Wag-Myr Woodlands Homeowners Ass'n v. Guiswite

J-A11029-18
2018 Pa. Super. 287
WAG-MYR WOODLANDS : IN THE SUPERIOR COURT OF
HOMEOWNERS ASSOCIATION, BY : PENNSYLVANIA
DAVID MORGAN AS TRUSTEE AD :
LITEM :
:
Appellant :
:
:
v. : No. 1247 MDA 2017
:
:
JOHN L. GUISWITE AND MICHELLE :
P. GUISWITE, THOMAS H. JEFFRIES :
AND SHIRLEY A. JEFFRIES, JUDY A. :
HEIMBACH AND JOAN A. STEARNS, :
AS CO-EXECUTRICES OF THE :
ESTATE OF JAMES D. HOLMAN, :
DECEASED, JOAN A. STEARNS, :
GAYLE N. PHILLIPS, BETSY A. :
PHILLIPS, JEFFREY A. CORSON, :
MARY ANN MCHALE, RONNIE L. :
DEWALT, MELISSA T. DEWALT, :
ANTHONY J. HAYES AND MEREDITH :
L. HAYES
Appeal from the Judgment Entered September 13, 2017
In the Court of Common Pleas of Clinton County Civil Division at No(s):
954-2016
BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*
OPINION BY NICHOLS, J.: FILED OCTOBER 19, 2018
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A11029-18
Appellant Wag-Myr Woodlands Homeowners Association,1 by David
Morgan as Trustee ad Litem,2 appeals from the judgment entered in favor of
Appellees John L. and Michelle P. Guiswite, Thomas H. and Shirley A. Jeffries,
Judy A. Heimbach and Joan A. Stearns, as co-executrices of the estate of
James D. Holman, deceased, Joan A. Stearns, Gayle N. and Betsy A. Phillips,
Jeffrey A. Corson, Mary Ann McHale, Ronnie L. and Melissa T. DeWalt, and
Anthony J. and Meredith L. Hayes (collectively, Appellees).3 The judgment
was entered after a nonjury trial at which the trial court determined that
Appellees were not required to pay Appellant to maintain a shared easement
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1 Appellant was formed after Wag-Myr Woodlands, Inc., developed the
community from property purchased from Helen Wagner. During the period
relevant to this appeal, thirty-eight lots, including those owned by Appellees,
were included within the Wag-Myr development.
2 Originally, Appellant did not designate a trustee ad litem in this matter. On
July 25, 2017, the trial court granted a motion filed by Appellant to amend the
caption to include David Morgan as Trustee ad Litem. See Pa.R.C.P. 2152
(providing that an action by an unincorporated association “shall be
prosecuted in the name of a member or members thereof as trustees ad litem
for such association”). We note that Appellees did not object to the lack of a
trustee ad litem at trial or the designation of a trustee ad litem when Appellant
sought to amend the caption. Additionally, we note that a failure to comply
with Rule 2152 is not dispositive when raised for the first time on appeal. See
In re Barlip, 428 A.2d 1058, 1060 (Pa. Cmwlth. 1981) (“It is settled that a
court will not permit an objection concerning compliance with Pa.R.C.P. No.
2152 to be raised for the first time on appeal, and . . . we will not do so
here.”).
3 We adopt the trial court’s nomenclature distinguishing between the Hayes
Appellees and the non-Hayes Appellees. All Appellees other than the Hayes
Appellees have deeds that do not reference the potential formation of a
homeowners’ association (HOA). The Hayes Appellees’ deed, however,
references the future formation of an HOA.
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used to access their properties. The trial court made this determination
because a subdivision map was not admitted into evidence and the court could
not determine whether Appellees were part of a planned residential
community. Appellant claims that Appellees have a common law obligation to
pay for the maintenance of the shared easement. We vacate the judgment
and remand for further proceedings consistent with this opinion.
The trial court summarized the relevant background to this case as
follows:
[Wag-Myr Woodlands, Inc.] purchased approximately 700 to 800
acres of land from Helen Wagner on December 2, 1993.
[Appellees] obtained their real property as follows:
a. [Appellees] John L. Guiswite and Michelle P. Guiswite, by
Deed dated October 1, 2003[,] from [Wag-Myr
Woodlands, Inc.] recorded in Record Book 2003, Page
6837[, including an easement from Township Route 415
to the parcel].
b. [Appellees] Thomas H. Jeffries and Shirley A. Jeffries, by
Deed dated February 26, 2002[,] from the Household
Finance Corporation, recorded as instrument No. 2002-
01531 and by Deed dated October 27, 2003[,] from
[Wag-Myr Woodlands, Inc.], recorded as instrument No.
