Southpointe Golf Club, Inc. v. Southpointe Property Owners' Assoc., Inc. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southpointe Golf Club, Inc., :
:
Appellant :
v. : No. 1420 C.D. 2019
: Argued: February 8, 2021
Southpointe Property Owners’ Association, :
Inc.; Redevelopment Authority of the :
County of Washington; R&M Investment :
Group LLC; Technology Drive LLC; :
Ansys, Inc.; Crown Castle USA, Inc.; :
701 Technology Drive Partners L.P.; :
Creehan Properties, LP; SPCDMG LTD; :
1750 East Realty, L.L.C.; Landmark :
Limited Partnership; Southpointe :
Rink Assoc L.P.; Centimark Corporation; :
Southpointe 16 Associates; Kossman- :
Phoenix Limited Partnership; Andritz :
Metals, Inc., f/n/a Bricmont, Inc., f/n/a :
Andritz Bricmont, Inc.; Hershey Leasing :
Company, LP; Champ Investment :
Limited Partnership; Creehan Properties :
151, LP; Auma Actuators Inc.; Mark K. :
German; Accutrex Products, Inc.; :
Southpointe #4 Green Associates; Four :
Thousand Nine Hundred West Broad Street :
Laundry, LLC a/k/a 4900 West Broad Street :
Laundry, LLC an Ohio limited liability :
company n/k/a Fairway View, LLC; :
Southpointe 375 Associates, L.P.; Merces :
De Quevedo Freemon 2007 Living Trust, :
Philip G. and Richard A. Freemon Trustees; :
Lexington TNI Canonsburg, LP; Summit :
& Plaza II Holdings LP; Ronald M. Kean :
& R. George Yurasko and Frederick A. :
Farrell Trustees of United Food & :
Commercial Workers, Local Union 23; :
Nelson M. and Darlene M. Heeter; :
Southpointe/Miller Limited Partnership; :
501 Technology Partners, LLC; :
Schenley Center Assoc II LP; 121 :
Champion LLC; Technology Drive, LLC; :
KRB Development Co., L.P.; :
Fountainhead Southpointe Associates; :
Southpointe Hotel and Conference Center :
L.P., Summit & Plaza II Holdings, LP; :
Dialysis Clinic, Inc.; Ages Associates LP :
Washington County Authority; Lawrence :
and Kimberly A. Melen; Donald K. and :
Pamela B. Robinson; Sophia C. Sarris; :
William A. and Kathleen Baron; Everett E. :
Dunn and Connie A. Dunn, Trustees Of :
The Dunn Revocable Trust dated :
November 13, 2008; James E. and Tracey L :
Jacobs; Thomas P. Kazas and Sandra Frank :
-Kazas; Brett E. Murawski and Kelly J. :
Chaney; Walter E. and Barbara A. Kryspin; :
Gary M. Stefansky and Suzanne A. :
Orbanick-Stefansky; Mark and Lauren M. :
Lega; Andrew J. and Maureen L. Kicinski; :
Betty Harris Rainier Revocable Trust dated :
May 15, 2012, Betty Harris Rainer Trustee; :
Jeffrey J. and Janene M. Jost; Mary Jane :
Broglia; Cary D. Cowden; Louis V. and :
Elizabeth Valente; Ronald L. and Elaine C. :
Friedman; Paul Robert and Regina M. :
Johnston; Guthrie and Viola Taboni; :
Patrick G. and Lyn C. McGinnis; James H. :
and Donna J. White; Richard Otter and :
Deborah C. Friedrich; Joseph J. and Mary :
Ann Brown; Bruce E. and Margaret A. :
Hough; Raymond W. Sauer, Jr. and Helen :
F. Sauer; Geno A. and Justine Pisciottano; :
John P. and M. Kathleen Fox; Richard A. :
and Sharon Barcelona; Geno R. and :
Cynthia N. Levi; Steven W. and Melissa :
Ann Chesher; Mark S. and Gen Cameron :
Wilson; William K. and Patricia Snodgrass; :
Jeffrey M. and Angela D. Abbott; David A. :
and Mary E. Fetchko; Louis and Joellyn :
Barletta; Kevin F. Owsiany; John C. and :
Arlene E. Stankus; Douglas R. and Melissa :
L. Hodinko; Elizabeth E. and Daniel F. :
Vorum; Fairway Landings Townhouses :
of Southpointe Assn. Inc.; Kevin and :
Doreen Lynn Ruffe; Terri Bush Brown; :
William B. and Connie Gross; Wendy Jean :
Obrien; Paul B. DeFazio; David A. Ross; :
Griffith Family Trust, Peter D. Friffith and :
Bonnie L. Griffith, Trustees; Peter H. and :
Joyce I. Phillips; William R. Piper and :
Linda O'Leary; Regis J. McKenzie, III; :
Gayla R. Hagg; Steven Speca; Tony L. and :
Jan B. Angelle; Ruth A. Lutz, Trustee For :
The Lutz Family Trust; William J. and :
Deborah A . Harrison; Roger D. Graham, Jr. :
and Mary Ann Graham; Patricia K. Hazen; :
Heart & Seoul Productions, LC a Michigan :
limited liability company, Stephanie L. :
Kubik; Michele A Docchio; John S. and :
Ellen J. Steigerwald; Marilyn I. Goodwill; :
Corinne McCullough; Phillip J. Falconi; :
Mark E. Nance; Walter M. Castro; Lynn A. :
Deppen; Michael W. and Kathy Smith; :
Mark I. Linn and Renee A. Battistone; :
Varun Mishra; David Harkreader and :
Lynne D. Dunn; Southpointe Holdings, :
LLC; Jeffrey H. and Jonelle M. Stambaugh; :
Luca Zoia and Chiara Gonin; Katheryn :
Leigh Tate; Alexandra Kusturiss; John A. :
