Logans' Reserve HOA v. J. McCabe and J. McCabe ( 2017 )


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  •                      IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Logans’ Reserve Homeowners’         :
    Association                         :
    :
    v.                       :
    :
    Jeffrey McCabe and Jennifer McCabe, :                   No. 820 C.D. 2016
    Appellants   :
    Logans’ Reserve Homeowners’         :
    Association                         :
    :
    v.                       :
    :
    Jeffrey McCabe and Jennifer McCabe, :                   No. 821 C.D. 2016
    Appellants   :                   Argued: December 12, 2016
    BEFORE:            HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION BY
    JUDGE COVEY                                             FILED: January 4, 2017
    Jeffrey McCabe (Mr. McCabe) and Jennifer McCabe (collectively, the
    McCabes) appeal from the York County Common Pleas Court’s (trial court) April 22,
    2014, February 17, 2016 and April 15, 2016 orders granting Logans’ Reserve
    Homeowners’ Association’s (Association) partial summary judgment motion,
    denying the McCabes’ motion for continuance, and denying the McCabes’ post-trial
    relief motion. There are three issues1 for this Court’s review: (1) whether the trial
    court erred in granting the Association’s partial summary judgment motion; (2)
    1
    In their brief, the McCabes set forth four issues; however, we have combined the first two
    issues.
    whether the trial court erred in denying the McCabes’ continuance motion; and, (3)
    whether the trial court erred in denying the McCabes’ post-trial relief motion (Post-
    Trial Motion). After review, we affirm.
    On August 28, 2006, the McCabes purchased real property at 1118
    Silver Maple Circle in Seven Valleys, Pennsylvania (the Property). The Property is
    located within Logan’s Reserve (the Development), a community owned and
    maintained by the Association, and is subject to the Uniform Planned Community
    Act (Act)2 and the Association’s Declaration, By-Laws and amendments thereto
    (Declaration). The Declaration requires property owners, including the McCabes, to
    pay common expense3 assessments to the Association. See Declaration § 9.2.1.
    After the McCabes purchased the Property, the Association assessed
    them monthly dues, which they paid. However, in June 2009, the McCabes ceased
    paying the dues. On April 8, 2010, the Association instituted an action against the
    McCabes in Magisterial District Court. On June 23, 2010, the Magisterial District
    Judge entered judgment in the McCabes’ favor. On July 1, 2010, the Association
    filed a notice of appeal from the June 23, 2010 judgment. On August 10, 2010, the
    Association filed a complaint in the trial court against the McCabes seeking recovery
    of their unpaid assessments, as well as late fees and attorneys’ fees. On October 22,
    2010, the McCabes filed an answer with new matter and counterclaim explaining that
    they stopped paying the assessed dues because the Association had “failed, and
    continues to fail to maintain the common area behind [the McCabes’] back lawn (. . .
    2
    68 Pa.C.S. §§ 5101-5414.
    3
    The Declaration defines “[c]ommon [e]xpenses” as “expenditures made by or financial
    liabilities of the Association, together with any allocations to reserves.” Declaration § 1.5.2(h),
    Reproduced Record (R.R.) at 67a. Section 9.1.1 of the Declaration provides that common expenses
    include “[e]xpenses of administration, maintenance, and repair or replacement of the [c]ommon
    [e]lements . . . .” Declaration § 9.1.1, R.R. at 82a.
    2
    Common Area[]).”4 Reproduced Record (R.R.) at 35a. In their new matter, the
    McCabes alleged that the Association had not maintained the Common Area since the
    McCabes moved into the Property in August 2006, and that the Common Area was
    overgrown with weeds and shrubs, thereby causing their lawn and home to be
    infested with ticks and other insects, for which they incurred treatment expenses. In
    their counterclaim, the McCabes claimed that the Association’s failure to maintain
    the Common Area constituted a breach of the Declaration and resulted in the
    aforementioned expenses. Accordingly, the McCabes sought reimbursement of the
    expenses, plus reimbursement of dues they paid between August 2006 and June 2009.
    The Association filed its answer to the new matter and counterclaim on October 22,
    2010.
    On November 12, 2013, the Association filed its partial summary
    judgment motion alleging that there were no genuine issues of material fact, that the
    McCabes had failed to pay their assessed dues and that, as a matter of law, the
    McCabes were prohibited from withholding payment of common expense
    assessments as self-help to address their dissatisfaction with the Association’s alleged
    failure to maintain the Common Area. The Association also sought attorneys’ fees
    and costs.    After oral argument, on April 22, 2014, the trial court granted the
    Association’s partial summary judgment motion, entered judgment in the
    Association’s favor, and awarded attorneys’ fees and costs. The case continued on
    the McCabes’ counterclaim.