2003-07498[, including an easement from Township
Route 415 to the parcel].
c. [Appellees] Judy A. Heimbach and Joan A. Stearns as Co-
Executrices of the Estate of James D. Holman, deceased,
by Deed dated August 4, 1999[,] and recorded in Record
Book 1046, Page 140, by Deed dated November 3,
2000[,] from [Wag-Myr Woodlands, Inc.] recorded in
Record Book 1123, Page 570[,] and by Deed dated July
17, 2001[,] from [Wag-Myr Woodlands, Inc.], recorded
as Instrument No. 2001-0374[, all including an easement
from Township Route 415 to the parcels].
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d. [Appellees] Gayle N. Phillips and Betsy A. Phillips by Deed
dated November 8, 1990[,] from Francis Lee Wagner and
Helen Wagner, recorded in Deed Book No. 450, Page
129[, including an easement from Township Route 415
to the parcel].
e. [Appellees] Jeffrey A. Corson and Mary Ann McHale by
Deed dated September 14, 1995[,] from [Wag-Myr
Woodlands, Inc.], recorded in Deed Book 767, [P]age
155[, including an easement from Township Route 415
to the parcel].
f. [Appellees] Ronnie L. DeWalt and Melissa T. DeWalt by
Deed dated May 20, 1999[,] from [Wag-Myr Woodlands,
Inc.], recorded in Deed Book 1029, Page 227[, including
an easement from Township Route 415 to the parcel].
g. [Appellees] Anthony J. Hayes and Meredith L. Hayes by
Deed dated October 27, 2003[,] from [Wag-Myr
Woodlands, Inc.], recorded as Instrument No. 2003-
07511[, including an easement from Township Route 415
to the parcel].
On August 28, 2012, [Appellant] adopted bylaws which were duly
recorded in the Office of Recorder of Deeds of Clinton County as
Instrument No. 2012-3806. Amended bylaws were later
adopted[,] which were dated June 27, 2013[,] and recorded as
Instrument No. 2013-3250 in the Office of Recorder of Deeds of
Clinton County.
All [Appellees] already had possession of their properties and were
utilizing and maintaining a roadway [(Wag-Myr Lane) as the sole
means of traveling] to and from their properties prior to the
adoption of [b]ylaws by the HOA. . . . With the exception of [the
Hayes Appellees], there is no mention in any of the [Appellees’
d]eeds regarding the HOA existing or ever being formed. [The
Appellees’ deeds indicate that the owner shall have “a right-of-
way for ingress, egress and regress . . . from [Township Route
415]” to the premises over a fifty-foot wide roadway.4] The Hayes
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4 See Clinton Cty. R. Book 450, Page 130; R. Book 767, Page 156; R. Book
1029, Page 227; R. Book 1046, Page 140; R. Book 1123, Page 571;
Instrument Nos. 2003-06837, 2003-07498, and 2003-07511.
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Appellees’ deed does not require them to become part of the HOA
but indicates that the maintenance on the roadway will be
maintained by Wag-Myr [Woodlands, Inc. “until such time as a
Homeowners Association is organized and responsibility for road
maintenance transferred to the Homeowners Association.”5] That
statement is not contained in any of the non-Hayes [Appellees’
d]eeds.
Trial Ct. Op., 7/14/17, at 2-4 (citations omitted).
After forming as an HOA in 2013, Appellant began to charge a yearly
fee of $300 to its members. The fees were used to maintain and repair the
only common areas in the HOA, which are Wag-Myr Lane and a gate installed
on the roadway in 2004. N.T., 5/24/17, at 89; Compl., 7/26/16, at 12-13.
Appellees were made aware of the $300 per year assessment fee via hand-
delivered letters dated April 17, 2014, and February 26, 2015, and a mailed
letter dated February 5, 2016. See Appellees’ Exs. 31, 36, 43.
Appellant initiated this action by filing a complaint on July 26, 2016,
asserting that even though Appellees were not members of the HOA, they
were required to pay the HOA’s entire yearly assessment fee of $300 per year
plus interest for the years 2014, 2015, and 2016. Appellant brought its claim
for HOA fees on a common law right to recover for maintenance costs for Wag-
Myr Lane based upon the easement language in each of the Appellees’ deeds.6
____________________________________________
5 See Clinton Cty. Instrument No. 2003-07511.
6Appellant specifically indicated in the Complaint that it was not asserting that
Appellees were obligated to become members of the HOA. Compl., 7/26/16,
at 12.
