Holiday Pocono Civic Ass'n v. Benick

7 Pa. D. & C.3d 378, 1978 Pa. Dist. & Cnty. Dec. LEXIS 256
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedApril 21, 1978
Docketno. 96
StatusPublished

This text of 7 Pa. D. & C.3d 378 (Holiday Pocono Civic Ass'n v. Benick) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holiday Pocono Civic Ass'n v. Benick, 7 Pa. D. & C.3d 378, 1978 Pa. Dist. & Cnty. Dec. LEXIS 256 (Pa. Super. Ct. 1978).

Opinion

LAVELLE, P.J.,

This matter is before us on defendants’ preliminary objections to plaintiffs complaint in assumpsit. The issue raised by the pleadings is whether a property owners’ association may enforce against a lot owner an affirmative covenant in the latter’s deed to pay dues and assessments.

FACTUAL BACKGROUND

On a demurrer, of course, all well-pleaded facts in plaintiffs complaint and all inferences fairly deducible therefrom are deemed to be admitted: Adams v. Speckman, 385 Pa. 308, 122 A. 2d 685 (1956). These facts maybe summarized as follows:

On October 13, 1960, defendants entered into a written agreement to purchase from The Holiday Poconos, Inc., two lots in the latter’s development [380]*380near Albrightsville, Kidder Township, Carbon County, Pa. Paragraph 12 of the agreement provided that:

“An association of property owners is to be formed and designated by such name as may be deemed appropriate, and when formed, the buyer covenants and agrees that he, his executors, heirs or assigns, shall be bound by the by-laws, rules and regulations as may be duly formulated and adopted by such association and that they shall be subject to the payment of annual dues and assessments of the same.”

On or about November 21, 1963, deeds were executed and delivered to defendants by the developer conveying the two lots in question. Both deeds contained the covenant to pay assessments in language identical to that set forth in paragraph 12 of the agreement of sale.

Holiday Pocono Civic Association, Inc. (hereafter “the association”) was formed on January 10,1964, pursuant to the Pennsylvania Non-profit Corporation Law of May 5, 1933, P.L. 289, 15 P.S. §7001 et seq. The association owns and maintains all of the roads in the development, as well as two lakes, a clubhouse, a playground, and other facilities and amenities maintained for the use and enjoyment of residents.

The association’s by-laws provide that all lot owners shall be members of the association (article VI). Annual and special assessments are established at general membership meetings (article VII), at which each member in good standing (i.e. not delinquent in the payment of dues or assessments) is entitled to vote (article XI). All members [381]*381are entitled to equal use of the association’s facilities (article IX).

The purposes of the assessments are as follows (article VII (F)):

1 — The maintenance and improvement of the assets of the association.

2 — To defer the cost of operating the association.

3 — For the creation of additional assets that will be beneficial to the members of the association.

4 — To provide social activities, recreational facilities and undertake such other activities that will benefit the members of the association.

5 — For such other expenditures as are necessary providing every expenditure is beneficial to all members of the association.

On April 10, 1977, the developer executed a power of attorney, in effect delegating to the association its rights to enforce the deed restrictions, conditions and covenants, including paragraph 12 relating to payment of dues and assessments. The power of attorney is revocable upon four months’ written notice to the association.

The association seeks to recover from defendants the 1977 assessment in the amount of $105.

DISCUSSION

Defendants’ preliminary objections, in the form of a demurrer, consist of three arguments:

(1) that plaintiff lacks standing to enforce the covenant;

(2) that the covenant is unenforceable against non-members of the association; and

[382]*382(3) that the covenant is too vague or indefinite to be capable of enforcement.

We reject all three contentions for the reasons which follow.

(1) DOES PLAINTIFF HAVE STANDING?

Defendant’s attack on plaintiff’s standing is a two-pronged argument: first, that plaintiff is not the real party in interest within the meaning of Pa.R.C.P. 2002(a); and, second, that plaintiff is not within that category of parties which the covenant contemplated to be benefited.

Pa.R.C.P. 2002(a) provides that “all actions shall be prosecuted by and in the name of the real party in interest.” The party who can control a particular action and who has the right to discharge the obligation sought to be enforced is the real party in interest within the meaning of the rule: Smiler v. Toll, 373 Pa. 127, 94 A. 2d 764 (1953). Further, it is well established that an assignee of a chose in action is the real party in interest, and not the original obligee thereunder: Butler Fair and Agriculture Assn. v. Butler School District, 389 Pa. 169, 132 A. 2d 214 (1957); Wilcox v. Regester, 417 Pa. 475, 207 A. 2d 817 (1965).

Applying these principles to the facts presented, it appears clear to us that plaintiff, and not the developer, is the real party in interest to enforce the provisions of the covenant. The power of attorney, pleaded in the complaint and attached thereto as exhibit “D,” indicates that plaintiff possesses full authority to control any action brought to enforce [383]*383the covenant, including any settlement or compromise thereof. We therefore find that plaintiff is the real party in interest herein.

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Related

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331 A.2d 755 (Superior Court of Pennsylvania, 1974)
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243 A.2d 444 (Supreme Court of Pennsylvania, 1968)
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94 A.2d 764 (Supreme Court of Pennsylvania, 1953)
Adams v. Speckman
122 A.2d 685 (Supreme Court of Pennsylvania, 1956)
Wilcox v. Regester
207 A.2d 817 (Supreme Court of Pennsylvania, 1965)
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Milford Township Appeal
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Butler Fair & Agricultural Ass'n v. Butler School District
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Bluebook (online)
7 Pa. D. & C.3d 378, 1978 Pa. Dist. & Cnty. Dec. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holiday-pocono-civic-assn-v-benick-pactcomplcarbon-1978.