    The McCabes requested that their counterclaim proceed to arbitration.
    At arbitration, the McCabes were awarded $2,711.06 (Arbitrators’ Award). The
    McCabes appealed from the Arbitrators’ Award to the trial court on the basis that the
    arbitrators did not award attorneys’ fees.
    4
    Due to a caption error, on December 21, 2010, the McCabes filed an amended answer, new
    matter and counterclaim correcting the caption.
    3
    On August 31, 2015, the parties’ counsel signed a Certificate of Trial
    Readiness (Certificate) declaring to the trial court that the matter was ready for trial.
    The Certificate also certified “that all witnesses will be on call and available during
    the entire scheduled trial term.” R.R. at 579a. A non-jury trial was scheduled for
    February 17, 2016 before Judge Stephen P. Linebaugh (Judge Linebaugh). Judge
    Linebaugh held a pretrial conference on October 1, 2015.                    Prior to trial, Judge
    Linebaugh conducted a site visit.
    On February 9, 2016, the Association filed its pre-trial brief wherein it
    argued the business judgment rule as a defense to the McCabes’ action. On the
    evening of February 12, 2016, the McCabes’ witness, former Association President
    Howard Asche (Asche), informed the McCabes that he could not attend trial due to a
    scheduling conflict. On February 15, 2016, the McCabes filed a First Motion for a
    Trial Continuance (Continuance Motion) by first class mail with a certificate of
    service dated February 15, 2016.5 Therein, the McCabes explained that Asche was
    unavailable and that his testimony was directly relevant to the Association’s business
    judgment rule defense.6 The trial court’s Prothonotary’s office time-stamped the
    5
    The McCabes state in their brief to this Court that they “timely filed their [Continuance
    Motion] on the next day the York [County] Prothonotary’s office was open, which was February 16,
    2016 due to the weekend, a holiday and inclement weather. This was only one (1) day prior to the
    date of trial itself, however.” McCabes’ Br. at 12. There is no explanation for the discrepancy
    between the February 15, 2016 mailing date, the February 17, 2016 time-stamped date, and the
    McCabes’ representation that the Continuance Motion was filed on February 16, 2016.
    6
    Our Supreme Court has explained:
    The business judgment rule insulates an officer or director of a
    corporation from liability for a business decision made in good faith if
    he is not interested in the subject of the business judgment, is
    informed with respect to the subject of the business judgment to the
    extent he reasonably believes to be appropriate under the
    circumstances, and rationally believes that the business judgment is in
    the best interests of the corporation.
    Cuker v. Mikalauskas, 
    692 A.2d 1042
    , 1045 (Pa. 1997). “[I]f a court makes a preliminary
    determination that a business decision was made under proper circumstances, however that concept
    4
    Continuance Motion on February 17, 2016. Notwithstanding, the trial was held as
    scheduled on February 17, 2016. On the last day of trial, the McCabes renewed their
    Continuance Motion, and requested the trial court to keep the record open so they
    could obtain Asche’s testimony before the trial court rendered a decision. The trial
    court refused the McCabes’ request. In a February 17, 2016 written order, the trial
    court denied the Continuance Motion, explaining:
    is currently defined, then the business judgment rule prohibits the court from going further and
    examining the merits of the underlying business decision. 
    Id. at 1047
    .
    Although the parties herein argue the business judgment rule, our Superior Court has found
    that Section 5303 of the Act
    govern[s] the standard with which we review decisions made by the
    [association’s executive b]oard. This section is stated, in pertinent
    part, as follows:
    § 5303. Executive board members and officers
    (a) POWERS AND FIDUCIARY STATUS.--Except
    as provided in the declaration, in the bylaws, in
    subsection (b) or in other provisions of this subpart, the
    executive board may act in all instances on behalf of
    the association. In the performance of their duties, the
    officers and members of the executive board shall
    stand in a fiduciary relation to the association and shall
    perform their duties, including duties as members of
    any committee of the board upon which they may
    serve, in good faith; in a manner they reasonably
    believe to be in the best interests of the association;
    and with care, including reasonable inquiry, skill and
    diligence as a person of ordinary prudence would use
    under similar circumstances. [ . . . ].
    68 Pa.C.S.[] § 5303. Therefore, [a court] review[s] the actions of the
    [association’s executive b]oard to determine if they acted ‘in good
    faith; in a manner they reasonably believe to be in the best interests of
    the association; and with care, including reasonable inquiry, skill and
    diligence as a person of ordinary prudence would use under similar
    circumstances.’ See 68 Pa.C.S.[] § 5303.