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The non-Hayes Appellees filed an answer to the complaint, denying
liability because the HOA was formed after they purchased their properties
and the HOA bylaws did not affect them. See Answer to Compl., 8/19/16, at
3-4 (unpaginated). The Hayes Appellees did not file an answer. Appellant did
not file a motion for default or summary judgment.
Thereafter, the non-Hayes Appellees filed a motion for judgment on the
pleadings or for summary judgment. At the January 26, 2017 argument,
counsel for the non-Hayes Appellees conceded that they had a duty to pay for
the maintenance of Wag-Myr Lane “[f]or their section.” N.T., 1/26/17, at 10;
see also id. at 6-7. The trial court denied the non-Hayes motion, indicating
that “all [non-Hayes Appellees] have agreed that there is a common law
obligation on behalf of [them] to pay some monies to maintain a right-of-
way.” Order, 1/27/17, at 2 (unpaginated).
On April 20, 2017, Appellant filed an amended complaint, seeking that
the Hayes Appellees pay the full assessment fee of $300 per year as assessed
and that the non-Hayes Appellees pay an undefined “proportionate share” to
maintain the road. Am. Compl., 4/20/17, at 18. The non-Hayes Appellees
filed an answer to the amended complaint, in which they denied liability for
assessments on the basis that their properties were not part of a planned
residential development. See Answer to First Am. Compl., 4/19/17, at 4, 7
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(unpaginated). The Hayes Appellees did not file an answer to the amended
complaint.7
A non-jury trial proceeded on May 24, 2017, in which HOA members
testified on behalf of Appellant, and several of the non-Hayes Appellees
testified on their own behalf. The pro se Hayes Appellees were present but
neither of them testified.8
Of relevance to this appeal, David Morgan, the HOA president, testified
to the maintenance and repairs Wag-Myr Lane required, as well as to the fact
that the HOA took ownership of the easement from the developer, Wag-Myr
____________________________________________
7 In their appellate brief, the non-Hayes Appellees refer to a suit filed in
Magisterial District Court prior to the instant action, in which Appellant sought
“back assessments of three hundred dollars ($300.00) per year dating from
the formation of the [HOA].” Non-Hayes Appellees’ Brief at 1. The magisterial
district judge apparently ruled in favor of Appellees and dismissed Appellant’s
action. See id. The record does not reflect any such ruling. Despite the
magisterial district court seemingly ruling in their favor, neither the non-Hayes
Appellees nor the Hayes Appellees have raised the defense of res judicata in
their answers. Accordingly, although we lack knowledge of the details of that
suit, assuming such a defense applied, they presumably waived this defense.
See Hopewell Estates, Inc. v. Kent, 646 A.2d 1192, 1194 (Pa. Super.
1994) (“Res judicata [is an] affirmative defense[] which must be pleaded in
an answer as new matter. A defense not so raised is waived.” (citations
omitted)); see also A.C. Elfman & Sons, Inc. v. Clime, 513 A.2d 488, 490
(Pa. Super. 1986) (noting that “where the doctrine of res judicata is otherwise
applicable, its invocation will not be precluded or impaired because the prior
judgment was entered in an action before a district justice”).
8 The Hayes Appellees were unrepresented at trial but have retained counsel
for this appeal. At trial, the Hayes Appellees participated by asking cross-
examination questions of the various witnesses.
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Woodlands, Inc.9 N.T., 5/24/17, at 18. Mr. Morgan indicated the cost of
repairs to maintain Wag-Myr Lane completed by contractors during the period
from 2014 through 2016. Id. at 20, 26; see also Appellant’s Ex. 2 (outlining
expenses of the HOA for road and gate maintenance from 2014 through
2016); Appellant’s Ex. 5 (providing calculations supporting various measures
to apportion the cost of maintaining the right-of-way based on the actual cost
of repairs and electricity). Mr. Morgan also indicated that electricity for the
gate had to be paid for on a yearly basis and that he and other HOA members
had completed trimming and some repairs on the road to save money. N.T.,
5/24/17, at 19-20.
An HOA member, Joseph Messinger, also testified on behalf of Appellant.
Mr. Messinger indicated that Appellees were observed using Wag-Myr Lane
beyond the length of their easement to go deeper into the development. Id.
at 58. Non-Hayes Appellees’ counsel stipulated that the non-Hayes Appellees
used Wag-Myr Lane to visit with other Appellees or HOA members. Id. at 59.
Several non-Hayes Appellees testified that they maintained their
portions of Wag-Myr Lane. See id. at 69 (testimony of John Guiswite), 101,
104 (testimony of Jeffrey Corson). Many of the Appellees testified that they
plowed their sections of the road when it snowed. See id. at 70-71 (testimony
of John Guiswite), 79 (testimony of Thomas Jeffries), 95-96 (testimony of
____________________________________________
9We state the facts in the light most favorable to the verdict-winner. Wilson
v. Transport Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005).
