Petition for Writ of Certiorari — Casimir M. Toczylowski, Petitioner v. Samantha Giuliano, et vir

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No. 18In the

Supreme Court of the United States

CASIMIR M. TOCZYLOWSKI,

Petitioner,

SAMANTHA G. GIULIANO

AND PAUL P. PALLADINO,

Respondents.

On Petition for a Writ of Certiorari to

the Supreme Court of Pennsylvania

PETITION FOR A WRIT OF CERTIORARI

Michael J. Torchia

Counsel of Record

William J. Maffucci

Semanoff Ormsby Greenberg

& Torchia, LLC

2617 Huntingdon Pike

Huntingdon Valley, PA 19006

215-887-2042

mtorchia@sogtlaw.com

Counsel for Petitioner

287094

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1. When a state has by statute or constitutional

provision granted civil litigants the right to an appeal,

must the state’s appellate procedures provide “due

process” consonant w ith that g uaranteed by the

Fourteenth Amendment of the United States Constitution

to litigants at trial?

Suggested Answer: Yes. Although this Court

has not yet held that a state must grant civil

litigants the right to an appeal, the dueprocess principles that this Court has already

articulated under the Fourteenth Amendment

require that those states which have granted

civil litigants a right of appeal must ensure that

the appellate courts provide appellants with due

process consonant with that guaranteed by the

Fourteenth Amendment of the United States

Constitution to litigants at trial.

2. If the due process guaranteed by the Fourteenth

Amendment of the United States Constitution extends to

the appellate procedures of those states that have granted

civil litigants a right of appeal, are civil appellants in those

states who seek to vindicate property rights and who

comply with all of the state’s procedural requirements

entitled to receive a ruling on the merits of their appeals?

Suggested Answer: Yes.

iii

PARTIES

As set forth in the case caption, the petitioner is

Casimir M. Toczylowski (“Mr. Toczylowski”), who

was the plaintiff in the original trial-court proceeding

and the appellant in the appellate proceedings, and

the respondents are Samantha G. Giuliano and Paul P.

Palladino (“Respondents”), who were the defendants in

the trial-court proceeding and appellees in the appellate

proceedings.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

CITATIONS OF OFFICIAL AND UNOFFICIAL

REPORTS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CONSTITUTIONAL PROVISION AT ISSUE . . . . . . 2

CONCISE STATEMENT OF THE CASE . . . . . . . . . . 3

A. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . 3

Trial in the Court of Common Pleas

of Philadelphia . . . . . . . . . . . . . . . . . . . . . . . . 3

ii.

Appeal to the Superior Court of

Pennsylvania . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iii. Application to the Superior Court of

Pennsylvania for Reargument . . . . . . . . . . 10

Table of Contents

Page

iv. Pet it ion t o t he Supreme Cou r t

of Pennsylvania for A llowance of

Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Nature of Property Right as to Which

Due Process Applies . . . . . . . . . . . . . . . . . . . . . . 11

C. Nature of Due-Process Deprivation . . . . . . . . . 12

D. Petitioner’s Preservation of His Right To

Seek Certiorari . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE SUPERIOR

COURT OF PENNSYLVANIA, EASTERN

DISTRICT, FILED JUNE 4, 2018 . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OF THE

SUPERIOR COURT OF PENNSYLVANIA,

FILED MARCH 27, 2018 . . . . . . . . . . . . . . . . . . . . . . 2a

APPENDIX C — OPINION OF THE COURT

OF COMMON PLEAS OF PHILADELPHIA

COUNTY, FIRST JUDICIAL DISTRICT

OF PENNSYLVANIA, TRIAL DIVISION

– CIVIL, FILED JULY 18, 2017 . . . . . . . . . . . . . . . 15a

APPENDIX D — ORDER OF THE COURT

OF COMMON PLEAS OF PHILADELPHIA

F I R S T J U DICI A L DI S T R IC T OF

PENNSYLVANIA TRIAL DIVISION – CIVIL,

DATED MAY 10, 2017 . . . . . . . . . . . . . . . . . . . . . . . . 31a

A PPENDI X E — DEN Y ING PETITION

FOR ALLOWANCE OF APPEAL OF THE

SUPREME COURT OF PENNSYLVANIA,

E A S T ER N DI S T RIC T, DAT ED

DECEMBER 3, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 32a

vii

TABLE OF CITED AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . 3, 13

STATUTORY PROVISIONS

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 17-18

CASES

Bellas v. Cleaver,

40 Pa. 260 (1861) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Biddle v. Johnsonbaugh,

664 A.2d 159 (Pa. Super. 1995) . . . . . . . . . . . . . . . . . . 8

Bloom v. Ferguson,

18 A. 488 (Pa. 1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Brennan v. Manchester Crossings, Inc.

708 A.2d 815 (Pa. Super. 1998), appeal denied,

727 A.2d 1115 (Pa. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 9

C.B-R. v. D.B.,

No. 2411 EDA 2014, 2015 WL 7572370

(Pa. Super. Mar. 4, 2015) . . . . . . . . . . . . . . . . . . . . . . . 7

viii

Cited Authorities

Page

Central West Virginia Energy Co.,

555 U.S. 1045 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cobbledick v. United States,

309 U.S. 323 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Commonwealth v. Allshouse,

969 A.2d 1236 (Pa. Super. 2009) . . . . . . . . . . . . . . . . . 7

Commonwealth v. Manahan,

45 A.3d 413 (Pa. Super. 2012) . . . . . . . . . . . . . . . . . . . 7

Commonwealth v. TAP Pharm. Prod., Inc.,

94 A.3d 350 (Pa. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Commonwealth v. Watson,

No. 1951 EDA 2012, 2014 WL 10987060

(Pa. Super. Jan. 28, 2014) . . . . . . . . . . . . . . . . . . . . . . 7

Cruet v. Certain-Teed Co.,

639 A.2d 478 (Pa. Super. 1994) . . . . . . . . . . . . . . . . . . 8

Dodson v. Brown,

70 Pa. Super. 359 (1918) . . . . . . . . . . . . . . . . . . . . . . . 12

Douglas v. California,

372 U.S. 353 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Eck v. Eck,

475 A.2d 825 (Pa. 1984) . . . . . . . . . . . . . . . . . . . . . . . . .7

Cited Authorities

Page

Flannery v. Stump,

786 A.2d 255 (Pa. Super. 2001) . . . . . . . . . . . . . . . . . 10

In re Estate of Whitley,

50 A.3d 203 (Pa. Super. 2012) . . . . . . . . . . . . . . . . . . 10

In re Frank,

423 A.2d 1229 (Pa. Super. 1980) . . . . . . . . . . . . . . . . . 7

Grant D. v. Wolanski,

No. 1203 MDA 2016, 2017 WL 3404386

(Pa. Super. Aug. 9, 2017) . . . . . . . . . . . . . . . . . . . . . . . 8

Griffin v. Illinois,

351 U.S. 12 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Honda Motor Co. v. Oberg,

512 U.S. 415 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Johnson v. Johnson,

153 A.3d 318 (Pa. Super. 2016) . . . . . . . . . . . . . . . . . . . 7

Jones v. Barnes,

435 U.S. 745 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jones v. Wagner,

624 A.2d. 166 (Pa. Super. 1993) . . . . . . . . . . . . . . . . . 12

Lowery v. Pittsburgh Coal Co., Div. of

Consolidation Coal Co.,

235 A.2d 805 (Pa. 1967) . . . . . . . . . . . . . . . . . . . . . . . . 9

Cited Authorities

Page

Malone v. Sallada,

48 Pa. 419 (1864) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

McKane v. Durston,

153 U.S. 684 (1894) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McLure v. New Castle Dry Goods Co.,

93 Pa. Super. 606 (1928) . . . . . . . . . . . . . . . . . . . . . . . . 9

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ney v. Ney,

917 A.2d 863 (Pa. Super. 2007) . . . . . . . . . . . . . . . . . . 7

Ochroch v. Kia-Noury,

497 A.2d 1354 (Pa. Super. 1985) . . . . . . . . . . . . . . . . 12

Pencil v. Buchart,

551 A.2d 302 (Pa. Super. 1988) . . . . . . . . . . . . . . . . . . 8

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pile v. Pedrick,

167 Pa. 296, 31 A. 646 (1895) . . . . . . . . . . . . . . . . . . . 12

Pruner v. Brisbin,

98 Pa. 202 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cited Authorities

Page

Recreation Land Corp. v. Hartzfeld,

947 A.2d 771 (Pa. Super. 2008) . . . . . . . . . . . . . . . . . 10

Sanchez v. Pennsylvania Bd. of Prob. & Parole,

616 A.2d 1097 (Pa. Commw. 1992) . . . . . . . . . . . . . . . 8

Stevenson v. Stein,

195 A.2d 268 (Pa. 1963) . . . . . . . . . . . . . . . . . . . . . . . 10

TXO Products Corp. v. Alliance Resources Corp.,

509 U.S. 443 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

LAW JOURNALS

Hen r y G. F i n s , Is th e Ri gh t of Ap p e a l

Protected by the Fourteenth Amendment?,

54 Judicature 296 (1971) . . . . . . . . . . . . . . . . . . . . . . 14

John Leubsdorf, Constitutional Civil Procedure,

63 Tex. L. Rev. 579 (1984) . . . . . . . . . . . . . . . . . . . . . 14

Cassandra Burke Robertson, The Right To

Appeal, 91 N.C. L. Rev. 1219 (2013) . . . . . . . . . . . . . 14

LEGAL ENCYCLOPEDIA

7 Summary of PA Jurisprudence § 22 (citing 1 Am.

Jur.) 2d. Adjoining Landowners § 119 . . . . . . . . . . 11

3 Pa. Legal Encyc., Trespass § 6 . . . . . . . . . . . . . . . . . . 12

xii

Cited Authorities

Page

OTHER AUTHORITIES

3 A m. Bar A ss’n, Judicial A dmin. Div., Standards

Relating to A ppellate Courts § 3.10 (1994) . . . . . 15

Amici Curiae Law Professors in Support of

Petitioner at 1, 2008 WL 4360892 (Central West

Virginia Energy Co. v. Wheeling Pittsburgh

Steel Corp., 555 U.S. 1045 (2008)) . . . . . . . . . . . . . 14-15

CITATIONS OF OFFICIAL AND

UNOFFICIAL REPORTS BELOW

Opinion of the Court of Common Pleas of Philadelphia:

