J. A06012/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NATURES WAY SPRINGS L.P., IND, AND : IN THE SUPERIOR COURT OF AS A MEMBER OF LEHIGH POINTE : PENNSYLVANIA PROPERTY OWNERS ASSOC. AN UNINC. : ASSN., : : Appellant : : v. : : C. PANEL HOLDING LLC ET AL, : : No. 1222 MDA 2015
Appeal from the Judgment Entered July 6, 2015 In the Court of Common Pleas of Luzerne County Civil Division No(s).: 2011-09037
BEFORE: LAZARUS, J., STABILE ,J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 25, 2016
Appellant Nature’s Way Springs L.P., individually and as a member of
Lehigh Pointe Property Owners Association, appeals from the judgment
entered in its declaratory judgment action by the Luzerne County Court of
Common Pleas on July 6, 2015, in favor of Appellees, C. Panel Holding, LLC,
Clarence and Helen S. Peterson, Tamorah P. Murray, Diane M. Jellen, John
McCaffery and Louise F. Hoekstra, James C. Petty and Wallace L. Blore,
Matthew Benzinger, and Northumberland National Bank, as trustee of
Micheal Apfelbaum, SEP-IRA. After careful review, we affirm.
The trial court set forth the relevant factual and procedural history of
this case in its April 29, 2015 Opinion and we adopt its recitation for
purposes of this Appeal. We summarize as follows. J.A06012/16
At issue in this matter is the deterioration of a road and culvert located
in Lehigh Pointe, a primarily residential area, and a “restrictive covenant”
requiring, among other things, the owners of the lots in Lehigh Pointe to
share in the costs of road maintenance equally. Appellant filed a declaratory
judgment action seeking a ruling that Appellees were obligated to share in
the cost of the repair of a roadway traversing the area. After completing
discovery, Appellant moved for summary judgment. The trial court denied
the motion and the matter proceeded to a bench trial on Appellant’s request
for declaratory relief. Following the trial, the court denied the relief
Appellant sought, holding that the relevant “restrictive covenant” was
actually an easement, and Appellant’s commercial use of 80,000 pound
vehicles to traverse the shared roadway was an unreasonable use of that
easement. Significantly, the trial court made the following findings of fact:
1. Lehigh Pointe was originally intended to be a residential community, the development of which was to take place in phases.
2. Development stalled before the first phase was complete.
3. No Lehigh Pointe Property Owners Association was ever formed.
4. Pointe Drive was intended for residential traffic.
5. The Lehigh Pointe property owners’ deeds created a reciprocal scheme of easements granting each property owner the rights of ingress and egress over Pointe Drive.
6. [Appellant’s] property was a dominant estate with regard to the easement over the Pointe Drive culvert.
-2- J.A06012/16
7. A significant portion of the damage to the Pointe Drive culvert was caused by the introduction and continuation of significant truck traffic to and from the commercial spring.
Trial Ct. Op. at 13.
Issues on Appeal
Appellant raises the following three issues on appeal:
1. Are the owners of a jointly held easement, created by the filing of a plot plan after approval by a local government unit, bound by the “restrictive covenants” clearly recited in the plan calling for the property owners to “share road maintenance costs equally?”
2. Even if [ ] Appellant can be held to have exceeded the “reasonable scope” of its easement, should it be held to be solely responsible to repair the roadway, even though it had only come into possession of its property rights in 2008 whereas the roadway in question was constructed many years earlier?
3. Should summary judgment have been granted requiring the owners of the joint easement created in a filed subdivision plan to “share road maintenance costs equally” where there was no ambiguity in the “restrictive covenants” and no restrictions placed on any easement holder’s use of the shared easement?
Appellant’s Brief at 4.
Legal Analysis
Our standard of review in a declaratory judgment action is as follows:
We review the decision of the trial court as we would a decree in equity and set aside factual conclusions only where they are not supported by adequate evidence. We give plenary review, however, to the trial court’s legal conclusions.
-3- J.A06012/16
In reviewing a declaratory judgment action, we are limited to determining whether the trial court clearly abused its discretion or committed an error of law.
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason.
Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa. Super. 2007)
(citations and quotation marks omitted).
