HomeMy WebLinkAbout2016-02111
CARMELLA CONDOMINIUM: IN THE COURT OF COMMON PLEAS OF
ASSOCIATION I, INC.,: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff:
:CIVIL ACTION
v.:
:
DD&K.2.B, LLC, DD&K.2,:
INC., LANDMARK BUILDERS,:
INC.,:
Defendants: NO. 2016-02111CIVIL TERM
IN RE: MOTIONS FOR SUMMARY JUDGMENT
BEFORE SMITH and HYAMS, JJ.
OPINION and ORDER OF COURT
January 13
HYAMS, J., ,2022.
Inthis civil action, a condominium association has sued the condominiums
1
declarant,its corporate predecessor,and a thirdcompany,and the third companyhas
2
filed a counterclaimagainst theplaintiff.For disposition at this time arefour summary
judgmentmotions: a motion for partial summary judgment filed by Plaintiff on one of its
3
claimsagainstthedeclarant;a motion for summary judgment filed by thedeclarant and
1
See Fourth AmendedComplaint, filed November 28, 2016 (hereinafter Plaintiffs Fourth Amended
Complaint).
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Defendant Landmark Builders, Inc.s Answer, New Matter, and Counterclaim to Plaintiffs Fourth
Amended Complaint,filed July 17,2017 (hereinafterAnswer ofDefendantLandmarkBuilders, Inc.,to
Plaintiffs Fourth Amended Complaint, with Counterclaim).
A cross-claimfiled by the first two defendants against the third companyhas been withdrawn. See
AnswerwithNew Matter of Defendants DD&K.2.B, LLCand DD&K.2,Inc.to Plaintiffs Fourth
Amended Complaint, filed July 27, 2017(hereinafter Answer of Defendants DD&K.2.B, LLC, and
DD&K.2, Inc.to PlaintiffsFourth Amended Complaint); Praecipe To Withdraw Cross Claimof
Defendants DD&K.2.B, LLC,andDD&K.2, Inc.,filed July9, 2020.
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Plaintiff Carmella Condominium Associations Motion for Partial Summary Judgment against
Defendant, DD&K.2.B, LLC for Failure To Pay CommonExpense Assessments on Units It Ownedas
Requiredbythe Uniform Pennsylvania Condominium Act, filed August 31,2021 (hereinafterPlaintiffs
Motionfor Partial Summary Judgment onPlaintiffsClaim against Defendant DD&K.2.B, LLC).
1
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its corporate predecessor on Plaintiffs claims against them; a motion for partial
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summary judgment filed by the third company on Plaintiffs claims against it; and a
motion for summary judgment filed by Plaintiff on the third companys counterclaim
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against it.
Oral argument was held on these matters on November 12, 2021. For the reasons
stated in this opinion, the motions for summary judgment will be denied.
STATEMENT OF FACTS
This case was commenced by the filing of a praecipe for writ of summons on
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April 18, 2016. The facts alleged in Plaintiffs fourth amended complaint, filed
November 28, 2016, may be summarized as follows:
In 2005, Defendant DD&K.2, Inc., executed \[Plaintiff\] Associations Articles of
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Incorporation, and the following year, in the course of a reorganization of Defendant
DD&K.2, Inc., into Defendant DD&K.2.B, LLC, the former transferred to the latter
certain real estate in Cumberland County, Pennsylvania, which is involved in this
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litigation. On February 21, 2008, Defendant DD&K.2.B, LLC created \[the subject\]
Condominium by virtue of recording the Declaration of Condominium of Carmella
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Condominium Associates I, Inc.
4
Defendants DD&K.2.B, LLC and DD&K.2, Inc.s, Motion for Summary Judgment, filed August 31,
2021 (hereinafter Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on
Plaintiffs Claims against Them).
5
Motion for Partial Summary Judgment, filed August 31, 2021 (hereinafter Motion for Partial Summary
Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims against It).
6
Motion for Summary Judgment of Counterclaim Defendant Carmella Condominium Association I, Inc.,
filed September 1, 2021 (hereinafter Motion for Summary Judgment of Plaintiff on Counterclaim against
It of Defendant Landmark Builders, Inc.).
7
Praecipe for Writ of Summons, filed April 18, 2016.
8
Plaintiffs Fourth Amended Complaint, ¶31.
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Plaintiffs Fourth Amended Complaint, ¶¶6-9.
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Plaintiffs Fourth Amended Complaint, ¶18.
2
21. The act of recording the Declaration with the Recorder of Deeds in
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Cumberland County created the community commonly known as Carmella . . . .
* * * *
25. The Community currently consists of one hundred ninety (190) residential
units as defined in the Declaration.
26. \[Plaintiff\] Association consists of all of the unit owners within the
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Community.
Under the declaration, a unit was defined as a portion of the Condominium designated
for separate ownership, the boundaries of which are set forth in this Declaration of
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Condominium or any amendments thereto.
Defendant DD&K.2.B, LLC, is the developer and Declarant of the
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Community, and Defendant Landmark Builders, Inc., pursuant to a certain Exclusive
Builder Agreement, was responsible for developing, planning and/or constructing some
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or all of the homes and improvements located in the Community. . . .
37. At all relevant times, the Defendants worked in concert and/or provided
material support to one another with respect to the acts and omissions set forth in this
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lawsuit.
* * * *
41. \[T\]he Defendants effectively operated as one entity whose acts, omissions,
and shared leadership effectively makes the decisions of one immediately applicable to
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the other.
* * * *
39. Defendants are jointly and severally liable to \[Plaintiff\] for their acts and
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omissions.
11
Plaintiffs Fourth Amended Complaint, ¶21.
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Plaintiffs Fourth Amended Complaint, ¶¶25-26.
13
Plaintiffs Fourth Amended Complaint, Exhibit C (2008 Declaration of Condominium), Section II,
Definitions.
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Plaintiffs Fourth Amended Complaint, ¶30.
15
Plaintiffs Fourth Amended Complaint, ¶34.
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Plaintiffs Fourth Amended Complaint, ¶37.
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Plaintiffs Fourth Amended Complaint, ¶41.
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Plaintiffs Fourth Amended Complaint, ¶39.
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Upon Plaintiffs imposition of a common expense assessment for the
community in November of 2008, Defendants were statutorily obligated to pay
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assessments on all condominium lots and/or units that they retained ownership of, but
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failed to do so. They also failed to adequately fund Plaintiffs capital reserve account
for the future repair and/or replacement of items such as roofs, roadways and other
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common amenities.
