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Home My WebLink About2006-6897 Civil ALLENVIEW HOMEOWNERS : IN THE COURT OF COMMON PLEAS OF ASSOCIATION, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : AND : : DUANE E. HERMAN AND : SUSAN M. HERMAN, : INTERVENORS : : V. : : DAVID HAWKINS AND : MARCIA HAMMERSLEY, : DEFENDANTS : 06-6897 CIVIL TERM IN RE: POST-TRIAL MOTION OF DEFENDANTS OPINION AND ORDER OF COURT Bayley, J., February 6, 2009:-- Plaintiff, Allenview Homeowners Association, filed a complaint against defendants, David Hawkins and Marcia Hammersley, seeking an order directing them to remove a detached structure they constructed on Lot 37 in the planned residential development of Allenview where they live in a residence at 2302 Foxfire Circle. Defendants filed a responsive pleading consisting of an answer and a counterclaim. Duane E. Herman and Susan M. Herman, who live at a residence at 2304 Foxfire Circle, which is adjacent to defendants’ property, intervened in support of the complaint October 16, 2008October 24, filed by plaintiff. The case was bench tried on . On 2008 , the following order, supported by a written opinion, was entered: [w]ithin six months of this date, the detached structure on defendants’ 06-6897 CIVIL TERM property, shall be removed and the property returned to its original condition unless within that time frame the structure has been modified with siding that matches the existing residence and attached garage as 1 closely as possible. November 17, 2008 On ,defendants filed a post-trial motion in which they seek a judgment notwithstanding the verdict, or in the alternative, a new trial, for the following reasons: 1. The action initiated by the Association is barred by the doctrine of equitable estoppel. 2. Because the Board did not deny Hawkin’s [sic] request within 30 days after it was submitted, the request was approved as a matter of law pursuant to the doctrine known as “deemed approval.” 3. The facts presented at Trial demonstrate that Hawkins is entitled to judgment in their favor. 4. The Board is not entitled to equitable relief because the Board has not acted equitably in this matter. 5. Hawkins is also entitled to attorneys’ fees. The pleadings allowed in this type of an action include new matter. Pa. Rule of Civil Procedure 1017(2). Rule 1030(a) provides: all affirmative defenses Except as provided by subdivision (b), including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel , failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter”. . . . Rule 1032(a) provides: A party waives all defenses and objections which are not presented __________ 1 The opinion filed in support of the order of October 24, 2008, is incorporated herein and made a part of this opinion. -2- 06-6897 CIVIL TERM either by preliminary objection, answer or reply, except a defense which is not required to be pleaded under Rule 1030(b), the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the objection of failure to state a legal defense to a claim, the defenses of failure to exercise or exhaust a statutory remedy and an adequate remedy at law and any other nonwaivable defense or objection. Affirmative defenses are compulsory and therefore must be timely pled or they Coldren v. Peterman, are forever lost 763 A.2d 905 (Pa. Super. 2000). As set forth Coldren: in The term “New Matter” (under which heading Rule 1030 requires affirmative defenses to be pled) “embraces matters of confession and avoidance as understood at common law, and has been defined as matter which, taking all the allegations of the complaint to be true, is nevertheless a defense to the action.” Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 469 A.2d 233, 235 (1983). “New matter ignores what the adverse party has averred and adds new facts to the legal dispute on the theory that such new facts dispose of any claim or claims which the adverse party had asserted in his pleading.” Id. An affirmative defense is distinguished from a denial of facts which make up the plaintiff’s cause of action in that a defense will require the averment of facts extrinsic to the plaintiff’s claim for relief. Falcione v. Carnell School Dist., 383 Pa.Super. 