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Gayle Phillips), 99-100 (testimony of Jeffrey Corson), 107-08 (testimony of
Ronnie DeWalt). Additionally, Appellee Ronnie DeWalt testified regarding
installation of the gate at the entrance to Wag-Myr Lane. Other than requiring
Appellees to purchase a “clicker” to open the gate, the developer promised
that it would maintain and pay for the gate and that Mr. DeWalt and the other
Appellees “[would not] have to do anything but [purchase and use the
‘clickers’ to open the gate.]” Id. at 107.
As to the nature of the planned community, Appellee Judy Heimbach
testified that there were no common areas such as ponds, lakes, or anything
other than the road in the Wag-Myr development. Id. at 89. Appellee Gayle
Phillips indicated that he was never informed that a large residential
development would be constructed in the area. Id. at 96. Likewise, Appellee
Jeffrey Corson indicated that he was unaware of any planned residential
development in the area when he purchased his land. Id. at 99.
At the conclusion of the non-jury trial, the trial court ordered the
represented parties to submit proposed findings of fact and conclusions of law
and permitted the Hayes Appellees to file any documents they deemed
relevant within thirty days. Appellant and the non-Hayes Appellees submitted
proposed findings of fact and conclusions of law, and the Hayes Appellees
submitted a portion of the sales agreement for their property, which included
a clause that the seller would remain responsible for maintaining the roadway.
See Hayes Correspondence, 6/9/17.
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Upon consideration of the parties’ submissions, the trial court entered
an order and opinion in favor of all Appellees, noting that because the court
“[was] unable to determine that [Appellees] are owners of property within the
[Wag-Myr] subdivision,” they could not be assessed by the HOA. Trial Ct. Op.,
7/14/17, at 13. The trial court further noted that the non-Hayes Appellees
argue that there was no subdivision or planned community.
Specifically, clearly when [Appellees] Phillips purchased the
Phillips property in 1990, [Appellees] Phillips were purchasing a
parcel of land having no clue whether a planned community
development would occur past that property. This is similar to the
purchases of [Appellees] Jeffries, Corson and McHale, DeWalts,
Holman (now Heimbach and Stearns) and Guiswites.
Id. at 11. On this basis, and because a “subdivision map indicating where the
subdivision begins and when it was laid out” was not provided at trial, the trial
court ruled in favor of the non-Hayes Appellees. Id. at 12.
Appellant filed a post-trial motion, arguing that the trial court erred in
determining that Appellees’ obligation to pay for road maintenance turned on
whether a subdivision plan existed or whether they were within a planned
subdivision. See Mot. for Post-Trial Relief, 7/21/17, at 1-2 (unpaginated).
Appellant sought judgment notwithstanding the verdict or, in the alternative,
a new trial. Id. at 3. The trial court denied the post-trial motion on July 25,
2017.10
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10We note that Appellant 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-
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Appellant filed a timely notice of appeal and court-ordered concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court complied with Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Whether jurisdiction of this matter is properly vested in the
Superior Court, rather than the Commonwealth Court.[11]
2. (With respect to all Appellees): Whether the court below erred
in determining that the status of properties as part of a
subdivision was relevant to a determination of the liability of
those properties at common law for maintenance of a shared
easement.
3. (With respect to Appellees Anthony and Meredith Hayes):
Whether the court below erred in determining that the status
of a property as part of a subdivision was relevant to a
determination of the liability of that property for assessment
costs for maintenance of a right-of-way pursuant to language
in the deed of record for that property.
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suit. Phelps v. Caperoon, 190 A.3d 1230 (Pa. Super. 2018) (citation
omitted). A motion for a directed verdict is appropriate even in the non-jury
trial context. Id. at 1247. Here, despite Appellant’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).
11 This jurisdictional issue arose on appeal. This Court issued a rule to show
cause on September 11, 2017, requiring Appellant to respond regarding why
this appeal should not be transferred to the Commonwealth Court. Appellant
filed a timely response, and this Court issued an order on September 27, 2017,
discharging the rule to show cause and deferring the jurisdictional issue for
this panel’s consideration.
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Appellant’s Brief, at 1-2.
In its first issue, Appellant asserts that a transfer of this appeal to the
Commonwealth Court would be improper. Id. at 6. Appellant argues that, as
an unincorporated association, it is not subject to the exclusive grant of
jurisdiction to the Commonwealth Court that is contained in 42 Pa.C.S. §
762(a)(5).12 Id. at 6-7.