In addition, Defendants are responsible for construction deficiencies in the
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condominium project.
103. Prior to the sale of the first unit and at all relevant times, the Defendants
knew, or through their exercise of reasonable care, should have known about the
existence of numerous construction defects, deficiencies, nonconformities and code
violations . . . .
104. The defects, deficiencies, nonconformities, and property damage . . .
including defects in the grading and stormwater management facilities, paving and
entrance sidewalks, community pathways, garage concrete floor slabs, gutters and gutter
downspouts, roofs, vinyl siding, caulking, and wood-framed decks . . . are continuing and
cumulative in nature, as is the extensive property damage which has resulted and
continues to result from the defects and deficiencies and the Defendants conduct
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regarding the same.
As filed, Plaintiffs fourth amended complaint against Defendants contained seven
counts:
Count IAction to Collect Unpaid Assessments and Other Costs Pursuant to Sections
3302, 3314, and 3315 of the \[Pennsylvania Uniform Condominium\] Act and the
Associations Governing Documents
Count IIIn the alternativeUnjust Enrichment
Count IIIViolation of 68 Pa.C.S.A. §§ 3301 et seq. (Breach of Statutory Warranties,
Failure to Complete and Restore)
Count IVBreach of Fiduciary Duty/Breach of Duty to Act in Good Faith
19
Plaintiffs Fourth Amended Complaint, ¶¶83-84, 86-88.
20
Plaintiffs Fourth Amended Complaint, ¶97.
21
Plaintiffs Fourth Amended Complaint, ¶¶92-93.
22
Plaintiffs Fourth Amended Complaint, ¶102-122.
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Plaintiffs Fourth Amended Complaint, ¶¶103-104.
4
Count VViolation of the Pennsylvania Unfair Trade Practices and Consumer
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Protection Law
25
Count VINegligent Construction
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Count VIINegligent Supervision
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Relief sought by Plaintiff included punitive damages and attorneys fees.
Joint preliminary objections were filed by Defendants to Plaintiffs fourth
amended complaint on December 8, 2016. These consisted of 176 paragraphs comprising
eleven preliminary objections: (1) a motion to deem all counts as to all defendants
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insufficiently specific; (2) a motion to dismiss all counts as to Defendant DD&K.2,
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Inc., on the ground that its role was limited to that of an incorporator; (3) a motion to
dismiss all claims against all defendants to the extent predicated upon alter ego or veil-
31
piercing principles; (4) a motion to dismiss unpaid assessment claims as to all
defendants, on the grounds that the declaration expressly negated such an obligation and
that Pennsylvanias Uniform Condominium Act contemplated an exclusion of
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unbenefited units from the effect of assessments; (5) a motion to dismiss unjust
enrichment claims against all defendants on the ground that Defendants did not owe the
33
assessments alleged; (6) a motion to dismiss breach-of-statutory-warranty claims as to
all Defendants on the ground that no structural defects had been pled, and as to
Defendants DD&K.2, Inc., and Landmark Builders, Inc., on the ground that neither was a
24
This count has been dismissed. See Order of Court, dated June 26, 2017 (Peck, J.).
25
This count has been limited. See Order of Court, dated June 26, 2017 (Peck, J.).
26
This count has been limited. See Order of Court, dated June 26, 2017 (Peck, J.).
27
Plaintiffs Fourth Amended Complaint, prayers for relief.
28
Joint Preliminary Objections of Defendants DD&K.2.B, LLC, DD&K.2, Inc., and Landmark Builders,
Inc. to Plaintiffs Fourth Amended Complaint, ¶¶23-49, filed December 8, 2016 (hereinafter Defendants
Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶__).
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Misidentified as DD&K.2.B, Inc., in the preliminary objection.
30
Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶50-63.
31
Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶64-78.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶79-98.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶99-106.
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declarant; (7) a motion to dismiss the breach-of-fiduciary claim against all Defendants
on the ground that the pleading did not support allegations of unpaid assessments, an
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obligation to fund a capital reserve account, or actionable construction deficiencies; (8)
a motion to dismiss all claims against all Defendants for violation of Pennsylvanias
Unfair Trade Practices and Consumer Protection Law, on the ground that the factual
36
predicates of such a violation had not been pled, (9) a motion to dismiss claims of
negligent construction and negligent supervision against all Defendants on grounds of an
absence of supporting facts in the pleading, the gist-of-the-action doctrine, and the
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economic loss doctrine; (10) a motion to dismiss demands for punitive damages and
attorneys fees as to all Defendants, on the ground that the factual averments supported
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neither type of relief; and (11) a motion to deem the pleading violative of a rule of court
as to all Defendants by virtue of its failure to allege whether the express and implied
warranties referred to in a certain paragraph \[were\] written or oral and, if written, to
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attach a copy of the relevant writing.
An order of court in response to the joint preliminary objections of the defendants
dismissed Count V of Plaintiffs fourth amended complaint (violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law), and limited Counts
III (Violation of 68 Pa.C.S.A. §§ 3301 et seq. \[breach of statutory warranties, failure to
complete and restore\]), VI (Negligent Construction), and VII (Negligent Supervision) of
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the complaint.
34
Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶107-130.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶131-138.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶139-143.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶144-148.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶149-172.
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Defendants Preliminary Objections to Plaintiffs Fourth Amended Complaint, ¶¶173-176.
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In this regard, the courts order read as follows:
2) Defendants Objection 6, in the nature of legal insufficiency with regards to
Plaintiffs claim in Count III for breach of any express or implied warranties (other than
6
The effect of the courts order in response to Defendants preliminary objections
has been well summarized in a motion by one of the parties:
\[A\]fter the Courts ruling on the preliminary objections, Plaintiffs Fourth
Amended Complaint alleges the following remaining Counts against all Defendants:
Count I Action to Collect Unpaid Assessments and Other Costs
Pursuant to Sections 3302, 3314 and 3315 of
\[Pennsylvanias Uniform Condominium\] Act and the
Associations Governing Documents;
Count II In the alternativeUnjust Enrichment;
Count III Violation of 68 Pa. C.S.A. §§ 3101 et seq. (Breach of
Statutory Warranties, Failure to Complete and Restore)
(only as to the structural warranty required under the
Uniform Condominium Act);
Count IV Breach of Fiduciary Duty/Breach of Duty to Act in
Good Faith;
Count VI Negligent Construction (only as to units identified in the
Fourth Amended Complaint or its exhibits); and
the structural warranty), is SUSTAINED in part to the extent that the relevant units or
common elements are not specifically identified by the Complaint or attached exhibits.
