Hillside Villas Condominium Association, Inc. v. Bottaro Development Company , 177 A.3d 456 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hillside Villas Condominium :
Association, Inc. :
:
v. : No. 615 C.D. 2017
:
Bottaro Development Company, :
Mervin E.S. Resnick and Joyce K. :
Resnick Irrevocable Trust, John L. :
Bottaro, Lawrence J. Bottaro, Bottaro :
Construction Company :
:
Appeal of: Mervin E.S. Resnick and :
Joyce K. Resnick Irrevocable Trust :
Hillside Villas Condominium :
Association, Inc., :
Appellant :
:
v. : No. 616 C.D. 2017
: Argued: December 7, 2017
Bottaro Development Company, :
Mervin E.S. Resnick and Joyce K. :
Resnick Irrevocable Trust, John L. :
Bottaro, Lawrence J. Bottaro, Bottaro :
Construction Company :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION
BY JUDGE SIMPSON FILED: January 16, 2018
In these consolidated cases, both parties appeal from a final judgment
of the Court of Common Pleas of Dauphin County1 (trial court). The trial court held
1
The Honorable William T. Tully presided.
that the Mervin E.S. Resnick and Joyce K. Resnick Irrevocable Trust (Trust) was a
declarant as that term is defined by the Pennsylvania Uniform Condominium Act
(PUCA).2 The trial court thus found the Trust jointly and severally liable, along with
the condominium developer, to Hillside Villas Condominium Association, Inc.
(Association) for the cost of repairs and completion of the common elements of the
condominium property. The trial court awarded damages to the Association, but in
an amount less than the damages to which the parties stipulated.
The Trust appealed the determination of its declarant status. The
Association cross-appealed the trial court’s reduction of the stipulated damages
amount. Upon review, we affirm in part, and vacate and remand in part.
I. Background
The Association is a non-profit condominium association comprised of
the unit owners of Hillside Villas Condominium. The Trust owned a tract of real
property in Susquehanna Township, Dauphin County (Township). In 2001, the
Trust entered into an Agreement of Sale (Agreement) to convey part of the land to
Bottaro Development Company (Developer).
The Agreement contemplated development of the purchased land into
a condominium. Developer did not pay the purchase price at the time of executing
the Agreement, and the Trust did not transfer title to the property at that time.
Instead, the parties agreed that the Trust would receive payment in a series of
settlements as units were built. The Agreement entitled the Trust to receive an
2
68 Pa. C.S. §§3101-3414.
2
additional payment of $25,000 beyond the original purchase price for each unit
Developer constructed above 24 units. The Agreement also gave the Trust the
unilateral option to void the Agreement if Developer failed to sell at least four units
per year or if the Township did not approve the parties’ land development plan.
Nothing in the Agreement stated that the Trust was retaining only a security interest
in the contemplated condominium development.
Developer and the Trust together submitted a Preliminary/Final Land
Development Plan (the Plan) to the Township. The Township approved the Plan,
and it was recorded in the office of the Recorder of Deeds of Dauphin County. The
Plan identified the Trust as the owner of the property and Developer as the equitable
owner.
The Trust and Developer jointly executed and recorded the Declaration
for Hillside Villas, a Condominium (Declaration) identifying both the Trust and
Developer as the declarant. The associated Declaration Plat (Plat) and a series of
nine subsequent recorded amendments to the Declaration all identified the Trust and
Developer as the declarant. Importantly, nothing in the Declaration, Plat, or
amendments stated that the Trust held only a security interest. To the contrary, the
Declaration specifically represented to the public that Developer and the Trust were
building and creating the condominium.
The Public Offering Statement for Hillside Villas likewise identified
the Trust and Developer as the declarant. Significantly, in the Public Offering
Statement, the declarant (Developer and the Trust) provided express warranties
3
relating to construction of the units. Again, nothing in the Public Offering Statement
stated that the Trust held only a security interest in the property or that the Trust was
not a declarant for purposes of the express warranties.