    Burgoyne v. Pinecrest Cmty. Ass’n, 
    924 A.2d 675
    , 683 (Pa. Super. 2007).
    5
    The [trial court] conducted a pretrial conference in this
    matter on October 1, 2015. At that time, Counsel selected
    the date for the trial and had selected the date for today’s
    date and time.
    The allegation in the motion is that there’s a witness who is
    unavailable because he has meetings in New Jersey relative
    to this appointment, and that is not a sufficient justification
    to continue the trial when a witness could have been made
    available by the moving party.
    R.R. at 345a-346a.
    On March 23, 2016, the trial court found in favor of the Association and
    against the McCabes on the McCabes’ counterclaim (March 23, 2016 Order). The
    McCabes filed the Post-Trial Motion seeking reconsideration, a new trial or other
    equitable relief. On April 15, 2016, the trial court denied the McCabe’s Post-Trial
    Motion. The McCabes appealed to the Pennsylvania Superior Court. The Superior
    Court, sua sponte, transferred the matter to this Court.7
    The McCabes first argue that the trial court erred when it granted the
    Association’s partial summary judgment motion.                 The McCabes contend that a
    genuine issue of material fact8 remains regarding whether the Association breached
    the Declaration, thereby justifying the McCabes’ failure to pay their assessments.
    Section 5314 of the Act provides:
    (a) General rule.--Until the association makes a common
    expense assessment, the declarant shall pay all the expenses
    of the planned community. After any assessment has been
    made by the association, assessments shall be made at least
    annually, based on a budget adopted at least annually by the
    7
    “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. Cnty. of Westmoreland, 
    747 A.2d 441
    , 442
    n.1 (Pa. Cmwlth. 2000) (citation omitted).
    8
    “A material fact is one that directly affects the outcome of the case.” Kenney v. Jeanes
    Hosp., 
    769 A.2d 492
    , 495 (Pa. Super. 2001) (quoting Kuney v. Benjamin Franklin Clinic, 
    751 A.2d 662
    , 664 (Pa. Super. 2000)).
    6
    association. The budgets of the association shall segregate
    limited common expenses from general common expenses
    if and to the extent appropriate.
    (b) Allocation and interest.--Except for assessments under
    subsection (c), all common expenses shall be assessed
    against all the units in accordance with the common
    expense liability allocated to each unit in the case of general
    common expenses and in accordance with subsection (c) in
    the case of special allocation of expenses. Any past[-]due
    assessment or installment thereof shall bear interest at the
    rate established by the association at not more than 15% per
    year.
    (c) Special allocations of expenses.--Except as provided by
    the declaration:
    (1) Any common expense associated with the
    maintenance, repair or replacement of a limited common
    element shall be assessed in equal shares against the units
    to which that limited common element was assigned at
    the time the expense was incurred.
    (2) Any common expense benefiting fewer than all of the
    units shall be assessed exclusively against the units
    benefited.
    (3) The costs of insurance shall be assessed in proportion
    to risk, and the costs of utilities that are separately
    metered to each unit shall be assessed in proportion to
    usage.
    (4) If a common expense is caused by the negligence or
    misconduct of any unit owner, the association may assess
    that expense exclusively against his unit.
    68 Pa.C.S. § 5314 (text emphasis added). Section 5315(a) of the Act states:
    The association has a lien on a unit for any assessment
    levied against that unit or fines imposed against its unit
    owner from the time the assessment or fine becomes
    due. The association’s lien may be foreclosed in a like
    manner as a mortgage on real estate. A judicial or other
    sale of the unit in execution of a common element lien or
    any other lien shall not affect the lien of a mortgage on the
    unit, except the mortgage for which the sale is being held, if
    the mortgage is prior to all other liens upon the same
    7
    property except those liens identified in [Section 8152(a) of
    the Judicial Code,] 42 Pa.C.S. § 8152(a) (relating to judicial
    sale as affecting lien of mortgage) and liens for planned
    community assessments created under this section. Unless
    the declaration otherwise provides, fees, charges, late
    charges, fines and interest charged under [S]ection
    5302(a)(10), (11) and (12) [of the Act] (relating to power of
    unit owners’ association) and reasonable costs and expenses
    of the association, including legal fees, incurred in
    connection with collection of any sums due to the
    association by the unit owner or enforcement of the
    provisions of the declaration, by[-]laws, rules or regulations
    against the unit owner are enforceable as assessments under
    this section. If an assessment is payable in installments and
    one or more installments are not paid when due, the entire
    outstanding balance of the assessment becomes effective as
    a lien from the due date of the delinquent installment.