and Marianne Zywan; Jeffrey J. Livolsi; :
Christopher J. and Lyn R. Logelin; Thomas :
J. and Betty J. Zayac; Douglas B. Blobner :
Revocable Living Trust, dated :
October 20, 2010, Douglas B. Blobner :
Trustee; Robert S. and Janet M. Camel; :
Richard K. and Penny Ann L. Thomas; :
Eric J. and Connie I. Bruce; Wayne Trust :
Walter K. and Virginia M. Wayne Trustees; :
Subhash Joon; Derek A. Rice; Gregory A. :
Karabetsos; Janet Torriero; John and Carol :
Riddle; Donald L. and Margret S. Hocevar; :
Mary Kay Graziano; Margaret K. Fischer; :
Thomas Lee and Allyson Ann Fritz; :
Samuel J. Rodgers and Rebecca L. Black; :
Edmond A. and Susan Marie Cononge; :
Robert F. Milinski and Stanley J. Zawacki; :
Roslyn Corton; Ying Wei; Marlene V. :
Pierotti Revocable Trust, Marlene V. :
Pierotti, Trustee; Richard C. Goodwill; :
Timothy J. and Carmen Cecilia Aitken; :
Joe and Anne Trask; Bonita L. Sidick; :
David H. and Victoria L. Smith; Alice F. :
Dagg Trust; Alice F. Dagg Trustee; Larry J. :
and Catherine A. Cavallo; Cindy Rice- :
Andrea and Richard Andrea; Dolores Kara :
Revocable Trust Dolores Kara Trustee; :
Bernard John Hobach 2001 Irrevocable :
Trust, Bernard J. Hobach, Trustee; Nancy :
E. Flynn; Paul J. and Geraldine McKosky; :
Melelaos and Kiki Doumas Living Trust :
dated December 20, 1999, Menealaos :
Doumas and Kiki Doumas, Trustees; :
Richard J. Kawalek; Patricia Nan Daum; :
Lynda L. Kelly; Charles W. and Dawn :
Lynn Fike; Norman Michael Revocable :
Trust, Alice J. Michael Trustee; Earl L. :
and Maria A. Romesberg; William R. and :
Jennifer S. Davis; Derek Peabody and :
Ashley R. Pawlish; Joseph A. and Amy L. :
Wateska; Gary D. and Karen L. Smith; :
Ronald M. and Eva M. Bozick; Robert J. :
Braithwaite, Sr., and Mary T. Braithwaite; :
Phillip J. Binotto, Jr. and D. Jill Binotto; :
William S. and Laura K. Tate; Shaney L. :
Rudar; Scott T. and Lauren Dooley; :
Raymond R. Parry, Sr. and Barbara L. :
Parry; David A. and Cheryl S. Bayne; :
Frank C. Botta; Michael J. and Irene :
A. Fostyk; Timothy P. and Stephanie :
Galloway; Peter F. and Deborah L. :
Singleton; Richard Dean and Judith Ellen :
McAllister; Paul V. Ambrose Family :
Trust, Paul V. Ambrose and Gloria J. :
Ursitz Trustees; Dennis P. and Pamela J. :
Weakland; Richard K. Miller; Camille M. :
Herbert; Arthur and Ellen Mezerski; Scott :
C. and Laurel L. Sanders; Ruth Ann :
Falconi; Bernard J. Shaughnessy, Jr. and :
Melissa J. Shaughnessy; Justin R. :
Domachowski; Ronald J. and Natalie A. :
Aiello; Scott Cook; Southpointe :
Development LLC d/b/a Southpointe :
Apartments; Terry Ann McCaffrey; Renee :
Cavalovich; Doreen V. Latona; Robert :
Premro; Adrienne L. Compeggie; William :
H. and Phyllis J. Savatt; George S. Villani; :
Mark Borden; Herbert F. and Ana L. :
Balzuweit; Adam J. Fulton; GL Harakal :
Group, Inc; Gerald Thomas and Rebecca :
Marie Mathews; Tammi R. Brown; Fairway :
View, LLC; Scott and Alana Hudson; Alvin :
and Patricia Miller; Robert A. Simmers; :
Lynn S. Frank; Benjamin M. Neenan and :
Paige Williamson Neenan; Mac & Mac :
Properties LLC; Brett J. Ross; Mark E. and :
Jeanne E. Becker; Susan P. Armstrong; :
Susan R. Passante; Cory Bak; Rahul Bazaz; :
Lee and Alexis Wetzel; Scott T. Dooley; :
Kenneth and Linda Matz; James J. Ratti; :
Janelle Vicinelly; John, Jr. and Deanna R. :
Lubic; William L. Lyons, IV; Gerald W. :
and Susan M. Horton; Pamela C. Polacek; :
Joel Hatfield; Joan Doerschner Enz; :
Charles J. Stefko; Randy W. and Cathy J. :
Bell; Christian and Rochelle A. Delgado; :
Helga E. Kercher; James Franklin Realty :
LLC; Timothy McManama; C. Scott and :
Patricia R. Warman; Margot A. Vaughan; :
Richard C. and Dianna L. Sponaugle; :
Anthony K. Gianettino and Ironwood/ :
Wedgewood Homeowner's Association, :
Inc.; Fairway Landings Townhomes of :
Southpointe Association, Inc.; and The :
Fairways Condominium of Southpointe :
Association, Inc. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 7, 2021
Southpointe Golf Club, Inc. (Golf Club) appeals the order of the
Washington County Court of Common Pleas (trial court) denying the Golf Club’s
summary judgment motion, and granting the summary judgment motion of a number
of landowners and intervenors and entering judgment in their favor and against the
Golf Club with respect to the Golf Club’s Amended Complaint in Equity for
Declaratory Judgment (Amended Complaint) filed pursuant to the Declaratory
Judgments Act (DJA).1 We affirm.