Additionally, Appellant contends that the Commonwealth Court lacks
jurisdiction over this matter because its theory of recovery “is not based upon
its status as a homeowners’ association, but rather upon the duty of
beneficiaries of a common law easement to contribute to the maintenance
thereof.” Id. at 7-8. (citing Reed v. Allegheny Cty., 199 A. 187 (Pa. 1938);
Borgel v. Hoffman, 280 A.2d 608, 610 (Pa. Super. 1971) (en banc)).
Further, as to the Hayes Appellees, Appellant’s “theory of recovery is based
upon [the Hayes Appellees’] obligation to pay road maintenance assessments
because of the noticing language in their deed.” Id. at 8 (citing Meadow Run
& Mountain Lake Park Ass’n v. Berkel, 598 A.2d 1024, 1025 (Pa. Super.
1991)).
By statute, this Court has jurisdiction regarding appeals from final
orders of the courts of common pleas, except when jurisdiction is vested in
the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. The
jurisdiction of the Commonwealth Court regarding appeals from final orders
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12 Section 762(a)(5) is reproduced below.
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of the common pleas courts is limited by statute. 42 Pa.C.S. § 762. Of
relevance to this appeal, the Commonwealth Court has “exclusive jurisdiction
of appeals from final orders of the courts of common pleas” in
(i) All actions or proceedings relating to corporations not-for-profit
arising under Title 15 (relating to corporations and unincorporated
associations) or where is drawn in question the application,
interpretation or enforcement of any provision of the Constitution,
treaties or laws of the United States, or the Constitution of
Pennsylvania or any statute, regulating in any such case the
corporate affairs of any corporation not-for-profit subject to Title
15 or the affairs of the members, security holders, directors,
officers, employees or agents thereof, as such.
(ii) All actions or proceedings otherwise involving the corporate
affairs of any corporation not-for-profit subject to Title 15 or the
affairs of the members, security holders, directors, officers, or
employees or agents thereof, as such.
42 Pa.C.S. § 762(a)(5).
Section 762(a)(5) provides for limited jurisdiction of the Commonwealth
Court for certain actions involving “corporations not-for-profit.” A
“corporation not-for-profit” is defined as “[a] domestic or foreign corporation
not incorporated for a purpose or purposes involving pecuniary profit,
incidental or otherwise, whether or not it is a cooperative corporation.” 15
Pa.C.S. § 102.
Instantly, Appellant correctly notes that as an unincorporated
association, it is not a “corporation not-for-profit.” Thus, Section 762(a)(5)
does not vest exclusive jurisdiction over this appeal in the Commonwealth
Court. Moreover, none of the Appellees has objected to the Superior Court
retaining jurisdiction. See Benner v. Silvis, 950 A.2d 990, 993 (Pa. Super.
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2008) (indicating that although, as an eminent domain matter, the appeal was
within the exclusive jurisdiction of the Commonwealth Court, this Court
retained jurisdiction since neither party objected). Accordingly, we have
proper jurisdiction over this appeal.
We address Appellant’s remaining issues in terms of the non-Hayes
Appellees followed by the Hayes Appellees.
Appellant asserts that the trial court erred in finding that the non-Hayes
Appellees were not liable for expenses to maintain the right-of-way based
upon “the [lack of] existence of a subdivision plan.” Appellant’s Brief at 8.
Appellant contends that the non-Hayes Appellees “are liable at common law
for a proportionate share of the costs of maintenance of a shared easement”
because they “have notice [of the easement] in their respective deeds.” Id.
at 11. In support, Appellant relies on Spinnler Point Colony Ass’n, Inc. v.
Nash, 689 A.2d 1026 (Pa. Cmwlth. 1997).
Appellant further argues that all non-Hayes Appellees conceded at
summary judgment that they are liable for maintenance of “their sections” of
Wag-Myr Lane. Appellant argues that this concession constitutes the law of
the case. Appellant’s Brief at 8.
The non-Hayes Appellees assert that although they are “supposed to
maintain the right of way[,] they have no obligation to pay any assessments
to someone whose interest in the property was created well after the creation
of their easement.” Non-Hayes Appellees’ Brief at 2. Accordingly, rather than
pay the HOA a “formulaic” assessment, the non-Hayes Appellees assert that
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they are responsible only for the maintenance and repair of the portion of
Wag-Myr Lane that directly abuts their land. Id. at 8 (citing Borgel, 280 A.2d
at 610). The non-Hayes Appellees also contend that they cannot be required
to pay the HOA an assessment because their deeds do not contain a covenant
requiring the owner to pay his proportionate part of the expense of
maintaining Wag-Myr Lane. Id. at 9 (citing Mscisz v. Russell, 487 A.2d 839,
841 (Pa. Super. 1984)). The non-Hayes Appellees also cite to Deep
Meadows Civic Ass’n v. Trusello, 140 A.3d 60 (Pa. Cmwlth. 2016), in
support of their position.