As the units were constructed, the Trust and Developer executed a deed
for each unit and an Assignment of Special Declarant Rights (Assignment) for each
group of units. Each deed named the Trust as a grantor and co-declarant. Each deed
also referred to the relevant Assignment. Each Assignment related to a group of
units and the limited common elements associated with those units. Also, each
Assignment identified the Trust as the assigning declarant and Developer as the
successor declarant. In each, the Trust expressly retained all declarant rights not
assigned.
Notably, the Trust never executed an Assignment regarding the last
units, Building H, Units 3 and 4, or the limited common elements associated with
those units. Further, the record contains no indication that the Trust ever assigned
its declarant rights regarding the general common elements such as the street,
sidewalks, curbing, and stormwater management system, many of which were the
subject of claims for completion and repairs.
Developer never completed construction of many of the common
elements. Others were defective and required extensive repair. The Association
sued Developer and the Trust, seeking to recover the cost of the needed completion
and repairs.
4
The Trust asserted a cross-claim against Developer for indemnification.
Developer stipulated to: (1) entry of judgment against it and in favor of the
Association on the complaint; (2) entry of judgment against it and in favor of the
Trust on the cross-claim; and, (3) damages in an amount to be proven at trial, as to
which Developer agreed to offer no defense.
The main focus of the parties’ dispute at trial was whether the Trust was
a declarant as that term is defined by PUCA, 68 Pa. C.S. §3103. The Association
relied on evidence identifying the Trust as a declarant in recorded documents
including the Declaration, Plat, Public Offering Statement, and deeds. The
Association also asserted that the Assignments did not divest the Trust of all its
interest in the common elements. The Trust countered that its retention of legal title
and its attendant identification as a declarant in recorded documents merely reflected
its security interest in the property, supporting its right to payment of the purchase
price by Developer.
The Association offered evidence that it had already expended $42,700
on stormwater issues and the common street. The Association presented expert
evidence that the additional cost to complete the necessary construction and repairs
would be $863,285. Thus, the Association presented evidence of total damages in
the amount of $905,985. The Trust stipulated to the damages amount as presented
in the Association’s evidence. See Reproduced Record (R.R.) at 340a.
After a bench trial, the trial court found the Trust was a declarant under
PUCA. The trial court entered judgment in favor of the Association and jointly and
5
severally against the Trust and Developer in the amount of $669,865. Both parties
appealed to the Superior Court, which transferred the appeals to this Court. The
Association opposed the transfer, arguing that the Superior Court previously issued
rulings on issues involving similar subject matter. We defer to the Superior Court’s
determination of the appropriate court for these appeals.
II. Issues
The appeal and cross-appeal present several issues for this Court’s
review,3 which we paraphrase as follows:
1. Whether the holder of legal title to real property, which
is listed as a declarant in a condominium declaration, public
offering, deeds, and other recorded documents, is a declarant
under PUCA for purposes of liability to the unit owners for
completion and repair of common elements.
2. Whether an assignment of special declarant rights
relieves the assigning declarant of liability regarding defective
and incomplete common elements.
3. Whether the trial court committed legal error by
declining to honor the parties’ damages stipulation.
III. Discussion
A. The Trust’s Appeal – Declarant Status under PUCA
The Trust argues that the trial court committed legal error in
determining that the Trust was a declarant under PUCA, because the Trust held only
3
On appeal from a non-jury trial, this Court’s review is limited to a determination of
whether the trial court’s findings are supported by competent evidence and whether the trial court
committed an error of law. Deep Meadows Civic Ass’n v. Trusello, 140 A.3d 60 (Pa. Cmwlth.
2016).