Toczylowski v. Giuliano and Palladino, Civil

Action 1134 of September 2013, Unreported

Decision Filed (Following Commencement of

Appeal 1550 EDA 2017) Dated and Docketed

July 18, 2017

Panel Opinion of the Superior Court of Pennsylvania:

Toczylowski v. Giuliano and Palladino (No.

1550 EDA 2017), 2018 WL 1477208 (NonPrecedential Decision, Not Reported in A.3d),

Pa. Super. Mar. 27, 2018

Per Curiam Opinion of the Superior Court, Denying

Application for Reargument:

Toczylowski v. Giuliano and Palladino (No.

1550 EDA 2017), Not Reported; Per-curiam

order Dated June 4, 2018:

IT IS HEREBY ORDERED:

THAT the application filed April 10,

2018, requesting reargument of the

decision dated March 27, 2018,

is DENIED.

Per Curiam Opinion of the Supreme Court of Pennsylvania,

denying petition for allowance of appeal:

Toczylowski v. Giuliano and Palladino (No.

294 EAL 2018), 198 A. 335 (Table), Dec. 3, 2018

JURISDICTION

1. Date of the order sought to be reviewed: December

3, 2018.

2. The petitioner did not seek a rehearing below, and

he did not request an extension of time to file this petition.

3. The provisions of this Court’s Rule 14.1(e)(iii),

regarding cross-petitions for reargument, are not

applicable here.

4. Authority to review the decisions of a state court

of highest resort is granted by 28 U.S.C. § 1257(a):

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

by writ of certiorari where . . . any title, right,

privilege, or immunity is . . . claimed under the

Constitution . . . of the United States . . . .

5. This petition does not challenge the constitutionality

of any state or federal law, so the notice requirements of

this Court’s Rules 29.4(b) and 29.4(c) are inapplicable.

CONSTITUTIONAL PROVISION AT ISSUE

The second clause (set forth in bold below) of the

second sentence of Section 1 of the Fourteenth Amendment

to the Constitution of the United States:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction of the equal

protection of the law.

CONCISE STATEMENT OF THE CASE

A. Proceedings Below

Trial in the Court of Common Pleas of

Philadelphia

The petitioner, Casimir M. Toczylowski, brought a

civil action in the Court of Common Pleas of Philadelphia

against the Respondents, Samantha G. Giuliano and Paul

P. Palladino, owners of a residential lot immediately north

of Mr. Toczylowski’s lot. He sought the removal of those

portions of the Respondents’ newly constructed addition

that encroached upon his property. The Respondents

claimed there was no encroachment because their

surveyors, contradicting Mr. Toczylowski’s, had concluded

that the addition did not extend beyond the boundary.

They also asserted adverse possession an affirmative

defense.

The cause was heard as a bench trial that concluded

on February 2, 2017. Mr. Toczylowski presented the

testimony of two surveyors who were qualified as experts

and who explained how, adhering to what is sometimes

called the “original survey” doctrine for boundary-line

replacement, they determined the precise location of

the boundary. One of them also identified an error in the

work product of the Respondents’ surveyors (viz., they

used the wrong control point as the basis for their survey)

that explained why they had reached their mistaken

boundary determination. The trial judge allowed all of

this testimony, and the experts’ survey and supporting

documentation, into evidence.

The Respondents chose not to have either of their

surveyors testify. They attempted to have their surveyor’s

work product introduced into evidence, but the trial

judge sustained Mr. Toczylowski’s hearsay objection to

it. The judge reiterated that evidentiary ruling after the

conclusion of testimony. Although he would not allow the

Respondents’ survey as evidence of the accuracy of the

survey’s boundary conclusion, he did allow it into evidence

solely to support the purpose for which it was used at

trial: supporting the testimony by Mr. Toczylowski’s

surveyor that explained why the boundary conclusion in

the document was wrong.

The Respondents also chose to present no evidence,

in support of their adverse-possession defense, of how

their predecessors-in-title had used the area in dispute for

the period of more than seven years before Ms. Giuliano

acquired title so as to complete the 21-year prescriptive

period.

The judge did not rule from the bench. Instead he

handed down an order ten weeks later that ruled for

the Respondents on Mr. Toczylowski’s claims. The order

contained no analysis and was not accompanied by an

opinion and did not otherwise explain the judge’s ruling.

ii.

Appeal to the Superior Court of Pennsylvania

Mr. Toczylowski timely appealed to the Superior

Court of Pennsylvania. The appeal necessitated that the

trial judge prepare an opinion that explained his ruling.

He did so on July 18, 2017.

The trial judge explained that he considered the survey

prepared for the Respondents to be more reliable than

that prepared for Mr. Toczylowski. He also said that the

Respondents and their predecessors-in-title had acquired

title to the “small sliver of land” by adverse possession for

the prescriptive 21-year period. His comments as to the

latter issue revealed that he thought the “small sliver”

in dispute to be not the area between the two boundary

conclusions, which extended just a few inches north and

south of the northern edge of a cinderblock wall, but the

entire six- to seven-foot-wide area north of the wall.

The trial judge’s opinion enabled Mr. Toczylowski to

identify four errors of law that warranted reversal:

1. The trial judge committed an error of law by

considering the substantive contents of a survey

prepared by a surveyor who was not in court,

the judge having allowed use of the survey at

trial (after a hearsay objection) “not . . . for its

truth” but only for the limited purposes for

which it had been shown to a different surveyor.

2. The trial judge committed reversible error by

ignoring the settled “original survey” principle

used uniformly by surveyors to determine the

location of a boundary in physical space and by

basing his boundary finding instead on factors

that were irrelevant to the determination of the

boundary in physical space.

3. The trial judge committed reversible

er ror by basi ng h is decision as t o the

Respondents’ “adverse possession” defense

on a misunderstanding of the size and location

of land at issue in the case—specifically,

by thinking that the width of the area was

approximately seven feet (encompassing all of

the open area south of the defendants’ original

residential structure) when, in fact, width of the

“sliver of land” in dispute was less than a foot

(with only two or three inches being north of

the wall), that area being the space between the

different boundary determinations reached by

two surveyors, and then basing his conclusion

that the defendants had “adversely possessed”

the property on activities conducting on the

entire seven-foot-wide area.

4. The trial judge committed reversible error by

overlooking the fact that the Respondents had

presented no evidence in support of an essential

element of their adverse-possession defense:

that their immediate predecessors-in-title over

the period of more than seven years (i.e., back

to the beginning of the 21-year prescriptive

period) had “adversely possessed” the property

at issue in the same manner as the defendants.

Mr. Toczylowski’s briefs cited multiple Pennsylvania

appellate-court decisions in support of each of his

arguments.

In support of his argument that the trial judge

erred by considering the written survey prepared by the

Respondents’ out-of-court surveyor as evidence in support

of its boundary conclusion, despite the judge’s having

sustained Mr. Toczylowski’s hearsay objection to the use

of that document for that purpose, Mr. Toczylowski cited

six decisions:

• Johnson v. Johnson, 153 A.3d 318, 322 (Pa. Super.

2016) (trial court may not consider documents

that were not admitted into evidence, even if they

appear in record on appeal (citing Eck v. Eck, 475

A.2d 825, 827 (Pa. 1984)), and may not consider

off-the-record facts (citing Ney v. Ney, 917 A.2d

863, 866 (Pa. Super. 2007), and In re Frank, 423

A.2d 1229 (Pa. Super. 1980))).

• C.B-R. v. D.B., No. 2411 EDA 2014, 2015 WL

7572370, at *7 (Pa. Super. Mar. 4, 2015) (judge’s

reliance upon expert report that was not admitted

into evidence was mistake of law).

• Commonwealth v. Watson, No. 1951 EDA 2012,

2014 WL 10987060, at *3 (Pa. Super. Jan. 28,

2014) (“assuming arguendo that the trial court

did consider Ms. Andrews’ signed agreement, it

committed error since the agreement was not part

of the evidentiary record” (citing Commonwealth

v. Manahan, 45 A.3d 413, 417 (Pa. Super. 2012)

and Commonwealth v. Allshouse, 969 A.2d 1236,

1241 (Pa. Super. 2009)).

