Caputo, C. & E. v. North Pointe Community Assc.

J-A27019-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHRISTOPHER AND EVA CAPUTO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
NORTH POINTE COMMUNITY : No. 964 EDA 2021
ASSOCIATION :
Appeal from the Judgment Entered April 19, 2021
In the Court of Common Pleas of Bucks County Civil Division
at No(s): 2012-02424
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 4, 2022
In this easement matter, Christopher and Eva Caputo (Appellants)
appeal from the judgment1 entered, following a bench trial, in the Bucks
County Court of Common Pleas, in favor of North Pointe Community
Association (North Pointe). The trial court found that under the terms of an
express easement, North Pointe was not required to bring a bridge “into a
state of ‘good repair,’” but merely to maintain a bridge that was already in
“good repair.” Trial Ct. Op., 7/12/21, at 6-7. After careful review, we reverse.
____________________________________________
1 Appellants purported to appeal from the April 19, 2021, order, which denied
their post-trial motion. This order also entered judgment in favor of North
Pointe Community Association. Because the appeal lies properly from the
judgment, we have amended the caption accordingly. See Guiser v.
Sieber, 237 A.3d 496, 500 (Pa. Super. 2020) (an appeal lies from the entry
of judgment).
J-A27019-21
I. Facts & Procedural History
The trial court made the following findings of facts: in 1999, Windmere
Associates, LP (the Developer) bought a 104-acre parcel, previously known as
the Marshall tract, in Solebury Township (Township), Bucks County. Trial Ct.
Findings of Fact & Conclusions of Law (Findings of Fact), 1/15/21, at 1.2 The
Developer sought Township approval to construct residential homes; the
“Township agreed . . . in exchange for several obligations[.]” Id. at 1-2. First,
the Developer was to “carve[ ] out a ten-acre parcel,” known as the Farmstead
— which is now owned by Appellants — and a 102-acre parcel, which was
dedicated to the Township and known as the Open Space.3 See id. at 3-4.
The trial court summarized:
6. To access both the Open Space and the Farmstead, pedestrians
and vehicles used a “significantly deteriorated” bridge (the
“Bridge”) located on the Farmstead property.
7. In 1999, the [Township] became aware of the Bridge’s
deteriorated nature prior to final approval of the Developer’s
project.
____________________________________________
2For ease in identifying the trial court’s January 15, 2021, findings of facts,
we note the heading at the top of the first page states “Introduction.”
3In its findings of fact, the trial court stated the Developer dedicated the Open
Space to the Township in 2001. Findings of Fact at 4. However, we note the
Developer’s “Declaration of Access Easement,” which had been executed in
July of 2000, stated the Open Space had already been dedicated to the
Township, and the Township “is the owner” of the Open Space. Declaration
of Access Easement, 7/13/00, at 1. This discrepancy does not affect our
disposition.
-2-
J-A27019-21
8. As a condition to final approval and dedication, the [Township]
required the Developer to bring the Bridge to “a useful and
functional standard of repair[.]”
Id.
On July 13, 2000, the Developer executed a three-page “Declaration of
Access Easement” (Declaration of Easement), which declared an easement
over the Bridge for: (1) Township’s emergency vehicles; (2) pedestrian access
to the Open Space, for the benefit of the Township; and (3) “access for the
benefit of [North Pointe] enabling its employees and agents to perform all
necessary repairs and maintenance to the Bridge to the extent required
pursuant to the terms of” a “Declaration of Covenants, Easements, Conditions
and Restrictions of North Pointe Planned Community” (Declaration of
Covenants), which would be executed the following year. See Findings of Fact
at 3. The Declaration of Easement further provided, “[The Developer,] its
successors and assigns shall keep the Easement Area open, passable and
unimpaired at all times.” Declaration of Easement at 2.
In February of 2001, the Developer, together with North Pointe,
executed the Declaration of Covenants (which was referenced in the July 2000
Declaration of Easement).4 This document stated, “[North Pointe] shall . . .
____________________________________________
4Appellants averred North Pointe is governed by the Declaration of Covenants,
which is recorded in the Bucks County Office of the Recorder of Deeds.
Appellants’ Complaint, 3/15/12, at 10.
-3-
J-A27019-21
be responsible for maintaining and keeping in good repair the bridge which is
located on . . . the “Farmstead[.]” Declaration of Covenants, 2/20/01, at 13.