    68 Pa.C.S. § 5315(a) (emphasis added).
    The Pennsylvania Superior Court in Rivers Edge Condominium
    Association v. Rere, Inc., 
    568 A.2d 261
     (Pa. Super. 1990), was the first appellate
    court to address the issue of whether a condominium unit owner can withhold
    assessment payments based on an association’s failure to maintain the common areas.
    In Rivers Edge, a condominium owner refused to pay assessments to the association
    because the owner believed that the association had failed to maintain and repair the
    common elements. The owner also claimed that he suffered property damage caused
    by water leaks.9 The Superior Court held that the owner’s “action in withholding his
    condominium assessments, even assuming that he has suffered the property damage
    he alleges, is not justified by the language of the . . . [c]ondominium [b]y-laws, the
    statutes of this Commonwealth, or general public policy considerations.” Id. at 263.
    The Rivers Edge Court expounded:
    The [c]ondominium [b]y–[l]aws explicitly require that a
    unit owner continue to pay the condominium assessment
    9
    The governing statute in Rivers Edge was the Uniform Condominium Act, 68 Pa.C.S. §§
    3101-3414.
    8
    even if the owner is not receiving services owed to him, i.e.,
    repairs to the common elements. When an individual
    purchases a condominium unit . . . , he necessarily accepts
    this provision allowing for no exemption from payment of
    the assessments. Such a provision benefits all of the unit
    owners because if all unit owners continue to pay the
    assessments, maintenance and repairs to the common
    elements will continue to be possible. A condominium
    form of ownership in real estate succeeds, because unit
    owners agree to cooperate in the maintenance of
    common elements.           When the [property owner]
    purchased his [condominium] units . . . , he chose to
    accept the benefits and obligations which accompany
    this form of real estate ownership. Although no appellate
    court in Pennsylvania has addressed the issue of whether
    the owner of a condominium unit may withhold
    condominium assessments based upon the alleged failure of
    the condominium association to maintain common
    elements, this issue was addressed by the Court of Common
    Pleas of Philadelphia in Society Hill Towers Owners’
    Association v. Matthew, 
    32 Pa. D. & C.3d 244
     (1982).
    There, a judgment by confession had been entered in favor
    of a condominium association against unit owners who had
    failed to pay assessments. The unit owners claimed that
    they failed to pay the assessments due to the failure of the
    [a]ssociation to provide required maintenance services. The
    trial court aptly responded to this contention:
    Regarding petitioners’ contention that their
    obligation to pay was dependent upon the
    provision of services, nothing in their deed, the
    Condominium Declaration or Code of
    Regulations supports it. Under the Code of
    Regulations, unit owners are required to pay all
    assessments and have no right to withhold
    payment for alleged nonprovision of services.
    Petitioners should have directed their dispute
    over maintenance services to the condominium
    council rather than unilaterally withholding
    assessments.
    
    Id.
     at 247-[]48.
    We find it significant that nothing in [the Act] supports the
    type of self-help action undertaken by the [condominium
    9
    owner]. Had the Legislature intended to allow owners of
    condominium units to withhold assessments where
    owners believe that their condominium association is not
    performing its obligations properly, we believe the
    Legislature would have explicitly so provided.
    Rivers Edge, 568 A.2d at 263 (bold emphasis added).10 Accordingly:
    [N]othing in the [Act] supports the type of self-help action
    undertaken by [the McCabes].            Had the Legislature
    intended to allow owners of [homes subject to homeowners’
    associations] to withhold assessments where owners believe
    that their . . . association is not performing its obligations
    properly, we believe the Legislature would have explicitly
    so provided.
    Id. at 263.11
    10
    In Rivers Edge, the by-laws explicitly required “that a unit owner continue to pay the
    condominium assessment even if the owner is not receiving services owed to him.” Id. at 263.
    Although, there is no similar provision in the Association’s Declaration, we do not find that factor
    dispositive, since the other considerations discussed in Rivers Edge also apply here.
    11
    More recently, in Fawn Ridge Estates Homeowners Association v. Carlson (Pa. Cmwlth.,
    No. 1462 C.D. 2010, filed July 25, 2011), an unreported opinion, this Court endorsed the Superior
    Court’s position in Rivers Edge that withholding assessment payments based on an owner’s alleged
    harm is impermissible and applied the same legal analysis to a homeowner’s association. It stated:
    Although [a]ppellants’ ancillary issues allege improprieties and/or
    illegalities of the assessments, such issues are not a defense for
    non-payment and cannot be used to delay payments that are due
    as a matter of law to the [a]ssociation. See generally Locust Lake
    Vill[.] Prop[.] Owners Ass[’n] v. Wengerd, 
    899 A.2d 1193
    , 1199 (Pa.
