M.J. Walters v. Buck Hill Falls Co. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael J. Walters; Michael J. :
Walters and Roseanne Walters, :
husband and wife; Mark H. Attix; :
Frederick John Bartek; Charles W. :
Buttz and Teresa C. Buttz, husband :
and wife; Joellen Chadwick; Mary :
Ellen Christman; Brian Colfer and :
Alicia Colfer, husband and wife; :
David T. Councilor and Debra A. :
Councilor f/k/a Debra Litchult, :
husband and wife; David T. :
Councilor, Administrator of the :
Estate of Theodore G. Councilor; :
Mary Alchermes-Dilger, Joseph D. :
Alchermes, and Christopher B. :
Alchermes; Mark E. Elvin and :
Shauna D. Elvin, husband and wife; :
Susan E. Esterhay and Linda M. :
Smith; Max H. Feldman and Kelee A. :
Monahan-Feldman, husband and :
wife; Leo J. Finnegan; Richard E. :
John and Marilyn P. John, husband :
and wife; Marilynn Ann Johnson; :
Howard A. Kellner and Donna M. :
Kellner, husband and wife; Douglas :
D. Kelly; Russell R. Kice; John O. :
Klinger and Brenda Klinger, husband :
and wife; Mountain Home Enterprises :
LLC; Erik Peterson and Gillian :
Peterson, husband and wife; Clarke :
Reid and Joanne Reid, husband and :
wife; Patricia A. Russo; Edward M. :
Satterthwaite; Jacob E. Seip and :
Phyllis A. Seip, husband and wife; :
Thomas D. Shore; Leslie D. Sopko; :
Stags Leap Properties LLC; Elaine J. :
Vula; William C. Wolfe, :
Appellants :
:
v. :
Buck Hill Falls Company; :
Lot and Cottage Owners’ : No. 52 C.D. 2019
Association of Buck Hill Falls : Argued: December 12, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 10, 2020
Michael J. Walters, Michael J. and Roseanne Walters, Mark H. Attix,
Frederick John Bartek, Charles W. and Teresa C. Buttz, Joellen Chadwick, Mary
Ellen Christman, Brian and Alicia Colfer, David T. Councilor, individually, Debra A.
Councilor f/k/a Debra Litchult, David T. Councilor as Administrator of the Estate of
Theodore G. Councilor, Mary Alchermes-Dilger, Joseph D. and Christopher B.
Alchermes, Mark E. and Shauna D. Elvin, Susan E. Esterhay, Linda M. Smith, Max
H. Feldman and Kelee A. Monahan-Feldman, Leo J. Finnegan, Richard E. and
Marilyn P. John, Marilynn Ann Johnson, Howard A. and Donna M. Kellner, Douglas
D. Kelly, Russell R. Kice, John O. and Brenda Klinger, Mountain Home Enterprises
LLC, Erik and Gillian Peterson, Clarke and Joanne Reid, Patricia A. Russo, Edward
M. Satterthwaite, Jacob E. and Phyllis A. Seip, Thomas D. Shore, Leslie D. Sopko,
Stags Leap Properties LLC, Elaine J. Vula, and William C. Wolfe (collectively,
Appellants) appeal from the Monroe County Common Pleas Court’s (trial court)
September 4, 2018 order denying Lot and Cottage Owners’ Association of Buck Hill
Falls’ (Association)1 summary judgment motion, granting Buck Hill Falls Company’s
(Company) summary judgment motion and dismissing the action. There are seven
1
Association, formed in 1909 and registered in 1976 as a non-profit association, is a
voluntary membership association whose purpose is to preserve the Buck Hill Falls Community’s
character, spirit and traditions. See Reproduced Record (R.R.) at 6a.
2
issues before this Court: (1) whether the General Declaration of Rights, Easements,
Covenants, Conditions, Affirmative Obligations and Restrictions Applicable to the
Buck Hill Falls Community (Community) (General Declaration) authorizes the
imposition of fees for Company’s non-community-based services located in the
Community’s common area (Common Area);2 (2) whether the subject assessments
violate the Uniform Planned Community Act (UPCA), 68 Pa.C.S. §§ 5101-5414; (3)
whether genuine issues of material fact remain, rendering summary judgment
inappropriate; (4) whether a 1996 settlement agreement between Company and
Association altered Company’s authority to impose fees and dues and whether
Company’s course of conduct pursuant to its obligations under the 1996 settlement
agreement resulted in an implied contract between Company and the Community’s
residents; (5) whether the trial court properly concluded that an agreement’s no-
litigation clause prevented the agreement’s introduction; (6) whether the trial court
erred in failing to find the current dues process inequitable, in that a publicly traded
for-profit corporation has the power to tax Community members by increasing dues;
and (7) whether the trial court’s decision bars future challenges to Company’s
assessed dues.3 After review, we affirm.
The Community is a private, residential community located in Monroe
County, Pennsylvania, consisting of approximately 305 cottages and a number of
2
Section 1.9 of the General Declaration defines “Common Area” as
all that land (including the associated improvements) designated in
Exhibit ‘B’[, see R.R. at 204a,] to and all land that is not lots or living
units in the development area and existing residential area this
[General] Declaration or in any supplementary declaration which is or
shall be owned by company subject to the common use and
enjoyment of the owners.
R.R. at 174a-175a (capitalization omitted).
3
Appellants presented 16 issues in their Statement of the Questions Involved. See
Appellants’ Br. at 4-7. These issues are subsumed in this Court’s restatement of the issues.
3
undeveloped lots. Company is a for-profit corporation, created in 1900, which owns
and manages all of the Common Area and amenities. Virtually all of the
Community’s shareholders are either current or former Community residents. See
Reproduced Record (R.R.) at 160a; see also R.R. at 151a. Company owned the Buck
Hill Falls Inn (Inn), which it sold to third parties and ultimately closed. Many
Community amenities, including the golf course, lawn bowling and tennis, were
attractions used by both the Inn and the Community. Company also permits use of
the amenities by the general public for a fee, but the charged fees are insufficient to
sustain the operations.
The trial court’s opinion succinctly describes the lengthy and litigious
history among Appellants, Association and Company:
There have been many prior actions to determine the rights
and responsibilities of [] Company, [] Association, and
owners of real estate within the Community [(Owners)].
The deeds to most, if not all the properties in the
Community incorporate certain covenants and restrictions
set forth in the [General Declaration, see R.R. at 331a] and
‘Supporting Declaration II.’ Both documents have been
recorded in the Monroe County Recorder of Deeds office.