• Sanchez v. Pennsylvania Bd. of Prob. & Parole,

616 A.2d 1097, 1102 (Pa. Commw. 1992) (reversing

and remanding proceeding to administrative

board because it relied upon document not in

evidence).

• Commonwealth v. TAP Pharm. Prod., 94 A.3d

350, 361 n. 16 (Pa. 2014) (Commonwealth Court’s

reliance upon report that had not been introduced

into evidence compounded irregularities of

findings).

• Biddle v. Johnsonbaugh, 664 A.2d 159, 161 (Pa.

Super. 1995) (citing Cruet v. Certain-Teed Co., 639

A.2d 478, 479 (Pa. Super. 1994) (in ruling upon

claims and defenses presented, trier of fact must

base verdict on evidence; it cannot base verdict

on speculation or conjecture that evidence might

exist that supports party’s claim).

In support of his argument that the trial judge

erred by ignoring the “original survey” doctrine, Mr.

Toczylowski cited two decisions:

• Grant D. v. Wolanski, No. 1203 MDA 2016, 2017

WL 3404386, at *3–4 (Pa. Super. Aug. 9, 2017)

(“it is well settled that ‘the primary function of

the trial court resolving a boundary dispute is

to ascertain the intent of the grantor at the time

of the original subdivision’”) (quoting Pencil v.

Buchart, 551 A.2d 302, 305-06 (Pa. Super. 1988)).

• Bloom v. Ferguson, 18 A. 488, 490 (Pa. 1889)

(recognizing “legal presumption” that work of

surveyor who first established boundary must

prevail, “as returned,” over the work of subsequent

surveyors) (citing Pruner v. Brisbin, 98 Pa. 202

(1881); Bellas v. Cleaver, 40 Pa. 260 (1861); Malone

v. Sallada, 48 Pa. 419 (1864)).

In support of his argument that the trial judge erred

by basing his ruling as to adverse possession upon a

mistaken understanding that the area in dispute was the

entire six- to seven-foot-wide area north of the cinderblock

wall, when in fact the area was just the small sliver that

extended a few inches north and south of the northern

edge of the wall, Mr. Toczylowski cited two decisions:

• McLure v. New Castle Dry Goods Co., 93 Pa. Super.

606, 606-08 (1928) (reversing trial court) (judge’s

misunderstanding of the evidence constitutes an

error that can warrant reversal).

• L o w e r y v. Pi t t sb u r gh Co a l Co ., D iv. of

Consolidation Coal Co., 235 A.2d 805, 807

(Pa. 1967) (fact finder “must be qualified by its

obligation to deal rationally and coherently with

the evidence before it”).

In support of his argument that the trial judge erred

by ruling that the Respondents had established adverse

possession even though they had offered no evidence as to

how their predecessors-in-title had used the actual area

in dispute, Mr. Toczylowski cited three decisions:

• Brennan v. Manchester Crossings, Inc., 708 A.2d

815, 817 (Pa. Super. 1998) (claimant must prove

each element its claim), appeal denied, 727 A.2d

1115 (Pa. 1998).

• Stevenson v. Stein, 195 A.2d 268, 270 (Pa. 1963)

(claimant has burden of proving each element by

credible, clear, and definitive proof).

• Recreation Land Corp. v. Hartzfeld, 947 A.2d 771,

774 (Pa. Super. 2008) (adverse-possession claimant

must satisfy all elements; lacking only one will

defeat claim) (quoting Flannery v. Stump, 786

A.2d 255, 258 (Pa. Super. 2001)).

A three-judge panel of the Superior Court handed

down its order an opinion on March 27. Two of the judges

joined in the opinion; the other joined only in the result.

The panel affirmed the trial court, but it did not do

so on the merits. Rather, repeatedly citing the Superior

Court’s ruling in In re Estate of Whitley, 50 A.3d 203 (Pa.

Super. 2012), the panel ruled that Mr. Toczylowski had

waived his right to a ruling on the merits because (or so

the panel stated) he had not cited case authority for any

of his arguments.

iii. Applic ation t o the Sup er ior Cou r t of

Pennsylvania for Reargument

Mr. Toczylowski timely applied for reargument en

banc. He pointed out that the panel was mistaken in its

belief that he had not cited case authority in support of

all of his arguments, and he asked that the court vacate

its earlier decision and decide the appeal on the merits.

The Superior Court denied that application, issuing a

one-sentence per-curiam order dated June 4, 2018, with

no analysis or accompanying opinion.

iv.

Petition to the Supreme Court of Pennsylvania

for Allowance of Appeal

Mr. Toczylowski filed a timely petition to the Supreme

Court of Pennsylvania seeking allowance for appeal. He

recounted the events above, explaining that the panel’s

refusal to rule on the merits of the appeal was based

upon its mistaken belief that he had not preserved all his

arguments by providing case citations in support of each

of them, and reiterating his request for a ruling on the

merits. The Supreme Court denied that petition, also by

issuing a one-sentence per-curiam order with no analysis

or accompanying opinion. The order was docketed on

December 3, 2018.

B. Nature of Property Right as to Which Due Process

Applies

i. The absolute right of a property owner to

have encroachments removed from the owner’s

property has been inviolate in Pennsylvania

for centuries. “In the absence of an easement

or agreement, no person has the right to erect

buildings or other structures on his or her

own land so that any part, however, small,

will extend beyond his or her boundaries and

thus encroach on any adjoining premises.”

7 Summary of PA Jurisprudence § 22 (citing

1 Am. Jur. 2d. Adjoining Landowners § 119).

ii. “It is a fundamental maxim of law which

states that an owner of realty has a cause of

action in trespass upon his lands, and it is

not necessary for the landowner to allege any

actual damage as an element of the cause of

action.” 3 Pa. Legal Encyc., Trespass § 6.

iii. “There is no need to allege harm in an

action for trespass, because the harm is not

to the physical well-being of the land, but to

the landowner’s right to peaceably enjoy full,

exclusive use of his property.” Jones v. Wagner,

624 A.2d. 166, 169 (Pa. Super. 1993).

iv. The fact that an encroachment is de

minimis is irrelevant as a matter of law, because

an encroachment, no matter how small, creates

unmarketable title; a minor encroachment (e.g.,

a wall extending “an inch and a fraction” over

a boundary), like a major encroachment, must

be corrected upon demand. Pile v. Pedrick,

167 Pa. 296, 297-98, 31 A. 646, 647 (1895). See

also Ochroch v. Kia-Noury, 497 A.2d 1354,

1356 (Pa. Super. 1985); Dodson v. Brown, 70

Pa. Super. 359 (1918) (from the standpoint of

the law, it makes no difference whether the

object encroaches by a fraction of an inch or by

several feet; any measurable encroachment is

considered a trespass).

C. Nature of Due-Process Deprivation

Mr. Toczylowski objected to the encroachment as soon

as he learned about it; he commenced legal action as soon

as it became clear that his efforts to resolve the matter

without litigation (working through the City of Philadelphia

Department of Licenses and Inspections) were not going

to be successful; he created a full evidentiary record at

trial and took all action necessary to preserve his appeal

rights; and he has fulfilled all of the requirements of the

Pennsylvania Rules of Appellate Procedure and of the

internal rules of the Commonwealth’s appellate courts to

obtain a ruling on the merits.

D. Petitioner’s Preservation of His Right To Seek

Certiorari

The Pennsylvania cour ts’ depr ivation of Mr.

Toczylowski’s right to a decision on the merits did not

ripen until the final ruling by the Supreme Court of

Pennsylvania, declining his petition for an order that

provided that ruling or directed lower courts to provide

it, on December 3, 2018. But at each stage until then Mr.

Toczylowski laid the foundation for the relief sought today

by requesting that the state courts provide the ruling on

the merits to which he was due.

ARGUMENT

This petition presents an issue of “quasi”-first

impression. It is tangential to a larger issue that this

Court has addressed—and has recently been urged

to revisit. Although this petition does not require this

Court to resolve the larger issue, the impact of this

Court’s resolution of the issue presented today would be

immediate, profound, and enduring.

The Due Process Clause of the Fourteenth Amendment

of the United States Constitution prohibits actions by

the states that deprive persons of property without due

process of law. This Court has often noted that, although

the Due Process Clause obligates the states to provide

a trial-court system, it does not also obligate the states

to provide mechanisms by which litigants can appeal the

decisions of the trial courts. See, e.g., M.L.B. v. S.L.J., 519

U.S. 102, 131 (1996) (Thomas, J., dissenting); Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 31 n.4 (1987) (Stevens, J.,

concurring); Griffin v. Illinois, 351 U.S. 12, 18 (1956);

Cobbledick v. United States, 309 U.S. 323, 325 (1940).

Although the states were not obligated by the Due

Process Clause to provide mechanisms for appeal, over the

centuries almost every state has done so, by statute if not

by prescription in the states’ constitutions. See Cassandra

Burke Robertson, The Right To Appeal, 91 N.C. L. Rev.

1219, 1222 & n.8 (2013) (noting that 47 states grant

rights of appeal, and addressing the rights of litigants in

the other three states: New Hampshire, West Virginia,

and Virginia). Consequently, as Justice Brennan once

observed, a case presenting this Court squarely with the

question of whether the Due Process Clause guarantees a

right to appeal is now “unlikely to arise.” Jones v. Barnes,

435 U.S. 745, 756 n.1 (1983) (Brennan, J., dissenting).

He went further, expressing his belief that it was “quite

arguably wrong” to assume that the Court would adhere

to its original view if the issue were to arise again. Id.

