        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Briar Hill North Association, Inc.        :
                                          :
             v.                           :   No. 934 C.D. 2019
                                          :   Submitted: May 12, 2020
Joan K. Keil, Individually and in         :
Her Capacity as the Executrix of          :
the Estate of Helen M. Kuzmack,           :
Mary Jo Sanford, Helenann                 :
McCloskey, Jeannette K. Murphy,           :
and John A. Kuzmack,                      :
                          Appellants      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                          FILED: July 20, 2020


      Joan K. Keil, individually as a child of Helen M. Kuzmack (Mrs. Kuzmack)
and in her capacity as the Executrix of the Estate of Helen M. Kuzmack, along with
the other children of Mrs. Kuzmack, Mary Jo Sanford, Helenann McCloskey,
Jeannette K. Murphy, and John A. Kuzmack (collectively, Appellants), appeal from
an order of the Court of Common Pleas of Wayne County (trial court), dated
June 13, 2019. The trial court granted summary judgment against Appellants in
favor of Briar Hill North Association, Inc. (the Association) and awarded unpaid
assessments, late fees, and attorney’s fees in the total amount of $45,986.79. For the
following reasons, we affirm in part, reverse in part, and remand this matter to the
trial court for further proceedings.
                                I. BACKGROUND
      The Association is a nonprofit corporation that is responsible for, inter alia,
the maintenance of the roads and other common areas of the development commonly
known as Briar Hill North (the Community), located in Paupack Township, Wayne
County, Pennsylvania, on the north shore of Lake Wallenpaupack.             Lakeland
Associates, Inc. (Developer), the Association’s predecessor, acquired the land that
comprises the Community in 1952 and subsequently recorded a subdivision plan that
created each individual lot in the Community. Appellants own the real property
commonly known as Lots 9 and 10-R (collectively, the Properties) in the
Community. John A. Kuzmack, Sr. (Mr. Kuzmack), Mrs. Kuzmack’s late husband,
acquired title to Lot 9 by deed dated September 6, 1957. (Reproduced Record (R.R.)
at 26a-28a.) Mr. and Mrs. Kuzmack acquired title to Lot 10-R by deed dated
September 27, 1973. (Id. at 29a-31a.) Mr. Kuzmack died on March 25, 2009, at
which time sole title to the Properties vested in Mrs. Kuzmack, who conveyed the
Properties to herself and her children (i.e., Appellants) on February 28, 2012.
(Id. at 24a-25a.)
      The 1957 and 1973 deeds by which Mr. and Mrs. Kuzmack acquired the
Properties contain substantially identical uniform covenants (the Covenants), which,
inter alia, grant the property owner the right to use certain areas of the Community
designated for common use, including roads, boat docks, and other facilities.
(R.R. at 26a-31a.) Specifically, the Covenants provide, in relevant part:
             [T]he following restriction[s] shall be covenants running
             with the land.
                    ....

                                         2
                    . . . [This deed] . . . conveys the right of ingress and
             egress over all common area roads in the area and all
             common use areas set aside by [Developer] for ingress and
             egress to [Lake Wallenpaupack] and any and all other
             common use facilities provided with the following
             restrictions: all property owners using such facilities shall
             share a proportionate amount of the costs of
             maintenance . . . .
                    ....
                    Roads made by [Developer] shall be maintained by
             the property owners.
                    ....
                     . . . [T]he use and maintenance of roads and
             common use facilities shall be the [g]rantee, and users
             [sic] responsibility and . . . [Developer] shall in no way be
             held liable for any accidents, damages, or other costs
             arising from or in the course of using such common use
             facilities or rights of way . . . .

(Id. at 27a-28a, 31a.)
      It is undisputed that Mr. Kuzmack, from the time he acquired the Properties
until 2009, regularly made payments to the Association representing the Properties’
proportionate share of only seasonal road maintenance costs, excluding the costs of
winter road maintenance (snow removal and cindering) and costs for items other
than road maintenance. (See Original Record (O.R.), Item No. 29, ¶ 37; O.R., Item
No. 35, Exs. S-ll.) In 2011, the Association began billing Appellants (retroactive to
2009) the standard assessment billed to members of the Association less winter road
maintenance costs. (O.R., Item No. 35, Ex. nn.) Appellants did not pay that amount,
but they continued to pay a lesser amount representing only nonwinter road
maintenance costs. In 2012, the Association began billing Appellants for the
standard assessment billed to members of the Association without deduction of any