6
a security interest in the real property. In the alternative, the Trust argues that even
if it was initially a declarant, it successfully assigned all liabilities under the
Declaration by the series of Assignments of special declarant rights in connection
with the construction and sale of the units.4
1. Initial Declarant Status
a. Contentions
The Trust argues that the Agreement with Developer left the Trust
holding only a security interest in the property. Because PUCA expressly excludes
the holder of a security interest from the definition of a declarant, the Trust argues
that it cannot be liable to the Association under PUCA.
The Trust asserts that the holdings of DiDonato v. Reliance Standard
Life Insurance Co., 249 A.2d 327 (Pa. 1969), Byrne v. Kanig, 332 A.2d 472 (Pa.
Super. 1974), and similar decisions govern this case. The Trust further relies on
Stillwater Lakes Civic Association v. Krawitz, 772 A.2d 118 (Pa. Cmwlth. 2001), in
which this Court held that an agreement of sale was a substitute for a mortgage and
the seller retained only a security interest in the unit during the time the buyer was
in possession. Id. at 120-21. These decisions stand for the general proposition that
an unconditional agreement of sale for real property vests equitable title in the buyer,
with the seller retaining only a security interest in the property.
4
The Trust also asserted that the trial court lacked competent evidence or committed legal
error in concluding “that the Trust failed to distinguish itself from the Declarant ….” Appellant’s
Br. at 4. The Trust’s brief, however, contains no argument section corresponding to this stated
issue. Accordingly, to the extent that this argument is distinct from the Trust’s other arguments,
it is waived. See Sch. Dist. of Phila. v. Jones, 139 A.3d 358 (Pa. Cmwlth. 2016).
7
The Association argues that the Agreement between the Trust and
Developer was not a typical unconditional agreement of sale. The Association
emphasizes that the Trust conditioned the Agreement on Developer’s maintenance
of a minimum annual unit sales volume, and that the Trust had the sole option to
void the sale if Developer failed to satisfy the sales quota. The Association points
out that the Trust designated itself as the declarant, along with Developer, in
documents recorded under PUCA. The Association also contends that the Trust still
holds record title to the unsold land in the development and declarant rights in the
common areas.
b. Analysis
The general principles of contract and real property law cited by the
Trust have some appeal. Such principles apply if not displaced by PUCA’s
provisions. See 68 Pa. C.S. §3108. Upon analysis, however, we conclude that this
case is distinguishable from those on which the Trust relies. Unlike the sellers in
those cases, the Trust did not enter into an unconditional sales agreement leaving it
with only a security interest. The Trust therefore falls within PUCA’s definition of
a declarant.
To that end, PUCA defines a “declarant,” in pertinent part, as follows:
(1) If the condominium has been created, ‘declarant’ means:
(i) any person who has executed a declaration, or an
amendment to a declaration to add additional real estate, other
than persons holding interests in the real estate solely as
security for an obligation ….
68 Pa. C.S. §3103 (emphasis added).
8
Here, the Trust retained more than a bare security interest protecting its
right to payment of the purchase price. The Trust had a right not just to terminate,
but to void the Agreement if Developer failed to meet certain sales benchmarks. Had
that occurred, the Trust stood to benefit from any intervening increase in the value
of the property by reason of whatever development had occurred to that point.
Additionally, the Trust was entitled to receive an additional payment of $25,000
above the purchase price for every unit Developer built over 24 units. Thus, the
Trust received value under the Agreement beyond just payment of the purchase price
of undeveloped land. The Agreement was not merely an unconditional installment
sales agreement. The Trust did not hold merely a security interest.
Moreover, the Trust expressly and repeatedly defined itself in recorded
documents as the declarant along with Developer. By doing so, the Trust acquired
special declarant rights, including retained rights in the common elements5 of the
development. PUCA defines “special declarant rights,” in pertinent part, as:
Rights reserved for the benefit of a declarant to:
(1) Complete improvements indicated on plats and plans
filed with the declaration (Section 3210).
* * * *
(7) Use easements through the common elements for the
purpose of making improvements within the condominium ….