Part of Count III of the Complaint, regarding breach of any express or implied warranties
(other than the structural warranty), is dismissed. . . .
3) Defendants Objection 8, in the nature of legal insufficiency with regards to
Plaintiffs claim in Count V of the Complaint for violation of the Pennsylvania Uniform
Trade Practices and Consumer Protection Law, is hereby SUSTAINED, for failure to
plead with particularity specific facts that would support the allegations Defendants made
false representations to specific lot owners, that those specific representations deceived or
had the tendency to deceive, or that the specific unit owners relied on such
representations. . . .
4) Defendants Objection 9, in the nature of legal insufficiency with regards to
Plaintiffs claim in Count VI and VII for negligent construction and negligent
supervision, is hereby SUSTAINED in part, to the extent that the relevant units or unit
owners affected by the allegedly negligent construction or negligent supervision are not
identified in the complaint or attached exhibits.
5) Defendants Objection 11, for Failure to Conform to Rules of Court, is
SUSTAINED to the extent Plaintiff has averred breach of express or implied warranties
in the Complaint other than those under 68 Pa.C.S.A. §§3301 et seq., the Pennsylvania
Uniform Condominium Act.
Order of Court, dated June 26, 2017 (Peck, J.).
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Count VII Negligent Supervision (only as to units identified in the
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Fourth Amended Complaint or its exhibits).
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In an answer to Plaintiffs fourth amended complaint as modified by the court,
Defendants DD&K.2, Inc., and DD&K.2.B, LLC, confirm that all of the assets of
DD&K.2, Inc., were transferred to Defendant DD&K2.B, LLC as part of a business
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restructuring on or about April 2006, at which time DD&K.2, Inc. became inactive.
They concede that Defendant DD&K.2.B, LLC, directed the drafting of the
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aforesaid Declaration of Condominium, that it caused the Declaration to be recorded,
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and that the condominium project currently comprises 190 units. They deny, however,
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that assessments were collectible on unbuilt units, which were expressly exempted from
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assessments under the declaration, that they had any obligation to create or maintain a
41
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶13.
42
Answer with New Matter of Defendants DD&K.2.B, LLC and DD&K.2, Inc. to Plaintiffs Fourth
Amended Complaint, filed July 27, 2017 (hereinafter Answer of Defendants DD&K.2.B, LLC and
DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint).
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Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶4.
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Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶19.
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Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶18.
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Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶25.
47
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶353.
48
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶353.
8
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capital reserve account, or that they were negligent. Defendants also assert various
5152
affirmative defenses, such as statutes of limitation and repose, adding, inter alia,
355. The \[Pennsylvania Uniform Condominium\] Acts warranty against
structural defects under § 3411(b) lies only in each of the units for two years from the
date each unit is conveyed to a bona fide purchaser, and all the common elements for two
years. . . The two years shall begin as to each of the common elements whenever the
common element has been completed, or if later: as to any common element within any
additional real estate or portion thereof, at the time the first unit therein is conveyed to a
bona fide purchaser; (2) as to any common element within any convertible real estate or
portion thereof, at the time the first unit therein is conveyed to a bona fide purchaser; and
(3) as to any common element within any other portion of the condominium at the time
the first unit therein is conveyed to a bona fide purchaser. . . .
356. Additionally, \[n\]o action to enforce the warranty created by this section
shall be commenced later than six years after the warranty begins. . . .
357. The comm\[on\] element structural components of buildings comprising
certain units were completed and the Units were conveyed two (2) years or more prior to
the commencement of the Associations present action on April 18, 2016.
358. The structural common elements component of buildings compr\[\]ising
certain units were completed and the Units were conveyed six (6) years or more prior to
53
the commencement of the Associations present action on April 18, 2016.
* * * *
361. Claims for negligence accrued more than two years prior to the time that the
Association filed this action on April 18, 2016.
362. The Complaint fails to state a claim as to any construction deficiencies,
defects and nonconformities for any units not identified in the Complaint and the exhibits
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thereto.
55
In its answer to Plaintiffs fourth amended complaint, Defendant Landmark
Builders, Inc., denies any characterization of Landmark as affiliated with or
49
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶¶350, 352.
50
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶346.
51
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶343.
52
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶344.
53
Answer of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶¶355-358.
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Answer of Defendants DDK.2.B, LLC, and DD&K.2, Inc., to Plaintiffs Fourth Amended Complaint,
¶¶361-362.
9
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indistinguishable from the other defendants in this action, denies that Landmark
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operated as one entity with one or both other defendants, and denies that Landmark is
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or was the declarant of the Community.
Defendant denies that it failed to pay any assessments that the Declaration, in
59
accordance with the \[Pennsylvania Uniform Condominium\] Act, required it to pay.
that it had any statutory duty to budget for or fund a capital reserve account for
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\[Plaintiff\], or that there are construction deficiencies, defects and nonconformities
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affecting units and common elements in the community, as alleged by Plaintiff.
On the issue of assessments, Defendant denies, inter alia, that the Act requires all
common expenses to be assessed against all the units in accordance with each units
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allocated expense liability. On the contrary, it is argued,
\[t\]he act provides that n expense benefiting fewer than all of the units shall
be assessed exclusively against the units benefited. . . . The Act, therefore, anticipates
and authorizes that assessments be made only against those units receiving the benefit of
the services for which the assessments pay. The Memorandum Opinion and Order of
55
Defendant Landmark Builders, Inc.s answer, New Matter, and Counterclaim to Plaintiffs Fourth
Amended Complaint, filed July 17, 2017 (hereinafter Answer of Defendant Landmark Builders, Inc., to
Plaintiffs Fourth Amended Complaint, with Counterclaim).
56
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶27.
57
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶41.
58
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶89.
59
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶48.
60
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶348.
61
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶65.
62
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶83.
10
Court issued in this action by the Honorable Judge Christylee L. Peck on June 26,
63
2017 . . . acknowledged this distinction.
In this regard, Defendant contends that Landmark was only required to pay
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assessments on units for which certificates of occupancy had been issued, and in
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which Landmark had a fee simple or equitable interest.