The General Declaration provides that every owner within
the Community has an easement to use and enjoy the
[C]ommon [A]reas of the development. In return, []
Company may charge [Owners] for the costs of funding the
[C]ommon [A]reas and for capital improvements. The
obligation of [Owners] to pay dues to [] Company has
already been upheld by this Court. The proper calculation
of these dues continues to be an issue between the parties
and has resulted in the present litigation.
In 1995, [] Association brought a declaratory judgment suit
against [] Company. In order to end that litigation
amicably, the parties entered into an agreement (hereinafter
‘1996 Agreement’) and appendix (hereinafter ‘1996
Appendix’). The 1996 Agreement recognized the services
[] Company provides to the Community and the obligation
of the residents to pay for them. As part of the 1996
Agreement, [] Company also agreed to seek ‘advice and
4
support’ from [] Association in setting yearly dues. []This
was to be accomplished through the creation of a Joint
Finance Committee consisting of two members nominated
by [] Company, two members nominated by [] Association,
and one impartial member. The Joint Finance Committee
would propose and recommend the amount of dues to be
levied to the board of [] Company. According to the 1996
Agreement, [] Company was not required to accept the
recommendation of the Joint Finance Committee, but
‘agree[d] to meet and confer with the Joint [Finance]
Committee in an effort to establish an agreed upon level of
[d]ues, prior to adoption of a level of [d]ues other than
recommended.’ The parties also agreed to be bound by a
‘dues formula’ found in the 1996 Appendix. The Appendix
does not establish a hardline formula, but is built on certain
‘cost centers.’ The costs of ‘General and Administrative
Expenses’ and ‘Community Services’[4] were to be assessed
4
The term “Community Services,” is not defined in the General Declaration, but it is
referenced and defined in the 1996 Agreement as follows:
Such services include but are not limited to providing general
administration, road maintenance, trash collection, security,
maintenance for common areas such as the Community Flower
Garden, bowling greens, Glenn and Falls, Jenkins Woods, Metzgar’s
Farm and such additional, facilities as may be determined from
time to time to benefit the entire [] Community. These above
mentioned services are hereafter defined as ‘Community Services’ to
distinguish them from other services such as recreational facilities,
water and sewer services, individual property inspections, and other
services, all of which are billed to individual customers based on
usage.
R.R. at 368a (emphasis added). The 1996 Appendix further explained:
Company provides a broad array of services including, but not limited
to, security, garbage and trash removal, road maintenance and snow
plowing. [] Company also preserves and maintains certain lands and
properties for the use and benefit of the community. These include
the community Flower Garden, Metzg[a]r[’]s Farm, the Bowling
Greens, the Glen[n] and Falls, the Tennis Tea meeting facility and
certain protective lands that serve as an environmental buffer for the
community.
[] Company has adopted an accounting methodology based on ‘cost
centers.’ One such center is ‘Community Services’ under which
are grouped the Direct Costs associated with providing to the
5
in proportion to both [O]wners of developed and
undeveloped properties. However sports amenities
[(defined in the Appendix as ‘golf, tennis, pool, fishing
etc.)] were to be supported by fees charged to individual
users with the ‘Company’s intention to manage these
[sports] amenities to assure each is, at the very least, self-
sustaining by the year 2000.’ [1996 Appendix, see R.R. at
375a.] The members of [] Association properly amended
the organization’s by-laws to adopt the 1996 Agreement.[5]
In 2004, [] Company and [] Association once again came
together and issued a ‘Restated and Amended Agreement
Between [Company] and [Association]’ (hereinafter ‘the
2004 Agreement’ and ‘2004 Appendix’)[.] This
amendment was not voted on by the members of []
Association. The 2004 Agreement is substantially similar
to its 1996 counterpart with only a few changes. The 2004
Appendix put into writing certain changes in the dues
formula. In response to the failure to attract outside usage,
the 2004 Appendix added the sports amenities to
‘Community Services,’ assessed to every owner. Other
community the services described in the preceding paragraph.
Such costs include salaries, benefits, and associated payroll costs,
taxes, contracted services, insurance premiums related to community
services, uncollectible [d]ues billings, telephone charges, materials,
water, sewer and other expenses associated with providing
Community Services.
R.R. at 374a (emphasis added). According to Appellants, although not explicitly defined in the
1996 Agreement, the term “Non-Community Services Business Activities” was effectively defined
therein as anything not included in Community Services. See Appellants’ Br. at 21.
5
In 2000, Company adopted new Rules and Regulations (2000 Rules and Regulations).
According to a confidential internal Company legal memorandum,
[t]he [2000] Rules and Regulations were approved by a supermajority
of outstanding shares and a large majority of homeowners in August
2000. They are based on the [General Declaration] and were adopted
primarily to bring consistency to the dues paying obligations of all
cottage owners. 187 cottages are under the 1986 Covenants. Most, if
not all, deeds with pre-1986 Covenants or original deed restrictions do
not have a dues paying provision, but have a provision requiring
compliance with Company rules and regulations that are adopted by
the shareholders, as the [2000] Rules and Regulations were.
R.R. at 827a.
6
changes that were made related to parts of the 1996
Agreement which had proved untenable. All parties agree
that the amount of dues assessed to [Owners] has increased
considerably since 1996.
On March 16, 2015, [Appellants] filed a complaint in this
matter. [] [Appellants] are a group of former and current
[O]wners of homes in the Community who believe they
have been systematically overcharged by [] Company.
After preliminary objections by [Company and
Association], [Appellants] filed an Amended Complaint on
June 29, 2015. A Second Amended Complaint followed on
October 15, 2015, as a result of additional objections filed
by [Company and Association]. [Appellants] raise a
number of grievances regarding how dues are formulated by
[] Company which are allegedly in violation of the 1996
Agreement.
Trial Ct. Op. at 3-5 (citations and footnote omitted).
Appellants alleged in the Second Amended Complaint that Company
substantially complied with the 1996 Agreement from 1996 through November 1,
2005, and established the parties’ course of dealing in calculating the formula used to
charge dues, fees and assessments.6 Appellants sought recovery of allegedly
excessive charges between Company’s 2006 fiscal year and its 2015 fiscal year as a
result of Company’s “failure to adhere to the various sets of covenants, as clarified by
the 1996 Agreement[.]” R.R. at 12a. In other words, Appellants alleged that
Company overcharged residents by including fees for Non-Community Services
business activities (such as sports amenities) in the dues calculations, despite having
6
Notwithstanding, Appellants averred that, during that same period, Company violated the
1996 Agreement in two ways: First, Company failed to apportion the Community Services costs
between and among developed and undeveloped lots, instead charging all costs only to developed
lots; and, second, by entering into the 2004 Agreement which improperly attempted to amend
Company’s rights, requiring Community Services costs be allocated only to developed lots, and
revising the definition of Community Services to include additional activities such as the activity
center, fishing and the swimming pool complex.