The Southpointe development consists of a 589-acre planned
community of mixed uses in both North Strabane and Cecil Townships, Washington
County. In 1989, the Redevelopment Authority of the County of Washington
(Authority),2 as “Declarant,” executed a Declaration of Protective Covenants
1
42 Pa. C.S. §§7531-7541.
2
Section 9(h), (j), (k), (t), and (u) of the Urban Redevelopment Law (URL), Act of May
24, 1945, P.L. 991, as amended, 35 P.S. §1709(h), (j), (k), (t) & (u) provides:
An Authority shall constitute a public body, corporate and politic,
exercising public powers of the Commonwealth as an agency
thereof, which powers shall include all powers necessary or
appropriate to carry out and effectuate the purposes and provisions
of this act, including the following powers in addition to those herein
otherwise granted:
***
(Footnote continued on next page…)
2
(Declaration) for the development, which was recorded on April 25, 1991. See
Reproduced Record (R.R.) at 36a-89a. The “Overview” of the Declaration states, in
pertinent part:
(h) To assemble, purchase, obtain options upon, acquire by gift,
grant, bequest, devise or otherwise any real or personal property or
any interest therein from any person, firm, corporation, municipality
or government: Provided, That no real property, located outside of
a redevelopment area, which is not necessary to the corporate
purposes of the Authority nor necessary to the successful
redevelopment of a redevelopment area, shall be purchased by the
Authority;
***
(j) To own, hold, clear, improve and manage real property;
(k) To sell, lease or otherwise transfer any real property located
outside of a redevelopment area and, subject to approval by the local
governing body, any real property in a redevelopment area:
Provided, That with respect to a redevelopment area the Authority
finds that the sale, lease or other transfer of any part will not be
prejudicial to the sale or lease of the other parts of the redevelopment
area, nor be in any other way prejudicial to the realization of the
redevelopment proposal approved by the governing body;
***
(t) To make and execute contracts and other instruments
necessary or convenient to the exercise of the powers of the
Authority; and any contract or instrument when signed by the
chairman or vice-chairman of the Authority, or by an authorized use
of their facsimile signatures, and by the secretary or assistant
secretary, or, treasurer or assistant treasurer of the Authority, or by
an authorized use of their facsimile signatures, shall be held to have
been properly executed for and on its behalf; [and]
(u) To make and from time to time to amend and repeal by-laws,
rules, regulations and resolutions[.]
3
Compliance with the provisions of this Declaration
will initially be monitored and administered by the
[Authority]. The [Authority], in its discretion, at any time,
but no later than the time it sells the last parcel of land,
may cause the [Southpointe Property Owners’
Association, Inc. (Association)] to be formed. Upon the
formation of the Association, it will assume the
responsibility for maintaining the landscaping, signs and
lighting in the Public Areas.
The Declaration will remain in effect through
January 1, 2010. It will automatically be continued unless
terminated by the method prescribed in Section XII,
Duration.
This Overview has been set forth to provide a brief
summary of the contents of the most important elements
of the Declaration. Prospective purchasers and their
professional advisers should read the entire Declaration
before making an offer to buy.
Id. at 36a (emphasis added). Additionally, Section 3.1 provides, in relevant part,
that “[a]n owner shall automatically be a member of the Association, when it is
formed.” Id. at 44a.
In turn, Section 12.1 of the Declaration provides, in pertinent part:
This Declaration, as amended shall continue in full force
and effect against the Property and the Owners thereof
until January 1, 2010. In the event that this Declaration is
terminated under this provision, or any other provision or
article contained herein, a similar Declaration shall be
executed and recorded in the Public Records of the
County, if necessary, to insure a continuation of the
operational, administrative, and maintenance services
performed by the Association hereunder.
R.R. at 57a.
Additionally, Section 13.1 states, in relevant part:
Except as specifically provided otherwise in this
Declaration, any of the terms and provisions in this
4
Declaration may be amended or deleted, and/or new terms
or provisions may be created by an amendment to this
Declaration approved by the affirmative consent of sixty-
five percent (65%) of the Voting Rights in the Project[.]
R.R. at 57a-58a.
Moreover, Section 21.1(C) and (G) provides:
Until the veto right under this Article XXI is specifically
waived in writing by [the Authority], [the Authority]
hereby expressly reserves the right to veto any or all of the
following events and/or actions, and upon such veto, such
vetoed events and/or actions shall be null and void:
***
C. Attempted re[-]subdivision of the Property, or any
part thereof; [or]
***
G. Attempted dissolution of the Association.
R.R. at 60a-61a.3
Finally, Section 16.1 states, in relevant part:
Any and/or all of the [“rights and obligations”] reserved
by or granted to the [Authority] hereunder may be
assigned by the [Authority]. The assignment shall be (a)
in writing, (b) recorded in the Public Records of the
County, and (c) joined [by the] assignee for purposes of
3
Likewise, Section 5.2 of the Declaration states:
For so long as [the Authority] owns the fee simple title to any Parcel
in the Project, no Parcel shall be (i) platted (or re[-]platted) or
subdivided (or re[-]subdivided) or (ii) combined with another Parcel
for purposes of development, without the prior written approval of
the Authority which approval may be withheld in the sole and
absolute discretion of the Authority.
R.R. at 46a.
5
evidencing assignee’s acceptance of the rights and
obligations so assigned.
R.R. at 59a.
On April 30, 1991, the Authority conveyed six parcels in the
development to Millcraft Investments, Inc. (Millcraft), totaling approximately 164
acres,4 and two other parcels totaling 14.8 acres on September 30, 1993. On January
14, 1994, Millcraft conveyed this property to the Golf Club.5 On June 18, 1996, the
Authority conveyed a 7.9-acre parcel to the Golf Club.6 See R.R. at 119a-167a.
4
The deed conveying these parcels to Millcraft contained the following covenant:
FIRST: The Grantee shall devote the property hereby
conveyed only to the uses specified in the applicable provisions of
the Zoning Ordinance of the Township of Cecil, as amended March
16, 1988, and the Western Center Redevelopment Plan.
R.R. at 129a. The deed also stated, in relevant part:
The covenants and agreements contained in the covenant
numbered FIRST shall terminate on January 1, 2010, the period
specified or referred to in the Contract for Sale of Land for Private
Redevelopment, or until such date thereafter to which it may be
extended by proper amendment of the Contract for Sale of Land for
Private Redevelopment, on which date, as the case may be, such
covenants shall terminate.
Id. at 130a. The 1993 deed conveying the additional two parcels by the Authority to Millcraft
contains the same language. See id. at 148a, 149a.
5
As this Court has explained, the Golf Club’s property “consists of 8 parcels totaling 188
acres,” “and is surrounded by 160 other parcels of mixed zoning classifications, all of which have
been developed,” “includ[ing] 3 industrial properties, 15 commercial properties, and 142
residential properties.” Southpointe Golf Club, Inc. v. Board of Supervisors of Cecil Township,
___ A.3d ___, ___ (Pa. Cmwlth., No. 148 C.D. 2020, filed February 19, 2021), slip op. at 2
(citations omitted).