    Cmwlth. 2006) (rejecting the homeowners’ argument that they are not
    liable for the association’s charges); Hess v. Barton Glen Club, Inc.,
    
    718 A.2d 908
    , 913 (Pa. Cmwlth. 1998) (concluding that all of the
    owners are responsible for a proportionate share of the costs of
    maintaining all of the association’s common facilities); Spinnler Point
    Colony Ass[’n], Inc. v. Nash, 
    689 A.2d 1026
    , 1029 (Pa. Cmwlth.
    1997) (holding that appellants, ‘who have the right to travel the
    development roads and to access the waters of a lake, are obligated to
    pay a proportionate share for repair, upkeep and maintenance of the
    development’s roads, facilities and amenities’); Fogarty v. Hemlock
    Farms C[mty.] Ass[’n], Inc., 
    685 A.2d 241
    , 244 (Pa. Cmwlth. 1996)
    (holding that absent language in the deed covenant prohibiting an
    association from levying special assessments for capital
    10
    As a matter of law, the McCabes were required to pay the Association’s
    assessments regardless of any alleged inadequacies in the Association’s performance.
    Therefore, since any such breach of the Association’s Declaration would not relieve
    the McCabes of their obligation to pay their assessments, the question of whether the
    Association breached them does not involve a material fact. Thus, the trial court
    properly granted the Association’s partial summary judgment motion.12
    improvements, the homeowners may be assessed their proportionate
    costs to construct the new improvements); Meadow Run & Mountain
    Lake Park Ass[’n] v. Berkel, 
    598 A.2d 1024
    , 1026 (Pa. Super. 1991)
    (noting that residential communities are ‘analogous to mini-
    governments’ that ‘are dependent on the collection of assessments to
    maintain and provide essential and recreational facilities’ and that,
    absent 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
    association’s ability to impose reasonable assessments to fund the
    maintenance of those facilities); Wrenfield Homeowners Ass[’n], Inc.
    v. DeYoung, 
    600 A.2d 960
    , 964 (Pa. Super. 1991) (holding that the
    association’s declaration clearly makes the defaulting homeowner
    liable for assessments plus the cost of collection for the amount in
    default to the association, including attorneys’ fees); Rivers Edge . . .
    (holding that appellant’s action in withholding his condominium
    assessments, even assuming that he has suffered the property damage
    he alleges, is not justified by the language of the By–Laws, the
    statutes of this Commonwealth, or general public policy
    considerations).
    Fawn Ridge Estates, slip op. at 6-7 n.8 (emphasis added). Although this Court’s unreported
    memorandum opinions may only be cited “for [their] persuasive value,” we find Fawn Ridge
    Estates particularly instructive. Section 414(a) of the Commonwealth Court’s Internal Operating
    Procedures, 
    210 Pa. Code § 69.414
    (a).
    12
    The McCabes focus on the contractual nature of their obligation to pay assessments, and
    the Association’s purported failure to meet its obligations thereunder. However, the McCabes’ duty
    to pay assessments was triggered by their purchase of the Property. The Association’s imposition
    of assessments and the McCabes’ obligations were created by the Act, and thus do not arise by
    contract.
    The McCabes also claim that despite the provision in Section 5315(a) of the Act stating that
    “[t]he [A]ssociation has a lien on a unit for any assessment levied against that unit or fines imposed
    against its unit owner from the time the assessment or fine becomes due[,]” an association’s lien
    11
    The McCabes next argue that the trial court erred when it denied their
    Continuance Motion. Although the McCabes acknowledge that “[t]he decision to
    grant or deny a continuance is exclusively within the discretion of the trial court, and
    this Court will not disturb the trial court’s determination in the absence of an apparent
    abuse of discretion[,]” they contend that the trial court abused its discretion because
    the trial court’s judgment was manifestly unreasonable. McCabes’ Br. at 23 (quoting
    Gillespie v. Dep’t of Transp., Bureau of Driver Licensing, 
    886 A.2d 317
     (Pa. Cmwlth
    2005)). Specifically, the McCabes assert that the trial court acted unreasonably by
    denying their Continuance Motion where their unavailable witness was the sole
    individual able to rebuke the Association’s business judgment rule defense.
    The Association responds:
    If the McCabes thought that [] Asche was a crucial trial
    witness, which [the Association] disputes, all they had to do
    was issue a trial subpoena to him or schedule his deposition
    for use at trial. Perhaps [] Asche’s meeting in New Jersey
    was not scheduled until the evening of February 12th,
    although that would seem to be questionable, and again,
    nothing was presented at trial to really explain why [] Asche
    allegedly did not become unavailable until the evening of
    February 12, 2016.