As do the other defendants, Defendant asserts various affirmative defenses, such
6667
as statutes of limitations and repose, adding, inter alia,
358. The Acts warranty against structural defects under ¶ 3411(b) lies only in
each of the units for two years from the date each unit is conveyed to a bona fide
purchaser, and all the common elements for two years. . . . The two years shall begin as
to each of the common elements whenever the common element has been completed or,
if later: (1) as to any common element within any additional real estate or portion thereof,
at the time the first unit therein is conveyed to a bona fide purchaser; (2) as to any
common element within any convertible real estate or portion thereof, at the time the first
unit therein is conveyed to a bona fide purchaser; and (3) as to any common element
within any other portion of the condominium, at the time the first unit therein is conveyed
to a bona fide purchaser. . . .
359. Additionally, \[n\]o action to enforce the warranty created by this section
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shall be commenced later than six years after the warranty begins. . . .
In a counterclaim for overbilled assessments and other sums and unjust
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enrichment, Defendant claims that it overpaid assessments of Plaintiff by $38,774.52,
that it contributed $47,407.67 to Plaintiff to cover expenses for which Landmark was
63
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶83.
64
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶376.
65
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶377.
66
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶357.
67
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶356.
68
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶¶358-359.
69
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶381.
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not responsible, and that it paid $49,832.20 for maintenance and landscaping . . . for
71
which it was not responsible.
Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against
Defendant DD&K.2.B, LLC, sub judice was filed on August 31, 2021. This motion seeks
summary judgment in favor of Plaintiff on its claim against Defendant DD&K.2.B, LLC,
for unpaid assessments.
In this motion, Plaintiff notes that Defendant DD&K.2.B was the owner of all
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units in the community as of the filing of its declaration, that a common expense
73
assessment was levied thereafter, and that the defendant paid no such assessment on its
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unsold units. In support of the proposition that assessments were collectible, Plaintiff
cites Section 3314(b) of Pennsylvanias Uniform Condominium Act, which basically
provides that, once an assessment is made against any unit, all units, including those
owned by the declarant, must be assessed for their full portion of the common expense
75
liability, a requirement, it is argued, that under Section 3104 of the act may not be
76
varied by agreement.
70
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶382.
71
Answer of Defendant Landmark Builders, Inc., to Plaintiffs Fourth Amended Complaint, with
Counterclaim, ¶383.
72
Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against Defendant DD&K.2.B,
LLC, ¶7.
73
Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against Defendant DD&K.2.B,
LLC, ¶6.
74
Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against Defendant DD&K.2.B,
LLC, ¶8.
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Memorandum of Law in Support of Plaintiff Carmella Condominium Associations Motion for Partial
Summary Judgment against Defendant, DD&K.2.B, LLC for Failure To Pay Common Expense
Assessments on Units It Owned as Required by the Uniform Pennsylvania Condominium Act, at 4, filed
August 31, 2021 (hereinafter Plaintiffs Brief in Support of Plaintiffs Motion for Partial Summary
Judgment on Plaintiffs Claim against Defendant DD&K.2.B, LLC, at __).
76
Plaintiffs Brief in Support of Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim
against Defendant DD&K.2.B, LLC, at 4.
12
Although the motion purports to include an exhibit that details the amounts said to
77
be due for unpaid assessments, it does not appear that such a document was attached to
the motion.
The motion requests entry of judgment \[Plaintiff favor and against
Defendant/Declarant DD&K.2.B, LLC for Count I of the Complaint \[Action to Collect
Unpaid Assessments and Other Costs Pursuant to Sections 3302, 3314, and 3315 of the
(Pennsylvania Uniform Condominium) Act and the Associations Governing Documents\]
in the amount of $184,379.69, together with punitive damages, attorneyses, interest,
78
costs, and such other relief as this Court deems appropriate . . . .
In disputing Plaintiffs motion, Defendant DD&K.2.B, LLC, and DD&K.2, Inc.,
cite the following provision in the 2008 declaration:
All Common Expenses shall be assessed against all Units in accordance with their
Percentage Interest. Anything herein to the contrary notwithstanding, is \[sic\] understood
that the unoccupied lots owned by Declarant (or Declarants successors or assigns) on
which Units have not been constructed or where houses are under construction or
completed but for which no certificate of occupancy has been issued in general do not
directly benefit from many of the expenses of the Association that generally relate to
occupied houses. Notwithstanding the Declarants (or Declarants successor or assigns)
ownership of lots in the Condominium, the Association shall not levy any Common
Expense assessments or special assessments against the Declarant (or Declarants
successor or assigns) for lots owned by the Declarant (or Declarants successors or
assigns) that have no dwelling, are being constructed or for which no certificate of
occupancy has been issued. Declarant (or Declarants successor or assigns) may
voluntarily pay its share of Common Expenses that directly benefit the Units it owns.
During the Declarant Control Period, the Declarant (or Declarants successor or assigns)
may make voluntary contributions to defray or satisfy any deficiency in expenses of the
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Association.
In the alternative, the defendants argue that material issues of fact exist as to the
amounts owed and the party responsible therefor, inasmuch as under the aforesaid
77
See Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against Defendant
DD&K.2.B, LLC, ¶9.
78
Plaintiffs Brief in Support of Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim
against Defendant DD&K.2.B, LLC, prayer for relief.
79
Defendants DD&K.2.B, LLC and DD&K.2, Inc.s Brief in Opposition to Plaintiffs Motion for Partial
Summary judgment, at 10, filed September 29, 2021 (emphasis omitted) (hereinafter Brief of Defendants
DD&K.2.B, LLC, and DD&K.2, Inc., in Opposition to Plaintiffs Motion for Partial Summary Judgment
on Its Claim against Defendant DD&K.2.B, LLC, at __).
13
Exclusive Builder Agreement the responsibilities of the declarant were assumed by
\[Defendant\] Landmark \[Builders, Inc.\], and inasmuch as the record does not
80
conclusively support Plaintiffs calculations of amounts due. In this regard, it is noted
that the document which purportedly supported Plaintiffs calculation of unpaid
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assessments was omitted from Plaintiffs motion.
The Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and
DD&K.2, Inc., on Plaintiffs Claims against Them sub judice was filed on August 31,
2021. This motion seeks summary judgment in favor of Defendants DD&K.2.B, LLC,
and DD&K.2, Inc., on all of Plaintiffs claims against them.
The motion asserts, initially, that, though DD&K.2, Inc. was identified as a
Defendant, it had no involvement with the creation or operation of \[Plaintiff\] Association,
and it appears to have been named as a Defendant merely out of an abundance of
82
caution.
