 A.2d 101, 103 

(Pa. 1981). The General Assembly has codified the preclusion of claims of adverse 

possession against the Commonwealth:

Nothing contained in this act shall be construed to give any 

title to any lands by a claim of title adverse to that of the 

Commonwealth of Pennsylvania, and no claim of title 

adverse to the Commonwealth of Pennsylvania shall be 

made or recorded under the provisions of this act.

Act of May 31, 1901, P.L. 352, 68 P.S. § 88. 

In Evans v. Erie County, 66 Pa. 222 (1870), the Pennsylvania Supreme 

Court addressed adverse possession in the context of a fact pattern similar to the 

instant case. In Evans, the Borough of Erie brought an ejectment action against the 

defendant-possessor, James Evans, who, for over thirty-one years, adversely 

possessed a strip of land owned by the Borough. Our Supreme Court held that the 

Borough of Erie was susceptible to a claim of title by adverse possession. In so 

doing, the Court limited the nullum tempus doctrine to claims against the 

Commonwealth:

That the Statute of Limitations runs against a county or 

other municipal corporation, we think cannot be doubted. 

The prerogative is that of the sovereign alone: Nullum 

tempus occurrit reipublicae. Her grantees, though 

artificial bodies created by her, are in the same category 

with natural persons.
6

Evans, 66 Pa. at 228.

3 Because the doctrine was available to the sovereign (the 

Commonwealth) alone, the Supreme Court held that Evans successfully obtained 

title to the strip of land through adverse possession. Thus, applying Evans, political 

subdivisions, such as counties, townships, municipalities, and boroughs, are not 

immune from claims of adverse possession, although the Commonwealth is. Torch 

v. Constantino, 323 A.2d 278, 279 (Pa. Super. 1974). Moreover, claims of title by 

adverse possession cannot be made against any entity, public or private, where the 

land in question is devoted to public use. Bruker v. Burgess & Town Council of 

Borough of Carlisle, 102 A.2d 418, 422 (Pa. 1954); Torch, 323 A.2d at 279.

In concluding that Galdo could not claim title by adverse possession, 

the trial court relied upon the Superior Court’s decision in Torch and our decision in 

Lysicki v. Montour School District, 701 A.2d 630 (Pa. Cmwlth. 1997). Neither 

Torch, which concerned property determined to be held for public use, nor Lysicki, 

which concerned property determined to be held in furtherance of the

Commonwealth’s responsibility to provide education, however, support this 

conclusion.

In Torch, the Superior Court addressed the question of whether the 

twenty-one-year prescriptive period for adverse possession could run during the 

period that the county held the property for tax sale for the nonpayment of taxes. 

The Superior Court concluded that it could not. While the litigants in Torch were 

private parties, the property in question was returned to Lackawanna County for a 

portion of the alleged prescriptive period. Initially, the Superior Court noted that a 

claim of title by adverse possession can be asserted against political subdivisions,

 

3 The Supreme Court swapped the word regi, meaning king, for reipublicae, meaning state. 

Evans, 66 Pa. at 228.
7

unless the land in question is devoted to public use. The Superior Court determined, 

however, that the prescriptive period was tolled in Torch during the time that the 

county held the disputed property because the county did so in furtherance of a 

mandate by the General Assembly. Specifically, the Superior Court explained that 

the legislature intended counties to collect “delinquent taxes as a trustee for the 

taxing district so that real estate does not lie fallow and that tax titles are so improved 

as to attract buyers and restore real estate to the tax lists.” Torch, 323 A.2d at 281. 

Accordingly, the Superior Court held that the land was devoted to public use and, 

thus, the prescriptive period could not run against the county during that time.

In Lysicki, this Court reached a similar conclusion, though not through 

a public use theory. We held that property owners adjacent to school district 

property could not maintain a claim of adverse possession against the school district. 

This Court’s holding relied on precedent in which our Supreme Court stated that

“‘[i]t is well established that the local school districts are merely agents of the 

Commonwealth to which the legislature has delegated authority in order to fulfill the 

state’s responsibility to provide public education.’” Lysicki, 701 A.2d at 632

(emphasis added) (quoting Pennsylvania Fed’n of Teachers v. Sch. Dist. of 

Philadelphia, 484 A.2d 751, 753 (Pa. 1984)). We explained that because the school 

district was fulfilling the Commonwealth’s responsibility, the school district fell 

under the Commonwealth’s protection from claims of title by adverse possession. 