                                           3
kind. (Id., Ex. qq.) As before, Appellants paid only the lesser amount for nonwinter
road maintenance.
      The Association filed with the trial court a First Amended Complaint
(Complaint) against Appellants for the unpaid portion of the standard Community
assessments from 2012 to the present ($2,670.79), late fees ($3,289.00), and
attorney’s fees and costs. (See R.R. at 8a-21a; Notes of Testimony (N.T.), 5/29/19,
Exs. P-5, P-8.) The Association’s Complaint consists of six counts: (I) Breach of
Covenant, (II) Unjust Enrichment, (III) Easement Ownership, (IV) Implied Contract,
(V) Uniform Planned Community Act (the Act),1 and (VI) Common Element
Ownership and Use. (R.R. at 8a-21a.) In defense to the Association’s claims,
Appellants asserted, inter alia:      (1) they are not members of the Association;
and (2) they are obligated to pay only their proportionate share of the Association’s
seasonal road maintenance expenses because the only common areas in the
Community that they use are the roads and they only use such roads from spring
through fall. Appellants also asserted the affirmative defenses of collateral estoppel,
consent, and estoppel.
      Following a period of discovery, the Association and Appellants filed
cross-motions for summary judgment. By order dated December 27, 2017, the trial
court granted summary judgment in favor of the Association and against Appellants
with respect to the Counts of the Complaint for Breach of Covenant (Count I),
Easement Ownership (Count III), Uniform Planned Community Act (Count V), and
Common Element Ownership and Use (Count VI). The trial court granted summary
judgment in favor of Appellants and against the Association with respect to the
Association’s counts for Unjust Enrichment (Count II) and Implied Contract

      1
          68 Pa. C.S. §§ 5101-5414.

                                           4
(Count IV). Appellants appealed the trial court’s order to this Court. By order dated
January 9, 2019, we quashed the appeal as untimely. In an attached opinion, we
explained that the trial court’s grant of summary judgment was interlocutory (and,
therefore, not appealable), because it addressed only the issue of liability and did not
award damages.          See Briar Hill N. Ass’n, Inc. v. Kuzmack (Pa. Cmwlth.,
No. 138 C.D. 2018, filed January 9, 2019), slip op. at 6-7. Following our decision,
the trial court held a damages hearing and issued an order on June 13, 2019, awarding
damages against Appellants in the amount of $45,986.79.2 Appellants filed the
instant appeal on July 12, 2019.
                                          II. ISSUES
       On appeal,3 Appellants essentially raise seven issues for our consideration.
The first four issues are with respect to Counts I, III, V, and VI of the Complaint.
Appellants argue that, on each of those Counts, the trial court erred in granting
summary judgment in favor of the Association and implicitly denying Appellants’
summary judgment motion. As to the remaining three issues, Appellants argue that
the trial court erred in (1) failing to conclude that the Association’s claims are barred
by the doctrines of consent and estoppel; (2) failing to conclude that the
Association’s claims are barred by the doctrine of collateral estoppel; and
(3) awarding excessive and unreasonable attorney’s fees.


       2
          Mrs. Kuzmack died on January 16, 2019, during the pendency of this matter before the
trial court. (O.R., Item No. 72.) On June 13, 2019, pursuant to the parties’ joint motion, the trial
court issued a separate order substituting for Mrs. Kuzmack the following party: “Joan K. Keil,
as executrix of the estate of Helen M[.] Kuzmack.” (O.R., Item No. 74.)
       3
         This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010), overruled on other grounds by Cagey
v. Cmwlth., 179 A.3d 458 (Pa. 2018).

                                                 5
                                 III. DISCUSSION
                              A. Summary Judgment
      A court may grant a motion for summary judgment “only when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.”    Bronson v. Horn, 830 A.2d 1092, 1094 (Pa. Cmwlth. 2003), aff’d,
848 A.2d 917 (Pa. 2004). “The right to judgment must be clear and free from
doubt.” Id. In reviewing the grant of a motion for summary judgment, this Court
must “view the record in the light most favorable to the non-moving party, and all
doubts as to the existence of a genuine issue of material fact must be resolved against
the moving party.” Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied,
536 U.S. 938 (2002).
                          1. Breach of Covenant (Count I)
      Appellants first claim that the trial court erred in concluding that they
breached a covenant by paying only nonwinter road maintenance costs instead of the
full assessment amount billed by the Association. In so concluding, the trial court
emphasized that the Covenants convey upon Appellants the right to use and benefit
from all common areas in the Community. Accordingly, the trial court, relying on
our decision in Spinnler Point Colony Association, Inc. v. Nash, 689 A.2d 1026 (Pa.
Cmwlth. 1997), reasoned that Appellants are obligated by the Covenants to pay for
the maintenance of all common areas (i.e., not limited to roads), regardless of
whether they actually use such areas. (See Appellants’ Br., App. D at 8.)
      Appellants argue that the text of the Covenants is not ambiguous and requires
payment of their proportionate share of maintenance costs only for the common
areas that Appellants actually use. Specifically, they focus on the Covenants’
modifying phrase “using such facilities,” which, in their view, limits the class of