6
Section 5 of Part I of the Contract for Sale of Land for Private Redevelopment between
the Authority and the Golf Club states:
(Footnote continued on next page…)
6
The covenant pertaining to the use of the Property, set forth
in Section 401 hereof and in the “Declaration of Protective
Covenants of Southpointe” (hereinafter called “Covenant”) as
recorded in Recorder of Deeds Office of the County of Washington,
shall remain in effect from the date of the Deed until January 1,
2010[,] the period specified or referred to in the Covenant, or until
such date thereafter to which it may be extended by proper
amendment of the Covenant.
R.R. at 93a (emphasis added).
In turn, Section 401 of the Terms and Conditions in Part II of the Contract for Sale of Land
for Private Redevelopment between the Authority and the Golf Club states:
Restrictions on Use:
The Redeveloper agrees for itself, and its successors and assigns,
and every successor in interest to the Property, or any part thereof,
and the Deed shall contain covenants on the part of the Redeveloper
for itself, and such successors and assigns, that the Redeveloper and
such successors and assigns shall:
a. Devote the Property to, and only to and in accordance with,
the uses specified in the Zoning Ordinance of the Township of Cecil
as amended, March 16, 1988.
b. Not discriminate upon the basis of age, race, color, creed,
sex, or national origin in the sale, lease, or rental or in the use or
occupancy of the Property or any improvements erected or to be
erected thereon, or any part thereof.
c. All advertising (including signs) for sale and/or rental of the
whole or any part of the Property shall include the [enumerated]
legend[.]
Id. at 104a.
Finally, Section 807 provides:
None of the provisions of the Agreement are intended to or shall be
merged by reason of any deed transferring title to the Property from
(Footnote continued on next page…)
7
On November 4, 2003, the Authority recorded a Waiver and Release of
Veto Power Under Declarations of Protective Covenants (Waiver and Release),
which states, in pertinent part:
[T]he Authority hereby waives and releases to the
[Association] all of its right, title and interest to veto power
set forth in the Declaration of Protective Covenants for
Southpointe[,] Section 21.1(A, B, E and F) absolutely.
[The] Authority further waives its veto rights set for in the
[Declaration] Section 21.1, except with regard to Parcels
11A, 11B, 11C, 11D, 11E, 11F, 11G and 11H[,] which
include the golf club, golf course and lake, and for which
and over which the Authority specifically excludes said
waiver and release and will continue in the future to assert
its veto rights under the [Declaration], Section 21.1(C),
and reserves the right to enforce those rights at law and in
equity.
R.R. at 234a (emphasis in original).
Later that month, the Authority and the Association executed an
Assignment of Declaration of Protective Covenants and Assumption of Obligations
(Assignment) in which the Authority assigned to the Association all of it “rights,
title, interest, powers, obligations, easements and estates” contained in the
Declaration, except for the following:
8. [The Authority] hereby waives its rights under
Section 21.1 of the [Declaration], as aforesaid, except that
[the Authority] specifically excepts, reserves and retains
the veto rights provided by Section 21.1(C) only as to the
[Golf Club] (including, but not limited to, the clubhouse
and all property used as part of the Southpointe Golf Club)
and 21.1(G) as more fully set forth in the [Waiver and
the [Authority] to the Redeveloper or any successor[-]in[-]interest,
and any such deed shall not be deemed to affect or impair the
provisions and covenants of the Agreement.
Id. at 118a.
8
Release], a copy of which is attached hereto and made a
part hereof[.]
R.R. at 249a, 251a.
On November 18, 2014, the Association recorded a Certificate of
Amendment stating, in pertinent part, that “Section 13.1 of the General Procedures
provides that the Declaration may be amended by the affirmative vote of sixty-seven
percent (67%) of those persons or entities entitled to Voting Rights,” and that “more
than sixty-seven percent (67%) of the persons or entities holding Voting Rights
pursuant to the Declaration have approved the within Amendments to the
Declaration.” R.R. at 169a. Accordingly, the Certificate of Amendment states that
Section 12.1 of the Declaration “is deleted in its entirety and replaced as follows”:
This Declaration as amended, shall continue in full force
and effect against the Property and the Owners thereof in
perpetuity unless and until this Declaration is terminated
under any other provision or Article contained herein, a
similar Declaration shall be executed and recorded in the
Public Records of the County, if necessary, to insure a
continuation of the operation, administrative, and
maintenance services performed by [the Association]
hereunder, [the Association] shall have no obligations or
liabilities with respect to, or arising from, the termination
of this Declaration.
Id. at 169a-170a.
In an October 12, 2015 letter, Horizon Properties Group LLC (Horizon)
notified the Authority of its intention to subdivide the Golf Club’s property to
develop the Hope Learning Center, a care facility for special needs children. See
R.R. at 253a. On November 10, 2015, the Authority’s solicitor responded,
explaining that the Authority retained veto power over the subdivision of the Golf
Club’s property under the 2003 Waiver and Release and required timely notice of
Horizon’s intention to subdivide the property. See id. The solicitor indicated that
9
“[w]ithout more specific information,” the Authority could not “commit to object or
not object to any [Golf Club property] subdivision to accommodate that project.”
Id. As a result, the Authority asked Horizon to “provide any and all currently
existing agreements, renderings, timelines, plans, specifications, etc. to allow [the
Authority] to respond to [the] request.” Id.
On November 16, 2015, the Golf Club filed the instant action under the
DJA against the Authority and the Association. After preliminary objections were
filed, on December 28, 2015, the Golf Club filed the Amended Complaint naming
the Association, the Authority, and all of the owners of the property in the
Southpointe development as defendants7 (collectively, Defendants). In the
Amended Complaint, the Golf Club asked the trial court to declare that: (1) the
Declaration terminated as of January 1, 2010; (2) the Authority’s veto power
regarding the Golf Club’s property terminated as of January 1, 2010; (3) the 2014
Certificate of Amendment continuing the Declaration “is null and void”; or (4)
Section 21.1(C) of the Declaration “is null and void, given [the Association’s] failure
to comply with the Uniform Planned Community Act [(Act)].[8]” R.R. at 28a, 34a.