As stated above, the Developer dedicated the Open Space to the
Township. In 2001, the Developer sold the Farmstead to Jim Westcott and
Robert Evans —Appellants’ predecessor in ownership. See Findings of Fact at
4.
The trial court further made these findings of fact: in November 2004
and April 2006, the Township reminded and requested, respectively, the
Developer to make necessary repairs to the Bridge. However, “the Developer
has never repaired or maintained the Bridge,” and “[s]imilarly, [the] Township
has declined to take affirmative steps to repair the Bridge.” Findings of Fact
at 4.
20. In 2006, Robert Evans and Jim Westcott hired contractors and
vendors that caused “significant damage” to the Bridge.
21. On September 1, 2006, [the Township] sent Evans and
Westcott a letter demanding [they] repair [the] damage the
contractors and vendors caused to the Bridge.
22. Robert Evans and Jim Westcott never made the repairs
Solebury Township requested.
23. In December 2006, Robert Evans and Jim Westcott sold the
Farmstead property to [Appellants].
24. As owners of the Farmstead property, [Appellants] made
alterations to the Bridge that further deteriorated the Bridge.
25. During 2013, Solebury Township relinquished its pedestrian
access easement over the Farmstead property as part of a lawsuit
settlement with [Appellants], leaving only the easements for
-4-
J-A27019-21
Solebury Township emergency vehicles and [North Pointe] for
potential repairs.
Id. at 4 (footnotes and citations omitted).
II. Complaint, Verdict, & Trial Court’s Findings of Fact
On March 15, 2012, Appellants filed the underlying complaint against
North Pointe, pleading breach of contract and negligence. Appellants averred:
the Bridge was the sole means of access to their residence; the Bridge was in
need of repair; they have “placed temporary measures in order to provide
continuous access to [their] home;” however the damage to the Bridge “is so
severe that it must be replaced.” Appellants’ Complaint at 3. Appellants
claimed North Pointe and their predecessors have failed to maintain or repair
the Bridge, as they were required to do under the Declaration of Covenants.
Appellants thus requested: (1) specific performance of Norte Pointe carrying
out the repairs; (2) North Pointe’s funding an escrow account with sufficient
funds to repair and maintain the Bridge; (3) reimbursement for costs and
expenses incurred for past repair and maintenance; and (4) costs and
additional relief as deemed appropriate by the trial court.
On April 3, 2017, Appellants filed a motion for summary judgment,
which the trial court denied. Beginning September 2, 2020, the trial court
conducted a two-day non-jury trial. On November 19th, the court filed a
written verdict in favor of North Pointe and against Appellants. The verdict
did not include any further information, but explained: “Owing to COVID-19
developments and a related staffing shortage, this Court will release a Findings
-5-
J-A27019-21
of Fact and Conclusions of law within [20] days of this Verdict.” Verdict. On
December 8th, the court issued an order, explaining it would require another
20 days to file findings of fact and conclusions of law.
On January 15, 2021, the trial court issued its findings of fact. It set
forth the history of the Developer’s developing the property, and the
provisions of the Declaration of Easement and Declaration of Covenants, as
we have set forth above. Findings of Fact at 2-5. The court summarized the
parties’ arguments, and found in favor of North Pointe, concluding:
According to [Appellants], the Developer . . . transferred [a] duty
[to North Pointe to bring the Bridge to a state of good repair.
North Pointe] counters that the Developer only transferred the
responsibility to keep the Bridge in good repair, not the
responsibility to place the Bridge in a state of good repair.
Although this Court finds the Developer did assign some
repair responsibilities to [North Pointe], the Developer did not
assign the initial duty to place the Bridge in a state of good repair.
As the Bridge has not been in a state of good repair since the
Developer granted the easement, [North Pointe] has no obligation
to repair the Bridge. [Appellants’] negligence claim similarly fails
because [North Pointe] owed no duty to [Appellants] to fix the
Bridge.
Findings of Fact at 2.
On January 25, 2021, Appellants filed a post-trial motion, which the trial
court denied on April 19, 2021. Appellants filed a notice of appeal on May 5th
and, subsequently, a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
-6-
J-A27019-21
III. Timeliness of Appeal
Preliminarily, we consider the timeliness of Appellants’ notice of appeal.
“[I]f the appeal is late, we have no jurisdiction to entertain it.” In re Estate
of Allen, 960 A.2d 470, 471 (Pa. Super. 2008). Pennsylvania Rule of Civil
Procedure 227.1(c)(1) provides that “[p]ost-trial motions shall be filed within
ten days after . . . verdict.” Pa.R.C.P. 227.1(c)(1). See also Chalkey v.