7
previously engaged in a course of conduct consistent with the 1996 Agreement to
charge only users rather than the Community at large.
On July 30, 2018, both Company and Association filed summary
judgment motions. On September 4, 2018, the trial court granted Company’s
summary judgment motion and dismissed the action.7 The trial court concluded that
neither the 1996 Agreement nor the 2004 Agreement constituted enforceable
amendments to the General Declaration “especially when such document[s are] not
labeled as [] amendment[s], do[] not appear to have been meant as [] amendment[s],
and do[] not follow the amendment procedures clearly outlined within the recorded
covenants themselves.” Trial Ct. Op. at 13. In addition, the trial court declined to
find an implied contract based on Company’s course of conduct. Appellants
appealed to this Court.8
Discussion
Initially,
‘summary judgment is appropriate only in those cases
where the record clearly demonstrates that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.’ Atcovitz v. Gulph
Mills Tennis Club, Inc., . . . 812 A.2d 1218, 1221 ([Pa.]
2002); Pa.R.C.P. [No.] 1035.2(1). The trial court must take
all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party. In so doing,
the trial court must resolve all doubts as to the existence of
a genuine issue of material fact against the moving party,
and, thus, may only grant summary judgment ‘where the
right to such judgment is clear and free from all doubt.’
Summers v. Certainteed Corp., . . . 997 A.2d 1152, 1159
([Pa.] 2010).
7
The trial court denied Association’s summary judgment motion.
8
“An appellate court may reverse a grant of summary judgment if there has been an error of
law or an abuse of discretion.” Saksek v. Janssen Pharm., Inc. (In re Risperdal Litig.), ___ A.3d
___, ___, (Pa. Nos. 22 EAP 2018, 23 EAP 2018, filed November 20, 2019), slip op. at 8.
8
Saksek v. Janssen Pharm., Inc. (In re Risperdal Litig.), ___ A.3d ___, ___ (Pa. Nos.
22, 23 EAP 2018, filed November 20, 2019), slip op. at 8-9 (citation omitted). “The
moving party has the burden of proving the non-existence of any genuine issue of
material fact.” Kee v. Pa. Tpk. Comm’n, 722 A.2d 1123, 1125 (Pa. Cmwlth. 1998).
“However, to preclude summary judgment, the non-moving party must establish that
a genuine issue of material fact exists.” United Transp. Union v. Pa. Pub. Util.
Comm’n, 68 A.3d 1026, 1033 (Pa. Cmwlth. 2013).
Here, Section 3.2 of the General Declaration describes Company’s
duties, in pertinent part:
Company shall in addition to all obligations, duties and
functions as are assigned to it by other provisions of this
[General] Declaration have the obligations, duties and
functions (subject to the provisions of this [General]
Declaration), to do and perform each and every of the
following for the benefit of the Owners[9] and for the
maintenance, administration and improvement of the
Common Area.
(a) Operation and Maintenance of Common Area. To
operate, maintain, and otherwise manage or provide for the
operation, maintenance, and management of the Common
Area, together with all easements for operation and
maintenance purposes and for the benefit of the Owners of
over and within the Common Area; and (as limited by the
[General] Declaration) to keep all improvements of
whatever kind and for whatever purpose from time to time
associated with the Common Area in good order, condition
and repair . . . .
R.R. at 179a (capitalization omitted). Section 3.3 of the General Declaration, which
describes the “Powers and Authority of Company”, provides:
Section 1.9 of the General Declaration defines “Owner” as “the record owner . . . , whether
9
one or more persons or entities, of a fee simple title to a [l]ot or [l]iving [u]nit, his, her or its heirs,
successors or assigns.” R.R. at 176a.
9
Company shall have the power to do any and all lawful
things which may be authorized, required or permitted to be
done by Company under this [General] Declaration, and to
do and perform any and all acts which may be necessary or
proper for or incidental to the exercise of any of the express
powers of Company including the following which are
listed without intent to limit the powers of [] Company.
(a) Dues, Fees, and Assessments. To levy dues, fees,
and assessments (the Charges) on [] Owners of lots and
living units and to enforce payment of charges, all in
accordance with the provision of this [General] Declaration.
....
(i) Other Powers. To exercise any other power which
promotes (i) the recreation, health, safety and welfare of []
Owners, or (ii) the improvement, operation and
maintenance of the Common Area.
R.R. at 181a (bold emphasis added; capitalization omitted). Section 4.1 of the
General Declaration specifies, in relevant part:
(a) . . . [E]ach Owner and person holding title to any
lot or living unit by acceptance of a deed, whether or not it
shall be so expressed in such deed, is deemed to covenant
and agree, for each lot, or living unit and improvements
owned, to pay to Company: (1) annual dues and fees, (2)
dues and fees specified in Supporting Declaration (if any)
and (3) special assessments. These charges shall be
established, made and collected as provided below.
(b) The dues, fees and Special Assessments, together
with interest, costs of collection, and reasonable attorneys’
fees, shall be legal obligations which run with the land and
shall be continuing liens upon the lot or living unit against
which each charge is made.
R.R. at 184a (capitalization omitted).
Section 4.2 of the General Declaration, which describes Company’s
authority to collect dues and fees, states:
Annual dues and fees levied by Company shall be used
to promote the recreation, health, safety and welfare of []
10
Owners, the improvement, operation and maintenance
of the Common Area, the performance of the duties and
exercise of the powers of Company as set forth in this
[General] Declaration, the payment of proper expenses
of Company of its duties and exercise by it of its powers
pursuant to this [General] Declaration, and the
establishment of restricted funds of [] Company for the
maintenance, repair and replacement of roads, paths and
other improvements upon the Common Area.
R.R. at 184a (capitalization omitted; emphasis added).10 Further, Section 1.22 of the
General Declaration defines “Recreational Facility” as “any fee-based, limited access,
non-residential improvement in the Common Area, including, but not limited to, the
golf courses, tennis courts, pool, bowling greens, falls and other similar facilities.”11
R.R. at 176a (capitalization omitted). Section 6.3 of the General Declaration, titled
“Privilege to Use Recreation Facilities,” provides:
(a) Each Owner of a lot or living unit and the single family
of each Owner are hereby granted a limited privilege to use
any Common Area, provided that the Owner:
....