On December 5, 2016, the trial court overruled the preliminary
objections. Following discovery and an attempt at settlement, the parties filed cross-
motions for summary judgment. The Golf Club sought summary judgment that: (1)
the Declaration terminated as of January 1, 2010, because Section 12.1 of the
Declaration constitutes a self-executing termination of the planned community under
7
Additionally, by January 6, 2016 order, the trial court permitted Ironwood/Wedgewood
Homeowners’ Association, Inc., Fairway Landings Townhomes of Southpointe Association, Inc.,
and The Fairways Condominium at Southpointe Association, Inc., to intervene as defendants in
the action.
8
68 Pa. C.S. §§5101-5414.
10
Section 5220(i) of the Act;9 (2) as a result, the Authority’s veto power over the re-
subdivision of the Golf Club property under Section 21.1(C) of the Declaration also
terminated as of January 1, 2010; (3) the 2014 Amendment to the Certificate was
null and void given the Association’s failure to obtain the Golf Club’s express
consent as required by Sections 520110 and 5219(d)(1) of the Act;11 and (4) the veto
power in Section 21.1(C) is null and void given the Association’s failure to obtain
the Golf Club’s express consent to the 2014 Amendment to the Certificate as
required by the Act. See R.R. at 549a-562a. The Defendants took the opposite
position in their cross-motion.
On August 26, 2019, the trial court denied the Golf Club’s motion for
summary judgment, granted Defendants’ cross-motion for summary judgment, and
entered judgment in favor of Defendants and against the Golf Club. In the opinion
9
68 Pa. C.S. §5220(i). Section 5220(i) states, in relevant part:
In the case of a declaration that contains no provision expressly
providing for a means of terminating the planned community other
than a provision for a self-executing termination upon a specific date
or upon the expiration of a specific time period, such termination
provision shall be deemed ineffective if no earlier than five years
before the date the planned community would otherwise be
terminated[.]
10
68 Pa. C.S. §5201. Section 5201 states in relevant part: “A planned community may be
created pursuant to this subpart only by recording a declaration executed in the same manner as a
deed by all persons whose interests in the real estate will be conveyed to unit owners and by every
lessor of a lease. . . .”
11
68 Pa. C.S. §5219(d)(1). Section 5219(d)(1) states, in pertinent part: “Except to the
extent expressly permitted or required by other provisions of this subpart, without unanimous
consent of all unit owners affected, no amendment may create or increase special declarant
rights. . . .” The Golf Club posits that although the veto right is not enumerated in the definition
of “special declarant rights” in Section 5103, that list is not exclusive. MetroClub Condominium
Association v. 201-59 North Eighth Street Associates, L.P., 47 A.3d 137, 152 (Pa. Super. 2012).
11
filed in support of its order, the trial court determined “as a matter of law, the
Declaration has not expired or terminated. No ambiguity exists in the Declaration.
Construing the Declaration in light of its language, its subject matter, its intent, and
the conditions surrounding its execution, the Declaration ‘automatically continued’
after January 1, 2010.” R.R. at 1863a. Specifically, the trial court determined that
“[t]he Declaration, as originally written, had a term that could end no earlier than
January 1, 2010.” Id. at 1857a (emphasis in original). The court also found that
“far from ‘confirming’ the Golf Club’s interpretation of the Declaration, reading the
Sales Contract and the Deeds, together, provides no evidence that the Declaration
was intended to automatically terminate on January 1, 2010. Instead, these later
transactions support the interpretation that the Declaration had a different term.” Id.at 1862a. Importantly, in light of the requirements of Section 12.1 for an effective
termination and Section 13.1 for an effective amendment, the trial court noted that
“no document terminating the Declaration has ever been filed or recorded by [the
Authority] or [the Association],” “no Declaration has been recorded as required by
Section 12.1 if a termination occurred,” and “as Article XIII directs, an amendment
requires [the] affirmative consent of a specific percentage of ‘voting rights’ in the
‘project.’” Id. at 1862a-1863a. The Golf Club then filed the instant appeal of the
trial court’s order.12
The Golf Club’s numerous claims on appeal may be summarized as
follows: (1) the trial court erred in relying on the Declaration’s Overview in
determining that its unambiguous terms demonstrate that the Declaration did not
12
“Appellate review of a trial court’s grant of summary judgment is limited to determining
whether the trial court committed an error of law or abused its discretion. Moreover, summary
judgment may be granted only in cases where it is clear and free from doubt that the moving party
is entitled to judgment as a matter of law.” Bashioum v. County of Westmoreland, 747 A.2d 441,
442 n.1 (Pa. Cmwlth. 2000) (citation omitted).
12
terminate on January 1, 2010; (2) the trial court erred in failing to apply the Act and
determine that the Declaration terminated by its own terms on January 1, 2010; (3)
the trial court erroneously interpreted the sales contracts executed
contemporaneously with the Declaration to support its determination that the
Declaration would continue in effect beyond January 1, 2010; (4) the trial court erred
in failing to find that the Authority’s veto power was terminated on January 1, 2010;
and (5) the trial court erred in failing to determine that the 2014 Certificate of
Amendment was null and void because the Association failed to obtain the
unanimous consent of all property owners for its adoption as required by the Act.
We initially observe that “[p]etitions for declaratory judgments are
governed by the provisions of the [DJA].” Brouillette v. Wolf, 213 A.3d 341, 357
(Pa. Cmwlth. 2019) (citation omitted). As this Court has explained:
Declaratory judgments are not obtainable as a matter of
right. Rather, whether a court should exercise jurisdiction
over a declaratory judgment proceeding is a matter of
sound judicial discretion. Thus, the granting of a petition
for a declaratory judgment is a matter lying within the
sound discretion of a court of original jurisdiction.
Id. (citations omitted). Additionally, “[a]n abuse of discretion ‘is not merely an error
of judgment, but if in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is
abused.’” Adams v. Adams, 725 A.2d 824, 827-28 (Pa. Super. 1999) (citation
omitted).
