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HomeMy WebLinkAbout02-2900 EquityALLENVIEW HOMEOWNERS ASSOCIATION, INC., A PENNSYLVANIA NON- PROFIT CORPORATION,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo GINA M. ZWANZIGER, Defendant CIVIL ACTION - EQUITY NO. 02-2900 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and DECREE NISI OLER, J., January 28, 2004. In this equity case, a homeowners' association has sued a homeowner as the result of her violation of a denial by the association's board of directors of her application to install two 100-gallon propane tanks and a wooden screening fence. The owner has counterclaimed for attorney's fees under Section 2503 of the Judicial Code, based upon conduct of Plaintiff which was allegedly arbitrary, vexatious and in bad faith. Trial was held in this matter on August 25, 2003, December 4, 2003, and December 8, 2003. For the reasons stated in this opinion, the court will find in favor of Plaintiff and against Defendant on Plaintiff's complaint, and in favor of Plaintiff and against Defendant on Defendant's counterclaim. FINDINGS OF FACT 1. Plaintiff is Allenview Homeowners Association, Inc., a non-profit corporation organized under the laws of the Commonwealth of Pennsylvania, with its principal place of business at 3512 Trindle Road, Camp Hill, Cumberland County, Pennsylvania. ~ 2. Defendant is Gina M. Zwanziger, an adult individual residing at 700 Allenview Drive, Mechanicsburg, Upper Allen Township, Cumberland County, Pennsylvania.2 Plaintiff's complaint, para. 1; Defendant's answer, para. 1. 3. The property of Defendant is a townhouse among about 210 townhouses and 70 single-family detached houses comprising a development known as Allenview Planned Residential Development.3 4. A Declaration of Covenants and Restrictions, recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, at Miscellaneous Book 280, Page 81, contains various covenants and restrictions applicable to Defendant and her unit,4 as well as to all other homeowners and units in the development.5 5. Under Article VII, Section 1, of the Declaration of Covenants and Restrictions it is provided as follows: No building, fence, wall or other structure shall be commenced, erected or maintained [within the development], nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directions of the Association, or by an architectural committee composed of three (3) or more representatives appointed by the Board. In the event said Board, or its designated committee, fails to approve or disapprove such design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the addition, alteration or change has been commenced prior to the completion thereof, approval will not be required and this Article will be deemed to have been fully complied with.6 6. With respect to "alteration[s]," Article VII, Section 1, of the Declaration of Covenants and Restrictions defines the term as follows: : Plaintiff's complaint, para. 2; Defendant's answer, para. 2. 3 N.T. 19, 69, Trial (August 25, 2003); Plaintiff's Ex. 1. Although the court has considered the entire record, citations to testimony are available for the first day of trial only, since transcripts were not prepared for the other days. 4 Plaintiff's Ex. 1. 5 N.T. 19, Trial (August 25, 2003). 6 N.T. 25, 27-28, Trial (August 25, 2003); Plaintiff's Ex. 1. 2 Alterations for the purpose of this section shall include, inter alia, the following: The installation, painting and repair of any shutters, awnings, windowboxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows (including storm doors and windows), exterior carpeting, or other fixtures designed to serve a Living Unit but located on the exterior of said unit and shall require the submission to and prior approval of the Architectural Control Committee.7 7. With respect to a waiver of the provisions of the Declaration of Covenants and Restrictions by virtue of a failure of the Association to enforce them against other persons, Article IX, Section 3, of the Declaration provides as follows: [F]ailure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.8 8. With respect to attorney's fees incurred by the Association as a result of a violation of the Declaration of Covenants and Restrictions, Article V, Section 9, of the Declaration provides as follows: If [an] assessment is not paid within thirty (30) days after the delinquence date, . . . the Association may bring an action at law against the Owner personally obligated to pay the same, or to foreclose the lien against the property, and there shall be added to the amount of such assessment the costs of preparing and filing the complaint in such action, and, in the event a judgment is obtained, such judgment shall include interest on the assessment . . . and a reasonable attorney's fee to be fixed by the court, together with the costs of the action.9 9. On or about January 28, 2002, Defendant applied to the Association's Board of Directors for approval to install two 100-gallon propane tanks on the outside of a privacy fence on her property, facing a public street; under the proposal, the tanks were to be screened by lattice, and eventually also by trees, l0 7 Plaintiff's Ex. 1. 8 N.T. 28-29, Trial (August 25, 2003); Plaintiff's Ex. 1. 9 Plaintiff's Ex. 1. l0 N.T. 31-33, Trial (August 25, 2003); Plaintiff's Ex. 2. 