Further, this Court had set forth our standard of review of a decision
rendered following a non-jury trial as follows:
[W]e recognize that findings of the lower court will not be disturbed on appeal absent a clear abuse of discretion or error of law. It is equally axiomatic, however, that this court is not bound by the trial court’s conclusions of law but is free to draw its own inferences and conclusions from the facts as established.
Minteer v. Wolfe, 446 A.2d 316, 318 (Pa. Super. 1982) (citations omitted).
Issue 1
Appellant first claims that the trial court erred in not requiring that the
owners of the lots in Lehigh Pointe share on a pro rata basis the cost of road
maintenance as required by Restrictive Covenant 6 of the Lehigh Pointe
subdivision plan, recorded in Luzerne County on August 5, 1987.
Restrictive Covenant 6 states: “All roads in Lehigh Pointe are not to be
dedicated for public use and will be private. All purchasers of lots will
-4- J.A06012/16
automatically become members of Lehigh Pointe Property Owners
Association and will share road maintenance costs equally.” RR at 102a.
The trial court found that, although listed on the subdivision plan as a
restrictive covenant, the purpose of Restrictive Covenant 6 was 1) to prevent
the roads in Lehigh Pointe from being publically dedicated; 2) to make all
purchasers of Lehigh Pointe lots members of the property owners
association; and 3) to require all purchasers of Lehigh Pointe lots to share
road maintenance costs equally. Trial Ct. Op. at 9. The court concluded
that only the prohibition against publicly dedicating the roads in Lehigh
Pointe was truly a restrictive covenant, and the remaining “restrictive
covenants” were actually easements.1 Id. As noted above, the trial court
found that the property owners’ deeds created “a reciprocal scheme of
easements granting each property owner the rights of ingress and egress
over Pointe Drive.” Id. at 13.
The trial court then determined that the primary issue presented in
this case is the scope of the easement granting the right of way over Pointe
Drive. Id. at 14. The court interpreted the easement grant using the rules
of contract construction, noting that “where the grant of an easement is
unrestricted, the grantee is given such rights as are necessary for the
reasonable and proper enjoyment of the thing granted.” Trial Ct. Op. at 10-
1 Appellant does not contest the trial court’s finding that many of the “restrictive covenants” listed on the subdivision plan are easements.
-5- J.A06012/16
11, (citing Zettlemoyer v. Transcontinental Gas Pipeline Corp, 657 A.2d
920, 924 (Pa. 1995) and Lease v. Doll, 403 A.2d 558 (Pa. 1979)). As our
Supreme Court recognized in Lease, “when the terms of an express grant
are general, ambiguous, and not defined by reference to the circumstances
known to the grantee at the time of the grant . . . the easement may be
used in any manner that is reasonable.” Lease, 403 A.2d at 562.
Here, the trial court determined that “the language of Lehigh Pointe
property owners’ deeds does not specify the scope of the right of way.” Trial
Ct. Op. at 14. Accordingly, because there were no explicit restrictions in
Appellant’s easement over Pointe Drive, the court concluded that Appellant
“may use the easement in any reasonable manner.” Id. After considering
the evidence and testimony, and conducting a judicial viewing of Lehigh
Pointe, the trial court concluded that Appellant’s use of Point Drive
"exceed[ed] the reasonable scope of the easement [it] possessed over
Pointe Drive.” Id. at 15.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive and well-reasoned opinion of the trial
court, we conclude that there is no merit to Appellant’s first issue on appeal.
Accordingly, we affirm on the basis of the trial court’s opinion as to
Appellant’s first issue. See id. at 14-16.
-6- J.A06012/16
Issue 2
Appellant next avers that the trial court erred by holding Appellant
responsible for its own conduct as well as for that of the prior owners of
Appellant’s commercial lot.2 Appellant contends that it should not be legally
liable for damage caused by parties other than Appellant, and baldly claims
that the trial court erred in concluding that the “‘reasonable use’ of the
easement ran with the land.” Appellant’s Brief at 34-35. Appellant
characterizes the trial court’s conclusion as follows: “the court essentially
held that even though [Appellant] only owned its lot since 2008, [Appellant]
would be responsible for the rusting out of the culvert over the twenty plus
years the culvert had been in place.” Id. at 34.