                                          6
“property owners” who are obligated to pay for any given common facility to just
the owners who actually use that facility. (R.R. at 27a-28a, 32a.) Appellants
principally argue that the Covenants clearly express only that meaning and that the
trial court, therefore, erred in implicitly finding the Covenants ambiguous and
further construing their language. In the alternative, Appellants argue that, if the
Covenants do require construction, Spinnler Point is distinguishable and the trial
court erred in construing the Covenants to require payment for common facilities
Appellants do not use. Moreover, Appellants maintain that, as a factual matter, they
have used only the roads in the Community from spring through fall and not any
other common areas, although they acknowledge that the Association has made
allegations and adduced evidence to the contrary.
      In response, the Association principally relies on the same reasoning as the
trial court, emphasizing that the Covenants allow Appellants to use all common
facilities in the community—a right for which, in the Association’s view, Appellants
should pay. In support, the Association cites numerous cases, including Spinnler
Point, which impose payment obligations on owners despite the absence of any
express payment obligation in the covenants at issue. The Association does not
address Appellants’ textual argument concerning the Covenants, except by asserting,
without elaboration, that the Covenants unambiguously require payment of
maintenance costs for all common areas and do not refer to “actual[]” use of
facilities. (Association’s Br. at 32-33, 35.)
      In reply, Appellants emphasize that the Association did not squarely address
the textual “use[]” issue. Additionally, Appellants explain that, before the trial court,
the Association was able to identify only three occasions during their family’s nearly
60-year history of ownership on which any family member allegedly used non-road


                                           7
common facilities. Appellants also argue that those three occasions of use all
occurred on Community roads at lake access points—roads for which Appellants
have always paid their proportionate share of maintenance.
      The interpretation of a deed—including covenants contained in a deed—is a
question of law for the court. Starling v. Lake Meade Prop. Owners Ass’n, Inc.,
162 A.3d 327, 340 (Pa. 2017). “The same principles that apply to the interpretation
of a contract apply to the interpretation of a deed.” Id. at 341. Accordingly, the
object of our interpretation is to ascertain and effectuate the intention of the parties,
viewing the language of the instrument in its entirety. In re Conveyance of Land
Belonging to City of DuBois, 335 A.2d 352, 357 (Pa. 1975); Wilkes-Barre Twp. Sch.
Dist. v. Corgan, 170 A.2d 97, 98 (Pa. 1961) (“[The parties’] intention is to be
gathered from a reading of the entire contract.”). Where the language of the
restrictive covenant is unambiguous, “the intent of the parties should be gained from
the writing itself.”    Hankin v. Goodman, 246 A.2d 658, 660 n.1 (Pa. 1968).
Covenant language is ambiguous only if it is “reasonably susceptible of different
constructions and capable of being understood in more than one sense.” Hutchison
v. Sunbeam Coal Corp., 519 A.2d 385, 390 (Pa. 1986).
      If, and only if, the language of the instrument is ambiguous, “the court must
look at the circumstances under which the grant was made” in order to determine
what the parties intended. In re Estate of Quick, 905 A.2d 471, 474-75 (Pa. 2006)
(quoting Hindman v. Farren, 44 A.2d 241, 242 (Pa. 1945)). The court may consider
circumstances such as “the situation of the parties, the objects they apparently ha[d]
in view, and the nature of the subject[ ]matter of the agreement.” Id. Finally, in any
case, an agreement “must be interpreted to give effect to all of its provisions.”
Cmwlth. ex rel. Kane v. UPMC, 129 A.3d 441, 464 (Pa. 2015).