Further, as this Court has observed:
A declaration of a planned community is equivalent to a
contract between a member of a homeowners[’]
association and the association itself. See Wrenfield
13
Homeowners [Association] v. DeYoung, 600 A.2d 960,
963 (Pa. Super. 1991) (treating homeowner[s’] association
declaration as contract between homeowner[s’]
association and its members). When interpreting a
contract:
[W]e attempt to ascertain the intent of the parties
and give it effect. When the words of an agreement
are clear and unambiguous, the intent of the parties
is to be ascertained from the language used in the
agreement, which will be given its commonly
accepted and plain meaning.
Additionally, in determining the intent of the
contracting parties, all provisions in the agreement
will be construed together and each will be given
effect. Thus, we will not interpret one provision of
a contract in a manner which results in another
portion being annulled.
LJL Transp[ortation], Inc. v. Pilot Air Freight Corp., 962
A.2d 639, 647-48 (Pa. 2009) (citations omitted). In sum,
the court will “adopt an interpretation that is most
reasonable and probable bearing in mind the objects which
the parties intended to accomplish through the
agreement.” Wrenfield, 600 A.2d at 963.
Hilltop Summit Condominium Association v. Hope (Pa. Cmwlth., No. 4 C.D. 2014,
filed July 10, 2014), slip op. at 15-16.13
When construed as outlined above, the trial court did not err in
considering the provisions of the Overview in addition to, and in light of, all of the
other substantive provisions of the Declaration. As a result, with respect to the
claims raised in this appeal, the Golf Club’s arguments are all based on the faulty
premise that Section 12.1 of the Declaration constitutes a self-executing termination
13
See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).
14
of the Southpointe planned community under Section 5220(i) of the Act so that the
2014 Certificate of Amendment is, in essence, creating a new Southpointe planned
community thereby requiring unanimous consent under Section 5201, and the
creation of a special declarant right also requiring unanimous consent under Section
5219(d)(1). As Defendants argue, and as the trial court correctly determined, the
applicable provisions of the Act do not affect or invalidate the applicable provisions
in the Declaration regarding its termination or amendment, under Section 12.1 for
an effective termination and Section 13.1 for an effective amendment, because the
Declaration was executed and recorded prior to the Act’s enactment.
Indeed, as this Court explained in Huddleson v. Lake Watawga
Property Owners Association, 76 A.3d 68, 72 (Pa. Cmwlth. 2013):
Generally, the Act applies to planned communities created
after 1997 when the Act became effective. Parts of the Act
apply retroactively to planned communities created prior
to the effective date of the Act. Section 5102(b) of the Act
sets forth the specific sections of the Act that apply
retroactively. That section also makes it clear that “those
sections apply only with respect to events and
circumstances occurring after the effective date of this
subpart and do not invalidate specific provisions
contained in existing provisions of the declaration,
bylaws or plats and plans of those planned
communities.” 68 Pa. C.S. §5102(b) (emphasis added).
Moreover, as the trial court noted, “[r]estrictive covenants must be
construed in light of their language, their subject matter, the intent or purpose of the
parties, and the conditions surrounding their execution. Perrige v. Horning, [654
A.2d 1183, 1188 (Pa. Super. 1995) (citations omitted)].” R.R. at 1855a. Reading
and applying all of the unambiguous language of the four corners of the Declaration,
it was not terminated under its terms and Section 12.1 was properly amended
pursuant to its terms. As a result, all of the executed covenants continue to be
15
binding, the 2014 Certificate of Amendment is binding, and the Authority’s veto
rights were preserved under the 2003 Waiver and Release and the 2003 Assignment.
Finally, and quite importantly,14 Section 10(a), (c)(9), and (i) of the
URL states, in pertinent part:
(a) An Authority shall prepare a redevelopment
proposal for all or part of any area certified by the planning
commission to be a redevelopment area and for which the
planning commission has made a redevelopment area
plan.
***
(c) The planning commission’s redevelopment area
plan shall include, without being limited to, the following:
***
(9) A statement of such continuing controls as may be
deemed necessary to effectuate the purposes of this act.
***
(i) Upon approval by the governing body of the
redevelopment proposal, as submitted by the Authority,
the Authority is authorized to take such action as may be
necessary to carry it out.
35 P.S. §1710(a), (c)(9), & (i).
Likewise, Section 11(a)(9) of the URL provides, in relevant part:
(a) The contract between the Authority and a
redeveloper shall contain, without being limited to, the
following provisions:
14
“The ‘right for any reason’ doctrine allows an appellate court to affirm the trial court’s
decision on any basis that is supported by the record. See Ario v. Ingram Micro, Inc., [965 A.2d
1194, 1200 (Pa. 2009)] (‘an appellate court may uphold an order of a lower court for any valid
reason appearing from the record’).” In re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018).
16
***
(9) Such other continuing controls as may be deemed
necessary to effectuate the purposes of this act[.]
35 P.S. §1711(a)(9). As a result, as outlined above, Sections 9 and 11 of the URL
specifically contemplate and empower the Authority to execute the relevant
documents to impose the restrictive covenants in the Declaration and to retain its
veto power as provided under Section 21.1(C) of the Declaration.15
Furthermore, as outlined above, the Authority’s power to act in any
manner contravening the purposes of the Southpointe development or the restrictive
convenants, or prejudicing the rights of all of the property owners in the
development, is severely circumscribed by Section 9(k) of the URL. See 35 P.S.
§1709(k) (“Provided, That with respect to a redevelopment area the Authority finds
that the sale, lease or other transfer of any part will not be prejudicial to the sale or
lease of the other parts of the redevelopment area, nor be in any other way prejudicial
to the realization of the redevelopment proposal approved by the governing body.”).
In this vein, this Court has explained:
Activities of public authorities should be subject to
judicial scrutiny. We agree with what Justice Roberts said
in Price v. Philadelphia Parking Authority, [221 A.2d 138,
145 (Pa. 1966)]: ‘As public bodies, they exercise public
powers and must act strictly within their legislative
mandates. Moreover, they stand in a fiduciary relationship
to the public which they are created to serve and their
conduct must be guided by good faith and sound
judgment. See Schwartz v. Urban Redevelopment
[Authority, 192 A.2d 371, 374 (Pa. 1963)]; Heilig
[Brothers] Co. Inc. v. Kohler, [76 A.2d 613, 616 (Pa.