Roush, 805 A.2d 491, 494 (Pa. 2002) (“Grounds not specified by a party in
post-trial motions pursuant to Rule 227.1 shall be deemed waived on appellate
review.”). Here, the trial court entered its verdict on November 19, 2020, but
Appellants did not file their post-trial motion until almost two months later, on
January 15, 2021.
On July 14, 2021, this Court issued a per curiam rule on Appellants to
show cause why this appeal should not be dismissed for failure to preserve
any issue for appellate review. In their response, Appellants pointed out: the
trial court’s July 19, 2021, written verdict specified that due to the COVID-19
pandemic, it would issue findings of fact and conclusions of law within 20 days.
Appellants averred that without the trial court’s reasoning, they could not
prepare a post-trial motion. Appellants then argued that when the trial court
issued its finding of fact on January 15, 2020, they filed a post-trial motion
within 10 days thereof. This Court discharged the rule to show cause, but
advised the parties the merits panel may revisit this issue.
-7-
J-A27019-21
On appeal, North Pointe avers Appellants’ post-trial motion was
untimely.5 It argues the trial court entered judgment on November 19, 2020,
and it is irrelevant that the court did not issue its findings of fact and
conclusions of law until January. North Pointe’s Brief at 27-28. We conclude
the appeal is timely.
This Court has stated, “The rule requiring that post-trial motions be filed
within ten days after notice of filing is a procedural rule; it is not jurisdictional.
A trial court has broad discretion to entertain untimely procedural motions.”
Wittig v. Carlacci, 537 A.2d 29, 30 (Pa. Super. 1988). “[A]n issue presented
to a trial court in untimely post-verdict motions is considered preserved as
long as the trial court chooses to address the claim presented in the untimely
motion.” Dougherty v. Edward J. Meloney, Inc., 661 A.2d 375, 389 (Pa.
Super. 1995).
Here, the trial court’s November 19, 2020, verdict was entered on the
trial docket as an “order.” Trial Docket at 4. Subsequently, the trial court
twice cited difficulties related to the COVID-19 pandemic and specified it would
need additional time to issue findings of fact and conclusions of law.
Appellants have explained they could not file a post-trial motion without
knowing the court’s reasoning. Rather than suggesting waiver, the trial court
____________________________________________
5 As we discuss infra, North Pointe further argues Appellants have waived
their issues for: failure to first seek the requested relief before the trial court;
and failure to preserve their issue in their Pa.R.A.P. 1925(b) statement.
-8-
J-A27019-21
denied the post-trial motion and set forth its reasons in a Pa.R.A.P. 1925(a)
opinion. Under these circumstances, we decline to hold Appellants have
waived all issues for an untimely post-trial motion. See Dougherty, 661 A.2d
at 389; Wittig, 537 A.2d at 30.
IV. Statement of Questions Involved & Standard of Review
At this juncture, we set forth Appellants’ issues on appeal:
[1.] Where the [Declaration of Easement] and [Declaration of
Covenants] required [the Developer] and “its successors and
assigns” “to keep the Easement Area open, passable, and
unimpaired at all times”, and to “maintain[ ] and keep [ ] in good
repair” the “Farmstead Bridge” located on [Appellants’]
property . . . and where [North Pointe] was the admitted
“successor and assign”, did the trial court err, as a matter of law,
when it denied [Appellants’] requested specific performance of
these obligations and reaffirmation of [North Pointe’s] past,
present and future obligations in [Declaration of Easement] and
[Declaration of Covenants] to repair and maintain the Easement
Area and Farmstead Bridge?
[2.] Did the trial court err, as a matter of law, in refusing to
enforce [North Pointe’s] obligations in the [Declaration of
Easement] and [Declaration of Covenants] to repair and maintain
the Easement Area and Farmstead Bridge, because the trial court
concluded that the Farmstead Bridge “was in a state of disrepair
at the time of [Declaration of Covenants]” and concluding that
“the responsibility to repair does not lie with [North Pointe]” where
[North Pointe] failed to pursue its predecessor, [the Developer],
for remedies (if the Farmstead Bridge was indeed in a state of
disrepair), as [North Pointe] was statutorily entitled and obligated
to do?
