Winchester Condominium v. Auria, J. ( 2018 )


Menu:
  • J-A13036-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    WINCHESTER CONDOMINIUM                     :   IN THE SUPERIOR COURT OF
    ASSOCIATION                                :         PENNSYLVANIA
    :
    :
    v.                             :
    :
    :
    JOSEPH S. AURIA                            :
    :      No. 1512 WDA 2017
    Appellant               :
    Appeal from the Judgment Entered October 5, 2017
    in the Court of Common Pleas of Allegheny County,
    Civil Division at No(s): No. G.D. 16-012739
    BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
    MEMORANDUM BY MUSMANNO, J.:                             FILED AUGUST 3, 2018
    Joseph S. Auria (“Auria”) appeals from the Judgment entered against
    him and in favor of Winchester Condominium Association (“the Association”).1
    We affirm.
    The trial court set forth the facts underlying the instant appeal as
    follows:
    [The Association] is responsible for maintaining the common
    elements of the [Condominium], and such expenses are passed
    ____________________________________________
    1 Winchester Condominium Association is the association of unit owners of
    Winchester Condominium (“the Condominium”), which was declared in
    Allegheny County, Pennsylvania. The Association was created under the terms
    and provisions of the Unit Property Act of Pennsylvania (Act of July 3, 1963,
    P.L. No. 196). The original Declaration of Condominium (“the Declaration”)
    was dated September 13, 1972, and recorded with the Department of Real
    Estate of Allegheny County. Since that time, the Declaration and the Code of
    Regulation for the Condominium have been amended.
    J-A13036-18
    through to the unit owners on a percentage of ownership basis in
    the form of monthly fees or special assessments.
    The Association filed this equity action[,] on July 13, 2016[,]
    in an effort to compel [] Auria to complete the replacement of
    certain aluminum wiring within the outlets of his condominium
    unit.   The Association’s insurance underwriter notified the
    Association that it had to mitigate or reduce fire risk at the
    property to maintain reasonable insurance coverage.              The
    insurance underwriter suggested copalum [wiring] installation as
    a safety modification in all of the units in the complex, including
    the common areas, as an appropriate remedial measure.
    The unit [o]wners were all informed through a series of
    notices from the Association of the requirement to replace the
    aluminum wiring in their outlets as a safety issue and in order for
    the Association to maintain reasonable insurance coverage. Each
    and every one of the [u]nit [o]wners at the [] Condominium[]
    completed arrangements to have the work performed, with the
    exception of [Auria].
    Despite having several months to have the work completed,
    [Auria] failed to complete the work. Eventually, after the other
    [u]nit [o]wners had all completed their portion of the work, []
    Auria finally informed the Association [that] he was not going to
    do the work in his unit. In essence, [] Auria believes the work is
    the Association’s responsibility, since it involves common
    elements within the walls of the building.
    By the time [the trial court] heard the case on June 29,
    2016, [Auria] had agreed to perform the work and the only issue
    remaining for [the trial court] to decide was who was responsible
    for paying for the work....[FN]
    [FN]   Said work was completed by [Auria] on July 29, 2017.
    Trial Court Opinion, 12/5/17, at 1-2 (footnote in original).
    Following a non-jury trial, the trial court found against Auria and in favor
    of the Association. The trial court directed Auria to pay for the copalum wiring
    and its installation. Auria filed a Motion for post-trial relief, which the trial
    -2-
    J-A13036-18
    court denied. After entry of Judgment on the trial court’s verdict, Auria filed
    the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
    Concise Statement of matters complained of on appeal.
    Auria presents the following claim for our review: “Does the contractual
    interpretation of the [] Declaration indicate that the copalum wiring behind
    the walls of a condominium unit constitute a common element[,] thereby
    requiring repair by the [Association], as opposed to the individual owner?”
    Brief for Appellant at 5.
    Auria claims that, pursuant to Article Five of the Declaration, “[a]ll
    conduits, wires, pipes and utility lines up to the outlets thereof inside the walls
    of each unit” are part of the common elements.               
    Id. at 11
    (quoting
    Declaration, Art. V(1)(h)). Further, Appellant argues, that same subsection
    provides that wiring “up to” the outlet is a common element “because it
    includes all ‘appurtenant’ installation to the outlets.” 
    Id. (quoting Declaration,
    Art. V(1)(h)). Citing contract law, Auria posits that wires that lead “up to” an
    outlet are common elements, “because the wires are attached up to the
    electrical receptacle.”     
    Id. at 12.
      Referring to Webster’s Dictionary, Auria
    defines a “receptacle” as “an electrical wall outlet designed for use with a
    plug.” 
    Id. (citation omitted).
    According to Auria, the fact that the outlet is
    enclosed in a receptacle box does not alter the plain meaning of the words “up
    to” the outlet. 
    Id. Auria directs
    our attention to the testimony of Edward F.