Defendants motion summarizes Plaintiffs action as a condominium turnover
case \[which\] involves allegations of negligent construction (structural defects), failure to
pay common expense assessments when due and the failure to adequately fund capital
reserves for the Carmella Condominium development in Silver Spring Township,
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Cumberland County, Pennsylvania. It notes that
7. Under the Pennsylvania Uniform Condominium Act . . . , a condominium is
created by the filing of a Declaration . . . , and the rules of condominium management
and ownership are governed by the enabling statute, the terms of the condominium
Declaration, and the condominium Associations by-laws, if any. . . .
80
Brief of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., in Opposition to Plaintiffs Motion for
Partial Summary Judgment on Its Claim against Defendant DD&K.2.B, LLC, at 11-12.
81
Response of Defendants DD&K.2.B., LLC and DD&K.2, Inc. to Plaintiffs Motion for Partial
Summary Judgment against Defendant DD&K.2.B, LLC for Failure To Pay Common Expense
Assessments on Units It Owned as Required by the Uniform Pennsylvania Condominium Act, ¶9, filed
September 29, 2021.
82
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintiffs
Claims against Them, ¶2 n.1.
83
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintiff
Claims against Them, ¶1.
14
8. Initially, . . . as the Developer or Declarant owns all/or the majority of units
within the planned community, it generally appoints the board members for the
Association. . . . This is commonly known as the period of Declarant Control under \[the
act\]. . . .
9. As individual units are constructed and sold, control over the Association
gradually shifts away from the Declarant and into the hands of the unit owners. \[The act\]
provides for the respective powers of the unit owners and the Declarant at specific points
during this transition. . . .
10. An Association is a separate entity which is initially controlled by the
Developer/Declarant but is later controlled by the unit owners after the transition
process. . . .
11. In the instant matter, Plaintiff Associations claims against the Defendants
arise during the period of Declarant Control for the Carmella condominium
84
development.
With respect to Plaintiffs claim based upon a purported failure to pay common
expense assessments, the defendants cite, for the proposition that no such obligation
85
existed for incomplete and unoccupied units, the provision quoted above from the
2008 declaration excluding from the scope of such assessments lots owned by the
Declarant . . . that have no dwelling, are being constructed or for which no certificate of
86
occupancy has been issued. In this regard, they consider statutorily permissible the
declarations exclusion from expense assessments units that are not benefitted by the
8788
expense, and an exercise of the declarants authority to define a unit.
84
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintiff
Claims against Them, ¶¶7-11.
85
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaint
Claims against Them, ¶64.
86
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintif
Claims against Them, ¶¶64-65.
87
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2,
Claims against Them, ¶66.
88
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintiffs
Claims against Them, ¶62.
15
In addition, the defendants challenge the methodology employed by Plaintiffs
expert in calculating the amounts of assessments allegedly due, without even
89
considering how assessments would be calculated under the Carmella Declaration.
With respect to Plaintiffs claim based upon a purported underfunding of its
capital reserve account, the defendants contend that they were under no statutory duty to
90
fund \[Plaintiffs\] reserves or capital accounts, maintaining that \[Pennsylvanias
Uniform Condominium Act\] only requires that a Declarant make a statement in the
public offering as to whether a reserve amount is included within the budget, as well as
91
whether reserves are included for anticipated material capital expenditures. Full
compliance with this provision is evidenced in the record, according to the defendants
motion, by the following excerpt, under the heading Reserves, from the declarants
public offering statement:
The Declarant intends to create an initial reserve fund for capital expenditures. At the
time of the sale of each Unit in the Condominium the sum of $800.00 shall be payable by
the purchaser and the same shall also be paid by any purchaser on a resale of any Unit at
any time. The fund will be managed by the Association and used for capital expenditures
92
required to maintain the Condominium in accordance with the Declaration.
With respect to Plaintiffs claim based upon faulty construction, the defendants (a)
note that a declarants warranty under Pennsylvanias Uniform Condominium Act applies
to those defects in components constituting any unit or common element which reduce
93
the stability or safety of the structure which fall below accepted standards, (b) attribute
responsibility for various aspects of construction of the project to Defendant Landmark
89
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plas
Claims against Them, ¶70.
90
Motion for Summary Judgment of Defendants DD&K.2.B, LLC,
Claims against Them, ¶77.
91
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., os
Claims against Them, ¶77.
92
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., o
Claims against Them, ¶82.
93
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on
Claims against Them, ¶¶23-24.
16
94
Builders, Inc., (c) argue that the record in the instant matter is wholly devoid of any
construction issues allegedly impacting structural safety or habitability of residential
95
units, and (d) point out that one witness testified that he was unaware of any
construction issues within the community that were structural defects or posed a safety
96
risk to Carmella residents.
97
The defendants also contest Plaintiffs right to recover attorneys fees and
98
punitive damages.
In its formal response to the defendants motion for summary judgment, Plaintiff
for the most part denies the allegations therein as legal conclusions or based upon
99100
documents or statutes that speak for themselves. In a brief, Plaintiff reiterates the
statutory premise for its claim for unpaid assessments, whereby
\[o\]nce the first common expense assessment occurs all common expenses \[are to\] be
101
assessed against all the units . . . .
In this regard, Plaintiff directs attention to a Uniform Law Comment which
emphasize\[s\] that once an assessment is made against any unit, all units, including
94
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plainti
Claims against Them, ¶27-31.
95
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on
Claims against Them, ¶48.
96
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, In
Claims against Them, ¶49.
97
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintif
Claims against Them, ¶¶102-118.
98
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plainti
Claims against Them, ¶119-128.
99
Plaintiff Carmella Condominium Association, I, Inc.s Response in Opposition to Defendant
DD&K.2.B, LLC and DD&K.2, Incs Motion for Partial \[sic\] Summary Judgment, filed September 30,
2021.
100
Plaintiff Carmella Condominium Association, I, Incs Omnibus Brief in Opposition to Defendants
Motions for Summary Judgment, filed September 30, 2021 (hereinafter Brief of Plaintiff in Opposition to
Defendants Motions for Summary Judgment).
101
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 4.
17
those owned by the declarant, must be assessed for their full portion of the common
102
expense liability.
On the issue of a capital reserves account, Plaintiff directs attention to an opinion
in a certain expert report that, as of one month following the transition election to
resident control of the Association, its capital reserve replacement fund had an actual
103
reserve deficiency of $854,321.