    Association’s Br. at 27-28.
    Although it is the policy of the law that parties to an action
    have the benefit of the personal attendance of material
    witnesses whenever reasonably practicable, it lies within the
    must be foreclosed in a like manner to a mortgage foreclosure. 68 Pa.C.S. § 5315(a). They further
    contend that “[m]ortgage foreclosures still require proof of a contract, the mortgage, and no case
    law or statutory authority exempts them from the same rule of prior material breach that applies to
    all contracts.” McCabes’ Br. at 22.
    Conversely, Section 5315 of the Act states that “[t]he association’s lien may be foreclosed
    in a like manner as a mortgage on real estate.” 68 Pa.C.S. § 5315(a) (emphasis added). Such
    language is not mandatory. Further, since the imposition of assessments arises from the Act, proof
    of contract is not required. Property ownership subject to the Association is all that is required.
    Finally, as previously discussed, the Association’s alleged prior material breach did not relieve the
    McCabes of their assessment payment obligations.
    12
    discretion of the trial court to determine, in the light of all
    the circumstances of each case, whether or not a case before
    it should be continued on the ground of absence of material
    witnesses. [See Carey v. Phila. Transp. Co., 
    237 A.2d 233
    (Pa. 1968); Barner v. Juniata Cnty. Tax Claim Bureau, 
    522 A.2d 169
     (Pa. Cmwlth. 1987); Williamson v. Phila. Transp.
    Co., 
    368 A.2d 1292
     (Pa. Super. 1976).] In granting a
    continuance based on the absence of a witness, the trial
    court may require a party to show he or she exercised
    due diligence in attempting to secure a witness for trial.
    [See In re Kuzmiak, 
    845 A.2d 961
     (Pa. Cmwlth. 2004); City
    of New Castle v. Uzamere, 
    829 A.2d 763
     (Pa. Cmwlth.
    2003).] A continuance because of the absence of a
    witness will only be granted where it is shown that the
    expected testimony is competent and material and not
    merely cumulative or impeaching, that the testimony is
    credible and would probably affect the outcome of the trial,
    and that due diligence has been exercised to secure the
    witness for trial, including efforts to subpoena the
    absent witness and to take his or her deposition. [See
    Carey; Nikole, Inc. v. Klinger, 
    603 A.2d 587
     (Pa. Super.
    1992); Barner; Kaplan v. Redev. Auth. of City of Phila., 
    403 A.2d 201
     (Pa. Cmwlth. 1979); Williamson.]
    7 STANDARD PA. PRACTICE 2d, “Continuances and Mistrials,” § 38:17 (footnotes
    omitted; emphasis added).
    Accordingly, contrary to the McCabes’ assertion, whether the witness
    was important or even necessary to the McCabes’ case is not the sole determining
    factor in evaluating the reasonableness of the trial court’s disposition but, as argued
    by the Association, the McCabes’ conduct must also be considered. Given the late
    notice, and the fact that the McCabes failed to subpoena Asche or take his deposition
    for use at trial, the McCabes did not exercise due diligence to secure him for trial,
    thus the trial court’s denial of the continuance request was not an abuse of discretion,
    even if Asche was crucial to their case. Accordingly, we conclude the McCabes’
    argument lacks merit.
    Finally, the McCabes contend that the trial court erred when it denied
    their Post-Trial Motion because “[t]he [t]rial [c]ourt’s conclusion . . . is simply not
    13
    supported by the record and is therefore an abuse of discretion to such an extent that
    it shocks the conscience.” McCabes’ Br. at 28. Specifically, the McCabes argue that
    the trial court ignored the Association’s admission that it had failed to maintain the
    Common Area.
    This Court has explained:
    When reviewing a trial court’s denial of a motion for post-
    trial relief, our scope of review is limited to a determination
    of whether the trial court abused its discretion or committed
    an error of law. Additionally, we must review the record in
    a light most favorable to the verdict winner, who is afforded
    the benefit of all reasonable inferences that arise from the
    evidence.
    Ellis v. City of Pittsburgh, 
    703 A.2d 593
    , 593 (Pa. Cmwlth. 1997) (citation omitted).
    The McCabes testified with respect to the condition of the Property and
    the Common Area. Mr. McCabe explained that there is a hill at the rear of their yard.
    The rear property line extends approximately 20 feet down the hill.           The hill
    continues for approximately another 20 feet. According to Mr. McCabe, there is a
    field with a retaining pond approximately 100 feet away, at the bottom of the hill.