5
Under the Pennsylvania Uniform Condominium Act (PUCA), “common elements” are
“[a]ll portions of a condominium other than the units.” 68 Pa. C.S. §3103. A “limited common
element” is “[a] portion of the common elements allocated by or pursuant to the declaration or by
operation of section 3203(2) or (4) (relating to unit boundaries) for the exclusive use of one or
more but fewer than all of the units.” Id.
9
68 Pa. C.S. §3103(1), (7).
With those rights came corresponding obligations imposed by PUCA
that the Trust was not free to ignore. PUCA imposes a mandatory warranty against
structural defects providing, in pertinent part:
(a) Definition. — As used in this section, ‘structural defects’
means those defects in components constituting any unit or
common element which reduce the stability or safety of the
structure below accepted standards or restrict the normal
intended use of all or part of the structure and which require
repair, renovation, restoration or replacement. Nothing in this
section shall be construed to make the declarant responsible for
any items of maintenance relating to the units or common
elements.
(b) General rule. — A declarant warrants against structural
defects in each of the units for two years from the date each is
conveyed to a bona fide purchaser, and all of the common
elements for two years. Any conveyance of a unit during the
two-year warranty period shall be deemed to transfer to the
purchaser all of the declarant’s warranties created under this
section ….
68 Pa. C.S. §3411(a), (b).6 Under PUCA, a “declarant’s obligation to complete and
restore” includes, in pertinent part:
(b) Repair and restoration. — The declarant is subject to
liability for the prompt repair and restoration, to a condition
compatible with the remainder of the condominium, of any
portion of the condominium affected by the exercise of rights
reserved pursuant to or created by section[] … 3218 (relating
to easement to facilitate completion …).
68 Pa. C.S. §3414(b).
6
The Trust has not asserted that the Association’s claims are untimely in any respect or
that any mandatory statutory warranty has expired.
10
A comparison of the Trust’s position with that of Developer’s
construction lender highlights the distinction in status between the Trust and a mere
holder of a security interest. Developer obtained a series of open-ended construction
loans, secured by mortgages, to finance the development of the condominium. See
R.R. at 600a-824a.7 The lender, despite its first mortgage lien position, never
identified itself as a declarant in relation to the condominium; nor did it ever acquire
any related special declarant rights or attendant obligations. Instead, the Declaration
set forth specific rights accorded to the mortgagee, which did not overlap with any
declarant rights. Similarly, the Public Offering Statement described only the
construction mortgage in its “Liens and Encumbrances” section; it gave no
indication that the Trust’s interest as a named declarant was limited to a lien or
encumbrance. The construction lender, in contrast to the Trust, held only a security
interest, as PUCA applies that term.
PUCA contemplates a liberal construction that will provide make-
whole relief to an aggrieved party. It provides: “The remedies provided by this
subpart shall be liberally administered to the end that the aggrieved party is put in as
good a position as if the other party had fully performed ….” 68 Pa. C.S. §3113.
Allowing the Trust to escape the obligations it necessarily assumed along with the
rights it acquired in the condominium’s common elements would contravene the
purpose of PUCA.
7
The initial construction mortgage stated as “background” that Developer held equitable
title and the Trust held bare legal title solely as security for the unpaid balance of the purchase
price. Reproduced Record (R.R.) at 600a. That recitation is not determinative of the Trust’s legal
status under PUCA.
11
Buyers of units in a condominum development have a right to proper
construction and completion of the common elements. Hence, PUCA imposes on
the declarant a duty to provide that construction, and a mandatory warranty to
guarantee its proper completion. See 68 Pa. C.S. §§3411, 3414. PUCA also requires
a public offering statement to disclose the identity of the declarant. 68 Pa. C.S.
§3402. By identifying itself as a declarant in recorded documents, including the
Public Offering Statement, the Trust manifested its intent to assume its mandatory
statutory responsibility for and warranty of the proper completion of the common
elements in which it held special declarant rights. Unit buyers were entitled to rely
on that warranty. The Trust’s argument after the fact that it really intended to hold
only a security interest is unavailing.