(iii) Pays recreational fee(s) as established by Company to
operate the Recreational Facility.
R.R. at 194a (capitalization omitted).
10
In addition to the dues and fees described, Section 4.3 of the General Declaration permits
Company to
levy, during any calendar year, Special Assessments . . . applicable to
that year only for the purpose of protecting the Common Area,
defraying, in whole or in part, the cost of any construction,
reconstruction, or unexpected repair or replacement of a capital
improvement upon the Common Area, including the necessary
fixtures and personal property related to these improvements.
R.R. at 184a (capitalization omitted).
11
Appellants do not dispute that Company’s recreational facilities and food service
operations, which are the subject of this dispute, are located within the Common Area’s geographic
boundaries as designated in Exhibit “B”.
11
I. General Declaration Authority
Appellants first argue that the trial court erred when it held that the
General Declaration gives Company a clear right to impose dues and assessments at
its sole discretion, where Company seeks to impose such dues for the operation of
non-Community Services businesses. They specifically contend:
Nothing in the [General Declaration] can reasonably be read
to suggest or even imply that those Covenants give []
Company the authority to charge [O]wners for the operating
losses and other capital requirements of [] Company’s non-
Community Services businesses.
Appellants’ Br. at 18. Additionally, quoting Section 4.2 of the General Declaration’s
provision “obligat[ing] owners whose properties are subject to [the] Covenants, to
pay charges that ‘shall be used to promote [activities in the Common Area] . . .”,
Appellants assert that “the fact that charges ‘shall be used for [activities in the
Common Area’] doesn’t say, and can’t reasonably be read to say ‘. . . to pay the
operating costs and other capital requirements of [] Company’s non-Community
Services business that are operated in or on the Common Area.’” Appellants’ Br. at
19 (emphasis added) (quoting Section 4.2 of the General Declaration).
Appellants omit relevant portions of Section 4.2 of the General
Declaration. In particular, that provision does not, as Appellants represent, merely
impose fees and dues to promote “activities in the Common Area,” Appellants’ Br. at
19, but, rather, provides that, in addition to using dues and fees to promote Owners’
recreation, health, safety and welfare, such dues and fees are also for the purpose of
the improvement, operation and maintenance of the
Common Area, the performance of the duties and
exercise of the powers of Company as set forth in this
[General] Declaration, the payment of proper expenses of
Company of its duties and exercise by it of its powers
pursuant to this [General] Declaration, and the
12
establishment of restricted funds of [] Company for the
maintenance, repair and replacement of roads, paths and
other improvements upon the Common Area.
R.R. at 184a (bold and italic emphasis added; capitalization omitted). Under the
General Declaration, a “Recreational Facility” is an “improvement in the Common
Area,” R.R. at 176a (capitalization omitted), and Company’s powers to assess fees
and dues include “the improvement, operation and maintenance of the Common
Area.” R.R. at 182a (capitalization omitted).
Although Section 6.3 of the General Declaration grants Owners a limited
privilege to use recreation facilities if they pay “[r]ecreational fee(s) as established by
Company to operate the Recreational Facility[,]” it does not direct that the
recreational fees must be the sole source of funds to operate and maintain them. R.R.
at 194a (capitalization omitted). Separate and apart from Company’s authority under
Section 6.3 of the General Declaration to collect recreational fees, Section 4.2 of the
General Declaration permits Company to collect fees and dues not only for Owners’
recreation, health, safety and welfare, but also for “the improvement, operation and
maintenance of the Common Area,” and Company’s performance of its duties and
the exercise of its powers under the General Declaration. R.R. at 184a
(capitalization omitted). Clearly, it is within Company’s powers to operate and
engage in the non-Community Services businesses in the Common Area. Section 4.2
of the General Declaration permits Company to impose fees, therefor. Thus, this
Court disagrees with Appellants’ broad assertion that “[n]othing in the [General
Declaration] can reasonably be read to suggest or even imply that [the General
Declaration] give[s] [] Company the authority to charge [O]wners for the operating
losses and other capital requirements of [Company’s] non-Community Service
businesses.” Appellants’ Br. at 18. Instead, the General Declaration authorizes the
imposition of fees and dues for such purposes. Thus, Appellants’ arguments are
without merit.
13
II. UPCA Violation
Appellants next contend that Company’s imposition of dues and
assessments contravenes the UPCA.12 In response, Company asserts that, because
Appellants failed to raise the issue before the trial court, it is waived. Appellants do
not deny that they did not raise the issue, but retort in their Reply Brief that since
Company failed to cite any legal authority in its brief to support its waiver argument,
as Pennsylvania Rule of Appellate Procedure (Rule) 2119(a) requires, Company’s
waiver argument is itself waived. See Browne v. Dep’t of Transp., 843 A.2d 429, 435
(Pa. Cmwlth. 2004) (“At the appellate level, a party’s failure to include analysis and
relevant authority results in waiver.”).
This Court agrees that Company failed to include supporting authority
for its waiver argument. Notwithstanding, this Court has explained that “[t]he
appellate court may sua sponte refuse to address an issue raised on appeal that was
not raised and preserved below[.]” Siegfried v. Borough of Wilson, 695 A.2d 892,
894 (Pa. Cmwlth. 1997). The failure to raise an issue before the trial court deprives
the trial court the opportunity to address the issue in the first instance. Rule 302(a)
clearly provides that “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). Thus, this Court deems the
UPCA argument waived.
12
Appellants frame the argument as: “There are genuine issues of material fact as to whether
[] Company’s levy of dues and assessments is in contravention to the [UPCA].” Appellants’ Br. at
29. However, whether Company’s levy of dues violates the UPCA is a legal question rather than a
question of fact. See Capital Acad. Charter Sch. v. Harrisburg Sch. Dist., 934 A.2d 189, 192 (Pa.
Cmwlth. 2007) (“The meaning of a statute is a question of law[.]”).
14
III. Disputed Issues of Material Fact
Appellants next assert that the trial court erred by granting summary
judgment where genuine issues of material fact remained.13 Summary judgment may
be granted only where it is clear there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Atcovitz. “A material fact is
one that directly affects the outcome of the case.” Logans’ Res. Homeowners’ Ass’n
v. McCabe, 152 A.3d 1094, 1099 n.8 (Pa. Cmwlth. 2017) (quoting Kenney v. Jeanes
Hosp., 769 A.2d 492, 495 (Pa. Super. 2001)).