Several commentators, noting that the appellate

process has become integral to judicial protection of

fundamental rights, have argued that this Court should

to recognize a constitutional right to an appeal. See,

e.g., Robertson, 91 N.C. L. Rev. at 1221; Henry G. Fins,

Is the Right of Appeal Protected by the Fourteenth

Amendment?, 54 Judicature 296, 297 (1971); John

Leubsdorf, Constitutional Civil Procedure, 63 Tex. L.

Rev. 579, 580 (1984). See also Brief of Amici Curiae Law

Professors in Support of Petitioner at 1, 2008 WL 4360892

(Central West Virginia Energy Co., 555 U.S. 1045 (2008)).

The American Bar Association has described appellate

review not merely a desirable part of legal practice but

a “fundamental element of procedural fairness.” 3 A m.

Bar A ss’n, Judicial A dmin. Div., Standards Relating to

A ppellate Courts § 3.10, at 18 (1994).

Although this Court has not recognized that that the

Due Process Clause requires the states to provide appeals

from all civil and criminal proceedings, it has recognized

that states that have chosen to grant appellate review

must do so in a way that does not discriminate against

indigent criminal defendants. Griffin v. Illinois, 351

U.S. 12, 18 (1956) (plurality opinion) (citing McKane v.

Durston, 153 U.S. 684 (1894)). Six years later this Court

held that its reasoning in Griffin also required that a state

that provides a right of criminal appeal must ensure that

counsel be appointed for indigent criminal appellants.

Douglas v. California, 372 U.S. 353, 355-56 (1963).

Likewise this Court has addressed the rights of

appellants in civil actions, and its rulings uniformly reflect

the recognition that the appellate process is integral to the

vindication of constitutional rights. In both TXO Products

Corp. v. Alliance Resources Corp., 509 U.S. 443, 453 (1993),

and Honda Motor Co. v. Oberg, 512 U.S. 415, 418 (1994),

this Court recognized that appellate review of punitivedamage awards entered by trial courts was essential to

preclude the arbitrary deprivation of property without

due process of law. In defamation cases, it recognized

that appellate review is necessary to ensure that the

legal principles announced by the lowers courts “have

been constitutionally applied” in a consistent manner “in

order to preserve the precious liberties established and

ordained by the Constitution.” Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 508 (1984).

Requiring a state appellate court to hand down

a ruling on the merits of an appeal taken as of right

(assuming the appellant has complied with all of the

procedural requirements), Mr. Toczylowski submits,

would merely reaffirm, not extend, the principles this

Court acknowledged in the cases cited above. The

establishment of Pennsylvania’s state appellate-court

system necessarily integrated it into the state’s judicial

apparatus for safeguarding litigants’ constitutional rights,

and thus the right to appeal necessarily encompasses a

right to receive a ruling on the merits.

Here, the trial court’s erroneous ruling deprived

Mr. Toczylowski of a property right long recognized in

Pennsylvania as absolute: the right to have encroachments

on his property removed. He did everything required

by the Pennsylvania appellate rules and by the internal

rules of the Superior Court of Pennsylvania to effect and

prosecute his appeal (as was his right to do). That court’s

refusal to decide his appeal on the merits deprived him

of the process to which he was due. That deprivation

was compounded when the same court refused Mr.

Toczylowski’s application for reargument, which called

the panel’s mistake to the court’s attention. And it was

perfected by the denial of Mr. Toczylowski’s petition

asking the Supreme Court of Pennsylvania to allow a

further appeal.

CONCLUSION

The judge who presided over the bench trial of Mr.

Toczylowski’s action committed multiple errors of law that

deprived him of a property right that for centuries has

been considered absolute by the courts of Pennsylvania.

He timely appealed the order and complied fully with

Pennsylvania’s rules of appellate procedure. The due

process required by the Fourteenth Amendment of the

United States Constitution entitled him to a ruling on the

merits by Pennsylvania’s appellate courts.

The Superior Court of Pennsylvania refused to provide

that ruling. It claimed, mistakenly, that Mr. Toczylowski

had not cited cases in support of his arguments, and it

held that he had therefore waived each argument. It then

refused to reconsider the matter after Mr. Toczylowski

filed a timely application that called the court’s attention

to the multiple cases that he had cited in his original briefs

in support of each argument. The court’s one-sentence

per-curiam order provided no explanation of the court’s

reason for denying him the ruling to which he was entitled.

Mr. Toczylowski then exercised his only remaining

remedy under Pennsylvania’s appellate procedures: He

sought an order from the Supreme Court of Pennsylvania

allowing him to appeal the matter further. That court,

too, denied his request in a one-sentence per-curiam order

that offered no explanation of the court’s reasoning.

Having complied fully w ith the requirements

of Pennsylvania’s appellate procedures, and having

exhausted all of his state-court remedies, Mr. Toczylowski

asks this Court to exercise its authority under 28 U.S.C.

§ 1257(a) to remand the matter with instructions to the

Pennsylvania appellate courts provide Mr. Toczylowski

with instructions that they provide him with what due

process requires: a ruling on the merits of his appeal.

Respectfully submitted,

Michael J. Torchia

Counsel of Record

William J. Maffucci

Semanoff Ormsby Greenberg

& Torchia, LLC

2617 Huntingdon Pike

Huntingdon Valley, PA 19006

215-887-2042

mtorchia@sogtlaw.com

Counsel for Petitioner

APPENDIX

Appendixof

A the SUPERIOR

Appendix A — ORDER

COURT OF PENNSYLVANIA, EASTERN

DISTRICT, filed June 4, 2018

IN THE SUPERIOR COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 1550 EDA 2017

CASIMIR M. TOCZYLOWSKI,

Appellant,

SAMANTHA G. GIULIANO

AND PAUL P. PALLADINO,

ORDER

IT IS HEREBY ORDERED:

THAT the application filed April 10, 2018, requesting

reargument of the decision dated March 27, 2018, is

DENIED.

PER CURIAM

APPENDIX B —Appendix

MEMORANDUM

OF THE

SUPERIOR COURT OF PENNSYLVANIA, FILED

MARCH 27, 2018

SUPERIOR COURT OF PENNSYLVANIA

No. 1550 EDA 2017

CASIMIR M. TOCZYLOWSKI,

Appellant,

SAMANTHA G. GIULIANO

AND PAUL P. PALLADINO

Appeal from the Judgment Entered June 1, 2017

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 1134 of September 2013

March 27, 2018, Decided

March 27, 2018, Filed

BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:

Appellant, Casimir M. Toczylowski, appeals from

the judgment entered June 1, 2017, in favor of Appellees

Samantha G. Giuliano and Paul P. Palladino. We affirm.

Appendix B

We base the following statement of facts on the opinion

of the trial court, which in turn is supported by the record.

See Trial Court Opinion (TCO), 7/18/17, at 1-4. Appellant

and Appellees are neighbors, owning adjacent properties

located at 807 S. 2nd Street, Philadelphia, Pennsylvania,

and 802 S. Hancock Street, Philadelphia, Pennsylvania,

respectively. Appellees’ property is north of Appellant’s

property. Between the properties, south of Appellees’

property and north of Appellant’s property, is a small

stretch of land, approximately six feet wide. The land

is entirely enclosed by Appellees’ home to the north, a

locked gate to the east, a cinderblock wall to the south,

and Appellees’ backyard to the west.

Appellant, who has lived in his home over seventy

years, last recalled stepping on the stretch of land when

he was ten years old. Appellant recalled a gate enclosing

the land and restricting access to the Hancock Street

property in place at least forty or fifty years ago. When

Appellees bought the home in 2000, the stretch of land was

advertised as a driveway; accordingly, Appellees believed

the land, including the northern face of the cinderblock

wall, was part of their property. They utilized the land as

a driveway and for storage. Although Appellant considered

this land “un-owned,” he did not dispute Appellees’ use

until, in 2011, they decided to construct an addition to

their home on the stretch of land.

Appellees consulted with an architect and contractor,

obtained construction permits from the City of Philadelphia,

and began construction. Appellees approached Appellant

and requested access to and use of his courtyard for

Appendix B

construction purposes. Testimony differed as to the

conditions of this use. Appellant claimed it was conditioned

on the addition remaining separate from his home.

Appellees testified that Appellant never required a

condition at all. Regardless of the agreement, Appellant

filed an administrative complaint with the Philadelphia

Department of Licenses and Inspections (“L&I”), averring

that Appellees had attached flashing to the roof and side

of his home. L&I issued a violation notice stating that

the addition encroached upon Appellant’s property and

directed Appellees to remove the encroachment. Appellees

were then directed to conduct a survey to determine the

boundaries of their property.

Appellees hired a professional land surveyor who,

following a thorough investigation, identified the boundary

line in accordance with deeds of record and a city survey

conducted in 1964. The surveyor concluded that Appellees’

southern property line is located in the middle of the

cinderblock wall, and the southern face of the addition

was located more than two inches north of the property

line. Thus, the strip of land upon which the addition

was constructed was not on Appellant’s property. L&I

subsequently closed the violation and noted Appellees’

compliance.

In September 2013, Appellant commenced a civil

action by writ of summons. He retained the services of

a former surveyor and regulator for the Second District

of the City of Philadelphia. This surveyor concluded that

the Appellees’ addition encroached upon his property.