On the issue of construction deficiencies, Plaintiff notes that certain engineers
have identified major construction deficiencies in the form of excessive driveway
104
slopes, inter alia, argues that Plaintiffs claims under the structural warranty
provisions of § 3411 of \[Pennsylvanias Uniform Condominium\] Act \[were\] equitably
105
tolled by the adverse domination of the Declarant Controlled Board, and defends its
assertion of the defendants liability on the basis of general principles of negligence,
106
notwithstanding the gist-of-the-action and economic loss doctrines.
107
The issues of attorneys fees and punitive damages are said to be jury issues.
The Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc.,
on Plaintiffs Claims against It sub judice was filed on August 31, 2021. This motion
seeks summary judgment in favor of Defendant Landmark Builders, Inc., on all of
Plaintiffs claims against it.
The motion challenges Plaintiffs claim for unpaid assessments on the following
grounds: (a) Defendant Landmark was not a unit owner nor the Declarant and therefore
had no obligation to pay assessments under \[Pennsylvanias Uniform Condominium\]
102
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 4-5.
103
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 13.
104
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 7.
105
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 9.
106
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 15-18.
107
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 18-20.
18
108
Act; (b) \[t\]he assessments were not owed because the units received no benefits from
109
any common expenses prior to conveyance to a homeowner; (c) \[t\]he assessments
were not owed because the units were not covered by the Associations insurance policy
110
prior to conveyance to a homeowner; (d) Plaintiff has failed to produce admissible
111
evidence of the amount of any unpaid assessments; (e) \[a\]ll claimed unpaid
assessments owed prior to April 18, 2013 are barred by the Acts statute of
112
limitations; and (f) Plaintiff is not entitled to recover any other costs under Count
113
I of Plaintiffs fourth amended complaint. As to Plaintiffs unjust enrichment claim,
Defendant argues that Plaintiff has . . . not produced any evidence that Landmark has
been unjustly enriched, and . . . \[a certain\] Report on Assessments does not establish that
114
Landmark owes any amounts that have not been paid.
On the issue of a breach of statutory warranties, the defendant contends that it
cannot be held liable for breach of the statutory structural warranty because \[it\] is not
115
the declarant, the structural warranty is time-barred for all homes conveyed prior to
116
April 18, 2010, and Plaintiff has failed to produce evidence of any structural
108
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶52-56.
109
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶67-77.
110
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶78-83.
111
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶84-93.
112
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶94-97.
113
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶98.
114
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶107.
115
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶109-112.
116
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶113-118.
19
117
defects. As to Plaintiffs claim of a breach of fiduciary duty and duty to act in good
faith, Defendant argues that, \[a\]s a matter of law Landmark owed no duties to
118119
\[Plaintiff\], control over the Association is not a breach of any duties, and no
120
obligation existed to fund reserves.
With respect to the issues of negligent construction and negligent supervision,
Defendant contends that Plaintiffs claims are foreclosed by the economic loss doctrine
121122
and gist-of-the-action doctrine, the statute of limitations with regard to 115 units,
and, in accordance with the courts prior ruling on preliminary objections, units not
123
specifically identified in the pleading.
Finally, Defendant contends that the facts of record do not support a recovery for
124
either attorneys fees or punitive damages.
In a formal response to the motion for partial summary judgment of this defendant
as to Plaintiffs claims against it, Plaintiff denies many of the averments as legal
125
conclusions or references to documents or statutes that speak for themselves. In a brief,
Plaintiff reiterates the statutory premise for its claim for unpaid assessments, whereby
117
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶119-138.
118
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶139-140.
119
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶141-146.
120
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶147-149.
121
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶150-153.
122
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶154.
123
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶155-156.
124
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It, ¶¶157-158.
125
Plaintiff Carmella Condominium Association, I, Incs Response in Opposition to Defendant Landmark
Builders, Inc.s, Motion for Partial Summary Judgment, filed September 30, 2031.
20
\[o\]nce the first common expense assessment occurs all common expenses \[are to\] be
126
assessed against all the units . . . .
In this regard, Plaintiff directs attention to the aforesaid Uniform Law Comment which
emphasize\[s\] that once an assessment is made against any unit, all units, including
those owned by the declarant, must be assessed for their full portion of the common
127
expense liability.
On the issue of a capital reserves account, Plaintiff directs attention to an opinion
in a certain expert report that, as of one month following the transition election to
resident control of the Association, its capital reserve replacement fund had an actual
128
reserve deficiency of $854,321.
On the issue of construction deficiencies, Plaintiff notes that certain engineers
have identified major construction deficiencies in the form of excessive driveway
129
slopes, inter alia, argues that Plaintiffs claims under the structural warranty
provisions of § 3411 of \[Pennsylvanias Uniform Condominium\] Act \[were\] equitably
130
tolled by the adverse domination of the Declarant Controlled Board, and defends its
assertion of the defendants liability on the basis of general principles of negligence,
131
notwithstanding the gist-of-the-action and economic loss doctrines.
132
The issues of attorneys fees and punitive damages are said to be jury issues.
The Motion for Summary Judgment of Plaintiff on Counterclaim against It of
Defendant Landmark Builders, Inc., sub judice was filed on September 1, 2021. This
motion seeks summary judgment in favor of Plaintiff on all of the claims against it in the
counterclaim of Defendant Landmark Builders, Inc.
126
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 4.
127
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 4-5.
128
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 13.
129
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 7.
130
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 9.
131
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 15-17.
132
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment, at 18-20.
21
The motion disputes Defendants position that assessments had been paid by
Defendant that were not collectible from it, noting the liability of all units for common
133
expense assessments under Pennsylvanias Uniform Condominium Act, and the lack of
evidence in the record to support the proposition that the expenses assessed were not of
134
general benefit.
The motion also disputes Defendants unjust enrichment claim, arguing that
common expense assessments upon undeveloped units were statutorily sanctioned and
that, in any event, Defendants payments were consistent with the declarations proviso
that the Declarant (or Declarants successors or assigns) may voluntarily pay its share of
135
Common Expenses that directly benefit the Units it owns.
In defense of its counterclaim against Plaintiff, this defendant argues that its
entitlement to reimbursement for common expense assessments on units not certified for
occupancy (and thus deriving no benefits from the assessments) is supported by statute,
136
case law, the declaration, and other evidence of record, and that the elements for a
137
claim of unjust enrichment are likewise discernible in the record.