Appellants raise the following allegedly disputed material facts: (1) that
Appellants asserted that resale certificates issued by Company limit Company’s
ability to collect fees, see Appellants’ Br. at 4, Issue 2; (2) that Company’s levy of
dues and fees contravenes the UPCA, see id., Issue 3; (3) that Appellants alleged the
1996 Amendment is an unrecorded amendment to the General Declaration, see id.,
Issue 4; (4) that there is evidence Appellants were presented with the unrecorded
1996 Agreement at purchase and relied thereon, see id., Issue 5; (5) that the 1996
Agreement’s language establishes a hard-line dues formula, see Appellants’ Br. at 5,
Issue 7; (6) that the 2004 Agreement added recreational facilities to the Community
Services cost center, see id., Issue 8; (7) that an implied contract was formed by the
parties’ course of conduct and the implied contract was violated, see id., Issue 9; (8)
that the 1996 Agreement’s provisions were changed by the 2004 Agreement, see id.,
Issue 10; (9) that the contracting parties clearly represented that the 1996 Agreement
13
Appellants’ brief contains ten separately addressed issues alleging disputed material facts.
Despite that Appellants’ Statement of the Questions Involved and their Brief’s internal headings
raise such issues, the discussions thereunder often do not describe the purportedly disputed facts.
Under some such headings, Appellants merely argue the trial court misconstrued Appellants’
arguments and, under other headings, Appellants proffer substantive legal arguments disputing
Company’s ability to impose the subject fees, rather than identifying genuine issues of disputed
material fact. Further, Appellants allege issues of disputed fact pertaining to the 1996 Agreement
and 2004 Agreement despite that their action is based not on those agreements, but on an implied
contract. This Court will attempt to address each alleged disputed fact individually.
15
was not binding and could not be used for litigation purposes, see Appellants’ Br. at
6, Issue 12; and (10) what constitutes the relationship Appellants chose to engage in
when purchasing their properties. See id., Issue 13.
First, whether Appellants argued to the trial court that Company-issued
resale certificates limit Company’s ability to collect fees, is not a disputed material
fact. The existence of a genuine issue of material fact pertains to the evidence, not
the party’s argument.14 Whether Appellants made particular arguments to the trial
court, and whether the trial court misapprehended Appellants’ arguments, are not
disputed material facts. See Logans’ Res. Second, whether the levy of dues and fees
contravenes the UPCA, is a legal determination. Further, as explained, supra,
Appellants have waived that issue. Third, whether Appellants alleged that the 1996
Agreement is an unrecorded amendment to the General Declaration is not a disputed
material fact. Appellants deny arguing to the trial court that the 1996 Agreement is
an unrecorded amendment to the General Declaration and assert that the trial court
erred in finding that the Appellants alleged such. However, as stated above, whether
Appellants proffered a particular argument does not constitute a disputed genuine
issue of material fact.
This Court acknowledges that whether the unrecorded 1996 Agreement
was presented to Appellants at purchase and they relied thereon, may be a disputed
material fact. However, Appellants make no supporting argument in their brief that
any Appellants were presented with the 1996 Agreement and/or relied thereon when
14
“[I]t is well[]settled that arguments of counsel are not evidence . . . .” Commonwealth v.
Puksar, 951 A.2d 267, 280 (Pa. 2008).
16
purchasing their properties.15 Thus, that argument is waived.16 See Browne.
With respect to whether the 1996 Agreement’s language establishes a
hard-line dues formula, the Pennsylvania Superior Court has held that “[t]he
enforceability of settlement agreements is determined according to principles of
contract law.” Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517 (Pa. Super.
2009) (quoting Ragnar Benson, Inc. v. Hempfield Twp. Mun. Auth., 916 A.2d 1183,
1188 (Pa. Super. 2007)). Moreover, “the interpretation of contracts is a question of
law.” Toll Naval Assocs. v. Chun-Fang Hsu, 85 A.3d 521, 529 (Pa. Super. 2014).
Thus, the fifth alleged factual dispute is a legal one rather than a factual one.
Similarly, whether the 2004 Agreement added recreational facilities to the
Community Services cost center, involves contract interpretation and, thus, it is a
legal determination.
Regarding whether the parties’ course of conduct created an implied
contract that was violated, the Pennsylvania Supreme Court has explained that
“whether an implied contract can be derived from a set of underlying facts represents
a question of law.” Konyk v. Pa. State Police, 183 A.3d 981, 988 n.6 (Pa. 2018).
Appellants claim only that the trial court misinterpreted their argument stating:
“[Appellants] are not arguing breaches based on non-compliance with an actual
contract in this litigation. [Appellants] have argued throughout this litigation that []
Company breached the implied contract between [] Company and [] [O]wners,
including [Appellants].” Appellants’ Br. at 45. Importantly, Appellants point to no
15
Appellants’ entire discussion relative to this issue is: “The trial court was apparently under
the impression that [Appellants] here were arguing that the 1996 Agreement was an unrecorded
amendment to the covenants. Clearly it was not, and [Appellants] have never so argued.”
Appellants’ Br. at 33. Appellants then reference their prior argument pertaining to whether the
1996 Agreement was an amendment to the General Declaration. There is no discussion of any
reliance or of any facts pertaining thereto.
16
Further, a trial court’s alleged misapprehension of a party’s argument does not constitute a
disputed issue of material fact.
17
disputed factual issues in their argument on this issue. Appellants reference their
prior argument pertaining to whether disputed facts remain regarding whether the
1996 Agreement established a hard-line dues formula.
Next, whether the 1996 Agreement’s provisions were changed by the
2004 Agreement, involves contract interpretation and, thus, is a legal determination.
Relative to whether the contracting parties clearly represented that the 1996
Agreement was not binding and could not be used for litigation purposes, the 1996
Agreement contains the following explicit and unambiguous no-litigation clause:
[] Company and []Association acknowledge that in the
event of litigation in connection with any issue addressed
by this [A]greement, neither this settlement agreement nor
any term of this settlement agreement shall be submitted as
evidence on any issue in any proceeding. []Association and
[]Company acknowledge that this agreement constitutes an
offer and acceptance of settlement which is not admissible
in evidence in any proceeding.
R.R. at 224a. Appellants could have discovered this clause if they had conducted a
simple document review. Moreover, Appellants offer no authority requiring
Company to take any action to “unambiguously let it be known that the 1996
Agreement was not binding and could not be used for litigation purposes.”