    Zehfuss (“Zehfuss”), the president of a real estate management firm
    -3-
    J-A13036-18
    specializing in condominiums, who “admitted that wiring was in a receptacle
    box behind the wall and the wiring leads ‘up to’ the outlet plate.” 
    Id. (quoting N.T.,
    9/29/17, at 44).
    When reviewing the findings of a court in equity,
    an appellate court’s review “is limited to a determination of
    whether the chancellor committed an error of law or abused his
    discretion. A final decree in equity will not be disturbed unless it
    is unsupported by the evidence or demonstrably capricious.”
    Kepple v. Fairman Drilling Co., 
    532 Pa. 304
    , 312, 
    615 A.2d 1298
    , 1302 (1992) (internal quotation marks omitted). Although
    facts found by the chancellor, when supported by competent
    evidence in the record, are binding, no such deference is required
    for conclusions of law, which we review de novo. 
    Id. T.W. Phillips
    Gas & Oil Co. v. Jedlicka, 
    42 A.3d 261
    , 267 (Pa. 2012).
    The issue before this Court is whether the aluminum wiring, which was
    to be replaced with copalum wiring, is part of an “outlet,” and therefore the
    responsibility of Auria, or a common element, and therefore the responsibility
    of the Association.   Both parties direct our attention to the Declaration as
    supporting their interpretation of the term “outlet.”
    Pennsylvania courts have examined condominium declarations under
    the umbrella of general contract law.     Wrenfield Homeowners Ass’n v.
    DeYoung, 
    600 A.2d 960
    , 993 (Pa. Super. 1991); see also MetroClub
    Condo. Ass’n v. 201-59 N. Eighth St. Assocs., L.P., 
    47 A.3d 137
    , 145 (Pa.
    Super. 2012) (stating that, although the condominium association had not
    persuaded the Court that the condominium declaration at issue was a
    -4-
    J-A13036-18
    contract, it would apply contract principles when examining the declaration).
    As our Supreme Court has explained,
    when interpreting the language of a contract, th[e] Court’s goal is
    to ascertain the intent of the parties and give it effect. When the
    words of a contract are clear and unambiguous, the intent of the
    parties must be ascertained from the language employed in the
    contract, which shall be given its commonly accepted and plain
    meaning.
    TruServ Corp. v. Morgan’s Tool & Supply Co., 
    39 A.3d 253
    , 260 (Pa.
    Super. 2012).
    When, however, an ambiguity exists, parol evidence is admissible
    to explain or clarify or resolve the ambiguity, irrespective of
    whether the ambiguity is patent, created by the language of the
    instrument, or latent, created by extrinsic or collateral
    circumstances.   A contract is ambiguous if it is reasonably
    susceptible of different constructions and capable of being
    understood in more than one sense.           While unambiguous
    contracts are interpreted by the court as a matter of law,
    ambiguous writings are interpreted by the finder of fact.
    Kripp v. Kripp, 
    849 A.2d 1159
    , 1163 (Pa. 2004).
    Article V of the Condominium Declaration states, in relevant part, as
    follows:
    Section 1. The common elements[2] consist of:
    (e) Installation of all central service and utilities, including but not
    limited to all water pipes, drain pipes, electrical wires, general
    conduits, flues, chimneys, and the like or otherwise, including
    those within the interior wall within the confines of a unit; but
    exclusive of the outlets thereof into each unit.
    ____________________________________________
    2 The term “common elements,” when used in a condominium’s declaration or
    by-laws, is defined by statute as “[a]ll portions of a condominium other than
    the units.” 63 Pa.C.S.A. § 3103.
    -5-
    J-A13036-18
    ***
    (h) All conduits, wires, pipes, and utilities lines up to the outlets
    thereof inside the walls of each unit regardless of location,
    and all of the bearing walls, columns, beams, together with all
    elevator equipment and shafts, pipes, ducts, flues, chutes, other
    appurtenant installations and insulations to the outlets regardless
    of location, parking stalls, and manager’s apartment.
    Declaration, Art. V, Sec. 1(h) (emphasis and footnote added).
    The Declaration provides no definition of the term “outlet.” Webster’s
    Collegiate Dictionary defines the word “outlet” as “a receptacle for the plug of
    an electrical device[.]” Meriam-Webster’s Collegiate Dictionary 826 (10th ed.
    2003).      The     dictionary   defines   the   term   “receptacle”   as     “one
    that receives and contains something: CONTAINER” or “a mounted
    female electrical fitting that contains the live parts of the circuit.”
    Meriam-Webster’s Collegiate Dictionary 975 (10th ed. 2003). It is not clear
    from the dictionary definitions whether the term “outlet” as used in the
    Declaration, includes the wiring at issue.       Accordingly, the issue must be
    resolved by the trial court, as the trier of fact.