Perhaps most importantly, the Trust expressly undertook obligations
directly to unit purchasers. The Public Offering Statement defined the Trust as a
declarant and then set forth the declarant’s express warranties to all unit purchasers.
The Public Offering Statement contained no disclaimer of any kind by the Trust
relating to those express warranties. Thus, the Trust facially represented to the
public that it was providing the express warranties.
Similarly, the deed to each unit identified the Trust as a grantor and a
co-declarant. The Trust therefore assumed the obligations and warranties of a
declarant to each individual grantee. Like the Public Offering Statement, the deeds
contained no disclaimer by the Trust of those obligations and warranties.8 Thus, the
8
Each deed referred to a related partial assignment of special declarant rights, and
confirmed the Trust’s transfer to Developer of any interest in the unit being sold. Nothing in the
deeds limited the Trust’s existing rights or obligations concerning the general common elements.
12
Trust’s duties and obligations to the unit buyers arose not only from its statutory
declarant status, but also from its express undertaking of those duties and obligations
in recorded documents on which unit purchasers were entitled to rely.
2. The Trust’s Post-Assignment Obligations
In the alternative, the Trust argues that even if it was originally a
declarant, it successfully relinquished that status by assigning its declarant special
rights in connection with the sales of the various units. We discern no merit in this
argument.
The Trust assigned only rights relating to the units themselves and their
attendant limited common elements. It expressly retained all rights not assigned.
Those rights include an interest in limited common elements attendant to unsold
units, as well as in common elements that serve the entire development.
Section 3304(b)(2.1) of PUCA provides that a transferor declarant
remains responsible for obligations and liabilities relating to retained special
declarant rights, whether those obligations are imposed by PUCA or assumed by the
declarant:
(b) Liability of declarant following transfer. — Upon
transfer of any special declarant right, the liability of a
transferor declarant is as follows:
(1) A transferor is not relieved of any obligation or
liability arising before the transfer and remains liable for
warranty obligations imposed upon him by this subpart
….
13
* * * *
(2.1) If a transferor retains any special declarant right,
but transfers one or more other special declarant rights
to a successor who is not an affiliate of the declarant, the
transferor is liable for any obligations or liabilities
imposed on a declarant by this subpart or by the
declaration relating to the retained special declarant
rights arising after the transfer ….
68 Pa. C.S. §3304(b)(1), (2.1) (emphasis added).
Thus, PUCA imposes continuing obligations on a declarant even after
it assigns some or all of its special declarant rights. If a declarant transfers special
declarant rights to a successor, the transferor declarant nonetheless remains liable
for all warranties and obligations that arose before the transfer. 68 Pa C.S.
§3304(b)(1). If the transferor declarant assigns some of its special declarant rights
but retains others, it remains liable for all warranties and obligations, even if they
arise after the transfer, relating to any elements in which the transferor declarant
retains any rights. 68 Pa. C.S. §3304(b)(2.1).
In this case, the record demonstrates that every Assignment of special
declarant rights by the Trust related only to the limited common elements attendant
to the units identified in that particular Assignment. The Trust never assigned its
special declarant rights relating to the final units constructed, Building H, Units 3
and 4.
More importantly, the Trust expressly retained in each Assignment all
special declarant rights not specifically assigned. The Trust never transferred its
14
special declarant rights in the general common elements, such as the street,
sidewalks, curbing, and stormwater management system. These same common
elements are subjects of the Association’s damages claim. Therefore, the Trust
remained liable under PUCA for the statutory obligations and warranties relating to
those areas, regardless of whether those obligations and warranties arose before or
after the Assignments. See 68 Pa. C.S. §3304(b)(2.1).