15
See also Section 11(b) of the URL, 35 P.S. §1711(b) (“Any deed or lease to a redeveloper
in furtherance of a redevelopment contract shall be executed in the name of the Authority . . . and
shall contain in addition to all other provisions, such provisions as the Authority may deem
desirable to run with the land in order to effectuate the purposes of this act[.]”).
17
1950)]. The mushrooming of authorities at all levels of
government and the frequent complaint that such bodies
act in an arbitrary and capricious manner in violation of
existing law dictate that a check rein be kept upon them.
Schwartz v. Urban Redevelopment [Authority, 192 A.2d
371, 374 (Pa. 1963)]; Keystone Raceway Corp. v. State
Harness Racing [Commission, 173 A.2d 97, 99 (Pa.
1961)].’
Redevelopment Authority of City of Erie v. Owners or Parties in Interest, 274 A.2d
244, 247 (Pa. Cmwlth. 1971).
Based on the foregoing, the trial court properly construed all of the
provisions of the Declaration and all of the other relevant documents executed by
the Authority so as to comply with the pertinent and controlling provisions of the
Declaration, the Act, and the URL. As a result, the trial court did not err or abuse
its discretion in denying the requested declaratory relief.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Southpointe Golf Club, Inc., :
:
Appellant :
v. : No. 1420 C.D. 2019
:
Southpointe Property Owners’ Association, :
Inc.; Redevelopment Authority of the :
County of Washington; R&M Investment :
Group LLC; Technology Drive LLC; :
Ansys, Inc.; Crown Castle USA, Inc.; :
701 Technology Drive Partners L.P.; :
Creehan Properties, LP; SPCDMG LTD; :
1750 East Realty, L.L.C.; Landmark :
Limited Partnership; Southpointe :
Rink Assoc L.P.; Centimark Corporation; :
Southpointe 16 Associates; Kossman- :
Phoenix Limited Partnership; Andritz :
Metals, Inc., f/n/a Bricmont, Inc., f/n/a :
Andritz Bricmont, Inc., Hershey Leasing :
Company, LP; Champ Investment :
Limited Partnership; Creehan Properties :
151, LP; Auma Actuators Inc.; Mark K. :
German; Accutrex Products, Inc.; :
Southpointe #4 Green Associates; Four :
Thousand Nine Hundred West Broad Street :
Laundry, LLC a/k/a 4900 West Broad Street :
Laundry, LLC an Ohio limited liability :
company n/k/a Fairway View, LLC; :
Southpointe 375 Associates, L.P.; Merces :
De Quevedo Freemon 2007 Living Trust, :
Philip G. and Richard A. Freemon Trustees; :
Lexington TNI Canonsburg, LP; Summit :
& Plaza II Holdings LP; Ronald M. Kean :
& R. George Yurasko and Frederick A. :
Farrell Trustees of United Food & :
Commercial Workers, Local Union 23; :
Nelson M. and Darlene M. Heeter; :
Southpointe/Miller Limited Partnership; :
501 Technology Partners, LLC; :
Schenley Center Assoc II LP; 121 :
Champion LLC; Technology Drive, LLC; :
KRB Development Co., L.P.; :
Fountainhead Southpointe Associates; :
Southpointe Hotel and Conference Center :
L.P., Summit & Plaza II Holdings, LP; :
Dialysis Clinic, Inc.; Ages Associates LP :
Washington County Authority; Lawrence :
and Kimberly A. Melen; Donald K. and :
Pamela B. Robinson; Sophia C. Sarris; :
William A. and Kathleen Baron; Everett E. :
Dunn and Connie A. Dunn, Trustees Of :
The Dunn Revocable Trust dated :
November 13, 2008; James E. and Tracey L :
Jacobs; Thomas P. Kazas and Sandra Frank :
-Kazas; Brett E. Murawski and Kelly J. :
Chaney; Walter E. and Barbara A. Kryspin; :
Gary M. Stefansky and Suzanne A. :
Orbanick-Stefansky; Mark and Lauren M. :
Lega; Andrew J. and Maureen L. Kicinski; :
Betty Harris Rainier Revocable Trust dated :
May 15, 2012, Betty Harris Rainer Trustee; :
Jeffrey J. and Janene M. Jost; Mary Jane :
Broglia; Cary D. Cowden; Louis V. and :
Elizabeth Valente; Ronald L. and Elaine C. :
Friedman; Paul Robert and Regina M. :
Johnston; Guthrie and Viola Taboni; :
Patrick G. and Lyn C. McGinnis; James H. :
and Donna J. White; Richard Otter and :
Deborah C. Friedrich; Joseph J. and Mary :
Ann Brown; Bruce E. and Margaret A. :
Hough; Raymond W. Sauer, Jr. and Helen :
F. Sauer; Geno A. and Justine Pisciottano; :
John P. and M. Kathleen Fox; Richard A. :
and Sharon Barcelona; Geno R. and :
Cynthia N. Levi; Steven W. and Melissa :
Ann Chesher; Mark S. and Gen Cameron :
Wilson; William K. and Patricia Snodgrass; :
Jeffrey M. and Angela D. Abbott; David A. :
and Mary E. Fetchko; Louis and Joellyn :
Barletta; Kevin F. Owsiany; John C. and :
Arlene E. Stankus; Douglas R. and Melissa :
L. Hodinko; Elizabeth E. and Daniel F. :
Vorum; Fairway Landings Townhouses :
of Southpointe Assn. Inc.; Kevin and :
Doreen Lynn Ruffe; Terri Bush Brown; :
William B. and Connie Gross; Wendy Jean :
Obrien; Paul B. DeFazio; David A. Ross; :
Griffith Family Trust, Peter D. Friffith and :
Bonnie L. Griffith, Trustees; Peter H. and :
Joyce I. Phillips; William R. Piper and :