STATEMENT OF LAW
Summary judgment motions. Pennsylvania Rule of Civil Procedure 1035.2
provides as follows:
133
Motion for Summary Judgment of Plaintiff on Counterclaim against It of Defendant Landmark
Builders, Inc., ¶26.
134
Motion for Summary Judgment of Plaintiff on Counterclaim against It of Defendant Landmark
Builders, Inc., ¶43.
135
Motion for Summary Judgment of Plaintiff on Counterclaim against It of Defendant Landmark
Builders, Inc., ¶¶45-52.
136
Brief of Landmark Builders, Inc., in Opposition to Motion for Summary Judgment of Counterclaim
Defendant Carmella Condominium I, Inc., at 6-14, filed October 1, 2021 (hereinafter Brief of Defendant
Landmark Builders, Inc., on Plaintiffs Motion for Summary Judgment on Defendants Counterclaim, at
__).
137
Brief of Defendant Landmark Builders, Inc., on Plaintiffs Motion for Summary Judgment on
Defendants Counterclaim, at 14-15.
22
After the relevant pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for summary judgment in whole or in part
as a matter of law
(1) whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be
established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion,
including the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce evidence of facts
essential to the cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
The record, for purposes of summary judgment, includes
(1) pleadings
(2) depositions, answers to interrogatories, admissions and affidavits, and
(3) reports signed by an expert witness that would, if filed, comply with rule
4003.5(a)(1), whether or not the reports have been produced in response to
interrogatories.
Pa. R.C.P. 1035.1.
to avoid a useless trial . . . Woodford v.
Insurance Department, ___ Pa. ___, ___, 243 A.3d 60, 70 (2020). Entry of summary
judgment is proper cord clearly demonstrates that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a
Summers v. Certainteed Corp., 606 Pa. 294, 308, 997 A.2d 1152, 1159
(2010) (citation omitted).
In this regard, it has long been the rule in Pennsylvania that where the testimony
of the party having the burden of proof is oral, the credibility of that testimony is always
Bremmer v. Protected Home Mutual Life Insurance Company, 436 Pa. 494,
498, 260 A.2d 785, 787 (1970).
As \[the Pennsylvania Supreme Court\] stated in Nanty-Glo Borough v. American
Surety Co., 309 Pa. \[236,\] 238, 163 A. \[523,\] 524 \[(1932)\]However clear and
indisputable may be the proof when it depends upon oral testimony, it is nevertheless the
province of the jury to decide, under instructions from the court, as to the law applicable
to the facts, and subject to the salutary power of the court to award a new trial if they
should deem the verdict contrary to the weight of the evidence.
rule\] did not and was not intended to change the law in this respect.
Id. at 498-99, 260 A.2d at 787.
23
While a judge may revisit an issue which he or she previously ruled upon on
138
preliminary objections, there is no requirement to do so, and an obvious coordinate-
139
jurisdiction rule issue presents itself when different judges are involved.
Importantly, \[a\] motion for a summary judgment cannot be made a substitute for
140141
a trial . . . , excessively piecemeal litigation is generally disfavored, and a certain
degree of discretion resides in the court where the whole case will not be summarily
resolved.
If judgment is denied or is not rendered upon the whole case or for all the relief
asked and a trial is necessary, the court when considering the motion may, if practicable,
ascertain from the pleadings, the evidence and the parties which material facts relevant to
the motion exist without controversy and which are without controversy, including the
extent to which the amount of damages or other relief is not in controversy and directing
such further proceedings in the action as are just. . . .
Pa. R.C.P. 1035.5 (Procedure When Judgment is Denied or is Not Rendered Upon the
Whole Case) (emphasis added).
Condominium law. Pennsylvania has adopted the Uniform Condominium Law,
which is codified at 68 Pa. C.S §§3101 et seq. Under Section 3104 of the act (Variation
by agreement), \[e\]xcept as expressly provided in this \[act\], provisions of this \[act\] may
not be varied by agreement and rights conferred by this subpart may not be
142
waived. . . . One of the sections as to which variation is permitted is that pertaining to
143
definitions in the declaration and bylaws.
138
Cf. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 543, 456 A.2d 1076,
1069 (1983) (Should \[a\] motion \[for judgment on the pleadings\] simply repeat . . . earlier arguments
rejected in \[a\] demurrer, the trial judge may exercise his discretion to deny it.; Mardis v. East Pennsboro
Area School District, 60 Cumberland L.J. 320 (2021).
139
See Majorsky v. Douglas, 2012 PA Super 258, ¶__ n.3, 58 A.3d 1250, 1259 n.3.
140
Porter v. Barrett, 89 F. Supp. 35, 43 (E.D. Pa.) (1946).
141
See generally Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa. Super. 432, 583 A.2d 1193
(1990); 75 A.L.R.2d 1201, Propriety of summary judgment on part of single or multiple claims (1961
and cum. supp.)
142
68 Pa. C.S. §3104; see Turnberry Mews Condominium Assn, Inc. v. JAMS Properties, LLC,
35 Pa. D. & C.5th 408, 2014 WL 8847260 (Northampton Co. 2014).
143
Uniform Condominium Law, Uniform Law Comment, ¶3.
24
With respect to assessments for common expenses, Section 3314 of the act
(Assessments for common expenses) provides as follows:
(a) General rule.--Until the association makes a common expense assessment, the
declarant shall pay all the expenses of the condominium. After any assessment has been
made by the association, assessments shall be made at least annually and shall be based
on a budget adopted at least annually by the association. The budgets of the association
shall segregate limited common expenses from general common expenses if and to the
extent appropriate.
(b) Allocation and interest.--Except for assessments under subsection (c), common
expenses shall be assessed against all the units in accordance with the common expense
liability allocated to each unit (section 3208) in the case of general common expenses and
in accordance with subsection (c) in the case of special allocations of expenses. Any past
due assessment or installment thereof shall bear interest at the rate established by the
association not exceeding 15% per year.
(c) Special allocations of expenses.--Except as provided by the declaration:
(1) Any common expense associated with the maintenance, repair or replacement of a
limited common element shall be assessed in equal shares against the units to which that
limited common element was assigned at the time the expense was incurred.
(2) Any common expense benefiting fewer than all of the units shall be assessed
exclusively against the units benefited.
(3) The costs of insurance shall be assessed in proportion to risk and the costs of utilities
that are separately metered to each unit shall be assessed in proportion to usage.