After considering the testimony of the parties’ engineering experts, the
trial court specifically determined that the stresses on Pointe Drive came
from the increased weight and frequency of commercial truck traffic
travelling on it. Trial Ct. Op. at 15. The court recognized that some natural
deterioration of the culvert had occurred, but ultimately determined that
“the culvert would not have failed when it did but for the trucks frequently
passing over it.” Id. The court thus concluded that the actions of Appellant
and its predecessors in interest, in exceeding the reasonable scope of the
easement they possessed over Pointe Drive, caused the need for significant
2 Appellant’s predecessor also operated 80,000 pound commercial vehicles over the easement.
-7- J.A06012/16
repairs to Pointe Drive. Id. The court found that Appellant was the
“dominant estate” and, as such, is “obligated to remedy the damage
themselves.” Id. at 16.
Appellant’s characterization of the court’s ruling is misleading. In
seeking a declaratory judgment, Appellant sought only a determination that
Appellees must contribute to the past and future costs of repairing and
maintaining Pointe Drive and the culvert under it. The court denied this
relief, finding that Appellants are “not obligated to contribute to the
construction done on the culvert at issue in this matter.” Id. at 16.
Contrary to Appellant’s averment, this ruling does not hold Appellant
responsible for damage caused by its predecessors in interest. In fact,
nothing in the court’s ruling in this declaratory judgment action precludes
Appellant from attempting to obtain remuneration from its predecessors in
interest. Appellant’s second issue lacks merit.
Issue 3
Appellant claims in its third issue that the trial court erred in not
granting its Motion for Summary Judgment. Appellant argues that because
it submitted certified copies of the deeds of each of the Appellees and “the
language of the easements and covenants in question [was] clear and
unambiguous,” there were no material facts at issue and the trial court have
enforced the covenants as written at the summary judgment stage.
Appellant’s Brief at 37.
-8- J.A06012/16
We review a grant of summary judgment under the following well-
settled standards:
Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non- moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.
On appeal from a grant of summary judgment, we must examine the record in a light most favorable to the non- moving party. With regard to questions of law, an appellate court's scope of review is plenary. The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion. Judicial discretion requires action in conformity with law based on the facts and circumstances before the trial court after hearing and consideration.
Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super 2008)
(citation and quotation omitted).
In response to Appellant’s motion, Appellees noted that there were
many disputed facts concerning the enforceability of Covenant 6 including:
1) whether the property owners had abandoned the restrictive covenant; 2)
-9- J.A06012/16
whether Appellant overburdened its easement; 3) whether the character of
the neighborhood had changed owing to Appellant’s trucking operations
rendering the covenant unenforceable; 4) whether Appellant knew that there
was no property owners association in existence; 5) whether Appellant knew
that its predecessors in interest had paid for road maintenance needed
because of their trucking operations; 6) whether the road repairs asserted
by Appellant were actually necessary when the road remained passable by
passenger vehicles at the time of the repair; and 7) whether Appellant had
obtained its property for a lower purchase price because Appellant knew it
would be responsible for road maintenance. Br. in Opp’n to Pl.’s Mot. for
Summ. J., 11/29/12, at 3.
Appellant’s argument that there were no issues of material fact is
belied by our review of the record, in particular the 287 pages of trial
testimony taken over the course of two days. At the time that Appellant
filed its Motion for Summary Judgment, the trial court correctly determined
that myriad issues of material fact existed so that entry of summary
judgment in Appellant’s would have been imprudent. The parties presented
those issues of fact at trial where the court heard testimony from lay
persons and experts about, among other things, the character of the
development and the cause of the damage to Pointe Drive.
- 10 - J.A06012/16
The trial court did not abuse its discretion in determining that there
were issues of material fact and that Appellant was not entitled to judgment
as a matter of law.
Judgment affirmed. Case remanded. Jurisdiction relinquished.
Judge Lazarus joins this Memorandum.