                                           8
      The language of the Covenants plainly confers on property owners the right
to use “all common area roads . . . [,] all common use areas . . . [,] and all other
common use facilities.” (R.R. at 28a, 32a.) Just as clearly, the Covenants impose
the following condition on that right: “[A]ll property owners using such facilities
shall share a proportionate amount of the costs of maintenance.” (Id. (emphasis
added).) We agree with Appellants that the phrase “using such facilities” must be
read to restrict payment obligations to owners who actually use certain common
facilities. This is true notwithstanding that the Covenants do not use the word
“actually,” as the Association points out. The Association’s apparent view—that the
Covenants obligate all owners to pay for the maintenance of all common facilities
equally, regardless of use—cannot be correct because it gives no effect to the
unambiguously limiting phrase “using such facilities.” See Kane, 129 A.3d at 464.
      Our reading is consistent with the balance of the Covenants. For example, the
Covenants provide, without qualification, that “[r]oads . . . shall be maintained by
the property owners.” (R.R. at 28a, 32a.) This language clearly imposes road
maintenance liability on all owners (regardless of use or seasonality). Although this
language may appear to contradict the use-contingent liability discussed earlier, it
simply reflects the common-sense notion that virtually every owner in the
Community must use the Community’s roads. This is not true of other common
facilities, such as those that serve only recreational purposes. Thus, with respect to
roads only, the Covenants essentially create an explicit exception to the explicit rule
that owners pay for maintenance of only the common facilities they use.
Furthermore, although the Covenants later state that use and maintenance of all
common facilities will be the “responsibility” of “grantee[s] . . . and users,” that
provision is clearly intended as a release of Developer’s liability, not an imposition


                                          9
of liability on owners (for which the Covenants separately and expressly provide).
(Id.) Thus, viewing the Covenants as a whole, we conclude that they unambiguously
impose liability for maintenance costs on Appellants for the roads in the Community,
regardless of seasonal use or nonuse, and any other common area or facility which
Appellants use. Accordingly, the trial court erred in looking beyond the clear
language of the Covenants and construing them according to common law
principles.4
       Moreover, a genuine dispute of fact remains concerning the extent to which
Appellants used (or are using) common areas other than roads in the Community.
Attached to the Association’s motion for summary judgment is the affidavit of Vera
Demchenko, who avers that during her tenure as Director and Treasurer of the
Association from 2010-2014, members of Appellants’ family attended social events
at “the Point” and used the Association’s boat launch, both of which are common
facilities of the Community. (R.R. at 103a.) As we have noted, Appellants deny
these allegations and maintain that their use of any common facilities was restricted
to roads. This dispute between the parties regarding if, when, and exactly where
Appellants used common facilities other than roads is central to their liability under
the Covenants and must be resolved by the trial court as factfinder. On remand, the
trial court must first make such findings and, if it finds that the alleged use did occur,
it must determine the extent of Appellants’ payment obligations under the Covenants
in light of that use. Depending upon the specific factual findings, the trial court may
need to determine whether, under the Covenants, an isolated instance of use triggers
an obligation in full for the year in which the use occurred, an ongoing obligation,


       4
          We address the trial court’s reliance on common law payment obligations (under, inter
alia, Spinnler Point) in the next subsection of this Opinion.

                                              10
or some form of prorated obligation based on the frequency or extent of the use. For
these reasons, with respect to Count I, the trial court erred in granting summary
judgment in favor of the Association and did not err in denying summary judgment
in favor of Appellants.
      2. Easement/Common Element Ownership and Use (Counts III and VI)
      We next consider whether summary judgment was warranted under common
law governing covenant and easement relationships. The trial court, in granting
summary judgment in favor of the Association with respect to Counts III and VI,
essentially held that Appellants are liable for maintenance costs on all common
facilities by virtue of their right to use those facilities. Such rights are set forth in
the Covenants in the form of an easement (the basis for the Association’s Count III)
and are appurtenant to Appellants’ ownership interest in the Properties (the basis for
Count VI).
      Appellants argue that the trial court erred because it applied common law
doctrines that are meant to apply only in the absence of an express contractual
arrangement regarding liability for maintenance costs. Here, Appellants contend,
the Covenants specifically state that Appellants are required to pay only for the
common facilities that they use (not that they have the right to use), thus making the
common law rules at issue inapposite. In response, the Association cites several
cases holding that, where a party enjoys an easement, there is an implicit obligation
to pay for its maintenance. In reply, Appellants reiterate their argument that common
law obligations to pay for easements do not apply because here, unlike in those cases,
the Covenants expressly address maintenance cost liability.
      The Association is correct that, in several cases where covenants allow use of
common facilities, our courts have held owners liable for maintenance payments for