-9-
J-A27019-21
Appellants’ Brief at 5-6 (unpaginated).6
We note the standard of review:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, [where] the issue . . . concerns a question of law, our
scope of review is plenary.
Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664 (Pa.
Super. 2014) (citation omitted).
In Appellants’ first issue, they aver the trial court misinterpreted the
terms of the easement. This Court has explained:
It is well-established that the same rules of construction that apply
to contracts are applicable in the construction of easements. . . .
In ascertaining the scope of an easement, the intention of the
parties must be advanced. Such intention [of the parties] is
determined by a fair interpretation and construction of the grant
and may be shown by the words employed construed with
reference to the attending circumstances known to the parties at
the time the grant was made.
McNaughton Props., LP v. Barr, 981 A.2d 222, 227 (Pa. Super. 2009)
(citation omitted).
____________________________________________
6 We note the first two pages of Appellants’ brief, consisting of the table of
contents and table of authorities, are enumerated “i” and “ii.” We consider
the next page, stating the “Statement of Jurisdiction,” as page “1.”
- 10 -
J-A27019-21
Whether a trial court properly interpreted a contract is a
question of law and our scope of review is plenary. As with any
contract the rights conferred by the grant of an express easement
must be ascertained solely from the language of the deed,
provided that the deed language is unambiguous. . . .
PARC Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001)
(citations omitted).
V. Waiver
Before turning to the merits of Appellants’ first issue, we consider North
Pointe’s argument that it is waived for failure to preserve it before the trial
court. North Pointe contends that the relief Appellants seek on appeal —
vacatur of the judgment and entry of judgment in their favor — is a request
for judgment notwithstanding the verdict. However, North Pointe reasons,
Appellants did not move for a directed verdict before the trial court, and have
therefore waived any claim that judgment be entered for them. North Pointe’s
Brief at 25-26.
Appellants respond that in a non-jury trial, neither Pennsylvania Rule
of Civil Procedure 226 (motion for directed verdict) nor 227.1 (post-trial relief)
expressly requires a motion for post-trial relief include a motion for a directed
verdict. Appellants’ Reply Brief at 18. They cite the comment to Rule 226,
which provides, “Unlike its statutory predecessor, [Rule 226(b)] contains no
express requirement of the filing of a motion for directed verdict as a condition
precedent for the filing of Motion for Post-Trial Relief.” See Pa.R.C.P. 226,
comment.
- 11 -
J-A27019-21
We consider the following. Rule 226(b) provides, “At the close of all the
evidence, the trial judge may direct a verdict upon the oral or written motion
of any party.” Pa.R.C.P. 226(b). Rule 227.1(a) states that upon a party’s
written post-trial motion, the trial court may:
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
Pa.R.C.P. 227.1(a). However, under Subsection (b):
post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or
by motion, objection, point for charge, request for findings of fact
or conclusions of law, offer of proof or other appropriate method
at trial; and
(2) are specified in the motion. The motion shall state how
the grounds were asserted in pre-trial proceedings or at trial.
Grounds not specified are deemed waived unless leave is granted
upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b).
In Wag-Myr Woodlands Homeowners Assoc. by Morgan v.
Guiswite, 197 A.3d 1243, 1250 n.10 (Pa. Super. 2018), this Court stated:
We note that [the a]ppellant did not request a directed verdict
orally or in writing at the close of evidence at trial. Ordinarily, to
preserve the right to request judgment notwithstanding the
verdict (JNOV), a party must first request a binding charge to the
jury or move for a directed verdict or compulsory non-suit.
Phelps v. Caperoon, 190 A.3d 1230 (Pa. Super. 2018) (citation
- 12 -
J-A27019-21
omitted). A motion for a directed verdict is appropriate even in
the non-jury trial context. Id. at 1247.
Here, despite [the a]ppellant’s failure to move for a directed
verdict or otherwise preserve its right to seek judgment
notwithstanding the verdict, the trial court did not find waiver and
instead addressed the issue. Accordingly, we decline to find
waiver. See Capital Care Corp. v. Hunt, 847 A.2d 75, 84 (Pa.
Super. 2004) (declining to find waiver where a party failed to
move for a directed verdict, sought judgment notwithstanding the
verdict in a post-trial motion, and the trial court addressed the
claim as presented in the post-trial motion).
Wag-Myr Woodlands Homeowners Ass’n By Morgan v. Guiswite, 197
A.3d 1243, 1250 n.10 (2018) (paragraph break added).