3 10. Defendant's application was the first received by the Board for installation of two large propane tanks in the community. ~ 11. Defendant's application was considered at a meeting of the Board on February 26, 2002, which Defendant attended, but the application was denied with a suggestion that the proposed location of the tanks be changed from outside her fence to inside it.~2 12. The Board did not act arbitrarily or in bad faith in rejecting the application.~3 13. Defendant did not respond to the Board's invitation to propose a different site for the tanks. ~4 14. Defendant did not seek judicial intervention by way of a declaratory judgment or other legal action. 15. Without advance notice to the Board, Defendant had the tanks installed as proposed in the application over the weekend~5 of March 23, 2002;~6 the occurrence of this event on a weekend coincided with a period when courts are not readily available. 16. The installation was complete before the Board could reasonably have initiated legal action to enjoin the installation. ~7 17. Defendant did not accede to a request by the Board that she retract her action,la 18. The Board initiated the instant action in equity on June 14, 2002, seeking an injunction and attorney's fees. 19. Reasonable and necessary attorney's fees have been incurred by Plaintiff in the prosecution of this action in the amount of $17,772.39.~9 ~ N.T. 42, Trial (August 25, 2003). There were between 10 and 15 propane tanks in the development. N.T. 37, Trial (August 25, 2003). ~: N.T. 33-34, 53-54, 61, Trial (August 25, 2003); Plaintiff's Exs. 3, 8, 31. ~ See, e.g., N.T. 41-45, 61-62, 74-75, 84-85, 128, 134, 164-70, Trial (August 25, 2003); Plaintiff's Exs. 7, 12. 14 N.T. 60, 138, Trial (August 25, 2003). ~5 N.T. 59, Trial (August 25, 2003). 16 N.T. 48, 132, Trial (August 25, 2003). This was apparently the first time that a homeowner had directly violated a decision of the Board. N.T. 40, 120, Trial (August 25, 2003). ~7 N.T. 51, Trial (August 25, 2003). ~8 N.T. 56, 101-02, Trial, August 25, 2003); Plaintiff's Ex. 6. 4 20. Reasonable and necessary attorney's fees have been incurred by Defendant in the defense of this action and pursuit of her counterclaim in the amount of $20,810.75.2° DISCUSSION In general, restrictive covenants which run with the land are enforceable in equity by injunctive relief.2~ Exceptions to the general rule include restrictions which contravene public policy,22 are ambiguous,23 or no longer serve a rational purpose.24 It is not, generally, a defense to a violation of a restrictive covenant that the party seeking to enforce the covenant has not been as aggressive as possible in pursuing every other arguable violation by third parties.25 In order to effect a release or discharge of the real covenants the burden of proof is upon the owners of the servient tenements to show that the original purpose and intent of the restrictions have been materially altered or destroyed by changed conditions and that substantial benefit and advantage may not inure to the owners of the dominant tenement by the enforcement of the restrictions.26 Restrictive covenants are to be interpreted to give effect to their intended meanings.27 Interpretations which are not in harmony with their purposes are disfavored.2a Finally, with respect to awards of counsel fees, Pennsylvania has traditionally adhered to the "American rule": 19 Plaintiff's Ex. 32. :0 Defendant's Ex. 4. :~ Buck Hill Farms Co. v. Press, 791 A.2d 392 (Pa. Super. Ct. 2002); 1 Ladner, Conveyancing in Pennsylvania §9.04, at 27 (4th ed. 1979). :: See Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948); Grossman v. Hill, 384 Pa. 590, 122 A.2d 69 (1956). :3 See Ballardv. Heppe, 403 Pa. Super. 441,589 A.2d 266 (1991). :4 See Scott v. Owings, 223 Pa. Super. 481,483-85,302 A.2d 423,424-25 (1973). :5 See Rieckv. Virginia Manor Co., 251 Pa. Super. 59, 380 A.2d 375 (1977). :6 Rieckv. Virginia Manor Co., 251 Pa. Super. 59, 64-65, 380 A.2d 375,378 (1977). :7 Rieckv. Virginia Manor Co., 251 Pa. Super. 59, 380 A.2d 375 (1977). :8 Pocono Manor Ass 'n v. Allen, 337 Pa. 442, 12 A.2d 32 (1940). 5 The customarily applied "American rule" provides that there can be no recovery of counsel fees from an adverse party in the absence of an express statutory allowance of attorney's fees, a clear contractual agreement between the parties, or some other established exception permitting attorney's fees in a given situation. Pennsylvania State Police v. Benny Enterprises, Inc., 669 A.2d 1018, 1022 (Pa. Commw. Ct. 1995); see Act of July 9, 1976, P.E. 586, §2, 42 Pa. C.S. §1726(a)(1) (1999 Supp.). Section 2503 of the Judicial Code provides statutory authorization for the recovery of reasonable counsel fees as part of the taxable costs of a case where the conduct of a party "in commencing the matter or otherwise was arbitrary, vexatious or in bad faith,''29 or "as a sanction against [a] participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.''3° In the present case, it seems clear to the court that Defendant's installation of the propane tanks and fencing proposed in her application to the Board, following the Board's rejection of the proposal and invitation to suggest an alternative site within her fenced area, represented a violation of a restrictive covenant applicable to her property. The evidence did not lead the court to believe that Plaintiff had acted arbitrarily or in bad faith in the exercise of its duty of review of the application, nor had the Board's failure to ferret out instances where a few installations had occurred without application to the Board for approval resulted in an evolution of the community to the point that the restrictive covenant no longer served a rational purpose. In addition, the Declaration of Covenants and Restrictions expressly provided that a waiver was not to be inferred from perceived deficiencies in past enforcement. Although the court can sympathize with Defendant's desire to utilize her property as she chooses, all of the properties in the development are subject to several enforceable restrictions to the contrary. One of these--the restriction at issue--places responsibility for approval of exterior modifications of the type proposed upon the Board of Directors 29 Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §2503(9). 