Judge Stabile files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/25/2016
- 11 - Circulated 04/18/2016 03:47 PM
NATURE'S WAY SPRINGS, L.P., : IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY Plaintiff
vs. CIVIL ACTION - LAW
CPANEL HOLDINGS, LLC; CLARENCE AND HELEN S. PETERSON;: T AMORAH P. MURRAY; DIANE M. JELLEN; JOHN McCAFFERY and LOUISE F. HOEKSTRA; - ~ c:.n ~ ~ JAMES C. PETTY and BLORE L. N WALLACE; \.D
MATTHEW BENZINGER; -0 :J' LEHIGH POINTE PARTNERS; and NORTiillMBERLAND NATIONAL ~ ~ BANK, as trustee of Michael Apfelbaum (J1
SEP-IRA,
Defendants : NO. 9037 of2011
OPINION
This Opinion arises from a Complaint for Declaratory Judgment filed on July 12,
2011 by Plaintiff Nature's Way Springs, L.P. seeking a declaration that 1) the captioned
Defendants are required to contribute towards past and future repairs performed on a
common roadway and 2) the Defendants, along with Plaintiff, must form and incorporate
the Lehigh Pointe Property Owners Association as contemplated by a subdivision plan
filed in 1987.
For the reasons that follow, this court finds in favor of the Defendants.
f EXHIBIT
z A ' FACTUAL BACKGROUND
The Plan
This case involves a 209.29-acre tract of land in Foster Township, Pennsylvania,
originally purchased by Boulder Run Corporation in 1985. In 1987, Boulder Run
Corporation submitted a subdivision plan (the "Plan") for the tract of land, calling the
tract the Lehigh Pointe Development ("Lehigh Point"). The Plan contained the following
relevant "General Notes":
1. Owner of record is Boulder Run Corporation, R.D. 1, Box 1518, White Haven,
PA 18661.
2. Total number oflots is 10 plus the remainder of the tract.
3. Total area being subdivided is 33.43 acres.
4. Total area remaining is 175.86 acres.·
5. All lots to be served with individual wells.
6. All lots to be served with on-lot sewage systems contingent upon the local sewage
enforcement officer's approval and recommendation.
7. Five (5) foot contour interval based on 1929 mean sea level datum.
8. The entire tract is wooded.
9. The development of the entire tract to take place in phases.
l 0. A twenty (20) foot wide utility easement, centering on and running parallel with
all lot, property, and right-of-way lines, shall be provided.
2 The Plan also specified six numbered restrictive covenants, the last of which 1 ("Covenant 6',) is crucial to the present litigation. Covenant 6 reads as follows:
"All roads in LEHIGH POINTE are not to be dedicated for public use and
will be private. All purchasers of lots will automatically become members
of Lehigh Pointe Property Owners Association and will share road .
maintenance costs equally."
The Plan was approved by the Board of Supervisors of Foster Township on June
9, 1987, and was recorded in Luzerne County on August 5, 1987.
The Pointe Drive Culvert
The only means of vehicular access to Lehigh Pointe is via Pointe Drive, a private
dirt road. Accessible on the west from State Route 940, Pointe Drive runs east for about
a third of a mile, at which point it splits, with River Drive proceeding east to the ten
numbered lots and Pointe Drive continuing south to the remainder of the tract. Both
River Drive and Pointe Drive terminate in dead-ends,
Approximately a quarter-mile east of State Route 940, shortly before River Drive
splits off, Pointe Drive passes over a culvert, the eventual deterioration of which is the
inciting factor in this litigation. The culvert, which was constructed at some point before
1987, was originally 10 feet in diameter and made of a corrugated metal material. The
1 The other Restrictive Covenants are: 1. Wells & Sewage Disposal Systems shall be constructed in accordance with standards set forth by The Department of Environmental Resources. 2. No Mobile Homes will be permitted on any Jot. 3. All lots shall be kept neat and orderly. 4. Only licensed pleasure vehicles may be parked or stored on any lot if not garage kept. 5. Any driveway entrance shall make adequate provision for parallel drainage facilities.
3 culvert, the top of which was located approximately 18 feet below the surface of Pointe
Drive, allowed a smal1 creek to pass beneath the road. In order to reach any of the
structures that have been built in Lehigh Pointe, one must drive over the culvert,
Conveyance of Deeds
It is agreed that each of the parties in this case can trace the ownership of their
respective parcels back to the Boulder Run Corporation. The chains of title for the
following parties are relevant:
Plaintiff Natures Way Springs, L.P.