                                           11
those facilities absent an express covenant to that effect. See Hess v. Barton Glen
Club, Inc., 718 A.2d 908, 913 (Pa. Cmwlth. 1998), appeal denied, 737 A.2d 745
(Pa. 1999); Spinnler Point, 689 A.2d at 1028; Meadow Run & Mountain Lake Park
Ass’n v. Berkel, 598 A.2d 1024, 1026-27 (Pa. Super. 1991), appeal denied,
610 A.2d 46 (Pa. 1992).
       Critically, however, and unlike in this case, the relevant covenants in those
cases did not expressly address maintenance cost liability for the common facilities
at issue. See Hess, 718 A.2d at 913 (imposing maintenance obligation beyond
express $30 “lake and park assessment” contained in covenant); Spinnler Point,
689 A.2d at 1028 (“[T]he chain of title makes no reference to . . . the obligation to
pay assessments, dues or fees.”); Meadow Run, 598 A.2d 1026 (“[T]he deed does
not explicitly spell out the exact obligation . . . [for] payment of dues for
maintenance . . . .”).   Here, as we have discussed, the Covenants do spell out
Appellants’ obligation for payment of maintenance costs for common facilities. We
hold, therefore, that Appellants’ maintenance cost liability is governed by that clear
language, not by common law rules designed to apply in the absence of an express
agreement. Accordingly, Appellants are entitled to prevail as a matter of law on
Counts III and VI. The trial court, therefore, erred with respect to those Counts in
granting summary judgment in favor of the Association and denying Appellants’
summary judgment motion.
                   3. Uniform Planned Community Act (Count V)
       Concerning the Act—the last remaining basis for the trial court’s grant of
summary judgment—the trial court first acknowledged that creation of the
Community and the Association occurred long before the Act became effective. The
trial court then applied the Act retroactively to conclude that the Community


                                         12
constitutes a “planned community” and the Association constitutes a “unit owners’
association” under the Act.5 Based on this, the trial court further concluded that the
Association has the authority under the Act to collect the claimed assessments from
Appellants.
       Appellants acknowledge that portions of the Act apply retroactively, but they
argue that the instant case is analogous to Rybarchyk v. Pocono Summit Lake
Property Owners Association, Inc., 49 A.3d 31 (Pa. Cmwlth. 2012), appeal denied,
68 A.3d 910 (Pa. 2013), where we refused to allow an association formed by unit
owners to collect compulsory assessments under retroactive application of the Act.


       5
          Section 5103 of the Act, 68 Pa. C.S. § 5103, sets forth the following definitions, in
relevant part:
              “Association” or “unit owners’ association.” The unit owners
              association organized under [S]ection 5301 [of the Act] (relating to
              organization of unit owners’ association).
              ....
              “Planned Community.” Real estate with respect to which a
              person, by virtue of ownership of an interest in any portion of the
              real estate, is or may become obligated by covenant, easement or
              agreement imposed on the owner’s interest to pay any amount for
              real property taxes, insurance, maintenance, repair, improvement,
              management, administration or regulation of any part of the real
              estate other than the portion or interest owned solely by the
              person . . . .
Section 5301 of the Act, 68 Pa. C.S. § 5301, provides:
                     A unit owners’ association shall be organized no later than
              the date the first unit in the planned community is conveyed to a
              person other than a successor declarant. The membership of the
              association at all times shall consist exclusively of all the unit
              owners . . . . The association shall be organized as a profit or
              nonprofit corporation or as an unincorporated association.


(Footnote continued on next page…)
                                               13
Essentially, Appellants claim that the Community does not constitute a “planned
community” under the Act because the Association is not a “unit owners’
association” as described in Section 5301 of the Act and, therefore, has no authority
to collect assessments under the Act. Alternatively, Appellants argue that, even if
the Act applies, its standard provisions cannot displace the preexisting arrangement
created by the Covenants, which allows the Association to collect assessments only
for roads and for other common facilities that Appellants use. Finally, Appellants
insist that the Association’s bylaws do not require membership or payment of the
charged assessments.6
       In response, the Association purports to distinguish Rybarchyk and relies
instead on our decision in Pinecrest Lake Community Trust ex rel. Carroll v. Monroe
County Board of Assessment Appeals, 64 A.3d 71 (Pa. Cmwlth. 2013), where we
held that an association had authority under the Act despite not meeting the formal
requirements set forth in Section 5301 of the Act. Relying on our reasoning in
Pinecrest Lake, the Association essentially argues that it is authorized to collect
assessments for all common facilities under the Act because the Association
functions as the Community’s unit owners’ association.
       “[C]ertain provisions of the [Act] retroactively apply to all planned
communities created before the [Act]’s effective date.” Pinecrest Lake, 64 A.3d
at 74 (emphasis omitted). We have applied the definition of “planned community”