Appellant then filed a complaint, raising counts of

Appendix B

ejectment and trespass. Appellees filed a counterclaim for

abuse of process. Litigation commenced and eventually,

following a failed settlement attempt, proceeded to a

bench trial.

At trial, Appellant stated he has lived in his home for

his entire life. The last time he set foot on the disputed strip

of land was more than sixty years ago. Appellant admitted

that a gate enclosing the land and restricting access

has been in place for forty or fifty years. Additionally,

Appellant admitted he never thought he owned the land

north of the wall.

Two surveyors testified for Appellant. Paul Lonie

testified that at the time Appellant’s survey was performed,

he was not employed by the City of Philadelphia, though

he did involve the City of Philadelphia Second District’s

surveyor to assist him by marking a property boundary.

He stated that it is the responsibility of the survey district

to put deed information together; his responsibility was

simply to “locate the different things from there.” Mr.

Lonie conducted his survey and determined that the

cinderblock wall separating the properties was six inches

south of Appellant’s property line. He admitted that he

did not review Appellees’ deed, take measurements of

Appellees’ property, and could not see or access Appellees’

property. Mr. Lonie stated that the survey was accurate

“for what it is.” Mr. Lonie also stated that the records

relied upon by city surveyors are not available to the public

and that, following his retirement, he no longer had access

to them either.

Appendix B

Allen Bommentre, Jr., testified that at the time of the

survey, he was the City of Philadelphia’s surveyor for the

Second District. He further described the method used

to determine property lines, including placing a mark in

the field and calculating boundaries from that mark. The

property lines he used were fixed by a prior survey of 2nd

Street in Philadelphia, Pennsylvania, made in 1964. Mr.

Bommentre did not review Appellees’ deed. He stated he

did not need to review the deeds to conduct a survey, and

that the measured lines should “correspond pretty closely

to the deeds.” He took no measurements of Appellees’

property. Mr. Bommentre noted that city surveyors may

correct and regulate deeds, especially where the language

is imprecise (i.e. “more or less”). Mr. Bommentre admitted

that Appellees’ deed is precise, but Appellant’s deed is not.

Regardless, Mr. Bommentre concluded that the property

line was actually north of Appellant’s cinderblock wall.

At the conclusion of the trial, the court found in favor

of Appellees and against Appellant for trespass and

ejectment, and in favor of Appellant and against Appellees

on their counterclaim for abuse of process. Specifically,

the trial court noted the deficiencies of Appellant’s survey

and the methodology used by his surveyors, finding he

had not met his burden of proof. Appellant filed a posttrial motion, which was denied. Appellees did not file a

post-trial motion.

Appellant timely appealed. The court did not order

him to file a Pa.R.A.P. 1925(b) statement. Appellees filed

a cross-appeal but appear to have abandoned their claims

before this Court. The trial court issued an opinion.

Appendix B

Before this Court, Appellant raises the following

questions for our review:

1. Did the trial judge commit an error of law,

or abuse his discretion as the trier of fact, by

considering the substantive contents of a survey

prepared by a surveyor who was not in court,

the judge having allowed use of the survey at

trial (after a hearsay objection) “not . . . for its

truth but only for the limited purposes for which

it had been shown to a different surveyor?

2. Did the trial judge commit reversible error by

ignoring the settled “original survey” principle

used uniformly by surveyors to determine the

location of a boundary in physical space and by

basing his boundary finding instead on factors

that were irrelevant to the determination of the

boundary in physical space?

3. Did the judge commit reversible error by

basing his decision as to [Appellees’] “adverse

possession” defense on a misunderstanding

of the size and location of land at issue in

the case—specifically, by thinking that the

width of the area was approximately seven

feet (encompassing all of the open area south

of [Appellees’] original residential structure)

when, in fact, width of the “sliver of land” in

dispute was less than a foot (with only two or

three inches being north of the wall), that area

being the space between the different boundary

Appendix B

determinations reached by two surveyors, and

then basing his conclusion that the defendants

had “adversely possessed” the property on

activities conducting on the entire seven-footwide area?

4. Did the trial judge commit reversible error by

overlooking the fact that [Appellees] presented

no evidence in support of an essential element

of their adverse-possession defense: that their

immediate predecessors-in-title, back through

the 21-year prescriptive period, had “adversely

possessed” the property at issue in the same

manner as the defendants?

Appellant’s Brief at 4-6 (suggested answers omitted).

On appeal from a non-jury trial, this Court’s scope

and standard of review are as follows:

Our appellate role in cases arising from nonjury trial verdicts is to determine whether the

findings of the trial court are supported by

competent evidence and whether the trial court

committed error in any application of the law.

The findings of fact of the trial judge must be

given the same weight and effect on appeal as

the verdict of a jury. We consider the evidence in

a light most favorable to the verdict winner. We

will reverse the trial court only if its findings of

fact are not supported by competent evidence in

the record or if its findings are premised on an

Appendix B

error of law. However, where the issue concerns

a question of law, our scope of review is plenary.

The trial court’s conclusions of law on appeal

originating from a non-jury trial are not

binding on an appellate court because it is the

appellate court’s duty to determine if the trial

court correctly applied the law to the facts of

the case.

Bank of New York Mellon v. Bach, 2017 PA Super 85,

159 A.3d 16, 19 (Pa. Super. 2017), appeal denied, No. 281

MAL 2017 (Pa. Aug. 29, 2017) (internal citations omitted).

Additionally, in a nonjury trial, the trial court sitting

as the finder of fact is free to believe all, part, or none of the

evidence, and this Court will not disturb the trial court’s

credibility determinations. Voracek v. Crown Castle USA

Inc., 2006 PA Super 232, 907 A.2d 1105, 1108 (Pa. Super.

2006). “The trial court’s findings are especially binding

on appeal, where they are based upon the credibility of

the witnesses, unless it appears that the court abused its

discretion or that the court’s findings lack evidentiary

support or that the court capriciously disbelieved the

evidence.” Shaffer v. O’Toole, 2009 PA Super 6, 964 A.2d

420, 422-423 (Pa. Super. 2009).

Initially, we note that while Appellant’s brief contains

a thirty-eight-page statement of the case, which has

references to the reproduced record, and a “general

overview” of the law, Appellant’s argument is generally

devoid of citations to the record and to relevant authority.

10a

Appendix B

See In re Estate of Whitley, 2012 PA Super 158, 50 A.3d

203, 209-10 (Pa. Super. 2012) (noting that the argument

portion of the appellate brief must contain a discussion

and citation of pertinent authorities and failure to cite

relevant legal authority constitutes waiver of the claim

on appeal); see also Pa.R.A.P. 2101; Pa.R.A.P. 2119(b)(c). Accordingly, he risks waiver on his issues, as will be

discussed further herein.

Further, we note with disapproval the insulting and

dismissive tone Appellant takes in his brief. Appellant

characterizes the trial court as “failing to acknowledge,”

“misunderstanding,” “ignoring,” or “forgetting” evidence,

or refers insultingly to the time taken to author the

opinion. While Appellant’s frustration with the outcome of

the trial is understandable, this language goes far beyond

mere advocacy. We remind counsel that the Pennsylvania

Code of Civility, Art. II(1)-(2), requires that a lawyer

speak and write in a civil and respectful manner in all

communications with the court, and treat all participants

in the legal process in a civil, professional, and courteous

manner at all times. See Pa. Code of Civility, Art II. With

those principles in mind, we now turn to Appellant’s issues.

First, Appellant claims that the trial court committed

an error of law and abuse of discretion by considering the

contents of Appellees’ surveyors’ report. See Appellant’s

Brief at 52. Appellant contends that the report was

introduced at trial solely for the limited purpose of crossexamination, and the court could not consider it “for its

truth” but only for the limited purpose for which it had

been shown to the witness following Appellant’s hearsay

objection. Id.

11a

Appendix B

In his argument, Appellant cites to no pertinent

authority except the Pennsylvania Code of Judicial

Conduct Rule 2.9(C), which states that “A judge shall . . .

consider only the evidence presented and any facts that

may be properly judicially noticed.” We note that our Code

of Judicial Conduct “set[s] a norm of conduct for all our

judges and do[es] not impose substantive legal duties on

them.” Commonwealth v. Druce, 577 Pa. 581, 848 A.2d

104, 109 (Pa. 2004) (citation omitted). Appellant has cited

no law regarding the admission of evidence, hearsay, or

any hearsay exceptions which may have been relevant

to this case. Thus, Appellant has waived this argument

for purposes of appeal, due to his failure to develop it

with citations to pertinent authority. See In re Estate of

Whitley, 50 A.3d at 209-10.

Second, Appellant claims that the trial court committed

reversible error by ignoring the settled “original survey”

principle used by surveyors to determine the location of

a boundary in physical space. See Appellant’s Brief at 55.

Essentially, Appellant takes issue with the trial court’s

finding of fact that Appellant’s expert report was not

complete or reliable. Id.

Appellant argues that the “original survey” principle

controls the instant matter. According to him, the surveyor

must conduct such title research as is necessary to

identify the “original survey” that fixed the location of

the boundaries, and then conduct field measurements,

following the original surveyor’s stated direction and

distances, to determine the locations of the boundaries

in issue. See Appellant’s Brief at 55. Here, the surveyors

12a

Appendix B

hired by Appellant relied upon a 1964 city survey that

did not depict the area at issue — i.e. the Hancock Street

property — but instead, the area along South Second

Street. Appellant argues that this survey nevertheless

fixed the boundaries of the properties, and that the survey

Mr. Lonie conducted from the fixed point was accurate.