Plaintiff attained title to its 75 acre lot by conveyance from Group Mountain
Springs via deed dated August 29, 2008. Group Mountain Springs had owned the lot
from July 10, 2002 to August 29, 2008. Prior to this, the lot was owned by Tulpehocken
Spring Water Company, Inc. ("Tulpehocken") (October 12, 1999 to July 10, 2002) and
Boulder Run Corporation (October 8, 1985 to October 12, 1999). Language in each deed
in this chain of title subjects the property to the "benefits, privileges, easements,
exceptions, reservations, restrictions, covenants, terms and conditions contained in prior
deeds in the chain of title."
Defendant Lehigh Pointe Partners
Defendant Lehigh Point Partners attained title to its 101 acre lot by conveyance
from Darlene and Gregory S. Ladner via deed dated November 17, 1999. The Ladners
had owned the lot from October 14, 1998 to November 17, 1999. Prior to this, the lot
4 was owned by Russel Minerals (Pennsylvania), Inc. (September 21, 1989 to October 14,
1998), First Penn Land Company, Inc. (September 15, 1988 to September 21, 1989) and
Boulder Run Corporation (October 8, 1985 to September 15, 1988).
Other Defendants
The other Defendants in this case are owners of the 10 numbered lots designated
in the Plan. Each of these Defendants' deeds specifies which numbered lot described,
referencing the Plan directly.
Language of the Deeds
Each deed contains roughly the same language regarding the use of the roads in
Lehigh Pointe, including Pointe Drive:
SUBJECT to and including a right-of-way unto Boulder Run Corporation
and any grantees of Boulder Run Corporation presently of record, its
successors and assigns, over the fifty (50) foot right-of-ways as shown on
the plot plan of Lehigh Pointe, Sections II and III, designated as Laurel
Drive, Butte Drive and Pointe Drive.
Use of the Properties/Development of the Tract
Following the approval of the Plan in 1987, development of Lehigh Pointe
proceeded inconsistently. Houses were constructed on some, but not all, of the ten
numbered lots, and the remaining 175.86 acres remained unoccupied until 1999, when
Tulpehocken purchased the 75 acre lot. Shortly thereafter, Tulpehocken developed a
5 commercial spring on the lot, and began removing water from underground. The spring
operation continues to this day.
As part of the spring operation, tanker trucks began driving the length of Pointe
Drive to reach the spring and remove water from the site. Testimony at trial showed that
Tulpehocken and each of its successors in interest, including Plaintiff, performed some
work on the surface of the roadway at their own expense to keep it passable by trucks, but
the frequency and extent of this work was not established.
From the approval of the Plan until 2011, no Lehigh Pointe property owner made
any attempt to convene, organize, or otherwise utilize the Lehigh Pointe Property Owners
Association as was contemplated in Covenant 6.
Failure of the Culvert
In April 2011, while performing maintenance work on the road surface, Plaintiff
noticed deterioration of the culvert and the road passing over it. A hole approximately 3
feet in diameter had formed on the roadway, and quickly widened to 20 feet in diameter
following storms. In order to reduce the load on the culvert and prevent further
deterioration, Plaintiff removed all but approximately three of the twenty feet of cover
above the culvert.
Shortly after the hole was discovered, Plaintiff undertook emergency temporary
repairs.2 On June 7, 2011, after the temporary repairs were complete, Plaintiff sent each
owner of Lehigh Pointe property a letter stating that:
2 Plaintiff characterizes these repairs as being necessary to keep the road passable to vehicular traffic; Defendants state that cars could still pass over the culvert and that the repairs were only necessary to keep the road passable by trucks.
6 Due to the deterioration of the culvert, Plaintiff had undertaken emergency
repairs, the cost of which amounted to $45,480.1 O;
Although no Property Owners Association had been officially formed or
convened, each property owner was a member of the Association pursuant to
Covenant 6, and thus each property owner was required to cover a portion of
the cost of these repairs; and
Due to the nature of the damage to the culvert, further permanent repair to the
road would be necessary in the near future.
The letter requested that each property owner pay a pro rata share of the $45,480. 10
corresponding to the portion (by acreage) of Lehigh Pointe belonging to that property
owner.'
A subsequent inspection of the culvert by Jim Hendricks, P.E., who later served
as a trial expert for Plaintiff, revealed significant deterioration. The top of the culvert
was bent and buckled at places, such that the diameter of certain areas of the culvert was
reduced from 9 feet to less than 7 feet. The bottom of the culvert had rusted in multiple
spots, and in places the sides of the culvert had rotated downward and curved into the
culvert. Hendricks concluded that the culvert was at risk of catastrophic failure at any
time.