    Mr. McCabe claimed that the retaining pond and the land adjacent to the rear
    Property line became excessively overgrown with weeds and that, although he
    informed the Association about his concerns, the Association failed to address them.
    He stated that such overgrowth resulted in insects, rodents and snakes. Because the
    Association failed to take action, he hired an individual to remove the weeds and
    brush. He also testified that he purchased equipment to remove the overgrowth. Mr.
    McCabe acknowledged that, for the past two years, the Association has been mowing
    the 20-foot portion of Common Area on the hill. Jennifer McCabe confirmed that she
    and Mr. McCabe had contacted the Association numerous times about the Common
    Area’s condition, that ticks had infested the Property, and that she and Mr. McCabe
    had paid for the Common Area’s care.
    14
    The Association’s secretary Louis Dimitri (Dimitri) testified:
    [W]e typically develop a plan usually around the beginning
    of the year on what we plan to mow. We develop our
    budget, which we present to the homeowners, and that’s the
    plan we implement throughout the year. And as areas get
    turned over to [the Association by the developer], we add to
    it.
    R.R. at 413a. Dimitri described:
    Q. On this mowing plan, does it show that that area would
    be mowed?
    A. No.
    Q. Why was that?
    A. Looking at the dates of this mowing plan, the
    Association -- the [Association’s] executive board [(Board)]
    was transitioned from developer-controlled to homeowner-
    controlled in March of 2012. What that means is that the
    developer held two positions -- two voting positions -- on
    the . . . Board and there was a Homeowner representative.
    In March of 2012. [sic] There were various – there’s a
    benchmark in the [D]eclaration[] when the developer was
    required to transfer over control of the . . . Board and the
    [A]ssociation from their control to the homeowners. So
    looking at the dates here that this was developed for the
    2011 and 2012 time, that this was developed when the
    developer Manekin was under control or in control of the
    Board.
    R.R. at 419a-420a. Dimitri further represented:
    A. . . . . Beginning in 2012, once the transition was
    completed, the mowing plan started growing to fit the needs
    of the residents. And in talking with the [Association’s]
    President -- the current President Kim Erskine, who is on
    the [B]oard at the time -- that area behind the McCabe[s’
    Property] was addressed to a certain length, which I believe
    was testified about 20 feet or so.
    Q. Down to the bottom of that bank . . . ?
    15
    A. Yes. It’s about 20 feet, give or take, I believe. Yes.
    Q. And beyond that where it levels out, that’s the retention
    pond area that’s under the control of the developers until
    it’s turned over?
    A. Correct. I believe -- and even to this day, I believe that
    they currently come through maybe once a year, sometimes
    twice, to kind of clear out some of the brush, but that is --
    we have usually no knowledge of when they’re going to do
    it or how frequently. We usually find out about it from
    other residents saying somebody was out here, and we
    know it wasn’t us.
    Q. As far as you know, was that maintenance for the
    County regulations or whatever the regulations are for
    storm water management areas or retention ponds, or don’t
    you know?
    A. I don’t know. I do know that the enforcement from what
    I read -- I believe enforcement either begins this year or
    next year. So I don’t know the purpose of clearing them
    out, other than aesthetics maybe.
    R.R. at 421a-422a. Dimitri claimed that not all of the Development’s common areas
    are mowed.
    In addition, Dimitri explained that part of the area behind the Property is
    used for storm water management:
    Q. Now, the area behind the [McCabes’] house down at the
    bottom of the bank, what’s that area in there?
    A. That was part of the storm water or the storm water
    management – it’s still the temporary storm water
    management.
    Q. Technically, who’s in charge of that area at this time?
    A. That is the developer. They are -- the parent company is
    Manekin, but they have set up [a limited liability company],
    which is Logan’s Reserve Development, LLC. I believe
    that’s part of the way they do business for various reasons.
    16
    Q. Technically, is that under the control of the []
    Association?
    A. No, not at this time.
    Q. At some point, will it be?
    A. Yes. In talking with the point of contact for the
    developer at Manekin, that will occur once all the
    construction is completed. They will then turn into what is
    known as a permanent storm water management, and then it
    will be the [] Association’s responsibility to maintain it.
    Q. Now, what maintenance is done by the [] Association of
    an area such as that?
    A. In terms of the permanent pond, which are [sic] located .
    . . in the Grand Lake Pond, which is at the bottom of the
    Grand Lake Road . . . . Those at this time -- we will be
    maintaining them this year for the first time since they’ve
    been handed over. We’ve contracted a company called ESI
    to do the maintenance, and they [sic] will be maintaining it
    basically to the environmental and legal requirements that
    we are required to maintain the pond. Because otherwise, if
    we fail to do that, we face substantial fines.