623, 557 A.2d 425, 428 (1989). sub judice In the case , defendants’ averment in its post-trial motion that this action is barred by the doctrine of equitable estoppel is an affirmative defense which is waived by failure to raise it in new matter in a responsive pleading to plaintiff’s complaint. Likewise, the averment in the post-trial motion that plaintiff’s request to build the detached structure on their property was approved as a matter of law pursuant to the doctrine known as deemed approval is waived because it is an affirmative defense -3- 06-6897 CIVIL TERM -4- 06-6897 CIVIL TERM 2 that was not pled in new matter. Defendants aver that the facts presented at trial demonstrate that they are entitled to a judgment in their favor. We incorporate herein and make a part of this opinion the opinion filed in support of the order of October 24, 2008, that directed defendants to remove the detached building and return their property to its original condition unless they modify it with siding that matches the existing residence and attached garage as closely as possible. The relief was granted upon our finding that the structure defendants built did not conform with the actual approval of the Board of Directors of August 22, 2006. For the reasons set forth in that opinion plaintiff was entitled to the relief it was granted. Finally, defendants aver that the Board of Directors was not entitled to the relief __________ 2 January 21, 2009 On , while these post-trial motions were pending decision, defendants filed a motion to amend their answer to plaintiff’s complaint to add New Matter to raise the affirmative defenses of deemed approval, equitable estoppel and unclean hands. The motion was denied in an order entered on February 6, 2009. As noted above, affirmative defenses are compulsory and therefore must be timely pled or they are lost forever. The plaintiff would be prejudiced to allow defendants to amend the pleadings to raise affirmative defenses that it did not have to meet at trial. Defendants have cited no cases where a post-verdict amendment to pleadings was affirmative defenseswaived granted to raise that were pursuant to Rule 1032(a) for Standard Pipeline failure to plead pursuant to Rule 1030(a). The only case cited was Coating Co., Inc. v. Solomon & Teslovich , 344 Pa. Super. 367 (1985), which is Standard distinguishable. In , the Superior Court upheld a ruling allowing Standard to amend its complaint, post-verdict, to state a cause of action for breach of an oral novation, thus conforming its complaint to the verdict. In affirming the trial court’s ruling, the Court found that the defendants, having been the party to first raise the issue of novation at trial and who in fact presented evidence of their position regarding novation, could not have been “prejudiced by the amendment in a manner which would make the allowance of the amendment reversible error . . . .” -5- 06-6897 CIVIL TERM it obtained because it has “not acted equitably in this matter;” in other words, the Board 3 acted with unclean hands. The doctrine of unclean hands requires that one seeking Jacobs v. equity act fairly and without fraud or deceit as to the controversy in issue. Halloran, 710 A.2d 1098 (Pa. 1998). We did conclude in the opinion in support of the order of October 24, 2008, that “Sloppy work by the Board created a problem which it did not recognize until October 24, 2006, when, based upon a motion of what was 4 being built was not what the Board approved . . . .” That does not equate to the Board having unclean hands. Lastly, there was no error in our refusal to award defendants’ counsel fees because plaintiff obtained relief in the order of October 24, 2008. ORDER OF COURT AND NOW, this day of February, 2009, the motion of defendants for post-trial IS DENIED. relief, By the Court, Edgar B. Bayley, J. 3 We do not believe that this is an affirmative defense that must be raised in New Matter. 4 The Board gave its approval without a pending application before it after it had denied the approval of a prior request from which no appeal had been filed by defendants. -6- 06-6897 CIVIL TERM John R. Zonarich, Esquire John B. Zonarich, Esquire For Plaintiff and Intervenors Stephen K. Portko, Esquire For Defendants :sal -7- ALLENVIEW HOMEOWNERS : IN THE COURT OF COMMON PLEAS OF ASSOCIATION, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : AND : : DUANE E. HERMAN AND : SUSAN M. HERMAN, : INTERVENORS : : V. : : DAVID HAWKINS AND : MARCIA HAMMERSLEY, : DEFENDANTS : 06-6897 CIVIL TERM IN RE: POST-TRIAL MOTION OF DEFENDANTS ORDER OF COURT AND NOW, this day of February, 2009, the motion of defendants for post-trial IS DENIED. relief, By the Court, Edgar B. Bayley, J. John R. Zonarich, Esquire John B. Zonarich, Esquire For Plaintiff and Intervenors Stephen K. Portko, Esquire For Defendants :sal