See Appellant’s Brief at 56-57. Appellant contends that the

trial court “ignored” his experts’ testimony and “failed”

to acknowledge the correct procedure for determining

boundaries. Id. at 60-61.

The only case law cited by Appellant in this section of

his argument refers to the legal effect of a deed description

and cites, generally, to the case rather than to the specific

point within it. See Appellant’s Brief at 58; see also Baker

v. Roslyn Swim Club, 206 Pa. Super. 192, 213 A.2d 145

(Pa. Super. 1965). He does not cite case law as to why

the “original survey” principle should control the trial

court’s analysis or why this Court should ignore the trial

court’s determination that the survey was not complete

or accurate. Thus, Appellant has waived this argument

for purposes of appeal, due to his failure to develop it

with citations to pertinent authority. See In re Estate of

Whitley, 50 A.3d at 209-10.

In his third issue, Appellant argues that the trial court

committed reversible error by “mistakenly thinking that

the area in dispute was the entire seven-foot-wide area

north of Appellant’s cinderblock wall. See Appellant’s

Brief at 61. Appellant argues that the area in dispute

was really only the two or three inches of space north

of the cinderblock wall. Id. Based upon this alleged

13a

Appendix B

misunderstanding, Appellant contends that the court’s

adverse possession analysis is flawed. Id.

Again, Appellant does not cite to a single case in

support of his position. Although Appellant has included,

generally, some of the standards for adverse possession

in his “overview” of case law at the outset of the brief,

his argument section does not tie pertinent authority to

the facts of this argument. Thus, Appellant has waived

this argument for purposes of appeal, due to his failure

to develop it with citations to pertinent authority. See In

re Estate of Whitley, 50 A.3d at 209-10.

Finally, Appellant argues that the trial court

committed reversible error by overlooking the fact

that Appellees did not present evidence establishing

the “continuous possession” element of their adverse

possession defense. See Appellant’s Brief at 64. Appellant

claims that because Appellees did not present evidence

that their immediate predecessors in title had adversely

possessed the property in the same manner as Appellees

during the twenty-one-year period, they could not

establish the required elements of the defense. Id.

Initially, we note that while there are exceptions, “it

has long been established that the plaintiff in a civil action

has the burden of proof — a burden which must be met by a

preponderance of the evidence.” See Johns v. Shaler Twp.,

240 Pa. Super. 129, 368 A.2d 339, 339-40 (Pa. Super. 1976).

Appellant appears to have misplaced the burden of proof

on Appellees. Regardless, Appellant’s brief cites only to

one case in support of his argument, namely, to state that

14a

Appendix B

“an adverse possession claimant must satisfy all elements;

lacking only one will defeat a claim.” See Appellant’s Brief

at 66 (citing Recreation Land Corporation v. Hartzfeld,

2008 PA Super 76, 947 A.2d 771, 774 (Pa. Super. 2008).

However, Appellant has cited to no applicable case

law regarding the concept of “tacking” or any further law

in support of his claims regarding adverse possession.

See Appellant’s Brief at 64-68. He has not developed this

claim in any meaningful way. Thus, Appellant has waived

this argument for purposes of appeal, due to his failure

to develop it with citations to pertinent authority. See In

re Estate of Whitley, 50 A.3d at 209-10.

Judgment affirmed. Jurisdiction relinquished.

Judge Lazarus joins the memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

/s/

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/18

15a

AppendixOF

C THE COURT OF

APPENDIX C — OPINION

COMMON PLEAS OF PHILADELPHIA COUNTY,

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA,

TRIAL DIVISION – CIVIL, FILED JULY 18, 2017

IN THE COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

TRIAL DIVISION – CIVIL

1550 EDA 2017

Case No. 130901134

CASIMIR TOCZYLOWSKI,

Plaintiff/Appellant,

SAMANTHA GIULIANO and PAUL P. PALLADINO,

Defendants/Appellees.

July 18, 2017, Decided

July 18, 2017, Filed

OPINION

Plaintiff Casimir M. Toczylowski (“Plaintiff”) filed

an appeal, and Defendants Samantha G. Giuliano and

Paul P. Palladino (“Defendants”) filed a cross-appeal, of

a judgment entered following a bench trial in which the

trial court made the following general findings: (1) in

favor of Defendants and against Plaintiff on his claims of

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ejectment and trespass, and (2) in favor of Plaintiff and

against Defendants on their counterclaim of abuse of

process. Pursuant to Pa.R.A.P. 1925(a), the trial court files

this opinion in support of its general findings regarding

Plaintiff’s claims and Defendants’ counterclaims. For the

reasons stated herein, the Superior Court should affirm

the judgment, affirm the trial court’s order denying

Plaintiff’s post-trial motion, and quash Defendants’ crossappeal.

FACTUAL BACKGROUND

1. Plaintiff and Defendants are Neighbors, Who Live

on Adjacent Properties; Plaintiff Sued Defendants

Because He Believes Defendants’ Newly Built

Addition to their Home Unlawfully Trespassed onto

Plaintiff’s Property

Plaintiff and Defendants are neighbors; a cinderblock

wall divides their adjacent properties. Trial Transcript

[hereinafter “TT”], 11/30/2017, at 19, 23. Plaintiff’s

property is located at 807 S. 2nd Street in Philadelphia,

Pennsylvania. Defendants’ property is located at 802 S.

Hancock Street in Philadelphia, Pennsylvania, which is

just north of and adjacent to Plaintiff’s property. Between

the two properties lies a small sliver of land, which is

enclosed and bordered by Defendants’ house to the north,

a locked gate to the east, a cinderblock wall to the south,

and Defendants’ backyard to the west. TT, 11/30/2016, at

45; TT, 2/02/2017, at 116-17; Trial Exhibits [hereinafter

“TE”] D-3, D-4, D-5.

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In 2011, Defendants considered building an addition

to their home on the small sliver of land just south of their

home. TT, 2/02/2017, at 98. Prior to construction of the

addition, Defendants exclusively used this small sliver of

land as a driveway and for storage. TT, 2/02/2017, at 99.

Plaintiff considered this approximately six-foot wide piece

of land between the cinderblock wall and Defendants’

home as an un-owned piece of land, TT, 11/30/2016, at

39, whereas Defendants believed that they owned the

small sliver of land because that area was advertised as

a driveway prior to their purchase of the property. TT,

2/02/2017, at 99-100, 137. Plaintiff has not stepped foot

on the sliver of land since he was ten years old (i.e., more

than sixty years). Plaintiff also recalls that a gate, which

encloses the land and restricts access to those except the

owners of Defendants’ residential structure, has been

in place for at least forty or fifty years. TT, 11/30/2016,

at 39, 42, 48. Because they believed that they owned the

small sliver of land, Defendants moved forward with their

addition by consulting with an architect and contractor,

who developed plans for the addition and submitted those

plans to the appropriate City of Philadelphia departments.

TT, 2/02/2017, at 102. Defendants received permits from

the City of Philadelphia to begin building the addition.

TE P-1; TE D-4.

During construction, Defendants approached Plaintiff

and requested access to and use of his courtyard—located

just south of the cinderblock wall—for the purpose of

erecting scaffolding. TT, 11/30/2016, at 26. Plaintiff

claimed that he conditioned Defendants’ contractors’ use

of his courtyard only if the addition did not extend to

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and touch Plaintiff’s home and that Defendants agreed

to this condition of use. Id. Defendants testified that

Plaintiff never required a condition to use his courtyard.

TT, 2/02/2017, at 159.

After the addition was built, Plaintiff became aware

that flashing was affixed to the roof and side of Plaintiff’s

home. Based upon this alleged encroachment, Plaintiff

filed an administrative complaint with the Philadelphia

Department of Licenses and Inspection (“L&I”). TT,

11/30/2016, at 28. L&I investigated the worksite and issued

a violation notice that stated that the addition encroached

on Plaintiff’s property. TE P-3. The violation notice also

directed Defendants to remove the encroachment. Id.

In an attempt to resolve the violation notice, Defendants

contacted L&I whereupon L&I instructed Defendants

to conduct a survey to determine the boundaries of their

property. TT, 2/02/2017, at 125.

In response to L&I’s instruction, Defendants consulted

with their contractor who then hired a professional land

surveyor. TT, 2/02/2017, at 156-7. Defendants’ surveyor

concluded that Defendants’ southern property line is

located at centerline of the cinderblock wall and that the

southern face of the addition was located more than two

inches north of the property line. TE D-7. In other words,

the small sliver of land on which Defendants built their

addition was entirely on Defendants’ property; it was not

on Plaintiff’s property. L&I subsequently identified the

violation as “Closed” and “Complied” on its website. TE

D-6.

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2. Plaintiff Commenced a Civil Action Against

Defendants Eighteen Months After Defendants’

Professional Surveyor Submitted a Letter to L&I

that Demonstrated Defendants’ Compliance With

the Proper Property Lines, But Also After L&I

Suggested To Plaintiff That He Had A Possible

Civil Matter Against Defendants

Plaintiff contacted several City of Philadelphia

departments and associations prior to initiating his civil

action against Defendants. TT, 11/30/2016, at 59-61.