Id.; see also Pennsylvania Fed’n of Teachers, 484 A.2d at 753 (noting that through 

a “comprehensive legislative scheme governing the operation and administration of 

public education,” the Commonwealth has granted “broad power” to school districts 

to act on behalf of the Commonwealth to educate public school students).
8

Seemingly due to this Court’s description of a school district in Lysicki

as an “agent of the Commonwealth,” Lysicki, 701 A.2d at 632, the City appears to 

argue that Lysicki supports the proposition that adverse possession can never lie 

against political subdivisions because they are agents of the Commonwealth. That 

is a misreading of our holding in Lysicki. In holding that the school district in Lysicki

was immune from adverse possession, this Court emphasized the reason that the 

school district held the land in question. We determined that the school district held 

the land in question in furtherance of the Commonwealth’s constitutional 

responsibility to provide public education. Indeed, this Court in Lysicki quoted the 

Superior Court’s determination in Torch that adverse possession “may be asserted” 

against political subdivisions. Lysicki, 701 A.2d at 632 (emphasis added) (quoting

Torch, 323 A.2d at 279). The school district in Lysicki only received the 

Commonwealth’s protection from adverse possession because it held the disputed 

land as part of its obligation, bestowed upon it by the Commonwealth, “‘to fulfill the 

state’s responsibility to provide public education.’” Lysicki, 701 A.2d at 632 

(quoting Pennsylvania Fed’n of Teachers, 484 A.2d at 753). Particularly in light of 

the Supreme Court’s holding in Evans that adverse possession can be asserted 

against political subdivisions, our holding in Lysicki did not provide political 

subdivisions with total immunity from claims of adverse possession. Instead, our 

holding is best understood as reiterating the Commonwealth’s protection from 

adverse possession, including a situation where the Commonwealth obligates a 

school district to facilitate its constitutional duty to educate.4

 

4 Both the City and the trial court contend that the City was an agent of the Commonwealth, 

and the City should receive the Commonwealth’s protection from adverse possession, because the 

City condemned the Property at the Commonwealth’s behest. There is a temporal reason to reject 
9

Here, the lack of a legal obligation of the City to hold the Property 

distinguishes this case from Torch and Lysicki. While the parties dispute whether 

the City and the Commonwealth had formed an agency relationship, the holdings in 

Lysicki and Torch actually pertained primarily to the legal obligation of the political 

subdivision—the county in Torch and the school district in Lysicki—to hold the 

disputed property as the basis for the immunity from a claim of adverse possession. 

In Torch, it was the legislative mandate—that counties act as trustee, holding 

property for tax sale for the nonpayment of taxes—on which the Superior Court 

based its holding that the property was devoted to public use. Torch, 323 A.2d 

at 281. Likewise, in Lysicki, we explained that school districts hold and use school 

district property pursuant to the legal responsibility to provide education to public 

school students. Lysicki, 701 A.2d at 632; Pennsylvania Fed’n of Teachers, 

484 A.2d at 753. The City does not provide any analogous obligation imposed by 

 

the argument that the City should receive the Commonwealth’s protection from adverse possession 

based on the condemnation. Even if the Commonwealth did direct the City for purposes of the 

expansion of I-95 and even if the City was at one point acting at the behest of the Commonwealth, 

the relationship for the agreement was temporary. It would not protect the City in perpetuity. In 

contrast to, for example, a school district’s responsibility to educate, which does not cease to exist 

on any certain day, a construction project ends. Here, the parties agree that the expansion of I-95 

was complete by the late 1970s and that the Commonwealth has had no involvement with the 

Property since. “The authority of an agent to perform a specified act or to accomplish a specified 

result terminates when the act is done or the result is accomplished.” Restatement (Second) of 

Agency § 106 (1958). While the Supreme Court has not adopted this section of the Second 

Restatement of Agency, we are persuaded that an agency relationship necessarily terminates upon 

completion of the act for which the principal delegated authority in the first place. In this case, 

while the City may have condemned the Property at the Commonwealth’s behest, it certainly did 

not hold the Property for decades at the Commonwealth’s behest. Even if the City was able to 

establish an agency relationship based on its agreement with the Commonwealth, that relationship

from that agreement would have ended when the Commonwealth completed the expansion of I-95 

in the late 1970s.
10

law or evidence of any public use of the Property to justify holding and neglecting 

it for decades.