Appellants’ Br. at 52 (quoting Trial Ct. Op. at 18).
Finally, Appellants’ tenth alleged factual dispute – “what constitutes ‘. . .
the relationship [Appellants] chose to engage in when purchasing their properties[,]’”
Appellants’ Br. at 54 (quoting Trial Ct. Op. at 20) – pertains to the trial court’s
conclusion that Appellants purchased properties in the Community with various
amenities owned and controlled by the publicly owned Company and, thus, consistent
with deed restrictions and covenants, the General Declaration and common law,
agreed to pay their share of the costs to maintain the amenities. Appellants argue that
while they agreed to pay Community Service costs, they did not agree to pay for the
18
non-Community Services activities. Importantly, Appellants do not specifically
identify any disputed issues of material fact in their discussion thereof. Accordingly,
this Court concludes that Appellants have not identified any remaining genuine issues
of disputed fact.
IV. 1996 Agreement and 2004 Agreement and Implied Contract
Appellants next argue that the trial court erred when it granted summary
judgment because Company’s course of conduct in adhering to the 1996 Agreement
provisions between Company and Association created an implied contract between
Company and Appellants.
Appellants assert that the “signing of the [1996] Agreement and the
parties’ representations to the Community, marked the beginning of the course of
dealing and the implied contract between [] Company and the [O]wners.”17
Appellants’ Br. at 26. Appellants assert that “Company represented to the
Community at the time the 1996 Agreement was entered into that dues and
assessments, going forward, would be determined in accordance with the provisions
of the 1996 Agreement, thereby establishing the implied contract between []
Company and [Owners.]” Appellants’ Br. at 12. According to Appellants, they “are
not objecting to [] Company’s charges for Community Services that were determined
on the basis of provisions of the 1996 Agreement, but rather are seeking to enforce
the provisions of the implied contract that requires charges to be determined on the
basis of the provisions of the 1996 Agreement.”18 Id. at 27. In other words,
Appellants urge this Court to hold that the implied contract requires Company to
17
Appellants do not argue that Company breached the 1996 Agreement or the 2004
Agreement, since Appellants were not parties to those agreements.
18
Notwithstanding, Appellants acknowledge that Company did not comply with all of the
1996 Agreement’s provisions.
19
exclude charges for non-Community Services from dues and assessments, consistent
with Company’s conduct in complying with the 1996 Agreement.
Notably, the 1996 Agreement’s terms for calculating dues are flexible.
As the trial court explained:
[T]he language of the 1996 Agreement does not establish a
hard line formula for calculating dues. On the contrary, the
document states: ‘[c]onsideration must be given to potential
future variations in costs. . . The cumulative experience
gained over the years will help fine tune each year’s budget
and best assure common understanding between the parties
engaged in the budget and dues setting process.’ [R.R. at
227a.] This ‘cumulative experience’ clearly began to take
form when prior to 2004, [] Company started to add sports
and recreational amenities, such as the pool, to the dues
formula while also opening their use to all [O]wners.
Trial Ct. Op. at 16. With respect to sports amenities, the 1996 Agreement provides:
“The cost incurred to provide various sports amenities (golf, tennis, pool, fishing etc.)
should be supported by fees charged directly to the users of these amenities. It is []
Company’s intention to manage these amenities to assure that each is, at the very
least, self-sustaining by the year 2000.” R.R. at 227a (emphasis added). A plain
reading of this provision in the 1996 Agreement reveals that it does not prohibit
Company from including expenses for such sports amenities in the Owners’ dues.
Rather, it expresses Company’s belief that the sports amenities should be supported
(to some degree) by user fees, and declares an intention that the sports amenities
would ultimately be self-sustaining by the year 2000. In fact, the provision
necessarily acknowledges that the sports amenities will be supported, in part, by
funding other than user fees prior to the year 2000.
The Pennsylvania Supreme Court has explained that “[a] contract
implied in fact is an actual contract which arises where the parties agree upon the
obligations to be incurred, but their intention, instead of being expressed in words, is
20
inferred from acts in the light of the surrounding circumstances.” Liss & Marion,
P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 659 (Pa. 2009) (quoting Elias v.
Elias, 237 A.2d 215, 217 (Pa. 1968); see also Crawford’s Auto Ctr., Inc. v. Pa. State
Police, 655 A.2d 1064 (Pa. Cmwlth. 1995). “While a contract implied-in-fact may
arise when two parties impliedly agree to perform certain duties, such a contract, as
all others, will only arise when there is an exchange of legal consideration.”
Commonwealth Fed. Sav. & Loan Ass’n v. Pettit, 586 A.2d 1021, 1024 (Pa. Cmwlth.
1991) (emphasis added). “The question [of] whether an undisputed set of facts
establishes a contract is a matter of law.” Temple Univ. Hosp., Inc. v. Healthcare
Mgmt. Alts., Inc., 764 A.2d 587, 593 (Pa. Super. 2000).
In contrast, “[a] contract implied-in-law, or quasi contract, imposes a
duty despite the absence of either an express or implied agreement, when one party
receives an unjust enrichment at the expense of another party.”
Dep’t of Gen. Servs. v. Limbach Co., 862 A.2d 713, 720 n.11 (Pa. Cmwlth. 2004),
aff’d, 895 A.2d 527 (Pa. 2006) (emphasis added).
Appellants reference Meadow Run & Mountain Lake Park Ass’n v.
Berkel, 598 A.2d 1024 (Pa. Super. 1991), to support their position that they are
parties to an implied contract. In Meadow Run, lot owners challenged the
homeowner association’s annual assessment for the repair of dams and roads used by
all lot owners. The trial court held that the association was authorized to impose
assessments for common area repair and maintenance, even absent a specific
covenant in the owners’ deeds permitting such dues. On appeal, the Superior Court
affirmed, explaining:
While it is true that in the instant case the deed does not
explicitly spell out the exact obligation of the lot owners
with regard to payment of dues for maintenance and repairs,
the deed is not wholly silent as to the matter either. This is
not a case where the property owners had no notice that an
21
association of owners would be formed or that the
association might formulate rules applicable to the owners.
Meadow Run, 598 A.2d at 1026. The Meadow Run Court continued:
This deed, while making no mention of an assessment, does
put [the a]ppellants on notice that should an association of
lot owners be formed in the future, they would be bound by
any rules the association adopted concerning usage of
development facilities. Implied in the existence of rules
and regulations concerning usage of the facilities is the
necessity for rules and regulations concerning maintenance
of these facilities.
