Fogarty v. Hemlock Farms Community Ass'n

685 A.2d 241, 1996 Pa. Commw. LEXIS 472
CourtCommonwealth Court of Pennsylvania
DecidedNovember 15, 1996
StatusPublished
Cited by13 cases

This text of 685 A.2d 241 (Fogarty v. Hemlock Farms Community Ass'n) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fogarty v. Hemlock Farms Community Ass'n, 685 A.2d 241, 1996 Pa. Commw. LEXIS 472 (Pa. Ct. App. 1996).

Opinion

SMITH, Judge.

Dennis Fogarty and Mary M. Fogarty (the Fogartys) appeal from an order of the Court of Common Pleas of Pike County that granted a motion for summary judgment on behalf of Hemlock Farms Community Association, Inc. (HFCA), holding that HFCA has the power to levy special assessments for the construction of three capital improvements— a community mail office, an administration building and a community clubhouse — and that the Fogartys are obligated to pay their assessment. The questions presented are whether HFCA exceeded its authority under the Fogartys’ deed covenant by imposing the special assessments and whether HFCA violated the debt ceiling limitations set forth in [242]*242Section 6.8(b) of its Bylaws when it incurred debt for the construction.

In 1969 the Fogartys purchased a property in the Hemlock Farms Community in Blooming Grove Township, Pike County. Under a protective covenant contained in their deed, the Fogartys are required to become members of HFCA, which is an association comprised of all the homeowners in the Hemlock Farms Community. The deed covenant also requires the Fogartys to pay annual dues and fees, as well as assessments for control, maintenance and repair of streets, roads and recreational facilities.

On July 14, 1990, the membership of HFCA passed a resolution that imposed special assessments upon all members to offset construction costs for the three improvements. HFCA’s Board of Directors estimated that the costs of the project would be $2,675,000. HFCA imposed a $151 assessment on the Fogartys in September 1990 and a $119 assessment in June 1991. The Fogar-tys refused to pay the assessments and filed an action in the trial court seeking a declaration that the assessments were invalid in that they were not authorized by the covenants in the Fogarty’s deed or by HFCA’s Bylaws. Following the close of discovery, both parties filed motions for summary judgment. The trial court granted summary judgment on behalf of HFCA and upheld the special assessments. The Fogartys appeal.1

The Fogartys contend that the trial court erred in determining that HFCA was authorized by the deed covenant and its Bylaws to impose these special assessments. In part, Paragraph 10 of the deed covenant provides:

The Purchaser agrees to join the Hemlock Farms Community Association, the only qualification for election to membership being ownership or prospective ownership of a Lot or Lots or acreage within the development, and to maintain such membership, and pay (i) such annual fees or dues as the Association may by its by-laws prescribe, (ii) such assessments as the Association may charge for the repair and maintenance of the streets and roads and (iii) such assessments as the association may charge for control, maintenance and administration of beach and other recreational facilities, and (iv) fire service fee of $18.00 per year in respect of each and every Lot owned by the Purchaser on which a house has not been erected.

The Fogartys contend that the deed covenant is non-restrictive. They cite Birchwood Lakes Community Ass’n, Inc. v. Comis, 296 Pa. Superior Ct. 77, 442 A.2d 304 (1982), for the proposition that if an agreement in a nonrestrictive covenant is not clearly expressed or is susceptible to more than one interpretation, the words of the deed must be construed most strongly against the grantor and most favorably toward the grantee, unless the grantee drafted the deed.

Although the Fogartys do not challenge HFCA’s decision to construct the new improvements, they argue that HFCA must pay for these improvements through annual fees and borrowing as specified in the deed covenant. The Fogartys claim that Paragraph 10 does not authorize special assessments for these type of capital improvements but only authorizes special assessments for the maintenance and repair of streets and roads and for the control, maintenance and administration of the beach and other recreational facilities.

The trial court, however, determined that the deed covenant did not prohibit the levying of special assessments and that HFCA is authorized by its Bylaws to levy special assessments. The trial court further determined that HFCA may, by the implied intent of the parties, levy authorized special assessments for the building of improvements that benefit all association members, in the absence of an express agreement prohibiting such assessments. To support its decision, the trial court relied on Meadow Run and Mountain Lake Park Ass’n v. Berkel, 409 Pa. Superior Ct. 637, 642, 598 A.2d 1024, 1027 (1991), appeal denied, 530 Pa. 666, 610 A.2d 46 (1992), where the Court held that:

[243]*243[Ajbsent 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.

The Fogartys argue that Meadow Run and Mountain Lake Park Ass’n is distinguishable from the present case. In that case, the homeowners’ association passed a resolution assessing each homeowner $300 for the repair of dams and roads. The appellants argued that there was no specifically expressed deed covenant authorizing such an assessment. Nevertheless, the Superior Court reasoned that because all property owners’ deeds notified them that they had the right to use the facilities and that they were bound by certain rules regarding that right, there existed implied rules and regulations regarding the maintenance of those facilities. The Fogartys claim that the deed in the present case, in contrast, expressly limits the imposition of special assessments only to the maintenance and repair of roads and recreational facilities.

The Fogartys also rely on the basic principle of contract law that the intent of the parties to a contract is to be determined solely from its express language and that any ambiguities or doubtful language must be construed most strongly against the drafter. Rusiski v. Pribonic, 511 Pa. 383, 515 A2d 507 (1986). They refer also to the maxim expressio unius est exclusio alterius to support their position that because the deed covenant specifically lists all obligations that the HFCA may require them to meet, special assessments for items not contained in the covenant are thereby excluded.

On the other hand, HFCA contends that because it is a nonprofit corporation operating in the Commonwealth, it is governed by provisions of the Nonprofit Corporation Law of 1988 (NCL), 15 Pa.C.S. §§ 5101-6162. Specifically, HFCA relies on Section 5544(a) of the NCL, 15 Pa.C.S. § 5544(a), relating to fees, dues and assessments, which provides:

(a) General rule. — A nonprofit corporation may levy dues or assessments, or both, on its members, if authority to do so is conferred by the bylaws, subject to any limitations therein contained. Such dues or assessments, or both, may be imposed upon all members of the same class either alike or in different amounts or proportions, and upon a different basis upon different classes of members.

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Bluebook (online)
685 A.2d 241, 1996 Pa. Commw. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogarty-v-hemlock-farms-community-assn-pacommwct-1996.