Our standard of review is as follows:
A JNOV can be entered upon two bases: (1) where the movant is
entitled to judgment as a matter of law; and/or, (2) the evidence
was such that no two reasonable minds could disagree that the
verdict should have been rendered for the movant. When
reviewing a trial court’s denial of a motion for JNOV, we must
consider all of the evidence admitted to decide if there was
sufficient competent evidence to sustain the verdict. In so doing,
we must also view this evidence in the light most favorable to the
verdict winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence and rejecting all
unfavorable testimony and inference. Concerning any questions
of law, our scope of review is plenary. Concerning questions of
credibility and weight accorded the evidence at trial, we will not
substitute our judgment for that of the finder of fact. If any basis
exists upon which the [court] could have properly made its award,
then we must affirm the trial court's denial of the motion for JNOV.
A JNOV should be entered only in a clear case.
Our review of the trial court’s denial of a new trial is limited to
determining whether the trial court acted capriciously, abused its
discretion, or committed an error of law that controlled the
outcome of the case. In making this determination, we must
consider whether, viewing the evidence in the light most favorable
to the verdict winner, a new trial would produce a different verdict.
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Consequently, if there is any support in the record for the trial
court’s decision to deny a new trial, that decision must be
affirmed.
Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1147-48 (Pa. Super.
2013) (citation omitted). “A trial court’s construction of a deed is a question
of law, which compels de novo review.” Russo v. Polidoro, 176 A.3d 326,
329 (Pa. Super. 2017) (citation omitted).
Regarding easements, regardless of their location, “[o]rdinarily the
owner of a servient estate is under no obligation to make repairs; the duty is
upon the one who enjoys the easement to keep it in proper condition.” Reed,
199 A. at 189. In Borgel, the Court resolved the tension between the general
rule and the issue of liability under the factual circumstances of a driveway
owned and used by multiple adjacent property owners:
While we recognize the general rule, as already stated, regarding
the obligation of a dominant tenant to keep in repair an easement
which is used and enjoyed for the dominant estate alone, it must
be recognized that this general rule is simply an application of the
broader rule that the duty of repair should fall where reason,
convenience, and equity require it to fall. Where, as in this case,
an easement in a driveway is owned and utilized by many abutting
property owners, it would be most unreasonable, inconvenient
and inequitable to hold each dominant tenant liable for a defect in
the driveway no matter how far removed from that dominant
owner’s property. It would be equally unreasonable, inconvenient
and inequitable to hold only those dominant owners whose
properties are close to the defect liable therefor, since we would
then have to answer the question, “How close is close?” And, if
we were to say that those dominant tenants making the most use
of the driveway at the place of the defect should be liable therefor,
we would be faced with difficult evidentiary issues as to amount
of use and presented with the important legal question of how
much use should impose liability. It is our conclusion that the
most reasonable, expedient and equitable rule is to require each
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of the owners to be responsible for the maintenance and repair of
only that portion of the driveway abutting or located on his own
land.
Borgel, 280 A.2d at 610. Borgel, however, did not involve a property
association.
Where a property association exists, the “beneficial users of the common
areas of [a] development[] are responsible for the cost of maintenance of such
facilities.” Berkel, 598 A.2d at 1027. Even when an individual’s “chain of
title makes no reference to a property owners[’] association,” the individual
must pay his or her “proportionate share for repair, upkeep and maintenance”
of the easements to which he or she has rights to enjoy in a residential
development. Spinnler Point, 689 A.2d at 1028-29.
In Spinnler Point, which Appellant relies on for support, the
homeowners’ chain of title did not refer to a property owners’ association. Id.
at 1028. The homeowners argued that they were not obligated to join a
property association that formed in their residential development or required
to pay its annual assessments. Id. The homeowners’ deed provided that they
had the right to travel over property association roads and to access a lake.
Id. at 1027. The Commonwealth Court held that even though the
homeowners conceded liability for the assessments, they “[c]learly, pursuant
to their deed, have the right to enjoy the easements. Therefore, [they] must
pay the costs of maintenance.” Id. at 1029. The Court summarized its
holding as follows: “a property owner who purchases property in a private
residential development who has the right to travel the development roads
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and to access the waters of a lake is obligated to pay a proportionate share
for repair, upkeep and maintenance of the development’s roads, facilities and
amenities.” Id.