Linda O’Leary; Regis J. McKenzie, III; :
Gayla R. Hagg; Steven Speca; Tony L. and :
Jan B. Angelle; Ruth A. Lutz, Trustee For :
The Lutz Family Trust; William J. and :
Deborah A. Harrison; Roger D. Graham, Jr. :
and Mary Ann Graham; Patricia K. Hazen; :
Heart & Seoul Productions, LC a Michigan :
limited liability company, Stephanie L. :
Kubik; Michele A Docchio; John S. and :
Ellen J. Steigerwald; Marilyn I. Goodwill; :
Corinne McCullough; Phillip J. Falconi; :
Mark E. Nance; Walter M. Castro; Lynn A. :
Deppen; Michael W. and Kathy Smith; :
Mark I. Linn and Renee A. Battistone; :
Varun Mishra; David Harkreader and :
Lynne D. Dunn; Southpointe Holdings, :
LLC; Jeffrey H. and Jonelle M. Stambaugh; :
Luca Zoia and Chiara Gonin; Katheryn :
Leigh Tate; Alexandra Kusturiss; John A. :
and Marianne Zywan; Jeffrey J. Livolsi; :
Christopher J. and Lyn R. Logelin; Thomas :
J. and Betty J. Zayac; Douglas B. Blobner :
Revocable Living Trust, dated :
October 20, 2010, Douglas B. Blobner :
Trustee; Robert S. and Janet M. Camel; :
Richard K. and Penny Ann L. Thomas; :
Eric J. and Connie I. Bruce; Wayne Trust :
Walter K. and Virginia M. Wayne Trustees; :
Subhash Joon; Derek A. Rice; Gregory A. :
Karabetsos; Janet Torriero; John and Carol :
Riddle; Donald L. and Margret S. Hocevar; :
Mary Kay Graziano; Margaret K. Fischer; :
Thomas Lee and Allyson Ann Fritz; :
Samuel J. Rodgers and Rebecca L. Black; :
Edmond A. and Susan Marie Cononge; :
Robert F. Milinski and Stanley J. Zawacki; :
Roslyn Corton; Ying Wei; Marlene V. :
Pierotti Revocable Trust, Marlene V. :
Pierotti, Trustee; Richard C. Goodwill; :
Timothy J. and Carmen Cecilia Aitken; :
Joe and Anne Trask; Bonita L. Sidick; :
David H. and Victoria L. Smith; Alice F. :
Dagg Trust; Alice F. Dagg Trustee; Larry J. :
and Catherine A. Cavallo; Cindy Rice- :
Andrea and Richard Andrea; Dolores Kara :
Revocable Trust Dolores Kara Trustee; :
Bernard John Hobach 2001 Irrevocable :
Trust, Bernard J. Hobach, Trustee; Nancy :
E. Flynn; Paul J. and Geraldine McKosky; :
Melelaos and Kiki Doumas Living Trust :
dated December 20, 1999, Menealaos :
Doumas and Kiki Doumas, Trustees; :
Richard J. Kawalek; Patricia Nan Daum; :
Lynda L. Kelly; Charles W. and Dawn :
Lynn Fike; Norman Michael Revocable :
Trust, Alice J. Michael Trustee; Earl L. :
and Maria A. Romesberg; William R. and :
Jennifer S. Davis; Derek Peabody and :
Ashley R. Pawlish; Joseph A. and Amy L. :
Wateska; Gary D. and Karen L. Smith; :
Ronald M. and Eva M. Bozick; Robert J. :
Braithwaite, Sr., and Mary T. Braithwaite; :
Phillip J. Binotto, Jr. and D. Jill Binotto; :
William S. and Laura K. Tate; Shaney L. :
Rudar; Scott T. and Lauren Dooley; :
Raymond R. Parry, Sr. and Barbara L. :
Parry; David A. and Cheryl S. Bayne; :
Frank C. Botta; Michael J. and Irene :
A. Fostyk; Timothy P. and Stephanie :
Galloway; Peter F. and Deborah L. :
Singleton; Richard Dean and Judith Ellen :
McAllister; Paul V. Ambrose Family :
Trust, Paul V. Ambrose and Gloria J. :
Ursitz Trustees; Dennis P. and Pamela J. :
Weakland; Richard K. Miller; Camille M. :
Herbert; Arthur and Ellen Mezerski; Scott :
C. and Laurel L. Sanders; Ruth Ann :
Falconi; Bernard J. Shaughnessy, Jr. and :
Melissa J. Shaughnessy; Justin R. :
Domachowski; Ronald J. and Natalie A. :
Aiello; Scott Cook; Southpointe :
Development LLC d/b/a Southpointe :
Apartments; Terry Ann McCaffrey; Renee :
Cavalovich; Doreen V. Latona; Robert :
Premro; Adrienne L. Compeggie; William :
H. and Phyllis J. Savatt; George S. Villani; :
Mark Borden; Herbert F. and Ana L. :
Balzuweit; Adam J. Fulton; GL Harakal :
Group, Inc; Gerald Thomas and Rebecca :
Marie Mathews; Tammi R. Brown; Fairway :
View, LLC; Scott and Alana Hudson; Alvin :
and Patricia Miller; Robert A. Simmers; :
Lynn S. Frank; Benjamin M. Neenan and :
Paige Williamson Neenan; Mac & Mac :
Properties LLC; Brett J. Ross; Mark E. and :
Jeanne E. Becker; Susan P. Armstrong; :
Susan R. Passante; Cory Bak; Rahul Bazaz; :
Lee and Alexis Wetzel; Scott T. Dooley; :
Kenneth and Linda Matz; James J. Ratti; :
Janelle Vicinelly; John, Jr. and Deanna R. :
Lubic; William L. Lyons, IV; Gerald W. :
and Susan M. Horton; Pamela C. Polacek; :
Joel Hatfield; Joan Doerschner Enz; :
Charles J. Stefko; Randy W. and Cathy J. :
Bell; Christian and Rochelle A. Delgado; :
Helga E. Kercher; James Franklin Realty :
LLC; Timothy McManama; C. Scott and :
Patricia R. Warman; Margot A. Vaughan; :
Richard C. and Dianna L. Sponaugle; :
Anthony K. Gianettino and Ironwood/ :
Wedgewood Homeowner’s Association, :
Inc.; Fairway Landings Townhomes of :
Southpointe Association, Inc.; and The :
Fairways Condominium of Southpointe :
Association, Inc. :
ORDER
AND NOW, this 7th day of May, 2021, the order of the Washington
County Court of Common Pleas dated August 26, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
2