Plaintiff contends that, on fifteen separate occasions,

he contacted these departments to urge the City of

Philadelphia to reconsider their conclusions regarding

Defendants’ addition. Id. Subsequent to these efforts,

Plaintiff was notified in March 2012 that L&I had marked

Plaintiff’s complaint as “Closed” and “Complied” with by

Defendants. Id. at 63. L&I’s decision was accompanied

by the phrase “possible civil matter.” TE P-4. Displeased

with L&I’s investigation and under the impression that

any further action would be considered a civil matter,

Plaintiff elected to initiate the civil action that is the

subject of this appeal.

On September 10, 2013, Plaintiff commenced a civil

action against Defendants by filing a writ of summons. TT,

11/30/2016, at 43. Plaintiff pursued the civil action only

after he believed that he had exhausted all options with

L&I. Plaintiff retained the services of the surveyor and

regulator for the Second District of the City of Philadelphia

to perfoiin a survey of the two properties. TT, 11/30/2016,

at 34. In contrast to Defendants’ survey, the survey by the

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Second District concluded that the Defendants’ addition

encroached upon Plaintiff’s property, which the surveyor

based upon the location of Plaintiff’s property line. TT,

11/30/2016, at 38; Compare TE P-6 with TE D-7.

DISCUSSION

The power to grant a new trial is inherent in the court,

and the decision to grant or deny a motion for new trial

lies within the court’s discretionary authority. Colosimo

v. Pennsylvania Electric Co., 513 Pa. 155, 518 A.2d 1206,

1210 (Pa. 1986). A new trial should only be granted in truly

extraordinary circumstances. Armbruster v. Horowitz,

DDS, 572 Pa. 1, 813 A.2d 698, 703 (Pa. 2002). The appellate

court’s scope of review is limited to determining whether

the trial court committed a clear abuse of discretion or

an error of law that controlled the outcome of the case.

Hooker v. State Farm Fire and Casualty Co., 880 A.2d

70, 80 (Pa. Commw. Ct. 2005).

1. Plaintiff’s Appeal of the Trial Court’s Finding in

Favor of Defendants on Plaintiff’s Ejectment and

Trespass Claims has no Merit

Plaintiff Failed to Meet His Burden of

Proof for His Claims Because He Failed to

Prove Ownership of any Land North of the

Cinderblock Wall

Plaintiff argued that Defendants’ addition violates his

property rights. Plaintiff’s Proposed Findings of Fact and

Conclusions of Law at 15. In support of this argument,

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Plaintiff contended that he met his burden of proof

regarding his immediate exclusive possession because his

surveyor’s professional opinion supported that the actual

property line is located north of the cinderblock wall. Id.

In Pennsylvania, the burden of proof for an ejectment

action requires a plaintiff to prove “the right to immediate

exclusive possession [of the property in dispute].”

Plauchak v. Boling, 439 Pa. Super. 156, 653 A.2d 671,

674 (Pa. Super. Ct. 1995) (citing Doman v. Brogan, 405

Pa. Super. 254, 592 A.2d 104, 108 (Pa. Super. Ct. 1991));

Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83, 89 (Pa.

Super. Ct. 1991). Recovery for an ejectment claim rests

primarily on the strength of a plaintiff’s title and not the

comparative weakness of defendant’s title. See Doman,

592 A.2d at 108. To meet this burden of proof, a plaintiff

must demonstrate immediate exclusive possession by a

preponderance of the evidence. See Doman, 592 A.2d

at 108; see also Hallman v. Turns, 334 Pa. Super. 184,

482 A.2d 1284, 1287 (Pa. Super. Ct. 1984) (citing Rook

v. Greenewald, 22 Pa. Super. 641, 648 (1903)). Where

the terms of a deed or title create differing reasonable

interpretations, their construction should be submitted to

the trier of fact. See, e.g., Flynn v. Rodkey, 192 Pa. Super.

56, 159 A.2d 265, 268 (Pa. Super. Ct. 1960); see also, e.g.,

Baker v. Roslyn Swim Club, 206 Pa. Super. 192, 213 A.2d

145, 148 (Pa. Super. Ct. 1965).

The evidence at trial indicated that Defendants’

survey was more reliable and complete than Plaintiff’s

survey. Defendants’ surveyor identified the boundary

line in accordance with the deeds of record and the city

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survey taken by the Surveyor and Regulator of the

Second District in 1964, TE D-11. In contrast, Plaintiff’s

surveyor did not review Defendants’ deed and did not take

measurements of Defendants’ property. TT, 11/30/2016,

at 90. Furthermore, Plaintiff’s surveyor admitted that

he could not see around Defendants’ gate or wall and

did not access Defendants’ side of the property. When

questioned on cross-examination regarding the accuracy

of his survey, Plaintiff’s surveyor explained, “[the survey]

is an accurate survey for what it is.” TT, 11/30/2016, at 95.

Based on the evidence at trial, the trial court properly

found that Plaintiff failed to meet the burden of proof

for his ejectment claim. Plaintiff testified that he never

thought he owned any land north of the wall. Defendants’

survey, which L&I based its conclusion on, positioned the

property line at the centerline of the cinderblock wall.

L&I found Defendants in compliance after Defendants

submitted their professional survey to L&I. Defendants’

professional survey was more accurate than Plaintiff’s

survey because Plaintiff’s surveyor failed to review both

deeds, did not take corner measurements, and did not

enter Defendants’ property to take measurements. Based

on the totality of the evidence, the trial court did not err

in finding that Plaintiff failed to meet his burden to prove

his right of immediate exclusive possession to the disputed

property.

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The Trial Court Properly Found in Favor of

Defendants Because They Adversely Possessed

The Property On Which They Built The

Addition

Plaintiff argued that “a property owner has an

absolute right to have an encroachment upon the owner’s

real property removed regardless of (i) how small the

encroachment might be, (ii) how expensive it would be to

remove the encroachment, and (iii) the extent (if any) to

which the property owner can prove that the encroachment

has interfered with the owner’s use and enjoyment of the

property.” Plaintiff’s Proposed Findings of Fact and

Conclusions of Law at 14. Plaintiff further argued that

Defendants failed to prove several elements of Defendants’

adverse possession defense. Id. at 16. Specifically, Plaintiff

asserted that Defendants (1) failed to prove that “their

use of the Encroachment Area was visible,” (2) failed

to show that “their use of the Encroachment Area was

exclusive,” and (3) failed to demonstrate that “their use

of the Encroachment Area was hostile.” Id.

In Pennsylvania, adverse possession is an affirmative

defense to ejectment and trespass if the defendant can

prove the following eight factors: that he or she had actual,

continuous, visible, notorious, distinct, exclusive, and

hostile possession of the land for a period of twenty-one

years. Palac v. DiSanto, 424 Pa. Super. 277, 622 A.2d 378,

380 (Pa. Super. Ct. 1993) (quoting Conneaut Lake Park,

Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828, 829 (Pa.

1949). To prevail on an adverse possession defense, the

defendant must prove each of the eight factors; failure to

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prove any one of the factors will not confer title. Conneaut

Lake, 66 A.2d at 829.

Here, the evidence at trial indicated that the small

sliver of land was enclosed by Defendants’ house to the

north, a locked gate to the east, a cinderblock wall to the

south, and Defendants’ backyard to the west. Defendants

testified that they purchased the property in 2000, that the

sliver of land had been advertised to them as a driveway,

and that there was an access door from their house to

the side area when they purchased the home in 2000. TT,

2/02/2017, at 136, 148. Defendants also testified that they

were the only persons who had a key to the locked gate,

that they had a photograph—allegedly dating back to the

1950s that shows the gate in place, and that Plaintiff never

had access to the gate or the sliver of land. TT, 2/02/2017,

at 117; Trial Exhibit D-5. With regard to the use of the

sliver of land by Defendants, Defendants testified that

they utilize the area for planters, as an entertainment

space, as an access point to their backyard, and as

storage for trashcans and bicycles. TT, 2/02/2017, at 147.

Defendants had no reason to believe that they did not own

the entirety of the space—including the northern face of

the cinderblock wall. TT, 2/02/2017, at 137.

The evidence at trial further confirmed that Plaintiff

was aware that Defendants’ property was enclosed and

that he had not stepped foot on Defendants’ property in

the last forty years. More specifically, Plaintiff testified

that he never believed he owned any property north of

the cinderblock wall, that he estimated that the gate has

been in place for at least twenty-five years, and that he had

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not been on Defendants’ property in approximately forty

years. TT, 11/30/2017, at 39, 40, 48, 49. There is no evidence

that Plaintiff attempted to assure that Defendants were

not using any part of his cinderblock wall.

As discussed below, the trial court properly found

that Defendants satisfied all eight of the required factors

to meet their burden of proof for an adverse possession

defense to Plaintiff’s ejectment and trespass claims. See

Shaffer, 964 A.2d at 424.

In general, actual possession, means dominion over

the property and varies depending upon the nature of the

property. See Recreation Land Corp. v. Hartzfeld, 2008

PA Super 76, 947 A.2d 771, 774 (Pa. Super. Ct. 2008). The

evidence indicates that Defendants had exclusive control

over the area, which satisfies the actual possession factor.