(4) If any common expense is caused by the negligence or misconduct of any unit owner,
the association may assess that expense exclusively against his unit.
(d) Reallocation.--If common expense liabilities are reallocated, common expense
assessments and any installment thereof not yet due shall be recalculated in accordance
144
with the reallocated common expense liabilities.
Under Section 3315 of the act (Lien for assessments), it is provided that
(d) Limitation of actions.--A lien for unpaid assessments is extinguished unless
proceedings to enforce the lien or actions or suits to recover sums for which subsection
(a) establishes a lien are instituted within four years after the assessments become
payable.
With respect to warranties, Section 3411 of the act (Warranty against structural
defects) provides as follows:
(a) Definition.--As used in this section, means those defects in
components constituting any unit or common element which reduce the stability or safety
of the structure below accepted standards or restrict the normal intended use of all or part
of the structure and which require repair, renovation, restoration or replacement. Nothing
144
68 Pa. C.S. §3314.
25
in this section shall be construed to make the declarant responsible for any items of
maintenance relating to the units or common elements.
(b) General rule.--A declarant warrants against structural defects in each of the units for
two years from the date each is conveyed to a bona fide purchaser, and all of the common
elements for two years. Any conveyance of a unit during the two-year warranty period
shall be deemed to transfer to the purchaser all of the declarant's warranties created under
this section. The two years shall begin as to each of the common elements whenever the
common element has been completed or, if later:
(1) as to any common element within any additional real estate or portion thereof, at the
time the first unit therein is conveyed to a bona fide purchaser;
(2) as to any common element within any convertible real estate or portion thereof, at the
time the first unit therein is conveyed to a bona fide purchaser; and
(3) as to any common element within any other portion of the condominium, at the time
the first unit therein is conveyed to a bona fide purchaser.
* * * *
(e) Limitation of actions.--No action to enforce the warranty created by this section shall
be commenced later than six years after the warranty begins, provided, however, that the
limitation period affecting a right of action by the association under this section shall be
six years after the warranty begins or two years after the unit owners elect an executive
board under section 3303(e) (relating to executive board members and officers),
145
whichever is later.
With respect to attorney fees and punitive damages, Section 3412 of the act
(Effect of violations on rights of action) provides as follows:
If a declarant or any other person subject to this subpart violates any provision thereof or
any provision of the declaration or bylaws, any person or class of persons adversely
affected by the violation has a claim for appropriate relief. Punitive damages may be
awarded in the case of a willful violation of the \[act\] and, if appropriate, the prevailing
146
party may be entitled to an award of costs and reasonable attorney fees.
APPLICATION OF LAW TO FACTS
This case illustrates the difficulty which a court faces in attempting to adjudicate a
factually complex case in the absence of the orderly presentation of evidence afforded by
a trial. The volume of material in the case at this point is suggested by the fact that the
147
operative complaint, with attachments, consists of almost 500 pages; one summary
145
68 Pa. C.S. §3411(a), (b), (e).
146
68 Pa. C.S. §3412.
147
Plaintiffs Fourth Amended Complaint.
26
148
judgment brief comprises 631 pages, a single motion for partial summary judgment
149
consists of 598 pages, another motion for partial summary judgment includes 331
150151152
pages; another motion consists of 258 pages; and another comprises 171 pages. In
this regard, the conclusion that the summary judgment procedure in this case is being
utilized as a substitute for trial is difficult to avoid.
Of equal importance is the fact that numerous issues presented in the context of
summary judgment motions were previously the subject of preliminary objections, the
record is far from conclusive on most damage and liability issues, and an attempt to
extricate the occasional issue that might lend itself to pretrial resolution would result in
piecemeal litigation affecting related claims or defenses.
On balance, in the courts view, this case is more suited to disposition by trial than
by summary judgment, and for this reason the motions for summary judgment will be
denied by way of the following order:
ORDER OF COURT
AND NOW, this day of , 2022, upon consideration
of (a) Plaintiff Carmella Condominium Associations Motion for Partial Summary
Judgment against Defendant, DD&K.2.B, LLC for Failure To Pay Common Expense
Assessments on Units It Owned as Required by the Uniform Pennsylvania Condominium
Act, filed August 31, 2021, (b) Defendants DD&K.2.B, LLC and DD&K.2, Inc.s,
Motion for Summary Judgment, filed August 31, 2021, (c) the Motion for Partial
Summary Judgment, filed August 31, 2021, on behalf of Defendant Landmark Builders,
148
Brief of Plaintiff in Opposition to Defendants Motions for Summary Judgment.
149
Plaintiffs Motion for Partial Summary Judgment on Plaintiffs Claim against Defendant DD&K.2.B,
LLC.
150
Motion for Partial Summary Judgment of Defendant Landmark Builders, Inc., on Plaintiffs Claims
against It.
151
Motion for Summary Judgment of Plaintiff on Counterclaim against It of Defendant Landmark
Builders, Inc.
152
Motion for Summary Judgment of Defendants DD&K.2.B, LLC, and DD&K.2, Inc., on Plaintiffs
Claims against Them.
27
Inc., and (d) the MotionforSummary Judgment of Counterclaim Defendant Carmella
Condominium AssociationI, Inc., filed September 1, 2021,and for the reasons stated in
the accompanying opinion, the motions are denied.
BYTHE COURT,
________________
CarrieE.Hyams, J.
DISTRIBUTION:
Robert J. Hoffman, Esq.
MichelleJ. Stranen, Esq.
James P. McEvilly, III, Esq.
MARCUS & HOFFMAN, P.C.
326WestStateStreet
Media, PA 19603
Attorneys for Plaintiff
W.DarrenPowell,Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301MarketStreet
P.O. Box 109
Lemoyne, PA 17043-0109
Attorney for Defendants DD&K.2.B, LLC,
andDD&K.2.,Inc.
Helen L. Gemmill, Esq.
McNEES WALLACE& NURICK LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA17108-1166
Attorney for Defendant Landmark Builders, Inc.
28
Cecil J. Jones, Esq.
Daniel F. Donnelly, Esq.
MARKS, ONEILL, OBRIEN, DOHERTY & KELLY, P.C.
Suite 1010
One Penn Center
1617 John F. Kennedy Blvd.
Philadelphia, PA 19103
Attorneys for Plaintiff on Counterclaim of
Defendant Landmark Builders, Inc., against It
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