Id. (emphasis added). In conclusion, the Meadow Run Court held:
[A]bsent an express agreement prohibiting assessments,
when an association of property owners in a private
development is referred to in the chain of title and has the
authority to regulate each property owner’s use of common
facilities, inherent in that authority is the ability to
impose reasonable assessments on the property owners
to fund the maintenance of those facilities.
Id. at 1027 (emphasis added). Thus, even where a homeowners’ association’s power
to impose assessments for common area use and maintenance is not mentioned in the
chain of title, there is an implied agreement at law to pay for such use and
maintenance. See Spinnler Point Colony Ass’n v. Nash, 689 A.2d 1026 (Pa. Cmwlth.
1997). In essence, the Meadow Run decision provided restitution to the homeowners’
association for the maintenance and repair costs it incurred in providing services to
the community.
Relying on Meadow Run, Appellants insist that Company’s course of
conduct in adhering to the 1996 Agreement between Company and Association
created an implied contract between Company and Owners. However, unlike in
Meadow Run, here, the General Declaration governs Owners’ obligations to fund
both Company and the Common Area’s upkeep and, thus, the concept of a contract
implied at law for restitution purposes, as in Meadow Run, is inapplicable to the
22
instant matter. Instead, Appellants request that this Court find a contract implied in
fact based on course of conduct, and require Company to adhere to the perceived
obligations of the 1996 Agreement.
With respect to a contract implied in fact, the Company’s and
Association’s decision to enter into the 1996 Agreement does not support finding an
implied contract between Company and Owners to bind Company’s authority to
impose fees.19 Appellants quote internal Company communications acknowledging
various responsibilities and restrictions under the 1996 Agreement with respect to
changes to the Community dues and fees, and that amendments to the 1996
Agreement were necessary to avoid breaching the 1996 Agreement. However, any
breach would be between Company and Association. Such acknowledgments do not
support that an implied contract was created between Company and Owners based on
Company’s course of conduct in complying with the 1996 Agreement.
Additionally, the no-litigation clause, which the trial court found
rendered the 1996 Agreement non-binding, reflects an obvious intent by the parties
not to be bound to the conditions therein,20 and undermines Appellants’ contention
19
Company’s authority to impose fees and dues arises from the General Declaration.
Appellants concede that the unrecorded 1996 Agreement is not an amendment to the General
Declaration. See Appellants’ Br. at 32, 52. Section 8.4(b) of the General Declaration, states:
Any valid amendment shall become effective immediately upon
proper recording in the office of the Recorder of Deeds for Monroe
County of a document complying with the requirements of this
[General Declaration] Section 8.4. Any other attempt to amend the
provisions of this [General] Declaration shall be null and void and of
no effect.
R.R. at 198a (capitalization omitted). Neither the 1996 Agreement nor the 2004 Agreement were
recorded and neither address the General Declaration’s covenants. Thus, in accordance with
Section 8.4(b) of the General Declaration, they did not serve to amend the General Declaration’s
provisions and were “null and void and of no effect.” General Declaration, Section 8.4(b).
20
This Court has explained:
‘The law of this Commonwealth makes clear that a contract is created
where there is mutual assent to the terms of a contract by the parties
23
that an implied contract resulted from Company’s conduct in adhering to the 1996
Agreement.21
The trial court observed:
From a review of facts established, it does not appear there
was a course of conduct between the parties that formed an
implied contract. Before the 1996 Agreement, [] Company
assessed fees and dues as it wished. The litigation which led
to the 1996 Agreement was in the form of a declaratory
judgment action to determine the rights and responsibilities
of the parties. . . . [W]e do not find that the 1996 Agreement
amended the General Declaration and find that the only
‘clarification’ it gives was an explanation of the cost centers
[] Company uses to determine the amount of dues owed by
each homeowner. We don’t believe this to be a clarification
or amendment to the General Declaration, but a clarification
to [Owners] in order for them to better understand what
their dues pay for as collected by [] Company.
Furthermore, the language of the 1996 Agreement does not
establish a hard line formula for calculating dues. On the
contrary, the document states: ‘[c]onsideration must be
given to potential future variations in costs. . . The
with the capacity to contract.’ Shovel Transfer & Storage, Inc. v. Pa.
Liquor Control Bd., . . . 739 A.2d 133, 136 ([Pa.] 1999). In order for
a contract to be formed, there must be an offer, acceptance, and an
exchange of consideration. An enforceable agreement exists if the
parties have manifested their intent to be bound by its terms and the
terms are sufficiently definite.
Beaver Dam Outdoors Club v. Hazleton City Auth., 944 A.2d 97, 103 n.2 (Pa. Cmwlth. 2008)
(citation omitted; emphasis added).
21
In the alternative, if the 1996 Agreement constituted a binding contract, upon its
execution, Company was obligated to adhere to its terms. “[P]erformance of that which one is
already legally obligated to do is not consideration sufficient to support a valid agreement.”
Cohen v. Sabin, 307 A.2d 845, 849 (Pa. 1973) (emphasis added); see also Bricklayers of W. Pa.
Combined Funds, Inc. v. Scott’s Dev. Co., 90 A.3d 682 (Pa. 2014); In re Commonwealth Trust Co.
of Pittsburgh, 54 A.2d 649 (Pa. 1947); Pa. State Univ. v. Univ. Orthopedics, Ltd., 706 A.2d 863 (Pa.
Super. 1998).
There is no evidence revealing the exchange of any additional consideration between
Company and Owners in the creation of an alleged implied contract that purportedly contained the
same obligations as the 1996 Agreement. Without added consideration, there could be no implied
contract based on Company’s course of conduct in adhering to the 1996 Agreement.
24
cumulative experience gained over the years will help fine
tune each year’s budget and best assure common
understanding between the parties engaged in the budget
and dues setting process.’ [R.R. at 227a]. This ‘cumulative
experience’ clearly began to take form when prior to 2004,
[] Company started to add sports and recreational amenities,
such as the pool, to the dues formula while also opening
their use to all [O]wners.
Trial Ct. Op. at 15-16. In considering Appellants’ argument, the trial court explained
that the 2004 Agreement modified the 1996 Agreement by adding certain recreational
facilities to the ‘Community Services’ cost center. The trial court reasoned:
This agreement was in place and followed for
approximately a decade before the present litigation was
filed. We are unable to establish [Appellants’] alleged
course of conduct when the provisions of the 1996
Agreement were open to be changed and, indeed, were
changed. Nor is the Court able to pinpoint any evidence to
support [Appellants’] claims of a specific course of
conduct. [Appellants’] argument appears to stem from
desiring all the former practices, no matter when they
occurred, and which were most favorable to them, be
applied by the Court now. Clearly there was no specific
‘course of conduct’ between the years of 1996 through 2005
because the calculation of the dues formula continued to
change and evolve as contemplated by the 1996 Agreement.