5

 Furthermore, were we to determine that a municipality that 

condemns and holds previously private property for possible future sale did so for a

public use, we would essentially hold that municipalities could institute a taking of 

private property for a land bank, keeping the property until the market provides a 

considerable profit upon its sale. Such a holding would be detrimental to private 

property rights. The City is not, therefore, immune from Galdo’s counterclaim for 

adverse possession because it did not hold the Property pursuant to a legal obligation,

or for public use.

The City does not cite to any case, nor is this Court aware of any, in 

which the Pennsylvania Supreme Court held that a claim of title by adverse 

possession cannot lie against municipal property, based solely on the municipality’s 

status as a political subdivision. In fact, any determination by this Court to the 

contrary would be at odds with our Supreme Court’s holding in Evans. See Evans, 

66 Pa. at 228. Absent any legal authority to support the argument that the Supreme 

Court’s holding in Evans is no longer good law, as an intermediate court, we are 

bound to apply its holding. Accordingly, the trial court erred by concluding that

Galdo’s counterclaim sounding in adverse possession could not lie against the City.

B. Elements of Adverse Possession

 

5 Our conclusion is also consistent with the application of the nullum tempus doctrine in a 

similar context—where a political subdivision initiates a suit and the applicable statute of 

limitations governs the initiation of the suit (as opposed to a prescriptive period, which is an 

element of Galdo’s counterclaim). The Pennsylvania Supreme Court explained that the nullum 

tempus doctrine only applies to political subdivisions in such cases if “the cause of action accrues 

to them in their governmental capacity and the suit is brought to enforce an obligation imposed by 

law.” City of Philadelphia v. Holmes Elec. Protective Co. of Philadelphia, 6 A.2d 884, 887 (1939) 

(emphasis added). The common denominator in Lysicki and Torch and the analogous line of cases,

like City of Philadelphia, is the requirement that a legal obligation compels the political 

subdivision to proceed in a certain way. 
11

Because this Court concludes that the City is not immune from an 

action for adverse possession, the only issue remaining is whether Galdo has 

established that he is entitled to adverse possession. Adverse possession is an 

extreme doctrine, which permits one to achieve ownership of another’s property by 

operation of law. Showalter v. Pantaleo, 9 A.3d 233, 235 (Pa. Super. 2010), appeal 

denied, 20 A.3d 489 (Pa. 2011). 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. Baylor v. Soska, 658 A.2d 743, 744 

(Pa. 1995).

As discussed above, because the trial court made its decision based on 

Galdo’s supposed inability to assert adverse possession against the City under the 

facts of this case, the trial court made no factual findings and reached no legal 

conclusions regarding the elements of Galdo’s adverse possession claim. Thus, a 

remand is necessary so that the trial court may determine whether Galdo proved his 

entitlement to adverse possession. 

III. CONCLUSION

Accordingly, we must vacate the trial court’s order and remand the 

matter to the trial court for further consideration of Galdo’s claim of adverse 

possession. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 1953 C.D. 2016

:

Francis Galdo, :

Appellant :

O R D E R

AND NOW, this 28th day of March, 2018, the order of the Court of 

Common Pleas of Philadelphia County is VACATED, and the matter is

REMANDED for further proceedings consistent with this opinion. 

Jurisdiction relinquished. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 1953 C.D. 2016

: Argued: October 17, 2017

Francis Galdo, :

Appellant :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION BY

SENIOR JUDGE PELLEGRINI FILED: March 28, 2018

The majority holds that Francis Galdo (Galdo) adversely possessed City 

of Philadelphia (City) property even though it was originally condemned at the behest 

of the Commonwealth for an indisputable public purpose and then, as was always 

envisioned, retained by the City for eventual disposition. I dissent because the City

retained that property for a public purpose – i.e., to offset governmental expenses and 

restore real estate to the City’s tax assessment list. Just like the tax-sale property, I 

would hold that condemned property is immune from adverse possession so long as it 

was always retained for eventual disposition.