Specifically, Defendants were the only persons with a key

to the locked gate, which is confirmed by Plaintiff’s own

testimony that he had not entered that area in at least

forty years. Additionally, this gate is the only access point

that Plaintiff could use—aside from entering through

Defendants’ home.

The third and fourth factors, visible and notorious

possession, are satisfied if the conduct of a non-owner

is visible and obvious enough to put a reasonable owner

on notice that his or her property is being used by the

non-owner with the intent to claim possessory right. See

Sterner v. Freed, 391 Pa. Super. 254, 570 A.2d 1079, 1081

(Pa. Super. Ct. 1990). Here, Defendants demonstrated

visible and notorious possession over the sliver of land

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in that they had used that area as a driveway, a storage

area, an entertainment area, and an access point since

Defendants purchased the property. Furthermore,

Plaintiff testified that the addition made it look as if he

were on Delaware Avenue, which implied that he had

the ability to observe what happened in that side yard.

Taken together, this evidence suggests that Defendants’

conduct was sufficient to demonstrate visible and notorious

possession, as Defendants notoriously used this area for

their own purposes and it is reasonable to conclude that

Plaintiff could observe their use of the area from his

kitchen window.

The fifth and sixth factors, distinct and exclusive

possession, do not require the possession to be absolutely

exclusive, however, it must mirror the type of possession

an owner may exhibit. See, Reed v. Wolyniec, 323 Pa.

Super. 550, 471 A.2d 80, 84 (Pa. Super. Ct. 1983) (finding

this factor satisfied where the defendant has clearly shown

that he maintained the lot by cutting the grass, planting

and maintaining shrubs and plants and other activities

that would be typical of someone owning the property,

to the general exclusion of others). The fact that persons

would occasionally pass over the lot will not destroy the

exclusive character of the adverse possession. Id. In

the matter sub judice, Defendants used this side area

for several and differing purposes since acquiring the

property. For example, Defendants’ testimony illustrates

that they used the area an entertainment space, as a

storage area, and as an access point to their backyard.

While Plaintiff may have used a very small portion of

the area on top of a wall for planters, Pennsylvania law

clearly states that a defendant need not have absolute

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possession of the land. Like the circumstances in Reed,

where persons occasionally traversed the land but the

court still found that the defendants satisfied exclusive and

distinct possession, the circumstances in this case, where

Plaintiff’s plants occasionally hung over the cinderblock

wall and occupied some of the space beyond the northern

face of the wall, indicate that Defendants maintained

exclusive and distinct possession.

Next, Defendants needed to establish the element

of “hostile” possession, which implies an assertion of

ownership rights adverse to that of the true owner and all

others. Schlagel v. Lombardi, 337 Pa. Super. 83, 486 A.2d

491, 494 (Pa. Super.Ct. 1984). Here, Defendants were the

only persons with a key to the locked gate and Defendant

testified that she always believed that she owned that

area, as it was advertised to her for use as a driveway

when she purchased the home in 2000. In the totality of

the circumstances, Defendants supported the notion of

claimed ownership to this portion of the area for several

reasons: Defendants kept the gate locked, Defendants

used that area as their own (for storage, entertainment,

etc.), and the only way to gain access to the area was to

ask Defendants for permission to do so. Thus Defendants

demonstrated their hostile possession over the disputed

sliver of land.

Finally, Defendants needed to prove open, continuous

and uninterrupted possession for the full statutory period

of 21 years. See Shaffer v. O’Toole, 2009 PA Super 6, 964

A.2d 420 (Pa. Super. Ct. 2009); Palac. Importantly, where

there are successive property owners within the twentyone-year period, the successor non-owner may “tack” the

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prior owner’s possession of the property in dispute, but

only if there is succession of the relationship to the same

thing (i.e., the disputed property). Baylor v. Soska, 540

Pa. 435, 658 A.2d 743, 744-45 (Pa. 1995). Here, continuous

possession is satisfied because Defendants owned the

property since 2000 (i.e., seventeen years), the gate has

been in place for at least twenty-five years and Plaintiff has

not stepped foot on Defendants’ property for at least forty

years. Defendants submitted photos that corroborated

this evidence. Because Defendants are permitted to “tack”

on a previous owner’s possession to meet the statutory

twenty-one year possession requirement—in accordance

with the Pennsylvania Supreme Court holding in Baylor—

the evidence supports that Defendants have continuously

possessed this property for 21 years.

2. Defendants’ Appeal of the Trial Court’s Finding in

Favor of Plaintiff on Defendants’ Abuse of Process

Claim has no Merit

To the Extent Defendants Filed a CrossAppeal of the Trial Court’s Findings in Favor

of Defendants and Against Plaintiff on His

Claims, the Superior Court Should Quash

Defendants’ Cross-Appeal Because They Were

not Aggrieved Parties and, Therefore, Lack

Standing to Appeal

In Pennsylvania, a prevailing party lacks standing

to appeal a judgment or finding in the prevailing party’s

favor, even if the trial court rules against the prevailing

party on an issue. See Basile v. H&R Block, Inc., 601 Pa.

392, 973 A.2d 417, 422 (Pa. 2009) (quashing prevailing

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party’s cross-appeal because prevailing party won its

motion for summary judgment and was granted the

relief it sought). Here, to the extent Defendants filed

their cross-appeal of the trial court’s finding in favor of

Defendants, and against Plaintiff, on Plaintiff’s claims, the

Superior Court should quash Defendants’ cross-appeal.

Simply put, Defendants are not an aggrieved party as to

Plaintiff’s claims because they received the relief they

sought (i.e., a finding in their favor on Plaintiff’s claims).

The Superior Court has not hesitated to quash a prevailing

party’s cross-appeal where the party prevailed below. See,

e.g., Wilson v. Transp. Ins. Co., 2005 PA Super 401, 889

A.2d 563 (Pa. Super. Ct. 2005) (a prevailing party lacks

standing to appeal a judgment entered in its favor); see

also Hashagen v. Workers’ Comp. Appeal Bd. (Air Prods.

& Chemicals, Inc.), 758 A.2d 276 (Pa. Commw. Ct. 2000)

(a prevailing party is not aggrieved and lacks standing

to appeal).

To the Extent Defendants Filed a CrossAppeal of the Trial Court’s Findings in

Favor of Plaintiff and Against Defendants

on Defendants’ Counterclaims, the Superior

Court Should Quash Defendants’ Cross-Appeal

Because They Failed to File a Timely PostTrial Motion

On April 20, 2017, the trial court found in favor of

Plaintiff, and against Defendants, on their counterclaim

of abuse of process. Defendants never filed a post-trial

motion regarding the trial court’s findings. On June 8,

2017, Defendants filed a notice of their cross-appeal in

response to Plaintiff’s appeal.

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Pursuant to Pa.R.C.P. 227.1, if a party fails to file posttrial motions, within ten days of the verdict or decision,

then those issues will not be preserved for appeal. See

Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d

996 (Pa. 2001); Lane Enterprises, Inc. v. L.B. Foster

Co., 551 Pa. 306, 710 A.2d 54 (Pa. 1998); D.L. Forrey &

Associates, Inc. v. Fuel City Truck Stop, Inc., 2013 PA

Super 140, 71 A.3d 915 (Pa. Super. Ct. 2013); Lenhart v.

Cigna Companies, 2003 PA Super 195, 824 A.2d 1193 (Pa.

Super. Ct. 2003).

Here, Defendants failed to file a post-trial motion

as required by Pa.R.C.P. 227.1. As a result, Defendants

waived all issues on appeal related to the trial court’s

findings in favor of Plaintiff and against Defendants on

their counterclaim.

CONCLUSION

For the reasons set forth above, the Superior Court

should affirm the judgment, affirm the trial court’s

order denying Plaintiff’s post-trial motion, and quash

Defendants’ cross-appeal.

BY THE COURT:

/s/ Daniel J. Anders

DANIEL J. ANDERS, J.

July 18, 2017

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AppendixOF

A THE COURT OF

APPENDIX D — ORDER

COMMON PLEAS OF PHILADELPHIA FIRST

JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL

DIVISION – CIVIL, DATED MAY 10, 2017

IN THE COURT OF COMMON PLEAS OF

PHILADELPHIA FIRST JUDICIAL DISTRICT OF

PENNSYLVANIA TRIAL DIVISION - CIVIL

Case No. 130901134

Control No. 17050067

CASIMIR M. TOCZYLOWSKI,

Plaintiff,

SAMANTHA G. GUILIANO

AND PAUL P. PALLADINO,

Defendants.

ORDER

A ND NOW, this 10th day of May, 2017, upon

consideration of the Post-Trial Motion filed by Casimir

M. Toczylowski, it is hereby ORDERED and DECREED

that said Motion is DENIED.

BY THE COURT:

/s/

DANIEL J. ANDERS, J.

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A PETITION FOR

APPENDIX E — Appendix

DENYING

ALLOWANCE OF APPEAL OF THE SUPREME

COURT OF PENNSYLVANIA, EASTERN

DISTRICT, DATED DECEMBER 3, 2018

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

No. 294 EAL 2018

CASIMIR M. TOCZYLOWSKI,

Petitioner,

SAMANTHA G. GIULIANO

AND PAUL P. PALLADINO,

Respondents.

Petition for Allowance of Appeal from

the Order of the Superior Court

ORDER

PER CURIAM

AND NOW, this 3rd day of December, 2018, the

Petition for Allowance of Appeal is DENIED.

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