The non-Hayes Appellees rely on Borgel, in which a pedestrian fell and
was injured on a driveway running between two rows of houses over which
each of the owners of the houses had an easement. Borgel, 280 A.2d at 608-
09. The pedestrian sued the owners of the property abutting the portion of
the driveway where her injury occurred for negligence. Id. at 608. The
owners sought to join several other nearby owners as additional defendants.
Id. The additional defendants successfully moved for summary judgment on
several grounds, including that “the supposed duty of the additional
defendants to maintain and control the driveway arose from their Deeds; and
that no such duty or obligation is expressed or implied in their Deeds.” Id. at
609. The owners appealed and raised the following issue:
Where the defendants own an easement over a driveway, a
portion of which abuts or is located on their property, and a user
contends negligence in their maintenance and repair of that
portion of the driveway, are the other owners of properties
abutting the driveway, who also enjoy an easement therein,
responsible, either solely or jointly with the defendants, in the
absence of any express covenant, for the repair and maintenance
of that portion of the driveway so abutting or located on
defendants’ property?
Id. Based on the reasoning set forth above, the Court held that the additional
defendants could be held liable because, as quoted supra, “the most
reasonable, expedient and equitable rule is to require each of the owners to
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be responsible for the maintenance and repair of only that portion of the
driveway abutting or located on his own land.” Id. at 610.
For further support, the non-Hayes Appellees point to Mscisz, another
negligence case, in which a covenant in several homeowners’ deeds imposed
an “equal duty to maintain the private driveway” that served their properties
by paying an equal share for its upkeep. Mscisz, 487 A.2d at 841.
In Trusello, on which the non-Hayes Appellees also rely, the
Commonwealth Court affirmed the trial court’s decision, following a bench
trial, that the homeowner could not be assessed fees by an HOA for the
maintenance of a common area, including an open space. Trusello, 140 A.3d
at 69. The homeowner’s deed contained no reference to an HOA, and he “had
neither actual nor constructive notice that [his property] was subject to a
homeowner’s association.” Id. at 68-69 (citation omitted). The homeowner’s
deed, however, did not include any right or privilege to use any common
property. Id. at 68.
Instantly, as in Spinnler Point, the non-Hayes Appellees’ deeds did not
refer to an HOA and also included the right to the use of an easement.13 As
Appellant argues, this alone obligates the non-Hayes Appellees to pay a
“proportionate share” of the maintenance costs for Wag-Myr Lane. Spinnler
Point, 689 A.2d at 1029; see also Reed, 199 A. at 189. Pursuant to the
common law in Borgel and Reed, whether the Appellees knew they were
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13 We note that the deeds do not mention a gate.
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buying property that would later be part of a residential development is not
dispositive, because under the facts of this case, their properties undisputedly
benefit from the easement. See Borgel, 280 A.2d at 610; Reed, 199 A. at
189.
Further, the facts of Trusello are distinguishable from the non-Hayes
Appellees’ situation because in Trusello the homeowner’s deed did not include
an easement permitting him the privilege of using any common property. See
Trusello, 140 A.3d at 68.
Moreover, the non-Hayes Appellees conceded at the summary judgment
stage of the proceedings that they owed money to maintain “their sections”
of Wag-Myr Lane.14 See N.T., 1/26/17, at 6-7, 10; Order, 1/27/17, at 2.
Thus, for these reasons, the trial court erred.15
The non-Hayes Appellees object to making payment for “their sections”
to the HOA. As such, we note that the HOA is the successor in interest to
Wag-Myr Woodlands, Inc., the original owner of the property and the grantor
of the easement in question. See N.T. 5/24/17, at 18; see generally
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14While Appellant asserts that counsel’s statement at the summary judgment
stage was binding on the trial court under the law of the case doctrine, we
note that counsel’s statement was an admission. It is well-settled that counsel
may bind a client by making an admission. Cf. Lee v. Safeguard Mut. Ins.
Co., 549 A.2d 927, 934 (Pa. Super. 1988) (concluding counsel bound his client
with an admission during trial).
15 It is undisputed that the deeds in this matter do not contain a clause
indicating an “equal duty” to maintain Wag-Myr Lane. However, the lack of
such a clause has no bearing on whether the non-Hayes Appellees owe a
“proportionate share” for road maintenance. See Borgel, 280 A.2d at 610.
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Birchwood Lakes Cmty. Ass’n, Inc. v. Comis, 442 A.2d 304, 306 (Pa.
Super. 1982) (referring to the property owners’ association that performed
the “services essential to the maintenance of the community” as the
“successor in interest to the developer”). Accordingly, the HOA is the servient
owner to which Appellees are required to pay their “proportionate share” for
the maintenance of Wag-Myr Lane.