Trial Ct. Op. at 17. This Court discerns no error in the trial court’s analysis.
Further, this Court has declined to find an implied contract where such
would contradict a declaration’s terms. See Belleville v. David Cutler Grp., 118 A.3d
1184 (Pa. Cmwlth. 2015). In the instant matter, the General Declaration broadly
authorizes Company to, inter alia, levy fees and dues “to promote [Owners’]
recreation, health, safety and welfare,” to promote the Common Area’s
“improvement, operation and maintenance,” and to promote Company’s
performance of its duties and the exercise of its powers. R.R. at 184a (emphasis
25
added). The General Declaration does not restrict this authority.22 Accordingly, this
Court declines to recognize the creation of an implied contract that restricts
Company’s explicit power to do that which it is authorized to do under its General
Declaration.23 For these reasons, the trial court properly concluded that no implied
contract was created.
22
To alter these powers, Company could amend the General Declaration.
23
Appellants contend that the trial court erroneously held that the 1996 Agreement’s no-
litigation clause precluded Appellants from using the 1996 Agreement in the instant litigation
because they are third-party beneficiaries bound by the 1996 Agreement’s terms. Without
explanation, Appellants claim they “are not third party beneficiaries[.]” Appellants’ Br. at 56.
Instead, they claim to be “parties to an implied contract between [] Company and [Owners].” Id.
Under Pennsylvania law, . . . a person assumes third-party beneficiary
status - and, as such, has standing to recover under a contract - only
where both parties to the contract express an intention to benefit the
third party and that intention appears in the contract. Thus, the
concept of a third-party beneficiary exists to give intended
beneficiaries, under certain circumstances, standing to bring suit to
obtain the benefits in question.
Konyk, 183 A.3d at 987-88 (citation omitted). The Pennsylvania Supreme Court has further
explained that “third[-]party beneficiaries are bound by the same limitations in the contract as the
signatories of that contract. The third[-]party beneficiary cannot recover except under the terms and
conditions of the contract from which he makes a claim.” Johnson v. Pa. Nat’l Ins. Cos., 594 A.2d
296, 298-99 (Pa. 1991).
Contrary to Appellants’ assertion, both the 1996 Agreement and 2004 Agreement express an
intent to benefit Owners, acknowledging Owners’ “duty to pay their share of the costs[,]” R.R. at
220a, 259a, and provide a framework for assessing dues to be paid by Owners. Importantly, the
2004 Agreement “[r]estate[d] and [a]mend[ed]” the 1996 Agreement but did not include the no-
litigation clause. R.R. at 259a. Given that the 2004 Agreement removed the no-litigation clause,
the trial court erroneously concluded that the no-litigation clause could effectively bar Appellants
from presenting the 1996 Agreement at trial. Notwithstanding, because Appellants do not seek
recovery under either the 1996 Agreement or the 2004 Agreement, but instead, under an implied
contract, and this Court has concluded that no implied contract exists, the trial court committed
harmless error. See Knowles v. Levin, 15 A.3d 504, 508 n.4 (Pa. Super. 2011) (“[H]armless error is
defined as an error that does not affect the verdict.”).
26
For all of the above reasons, the trial court’s order is affirmed.24
___________________________
ANNE E. COVEY, Judge
24
Appellants raise two additional issues before this Court. First, Appellants assert that the
trial court erred in failing to find the current dues process inequitable, in that a publicly traded for-
profit corporation has the power to indiscriminately tax Community members by increasing dues.
However, as the trial court noted, “[Appellants] have failed to cite any case law which prevents a
private corporation from operating within a private community as [] Company does.” Trial Ct. Op.
at 19. Similarly, in their brief to this Court, Appellants provide no legal authority for their
argument, and thus it is waived. See Browne.
Appellants also contend that the trial court’s decision bars future dues challenges based on
dues calculations which include UPCA prohibited expenses. This Court cannot discern possible
future causes of action that may accrue to Owners against Company, and it may not pre-emptively
address the impact of the trial court’s decision thereon.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael J. Walters; Michael J. :
Walters and Roseanne Walters, :
husband and wife; Mark H. Attix; :
Frederick John Bartek; Charles W. :
Buttz and Teresa C. Buttz, husband :
and wife; Joellen Chadwick; Mary :
Ellen Christman; Brian Colfer and :
Alicia Colfer, husband and wife; :
David T. Councilor and Debra A. :
Councilor f/k/a Debra Litchult, :
husband and wife; David T. :
Councilor, Administrator of the :
Estate of Theodore G. Councilor; :
Mary Alchermes-Dilger, Joseph D. :
Alchermes, and Christopher B. :
Alchermes; Mark E. Elvin and :
Shauna D. Elvin, husband and wife; :
Susan E. Esterhay and Linda M. :
Smith; Max H. Feldman and Kelee A. :
Monahan-Feldman, husband and :
wife; Leo J. Finnegan; Richard E. :
John and Marilyn P. John, husband :
and wife; Marilynn Ann Johnson; :
Howard A. Kellner and Donna M. :
Kellner, husband and wife; Douglas :
D. Kelly; Russell R. Kice; John O. :
Klinger and Brenda Klinger, husband :
and wife; Mountain Home Enterprises :
LLC; Erik Peterson and Gillian :
Peterson, husband and wife; Clarke :
Reid and Joanne Reid, husband and :
wife; Patricia A. Russo; Edward M. :
Satterthwaite; Jacob E. Seip and :
Phyllis A. Seip, husband and wife; :
Thomas D. Shore; Leslie D. Sopko; :
Stags Leap Properties LLC; Elaine J. :
Vula; William C. Wolfe, :
Appellants :
:
v. :
Buck Hill Falls Company; :
Lot and Cottage Owners’ : No. 52 C.D. 2019
Association of Buck Hill Falls :
ORDER
AND NOW, this 10th day of January, 2020, the Monroe County
Common Pleas Court’s September 4, 2018 order denying Lot and Cottage Owners’
Association of Buck Hill Falls’ summary judgment motion, granting Buck Hill Falls
Company’s summary judgment motion and dismissing the action is affirmed.
___________________________
ANNE E. COVEY, Judge