The pertinent facts of this case are best summarized by Galdo’s counsel

in his brief:

In 1974[,] the City obtained record title to the Property by 

condemnation. Prior thereto, the City Council Committee 

of Public Property and Public Works held a hearing. 
DRP - 2

Therein, it was discussed that the Property was needed to 

provide land necessary for the construction of a temporary 

detour of the Frankford Elevated, and thereafter the 

Property would be available for disposition once the 

permanent structure was complete and the temporary 

structure demolished. It was also discussed that most of 

the land to be taken would be retained by the City and the 

City (not the Commonwealth) would ultimately pay for any 

lands it retained after construction was finished, which 

lands included the Property. It was further stated at the 

hearing that there was no need for the Property after the 

Frankford Elevated was returned to its original location.

* * *

Since completion of the rerouting of the Market-Frankfort 

line in the 1970s, the City has not physically occupied the 

Property. Nor has it performed any maintenance, grass 

cutting, grading, or landscaping on the Property at any 

relevant time.

* * *

It was not until February 5, 2013 that the City posted 

notices on the Property . . . all personal property be 

removed within thirty (30) days. Mr. Galdo refused to 

vacate the Galdo Parcel and instead removed the signs.

(Galdo’s Brief at 11-12, 21) (emphasis added, citations and footnotes omitted).

Ultimately, in 2014, the City filed an ejectment and trespass action 

against Galdo, who in response filed a counterclaim for quiet title, contending that he 

adversely possessed the property. Relying in part on Torch v. Constantino, 323 A.2d 

278, 281 (Pa. Super. 1974), the trial court held that Galdo could not sustain a claim 

for adverse possession against the property and found in favor of the City. The 

majority now vacates the trial court’s order, concluding that the City’s retention of 
DRP - 3

the property for eventual resale does not constitute a “public use” because “were we 

to determine that a municipality that condemns and holds previously private property 

for possible future sale did so for a public use, we would essentially hold that 

municipalities could institute a taking of private property for a land bank, keeping the 

property until the market provides a considerable profit upon its sale.” (Majority 

opinion at 10.)

In Torch, our Superior Court held that adverse possession does not run 

against a local government retaining tax-sale property for eventual disposition.

1

 

While the Court acknowledged that local governments do not enjoy blanket immunity 

from claims of adverse possession, it explained that an exception to this rule is that

claims of title by adverse possession cannot be made against any entity – public or

private – if the land in question is devoted to a public use/purpose. Focusing on the 

government’s need to resell tax-sale property so as to generate revenue and return 

real estate to the tax list, the Court held that the retention of such property until its 

disposition constituted a public use meriting immunity from adverse possession.

In this case, it is undisputed that the property was always intended to be 

resold by the City after it served its initial public use. I see no reason why 

condemned property, when taken with the intent to resell, should be treated any 

different than tax-sale property. Similar to tax-sale property, a municipality’s 

 

1 Since Torch, there have been a line of cases reiterating that adverse possession does not lie 

against land held by a non-state government entity when it is in connection with a tax sale. See 

Fred E. Young, Inc. v. Brush Mountain Sportsmen’s Association, 697 A.2d 984, 992 (Pa. Super. 

1997) (“Adverse possession does not lie against land held by the county in connection with a tax 

sale.”); see also Weible v. Wells, 156 A.3d 1220, 1224-25 (Pa. Super.), appeal denied, 170 A.3d 

1031 (Pa. 2017) (same).
DRP - 4

retention of condemned property for eventual disposition serves the obvious goal of 

offsetting expenses otherwise incurred by its taxpayers. That goal, however, can only 

be achieved if the title of condemned property remains “attractive to prospective 

purchases so that land owned by local government . . . can be more promptly sold and 

the land restored to the assessment lists.” Torch, 323 A.2d at 280.

Accordingly, because the retention of condemned property for eventual 

disposition constitutes a public use, I respectfully dissent from the majority’s opinion.

___________________________________

DAN PELLEGRINI, Senior Judge