Indeed, the Trust necessarily remained liable for those common
elements regardless of any possible assignment. Common elements, such as the
street, sidewalks, and curbing, appeared on the Plat and thus were obligations arising
at the commencement of the condominium project. See R.R. at 407a-09a. Liability
and warranties for those elements therefore remained, notwithstanding any later
assignment of special declarant rights. See 68 Pa. C.S. §3304(b)(1).
Accordingly, the trial court correctly found the Trust liable jointly and
severally with Developer for the cost of completing the common elements and
repairing defects in their original construction.
B. The Association’s Cross-Appeal – Stipulated Damages
In its cross-appeal, the Association argues that the trial court erred by
reducing the amount of its judgment without explanation and in contravention of the
parties’ stipulation regarding the damages amount. We agree.
At trial, the Association presented expert evidence that the total cost to
complete the remaining work needed in the development would be $863,285. Tr.
15
Ct., Slip Op., 3/24/16, at 19. The evidence also showed that the Association already
spent $42,700 on some of the most urgent repairs, id., bringing the total cost for all
the needed construction to $905,985 ($863,285 plus $42,700). The Trust stipulated
to the damages amount as presented in the Association’s evidence. See R.R. at 340a.
Developer previously stipulated to the damages amount to be shown at trial and
agreed not to offer any defense on the damages amount. Tr. Ct., Slip Op., 3/24/16,
at 2. The Association accordingly demanded a total damages award of $905,985.
In its verdict, the trial court found in favor of the Association, but
awarded only $669,865 in damages. Neither the verdict nor the trial court’s
supporting opinion contained any explanation for the reduction of the damages from
the amount stipulated by the parties.
In its post-trial motion, the Association argued that the trial court erred
by discounting the only expert evidence offered at trial and by ignoring the parties’
stipulation. The trial court denied the post-trial motion, again without explanation.
In its opinion under Pa. R.A.P. 1925(a), the trial court explained that its
damages award reflected its view of the credibility and weight of the evidence. Tr.
Ct., Slip Op., 8/2/16 (1925(a) Op.), at 10. The trial court acknowledged the parties’
damages stipulation; however, it observed that the Association cited no statutory
authority or case law to support its argument that the court should honor the
stipulation. Id.
In its post-trial motion, the Association presented a fully-developed
argument, including multiple citations to the record. Its argument was
16
straightforward: only one expert presented damages evidence at trial, and the parties
stipulated to the amount of damages that expert calculated. The Association offered
adequate support for that argument. This Court concludes that the trial court erred
by requiring a citation to legal authority in these circumstances. We therefore
address the merits of the Association’s damages argument.9
Under Pennsylvania law, litigants may limit any of the issues available
for the court’s consideration except matters affecting the jurisdiction, business, or
convenience of the court. Northbrook Life Ins. Co. v. Com., 949 A.2d 333 (Pa.
2008) (reversing this Court’s judgment that disregarded the parties’ stipulation). A
stipulation of facts is binding and conclusive on a trial court, although the court may
nonetheless draw its own legal conclusions from those facts. See Senex Explosives,
Inc. v. Commonwealth, 58 A.3d 131 (Pa. Cmwlth. 2012).
In this case, the parties’ damages stipulation was undisputed.10 The
Association asserted it at trial, in its post-trial motion, and in its brief on appeal. The
9
Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure similarly does not
mandate citations to authority for every argument. The rule requires parties to support their
arguments with “such discussion and citation of authorities as are deemed pertinent.” Id. This
Court declines to find waiver of arguments that contain no legal citations but are otherwise
sufficiently developed to allow meaningful appellate review. See, e.g., Herzog v. Unemployment
Comp. Bd. of Review (Pa. Cmwlth., No. 437 C.D. 2010, filed October 14, 2010), 2010 Pa.
Commw. Unpub. LEXIS 691 (unreported) (petitioner’s failure to provide legal citation did not
waive uncomplicated argument that was factually developed); Arthur v. Unemployment Comp.
Bd. of Review (Pa. Cmwlth., No. 593 C.D. 2009, filed October 20, 2009), 2009 Pa. Commw.