3 The proposed breakdown of payments was as follows: I. cPanel Holding LLC: 6.43 acres, 3.07% of original parcel, $1,397.82 pro rata share; 2. Clarence & Helen Peterson: 10.00, 4.78%, $2,173.90; 3. Tamarah P. Murray: 3.01, 1.44%, $654.34; 4. Diane M. Jellen: 3.97, 1.90%, $863.04; 5. John McCaffiey & LouiseF. Hoekstra: 1.94, .93%, $421.74; 6. Victor Capo: 3.88, 1.85%, $843.48; 7. James C. Petty & WallaceL. Blore: l.94, .93%, $421.74; 8. Matthew Benzinger: 2.00, .96%, $434.78; 9. Lehigh Point Partners: 100, 47.80%, $21,738.97; 10. Nature's Way Springs: 76.04, 36.35%, $16,530.31.
7 PROCEDURAL HISTORY
On July 12, 2011, a little over a month after Plaintiff sent the letter to the other
Lehigh Pointe property owners, Plaintiff filed a Declaratory Judgment Action seeking to
have the court declare Covenant 6 valid and applicable; in particular, Plaintiff wished to
require Defendants to contribute to the cost of past and future repairs to the road and to
participate in the formation of the Lehigh Pointe Property Owners Association. Plaintiff
also sought costs and fees associated with the litigation.
Following the resolution of preliminary objections, separate Answers to the
Declaratory Judgment Action were filed by the following groups of Defendants:
cPanel Holdings, LLC, Helen S. Peterson, John McCaffery, Louise F.
Hoekstra, Matthew Benzinger, Lehigh Pointe Partners, and Northumberland
National Bank as trustee of Michael Apfelbaum SEP-IRA;
Tamorah P. Murray; and
Diane M. Jellen.
No Answer was filed by Defendants James C. Petty and Wallace L. Blore," and a default
judgment was entered against these Defendants on June 13, 2012.5
As litigation was ongoing, Plaintiff solicited bids for permanent repairs to the
road and culvert. On November 12, 2013, Plaintiff sent the other Lehigh Pointe property
owners a letter informing them that construction was to begin within 60 days. On
4 Wallace L. Blore was incorrectly identified as Blore L. Wallace in the caption of this case and on most of the related documents. 5 Defendants Petty and Blore submitted to Plaintiff the amount Plaintiff identified as their pro rata share, but this payment was not received until after they had been named as Parties to the action. Defendants Petty and Blore testified that they paid their share because they believed that it was fair for them to contribute to the payments and that a property owners association should be formed,
8 January 3, 2014, Plaintiff sent another letter to the property owners, advising that the
ongoing construction was estimated to cost a total of $183,928.
The matter was set for a non-jury trial, the first phase of which commenced on
January 12, 2015. This first phase was held strictly to determine if Plaintiff was entitled
to declaratory judgment, and any discussion of damages was to be held at a later date if
necessary. Because this court finds in favor of the Defendants, no further proceedings are
required.
RELEVANT LAW
A survey of Pennsylvania case law reveals no situation extremely similar to the
case at hand. This case raises fairly complex issues that implicate the law of covenants
(restrictive and otherwise), easements, property owners' associations, and general
equitable principles. This section will discuss these areas of the law in tum.6
Covenants
Although Covenant 6 is listed on the Plan as a "Restrictive Covenant," and the
Parties treat it as such, it really purports to accomplish three things, only one of which is
"restrictive": 1) prevent the roads in Lehigh Pointe from being publicly dedicated; 2)
make all purchasers of Lehigh Pointe lots members of the Property Owners Association;
and 3) require all purchasers of Lehigh Pointe lots to share road maintenance costs
equally. As such, both the laws of restrictive covenants and of other real covenants are
relevant to the case at hand.
6 In addition to these areas of law, Defendants raise additional legal issues such as the statute of frauds, the doctrine of I aches, and the statute of limitations. Because we find that these issues do not apply to the case at hand, we decline to discuss them here.