Thus, even viewing the record in the light most favorable to the verdict-
winner, Grossi, 79 A.3d at 1147-48, we conclude that the trial court erred,
and we vacate the judgment. We order the trial court to enter judgment in
favor of Appellant after the court, on remand, calculates a “proportionate
share” of the Wag-Myr Lane maintenance costs for each of the non-Hayes
Appellees. Such maintenance costs shall exclude gate costs, since the gate
was not part of the easement granted within each deed.16
Finally, regarding the Hayes Appellees, Appellant asserts that the trial
court erred in finding that they were liable for expenses to maintain the right-
of-way based upon “the [lack of] existence of a subdivision plan.” Appellant’s
Brief at 8. Appellant asserts that the Hayes Appellees “are subject to the
same principle of common-law liability as the other [Appellees] on the basis
that their property benefits from a shared easement[. T]hey are also liable
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16 Cf. Kelso Woods Ass’n, Inc. v. Swanson, 753 A.2d 894, 898 (Pa.
Cmwlth. 2000) (upholding trial court’s determination that where a lot outside
an association received its water through the association and water comprised
approximately thirty percent of the association’s expenses, it was inequitable
to charge a fee of approximately ninety percent of the association’s base
member fee, but a charge of one-half the base rate was equitable).
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on the additional basis that their deed expressly mentions the formation of a
homeowners’ association to maintain the right-of-way.” Id. at 21.
The trial court noted that Hayes Appellees’s deed “do[es] not reflect that
[this parcel was] part of any subdivision.” Trial Ct. Op, 7/14/17, at 9. On this
basis, and because a “subdivision map indicating where the subdivision begins
and when it was laid out” was not provided at trial, the trial court ruled in
favor of the Hayes Appellees. Id. at 12.
The Hayes Appellees argue that their deed addressed road maintenance
and stated that “Appellant, not Appellee Hayes, would be fully responsible for
it.” Hayes Appellees’ Brief at 4. The Hayes Appellees also assert that there
was “no clear notice of any obligation to join [the HOA] or share in its
assessments.” Id.
We note the facts of Berkel in reference to the Hayes Appellees. Berkel
was a lot owner in a development with a property owners’ association that
initially “relied upon the voluntary contributions of the lot owners for the
maintenance expenses of the common areas.” Berkel, 598 A.2d at 1025.
The property owners’ association eventually instituted an annual assessment
for all lot owners for their share of the association’s dams and road. Id.
Berkel did not pay the assessment and contended that the association lacked
the authority to require payment of any assessment because, while his deed
referenced the association, it did not expressly authorize assessments:
In the event of the formation or incorporation of an association of
the lot owners on above mentioned plot of Mountain and Meadow
Run Lakes, the occupants of the above described premises shall
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be bound by such rules and regulations concerning the use of
Mountain and Meadow Run Lakes as to boating, bathing, ice
skating and fishing, as may be duly formulated and adopted by
such association or incorporation.
Id. at 1025-26 (quoting deed). Following an appeal from a bench trial and
verdict in the association’s favor, this Court held that because Berkel was a
beneficial user of the common areas of the development, including the dams
and roads,
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 ability to impose reasonable assessments on the
property owners to fund the maintenance of those facilities.
Id. at 1027.
Instantly, the pertinent language of the Hayes deed follows:
16. Covenant regarding private road:
A. Access to the hereinabove described premises is provided
by a private road;
B. Access is not subject to municipal maintenance; and
C. Neither the Planning Commission nor the municipality
shall be responsible for any road construction, maintenance,
or improvement at any time in the future.
All access to the premises herein conveyed is provided by a fifty
(50) foot private road (Wag-Myr Lane) and that access is not
subject to municipal maintenance. The Grantor as developer shall
be responsible for road maintenance until such time as a
Homeowners Association is organized and responsibility for road
maintenance transferred to the Homeowners Association.
Deed Between Wag-Myr Woodlands, Inc. and Anthony J. Hayes and Meredith
L. Hayes, 10/27/03, at ¶ 16.
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Here, similar to the lot owner and deed language in Berkel, the Hayes
Appellees were put on notice that an HOA would eventually come into
existence. See Berkel, 598 A.2d at 1027. Because the Hayes Appellees had
notice of a future HOA and because the HOA has the authority to impose
assessments, the Hayes Appellees are obligated to pay the assessed
maintenance fees for Wag-Myr Lane. See id. Therefore, no calculation of a
proportionate share is required for the Hayes Appellees since they are required
to pay the maintenance fees as assessed.
Judgment vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2018
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