Unpub. LEXIS 568 (unreported) (appellate court will not refuse to review an issue based solely on
absence of legal citations, if the argument is sufficiently developed to permit meaningful review).
These decisions are consistent with the provisions of Rule 2119(a) and offer persuasive authority
on this issue. See 210 Pa. Code §69.414(a).
10
At trial, the Trust expressly stipulated to the damages amount. The trial court required
the Association to present its damages evidence solely because Developer did not specifically join
17
Trust offered no opposition at trial, in response to the Association’s post-trial
motion, or in its briefs submitted to this Court. The trial court expressly
acknowledged the stipulation at trial, and later in its Rule 1925(a) Opinion. In these
circumstances, the trial court was not free to disregard the parties’ stipulation by
entering judgment for a lower damages amount. Therefore, this Court vacates the
judgment as to damages only, and remands to the trial court with a direction to enter
judgment in favor of the Association in the stipulated amount of $905,985.
IV. Conclusion
Based on the foregoing, this Court affirms the trial court’s
determination that the Trust was and remained a declarant under PUCA and thus
was jointly and severally liable to the Association, along with Developer. We vacate
that stipulation. However, Developer did stipulate (1) to damages in the amount shown at trial;
and, (2) that it would offer no damages defense. The record reveals the following discussion at
the time the Association called its damages expert:
[Trust counsel]: Judge, I just want to reiterate our offer to stipulate to the
damages as Plaintiff has articulated them which –
THE COURT: The only trouble is you stipulate to the damages but
[Developer] has not. And [Developer] would have to deal with the
judgment as well. So to keep the record complete, I think what that does
is allows him to put it on and probably takes the need for you to cross-
examine extensively.
[Trust counsel]: Well, that certainly will not happen.
THE COURT: That’s for sure. So with that understanding though, make
your record but you obviously don’t have to stress credibility
determination since there doesn’t seem to be anyone to counter it ….
R.R. at 340a-41a (emphasis added).
18
the trial court’s damages award and remand for entry of judgment in the stipulated
amount of $905,985.
ROBERT SIMPSON, Judge
Judge Cosgrove did not participate in the decision in this case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hillside Villas Condominium :
Association, Inc. :
:
v. : No. 615 C.D. 2017
:
Bottaro Development Company, :
Mervin E.S. Resnick and Joyce K. :
Resnick Irrevocable Trust, John L. :
Bottaro, Lawrence J. Bottaro, Bottaro :
Construction Company :
:
Appeal of: Mervin E.S. Resnick and :
Joyce K. Resnick Irrevocable Trust :
Hillside Villas Condominium :
Association, Inc., :
Appellant :
:
v. : No. 616 C.D. 2017
:
Bottaro Development Company, :
Mervin E.S. Resnick and Joyce K. :
Resnick Irrevocable Trust, John L. :
Bottaro, Lawrence J. Bottaro, Bottaro :
Construction Company :
ORDER
AND NOW, this 16th day of January, 2018, the order of the Court of
Common Pleas of Dauphin County is AFFIRMED IN PART. The trial court’s
damage(s) award is VACATED. This matter is REMANDED to the trial court to
enter judgment in the amount of $905,985 in favor of Hillside Villas Condominium
Association, Inc. and jointly and severally against Bottaro Development Company
and Mervin E.S. Resnick and Joyce K. Resnick Irrevocable Trust on the Hillside
Villas Condominium Association, Inc.’s complaint. The trial court is further
directed to amend its judgment in favor of the Mervin E.S. Resnick and Joyce K.
Resnick Irrevocable Trust and against Bottaro Development Company on the
Mervin E.S. Resnick and Joyce K. Resnick Irrevocable Trust’s cross-claim and to
enter judgment thereon in the amount of $905,985. In all other respects, the trial
court’s order is AFFIRMED.
Jurisdiction is relinquished.
ROBERT SIMPSON, Judge