9 The interpretation of covenants in deeds is necessarily guided by principles of
contract law. See, e.g., In re Mather's Estate, 189 A.2d 586, 589 (Pa. 1963);
Baumgardner v. Stuckey, 735 A.2d 1272, 1274 (Pa. Super. 1999). As in other forms of
contractual interpretation, when dealing with covenants "[i]t is fundamental that the
intent of the parties governs and that such intent must be ascertained from the entire
instrument. ... " Mishkin v. Temple Beth El of Lancaster, 239 A.2d 800, 803 (Pa. 1968)
(citing Mather's Estate). Such intent is ascertained "by examining the language of the
covenant in light of the subject matter thereof, the apparent purpose of the parties and the
conditions surrounding execution of the covenant." Gey v. Beck, 568 A.2d 672, 675 (Pa.
Super. 1990).
Easements·
As is the case with covenants, "[iJt is well established that the same rules of
construction that apply to contracts are applicable in the construction of easement
grants.'' Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657 A.2d 920, 924 (Pa.
1995). Zettlemoyer succinctly states these rules:
In ascertaining the scope of an easement [when not ambiguously
specified), 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." Where the grant of an easement is unrestricted, the
10 grantee is given such rights as are necessary for the reasonable and proper
enjoyment of the thing granted.
Id., internal citations omitted. Similar principles are described in Lease v. Doll:
In ascertaining the scope of an easement created by express grant, the
intention of the parties to the grant must be advanced .... Moreover, when
the terms of an express grant of an easement are general, ambiguous, and
not defined by reference to the circumstances known to the grantee at the
time of the grant, the express easement is to be construed in favor of the
grantee, and the easement may be used in any manner that is reasonable.
Lease v. Doll, 403 A.2d 558, 562-63 (Pa. 1979).
In general, "where an easement is used and enjoyed for the benefit of a dominant
estate, it is the owner of the dominant estate who is under obligation to keep the easement
in good repair; and he may be liable to third persons if he fails to keep the right of way in
a proper state of repair," Mscisz v. Russel, 487 A.2d 839, 840 (Pa. Super. 1984). "The
owner of a dominant estate may not exercise the rights granted to him or her without
regard to the rights of the servient owner." Purdy v. Zaver, 580 A.2d 1127, 1131 (Pa.
Property Owners Association
There is relatively little case law describing the common law creation of property
owners associations. In 1996, Pennsylvania enacted the Uniform Planned Community
Act (the "UPCA", 68 Pa. C.S.A. § 5101 et seq.), which codified the creation and
maintenance of planned communities; only some of the UPCA's provisions apply
11 retroactively. 68 Pa. C.S.A. § 5102. In particular, Section 5301 of the UPCA, regarding
the organization of unit owners' associations, only applies to communities created after
the enactment of the UPCA. 7
Property owners associations generally have the authority to collect fees for the
maintenance of roads and common areas, regardless of the existence of a written
agreement with individual property owners. See Meadow Run and Mountain Lake Park
Ass'n v. Berkel, 598 A.2d 1024, 1026 (Pa. Super. 1991). The UPCA's provisions
regarding assessments for common expenses do apply to planned communities created
before 1996, though "only with respect to events and circumstances occurring after
[2004] and [as long as they] do not invalidate specific provisions contained in existing
provisions of the declaration, bylaws or plats and plans" of such communities. 68 Pa.
C.S.A. § 5102(b.l)(l). Under the UPCA, "Except as provided by the declaration [that
created the planned community] ... If a common expense is caused by the negligence or
misconduct of any unit owner, the association may assess that expense exclusively
against his unit." 68 Pa. C.S.A. § 5314(c)(4).
7 Although not binding, it is worth noting that Section 5301 of the UPCA, regarding the organization of unit onwers' associations, states that "[a] unit owners' association shall be organized no later than the date the first unit in the planned community is conveyed to a person other than a successor declarant... The association shall be organized as a profit or nonprofit corporation or as an unincorporated association." In the present case, the first effort made by any party to organize a Lehigh Pointe Property Owners Association took place more than twenty years after the first conveyance of lots.
12 FINDINGS OF FACT/DISCUSSION
1. Lehigh Pointe was originally intended to be a residential community, the
development of which was to take place in phases.
3. No Lehigh Pointe Property Owners Association was ever formed.
5. The Lehigh Pointe property owners' deeds created a reciprocal scheme of
easements granting each property owner the rights of ingress and egress over Pointe
Drive.