    At trial, the Association presented the testimony of James L. Pace
    (“Pace”), a 37-year employee of the Condominium. Pace testified regarding
    the copalum installation, and its location with respect to each condominium
    unit, as follows:
    [Association’s counsel]:   … [B]ased upon your firsthand
    knowledge and experience, is the copalum installation that was
    done at the [Condominium] located inside the outlets?
    -6-
    J-A13036-18
    A. [Pace]: Yes.
    Q. Is this something you personally observed?
    A. Yes.
    Q. Regarding the outlet, if I was to describe the outlet as
    the box in the wall where the plug is inserted, is that what
    we are talking about?
    A. Yes.
    N.T., 9/29/17, at 12 (emphasis added). Following cross-examination, the trial
    court asked Pace to clarify where the copalum wiring would be located, upon
    its installation:
    THE COURT: … As I understand this, when you take off the two
    screws for the plate, or the one screw for the plate, you pull the
    receptacle out into the open, right? –
    THE WITNESS: Right.
    THE COURT: You see they are making a distinction about these
    things?
    THE WITNESS: Right.
    THE COURT: So the receptacle is pulled out of the wall after you
    take the plate off, and ordinarily, with a normal plug there are two
    places where you -- there are two prongs at the top and the
    ground at the bottom; right?
    THE WITNESS: Right.
    THE COURT: And those wires go inside the wall later on, and you
    push it back in, and that all goes inside the wall; right?
    THE COURT: And from that point in time those wires go
    throughout the apartment, or in this case they go throughout the
    office to somewhere along the line where it will attach to some
    sort of a junction box; is that correct?
    -7-
    J-A13036-18
    THE WITNESS: Yes.
    THE COURT: The work that was done here or asked to be done
    here, was it the areas where the receptacles were, which I just
    described, or was it the wires that went inside the wall and down
    to the junction box?
    THE WITNESS: No, it was just the receptacle.
    THE COURT: So only that area that I described that you pulled
    out of the wall with the three wires; is that right? There are two
    and the ground; correct?
    THE WITNESS: Right.
    THE COURT: … So those are the parts we are talking about? We
    aren’t talking about the ones strung through the walls?
    THE WITNESS: Right.        In order to do this procedure, they want
    aluminum and copper,      and they put it together and crimp it and
    put a protective shield   around it and put it back in the wall. It’s
    like extending the wire   a little bit more.
    THE COURT: I wanted to make sure I understood what we were
    talking about here.
    THE WITNESS: Right.
    THE COURT: And once again, we are talking about that part that
    you pull out of the wall, and not the wires that run throughout the
    building and down to the junction box?
    THE WITNESS: Right, you aren’t talking about none of that.
    N.T., 8/29/17, at 15-17.
    Similarly, Zehfuss testified at trial regarding the replacement of the
    aluminum wire with copalum wire:
    Q. (Counsel for the Association) The Judge pointed out that when
    this work is performed[,] the outlets are pulled out of the wall; is
    that correct?
    -8-
    J-A13036-18
    A. (Zehfuss) That’s how they work on it, yes.
    Q. So it’s pulled out of the wall, and it’s inside the unit; is that
    correct?
    A. Yes.
    N.T., 8/29/17, at 26-27.
    In its Opinion, the trial court found that the term “outlet” included the
    receptacle in which the copalum wiring was to be installed:
    The sole issue in this case involves interpreting the Declaration []
    to determine who is responsible for replacement of the wiring
    within the outlets of [Auria’s] condominium unit. The Declaration
    specifically excludes “the outlets into each unit” from the definition
    of common elements, meaning the outlets are the responsibility
    of the individual condominium owners. The wiring in question is
    within the outlets, which are then placed inside the outlet boxes
    behind the walls of the units. The wiring involves essentially the
    “guts” of the outlet, not the major conduit wiring that runs
    throughout the building behind the walls of the units.
    When the work in question is performed, the outlets are
    pulled out of the walls and inside the units. While it is true that,
    once completed, the outlet is then reinserted into the wall so only
    the plug receptacles are visible, [the trial court] believes the
    Condominium governing documents clearly put the responsibility
    for the outlets on the individual unit owners. This makes sense
    considering the outlets are located solely within [Auria’s] unit and
    are for his sole use and enjoyment, and not in any manner
    common elements.
    Trial Court Opinion, 12/5/17, at 2-3.
    Upon review, the trial court’s finding that the copalum wire was to be
    replaced inside of the outlet, and that the replacement would not be of wire
    that is a common element of the Condominium, is supported by the evidence
    of record.   Further, because the replacement involved wiring that is not a
    -9-
    J-A13036-18
    “common element” of the Condominium, the trial court did not err in requiring
    Auria to pay the costs of replacing the existing wire with copalum wire.
    Accordingly, we affirm the Judgment entered by the trial court.
    Judgment affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/3/2018
    - 10 -