30 Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §2503(7). 6 of the homeowners' association. The record would not justify, in the court's view, a substitution of its judgment for that of the Board in this instance. This result is not altered by the fact that the Board failed to institute legal action before Defendant had completed installation of the structure. Defendant executed the installation over a weekend, without advance notice to the Board and after receipt of its rejection of her application. To construe the provision in Article VII, Section I, of the Declaration of Covenants and Restrictions relating to a waiver by the Board where suit has not been commenced prior to completion of a structure to validate Defendant's weekend action in the present case, would be to render the approval scheme in the Declaration voidable at the applicant's election. Such a construction is not consistent with the obvious intent of the provision, which contemplates conduct by an applicant that affords the Board at least some possibility of timely commencing litigation. With respect to attorney's fees, it is the court's view that neither party should be awarded such fees. The Declaration of Covenants and Restrictions does not by its terms provide for an award of attorney's fees in favor of Plaintiff in this situation; nor, of course, has Plaintiff, the prevailing party, conducted itself in such a way as to warrant an award of attorney's fees to Defendant under the Judicial Code. CONCLUSIONS OF LAW 1. The Court has jurisdiction over the parties and subject matter of this litigation. 2. Defendant breached Article VII, Section 1, of the Declaration of Covenants and Restrictions applicable to her property by erecting two 100-gallon propane tanks and surrounding fence in violation of a denial by Plaintiff's Board of Directors of her application to do so. 3. Plaintiff is entitled to injunctive relief in the form of a decree directing Defendant to relocate the structure to a situs approved by Plaintiff. 4. Neither party is entitled to attorney's fees. DECREE NISI AND NOW, this 28th day of January, 2004, upon consideration of Plaintiff's complaint and Defendant's counterclaim, following an equity trial held on August 25, 2003, December 4, 2003, and December 8, 2003, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. On Plaintiff's complaint, the Court finds in favor of Plaintiff and against Defendant, Plaintiff is awarded costs of suit, and Defendant is enjoined to relocate the two 100-gallon propane tanks and screening fence to a location approved by Plaintiff within 90 days of the date of this decree; 2. On Defendant's counterclaim, the Court finds in favor of Plaintiff and against Defendant; and 3. No other relief is awarded to either party. THIS DECREE NISI shall automatically become a final decree without further order of court in the event that neither party files a timely motion for post-trial relief in accordance with Pennsylvania Rule of Civil Procedure 227.1. BY THE COURT, Karl M. Ledebohm, Esq. P.O. Box 173 New Cumberland, PA 17070-0173 Attorney for Plaintiff Charles W. Rubendall, II, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Defendant s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 8 9 ALLENVIEW HOMEOWNERS ASSOCIATION, INC., A PENNSYLVANIA NON- PROFIT CORPORATION,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo GINA M. ZWANZIGER, Defendant CIVIL ACTION - EQUITY NO. 02-2900 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this 28th day of January, 2004, upon consideration of Plaintiff's complaint and Defendant's counterclaim, following an equity trial held on August 25, 2003, December 4, 2003, and December 8, 2003, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows: 1. On Plaintiff's complaint, the Court finds in favor of Plaintiff and against Defendant, Plaintiff is awarded costs of suit, and Defendant is enjoined to relocate the two 100-gallon propane tanks and screening fence to a location approved by Plaintiff within 90 days of the date of this decree; 2. On Defendant's counterclaim, the Court finds in favor of Plaintiff and against Defendant; and 3. No other relief is awarded to either party. THIS DECREE NISI shall automatically become a final decree without further order of court in the event that neither party files a timely motion for post-trial relief in accordance with Pennsylvania Rule of Civil Procedure 227.1. 11 Karl M. Ledebohm, Esq. P.O. Box 173 New Cumberland, PA 17070-0173 Attorney for Plaintiff Charles W. Rubendall, II, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Defendant BY THE COURT, J. Wesley Oler, Jr., J. 13