Here, as in Wag-Myr Woodlands, we decline to find waiver. Although
Appellants did not specifically motion for a directed verdict, the trial court
addressed the merits of their post-trial motion in its opinion. Furthermore,
we note the post-trial motion clearly argued that the court erred in denying
their request for declaratory relief, and in finding the Developer’s failures to
complete repairs to the Bridge eliminated North Pointe’s responsibilities to
make repairs. Appellants’ Motion for Post-Trial Relief, 1/25/21, at 2, 5.
VI. North Pointe’s Obligations with Respect to the Bridge
We next address Appellants’ claim that the court erred in interpreting
the contractual documents. Appellants maintain the court correctly concluded
that North Pointe bore the responsibility of maintaining and keeping the Bridge
in good repair, but erred in finding North Pointe was not required to repair an
already-damaged Bridge. Appellants allege the court disregarded the
controlling documents, relevant law, and the fact that when the Declaration
- 13 -
J-A27019-21
of Covenant was executed, the Developer controlled North Pointe. Appellants
maintain the court erred in creating a “legal exception” to North Pointe’s
obligations that was at odds with the Declaration of Easement and the law.
Appellants’ Brief at 17. They argue North Pointe is the Developer’s successor
and was thus required by the Declaration of Easement to “keep the Easement
area open, passable, and unimpaired at all times.” Id. at 11. Appellants
challenge the court’s conclusions that North Pointe’s responsibilities
presupposed that the Bridge was in good repair and, because it was in
disrepair at the time of the Declaration of Covenant7 and remained in
disrepair, North Pointe never had the responsibility to repair it. Appellants
argue instead that if the Bridge were in disrepair at the time of the Declaration
of Covenant, North Pointe was not excused from fulfilling its obligations to
Appellants, and North Pointe could seek a remedy from the Developer.
Appellants claim the trial court left them “holding the bag” while granting
North Pointe “a ‘Get Out of Jail Free’ decision.” Id. at 26.
North Pointe responds the trial evidence supported the trial court’s
conclusion that it had the responsibility to “keep” the bridge in good repair,
not bring it into good repair. North Pointe insists that a necessary condition
precedent was not fulfilled by the Developer, and therefore North Pointe’s
obligation was not triggered. North Pointe claims the court’s finding was also
____________________________________________
7 Appellants dispute this conclusion.
- 14 -
J-A27019-21
supported by “English grammar,” where Webster’s Dictionary defines
“maintain” as “to preserve or keep in a given existing condition, as of
efficiency or good repair.” North Pointe’s Brief at 17. North Pointe further
points out: (1) property owners have a duty to maintain their own property;
(2) Appellants and prior owners of the Farmstead engaged in conduct with the
intention of improving the Bridge, but ultimately harmed the Bridge; and (3)
thus, Appellants seek equitable relief, but do not come to court with clean
hands. After careful review, we conclude Appellants are entitled to relief.
Here, the trial court found the “crux” of this case to be the contrast in
the relevant language between the Declaration of Easement and the
Declaration of Covenants. Trial Ct. Op. at 6-7. The court first considered the
Declaration of Easement, which provided the Developer, “its successors and
assigns [to] keep the Easement Area open, passable and unimpaired at all
times[.]” Id. at 6. The court found this language “suggests the Developer
must maintain the Bridge in working state regardless of its conditions.” Id.
at 7. The court also found this document “served to assign . . . some of the
Developer’s duty to repair the Bridge to” North Pointe. Id. at 6.
The trial court then reviewed the Declaration of Covenants, which stated
the North Pointe “shall . . . be responsible for maintaining and keeping in good
repair the [B]ridge[.]” See id. at 6-7. The court found this provision
“presupposes the Bridge is in ‘good repair[,]’” and that North Pointe “has no
responsibility to bring the significantly deteriorated bridge into a state of ‘good
- 15 -
J-A27019-21
repair.’” Id. at 7, 8. The court reasoned that although “Township and other
interested parties likely assumed the Developer would place the Bridge in a
state of good repair before selling the Farmstead property[, t]he Developer’s
failure to perform does not suddenly shift the meaning of the assignment.”
Id.