6. Plaintif Ps property was a dominant estate with regard to the easement over the
Pointe Drive culvert.
7. A significant portion of the damage to the Pointe Drive culvert was caused by the
introduction and continuation of significant truck traffic to and from the
commercial spring.
13 The primary issue in this case comes down to the scope of Plaintiff's right-of-way
over Pointe Drive. In looking both at the easement granting the right-of-way- and the
associated Covenant 6 - general principles of contract construction must apply.
Plaintiff has argued that it in fact holds a servient estate over Pointe Drive, as
evidenced by the language in Plaintiff's deed reserving a right of way for Boulder Run
Corporation and its successors and assigns. This language, though, doesn't grant Plaintiff
a property interest; what this language, which is present in each property owner's deed,
appears to accomplish is to guarantee that each property owner will have the right to use
all portions of the roads, regardless of which parcel the road passes through.
We note that the right-of-way language in the Lehigh Pointe property owners'
deeds does not specify the scope of the right of way. Thus, under Zettlemoyer and Lease,
the intention of the parties that created the easement - as informed by a reading of the
whole document, which in this case consists of not only the deeds but the Plan - must be
ascertained. Zettlemoyer, 657 A.2d at 924; Lease, 403 A.2d at 562-63. As there are no
explicit restrictions in Plaintiffs easement over Pointe Drive, the Plaintiff may use the
easement in a reasonable manner.
An inspection of the Plan, along with the testimony elicited at trial, suggests that
Lehigh Pointe was originally intended to be a large residential community. The Plan
splits one area of the lot into 10 numbered lots, and notes that "future development" will
occur. There were plans for a "pedestrian nature walk." The restrictive covenants and
general notes address issues that would be common in residential communities.8
However, not even the first phase of residential development was completed as planned,
8 General Notes 5, 6, 8, 9 and 10 suggest a residential character, as do each of the Restrictive Covenants.
14 and Lehigh Pointe remained a large> wooded tract with a scattering of houses until 1999 >
when the commercial spring began.
When Plaintiffs predecessors in interest began introducing truck traffic to Pointe
Drive, the residential character of Lehigh Pointe was changed, and Pointe Drive - a
relatively small dirt road - was subjected to new stresses. After careful consideration of
the evidence presented, including each Party's expert testimony and a judicial viewing of
Lehigh Pointe, this Court finds that a significant portion of the damage to the culvert was
caused by the increased weight and frequency of traffic on Pointe Drive and is therefore
directly attributable to Plaintiff and its predecessors in interest. Although it is clear that
some natural deterioration of the culvert had occurred, the damage to the culvert would
not have been nearly as significant had there only been residential traffic, and the culvert
would not have failed when it did but for the trucks frequently passing over it.
Ultimately, the need for significant repairs was caused by Plaintiff and its predecessors in
interest exceeding the reasonable scope of the easement they possessed over Pointe
Drive, and thus, as the dominant estate, it is the responsibility of Plaintiff to repair the
damage caused.
It is worth noting further that the Court finds that no Lehigh Pointe Property
Owners Association was ever formed. This Court can find no case law directly stating
that such an association can be created simply by a covenant in a subdivision plan
without any further action from any party. Although Plaintiff claims that the Property .
Owners Association was simply not to be organized until it was needed, this Court can
find no reason to allow the intended association to be created after 24 years of not only
inactivity but literal nonexistence. The Lehigh Pointe Property Owners Association was
15 simply another piece of the Plan that was not developed as intended, and thus the
property owners of Lehigh Pointe cannot be reasonably expected to have acted as though
the association exists.
Regardless of the existence of the Property Owners Association, however, the
matter is decided by the evidence which showed that Plaintiff and its predecessors in
interest exceeded the scope of the easement, thereby causing deterioration, and are
therefore obligated, as the dominant estate, to remedy the damage themselves.
CONCLUSION
For the reasons stated above, this court finds in favor of the Defendants, and holds
that the Defendants are not obligated to contribute to the construction done on the culvert
at issue in this matter. An Order to this effect is attached as page 17.
The Prothonotary is directed to enter this Opinion and the attached Order of
record, and mail a copy to all counsel ofrecord, pursuant to Pa. R.C.P 236.