    Q. And what exactly does that consist of? Making sure the
    grates are clear and things like that?
    A. Mowing weeds, clearing out brush around that.
    Basically making it so the ponds can function as intended.
    Q. But at this point, that is the responsibility of whom?
    A. On these two ponds?
    Q. The one behind the McCabe house.
    A. That’s currently the responsibility of the developer.
    R.R. at 417a-419a (emphasis added). On cross-examination, Dimitri was asked:
    “Does [the Association] currently define maintenance or maintained to include
    homeowners being subject to ticks, bugs and snakes?”        R.R. at 423a.   Dimitri
    answered “[n]o.” 
    Id.
    17
    Finally, Dimitri responded to the trial court’s questions as follows:
    THE COURT: I just want to know whether or not the Board
    -- since you’ve been on the Board, as far as their [sic]
    discussions and decisions, decide what parts they’re [sic]
    going to maintain and how they’re going to be maintained.
    THE WITNESS: Yes. Certain areas – we get the mowing
    plan. I think this one was revised at the end of the season.
    The current one we have, we revised at the end of the
    season because substantial property was turned over to us.
    So we added to the plan. There’s still new areas that are
    under construction. We don’t know when we’re going to be
    responsible for that, and as that gets turned over, we either
    find out from the developer or from residents that complain.
    And we follow up on it, and we add to it throughout the
    year. We develop a plan. We sent it out for a bid this year
    for a new contractor.         Because the prior one was
    unsatisfactory, and we develop our budget on it, which I
    think is $72,000[.00] this year.
    THE COURT: And does the . . . Board do that as part of its
    duties as the overseeing Board?
    THE WITNESS: Yes.
    R.R. at 426a-427a.
    Based on all of the evidence presented at the hearing, the trial court
    concluded:
    At the times complained of by the [McCabes,] some of the
    common area elements were still under control of the
    developer and not the [] Association.
    Some of the areas were mowed short, some of the areas
    were longer, and some of the areas are rarely mowed and
    some of the areas are not maintained at all and kept as a
    natural area. This is a decision of the . . . [B]oard of the
    [A]ssociation and not of the individual homeowners.
    Each individual unit owner cannot determine how the
    common element areas are to be maintained so long as they
    are maintained in a reasonable manner. The [McCabes]
    have not met their burden of proof to establish that the
    18
    maintenance of the common element area was not in
    accordance with what is required under the [Declaration].
    Determination of the common area elements by the . . .
    [B]oard is pursuant to the [Act]. That [A]ct and the bylaws
    establish the powers of [sic] duties of the . . . [B]oard and it
    is the . . . [B]oard that is to regulate the use, maintenance,
    repair, replacement, and modification of the common
    elements.
    March 23, 2016 Order at 2-3.
    The McCabes assert that Dimitri’s acknowledgement that “maintenance
    or maintained” does not “include homeowners being subject to ticks, bugs and
    snakes” is an admission that the Association failed to meet “the standard of
    maintenance it had chosen for itself.” R.R. at 423a; McCabes’ Br. at 29. We
    disagree with the McCabes’ interpretation of the aforementioned exchange. The
    question was unclear at best, and Dimitri’s response was not an admission that the
    Association failed to meet its responsibilities. We decline to interpret the ambiguous
    question and answer to mean that the Association concedes that it failed to maintain
    common areas any time a homeowner experiences ticks, bugs and/or snakes.
    Further, even if the McCabes’ allegations that they were “subject to ticks, bugs, and
    snakes” is true, there is no evidence that the Association’s alleged failure to maintain
    the Common Area caused an increase in ticks, bugs and snakes. R.R. at 423a.
    Upon review of the record evidence and the trial court’s opinion, we
    discern no error of law or abuse of discretion and, thus, affirm the trial court’s order
    denying the McCabes’ Post-Trial Motion.
    For all of the above reasons, the trial court’s orders are affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    Judge McCullough did not participate in the decision in this case.
    19
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Logans’ Reserve Homeowners’         :
    Association                         :
    :
    v.                       :
    :
    Jeffrey McCabe and Jennifer McCabe, :   No. 820 C.D. 2016
    Appellants   :
    Logans’ Reserve Homeowners’         :
    Association                         :
    :
    v.                       :
    :
    Jeffrey McCabe and Jennifer McCabe, :   No. 821 C.D. 2016
    Appellants   :
    ORDER
    AND NOW, this 4th day of January, 2017, the York County Common
    Pleas Court’s April 22, 2014, February 17, 2016 and April 15, 2016 orders are
    affirmed.
    ___________________________
    ANNE E. COVEY, Judge