Additionally, the trial court rejected Appellants’ argument that North
Pointe was the Developer’s successor. Trial Ct. Op. at 8. The court reasoned:
(1) Appellants presented “no evidence at trial proving [North Pointe] was a de
facto successor of the Developer[;]” and (2) although North Ponte may be
“something of a ‘successor’ of the Developer as to [North Pointe’s]
property, . . . the Developer spoke in the Easement Declaration as owner of
the Farmstead property, not [North Pointe’s] property.” Id. Were the court
“to assume the successor in interest to the property is the ‘successor,’ then
[the court would find Appellants] are the Developer’s successor, not” North
Pointe. Id.
We disagree with the trial court’s conclusion that North Pointe is not
Developer’s successor, for purposes of the Declaration of Easement. See
Declaration of Easement at 2 (“[The Developer,] its successors and assigns
shall keep the Easement Area open, passable and unimpaired at all times.”).
We disagree with its implicit finding that North Pointe’s status, as the
successor in ownership interest to the North Pointe development property,
was not relevant or not material. See Trial Ct. Op. at 8. The trial court
- 16 -
J-A27019-21
reasoned the Developer was referring only to the owner of the Farmstead
property, or dominant estate.8 See id. (“[T]he Developer spoke in the
Easement Declaration as owner of the Farmstead property, not [North
Pointe’s] property.”). However, our review of the Declaration of Easement
reveals no such distinction.
We note Paragraph 2 of the Declaration of Easement sets forth the users
and uses of the easement over the Bridge: (1) emergency access for fire,
ambulance, and police employees for the Township’s benefit; (2) pedestrian
access to the Open Space for the benefit of the Township; and (3) “access for
the benefit of [North Pointe9] enabling its employees and agents to perform
all necessary repairs and maintenance to the Bridge[.]” Declaration of
Easement at 2 (emphasis added). This last passage specified it was North
Pointe who would perform “all necessary repairs and maintenance to the
Bridge.” Id. The very next paragraph included the provision at issue in this
appeal: “[The Developer,] its successors and assigns shall keep the Easement
Area open, passable and unimpaired at all times.” Id.
____________________________________________
8 See Trial Ct. Op. at 5 (“The dominant estate is the one who ‘enjoys the
easement’ by using the easement over another landowner’s property, whereas
the servient estate is the landowner.”), citing Reed v. Allegheny Co., 199 A.
187, 190 (Pa. 1938).
9 This portion of the Declaration of Easement stated, “access for the benefit of
the Association.” Declaration of Easement at 2. The “Association” was defined
earlier in the same document as North Pointe Community Association,
Appellee herein. See id. at 1.
- 17 -
J-A27019-21
In light of the foregoing, we conclude the Declaration of Easement
imposed on North Pointe the duty to “keep the Easement Area open, passable
and unimpaired at all times.” See McNaughton Props., LP, 981 A.2d at
227; Declaration of Easement at 2. This plain language required North Pointe
to make all necessary repairs to the Bridge, no matter its former or current
condition, such that the Bridge will be “open, passable and unimpaired at all
times.” See Declaration of Easement at 2. We acknowledge, as did the trial
court, the uncommon easement use in this case: “the dominant estate, [North
Pointe], has neither used the easement nor caused damages to [Appellants’]
servient estate.” See Trial Ct. Op. at 6 n.16. North Pointe enjoys no
recreational, travel, or general access over the Bridge; instead, its sole
easement goes to repairing the Bridge for the benefit of Appellants (as well as
Township vehicles in emergency situations). Nevertheless, North Pointe does
not dispute it bears a duty under the Declarations of Easement and Covenant;
it merely disputes the scope of that duty.
Accordingly, we conclude the trial court erred in finding that because
the Bridge was not in good repair or good condition, North Pointe was not
required to make any repairs. We thus reverse the judgment entered, on
Appellants’ breach of contract claim, in favor of North Pointe and against
Appellants.10 We remand for the trial court to determine the proper amount
____________________________________________
10 We do not reach the merits of Appellants’ negligence claim.
- 18 -
J-A27019-21
of damages, if any. The court may, in its discretion, request the parties to
submit briefs or hold further evidentiary hearings.
In light of our disposition of Appellants’ first issue, we do not reach their
second issue.11
VII. Conclusion
We reverse the judgment entered in favor of North Pointe and against
Appellants. Case remanded for trial court to determine damages, if any.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
____________________________________________
11 In their second issue, Appellants contend North Pointe failed to exercise its
statutory rights against the Developer and satisfy its fiduciary duties to its
membership. North Pointe responds Appellants have waived this issue for
failure to include it in their Rule 1925(b) statement. North Pointe’s Brief at
31. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”).
- 19 -