       6
         Throughout their briefs, the parties dispute the effect of the Association’s bylaws on
Appellants’ obligation to pay. We resolve this dispute by pointing out, as Appellants do, that
“nothing . . . gives [an association] the right to bind non[]members or make membership mandatory
absent a shared obligation.” See Huddleson v. Lake Watawga Prop. Owners Ass’n, 76 A.3d 68,
73 (Pa. Cmwlth. 2013), appeal denied, 84 A.3d 1065 (Pa. 2014). In other words, the Association’s
bylaws do not independently obligate Appellants to become members of the Association or pay
maintenance fees for common facilities. That obligation must arise from some other source that
binds Appellants as owners of the Properties, such as the Covenants, common law, or the Act.

                                               14
from Section 5103 of the Act retroactively in many cases to determine whether a
pre-Act conveyance creates a planned community. See, e.g., id. at 75; Rybarchyk,
49 A.3d at 35. Here, given our construction of the Covenants, it is clear that, in the
language of the Act, Appellants are “obligated by covenant . . . to pay [an] amount
for . . . maintenance” of, at a minimum, the roads within the Community.
Accordingly, we agree with the Association that the Properties are part of a planned
community and are subject to the Act to the extent that its provisions apply
retroactively.
      That is not, however, the end of our inquiry, for retroactive application of the
Act “do[es] not invalidate specific provisions contained in existing provisions of [a]
declaration.” 68 Pa. C.S. § 5102(b). A “declaration” is “[a]ny instrument, however
denominated, that creates a planned community.” 68 Pa. C.S. § 5103. This
protection of preexisting arrangements, regardless of form and even if contrary to
the Act’s standard requirements, reflects a concern “that the application of certain
organizational requirements of the [Act] to pre[]existing planned communities could
violate the constitutional prohibition against impairment of contracts and lead to
confusion among unit owners and declarants.” Pinecrest Lake, 64 A.3d at 80.
Accordingly, Pennsylvania courts have upheld the organizational structure of
pre-Act planned communities even when the regime of underlying covenants differs
from the Act’s requirements or typical planned community arrangements.
      In Pinecrest Lake, we examined a pre-Act planned community created by a
trust agreement requiring all unit owners to make payments to the trust. We
determined that an entity such as the trust need not meet the formal requirements of
Section 5301 of the Act to qualify as an “association.” Instead, we examined the
functional legal regime created by the trust agreement, noting that unit owners paid


                                         15
dues to and were the sole beneficiaries of the trust. We concluded that, because “the
[t]rust performs the essential protective functions of an owners’ association,” the
trust could constitute an “association” under the Act without meeting the formal
requirements of Section 5301. Pinecrest Lake, 64 A.3d at 80-81.
       In the instant case, with respect to roads, the Covenants impose a mandatory
requirement of payment for maintenance. Accordingly, under Pinecrest Lake, the
Association (which manages the maintenance of those roads) qualifies as an
“association” under the Act for purposes of roadway maintenance, and, thus, the
Association    may     collect   assessments      for     roadway   maintenance      under
Section 5302(a)(2) of the Act, 68 Pa. C.S. § 5302(a)(2).7 With respect to other
common facilities, however, the Covenants impose a payment obligation only to the
extent that Appellants use those common facilities—an arrangement that differs
from the Act’s compulsory assessment regime.                  Those Covenants are the
Community’s      “declaration”—its      founding        and   governing   document—and
retroactive application of the Act’s standard provisions cannot invalidate them. See
68 Pa. C.S. § 5102(b). Accordingly, we hold that, just as the Act did not invalidate
the organizational structure of the trust in Pinecrest Lake, 64 A.3d at 80, the Act
does not invalidate the maintenance cost regime clearly imposed by the Covenants.
       Thus, although the Association (and the trial court) are generally correct that
the Association has authority under the Act, we cannot agree that the Act authorizes
the Association to collect maintenance costs from Appellants for common facilities
(other than roads) that they do not use. Instead, the Association’s authority under
the Act is limited to the extent of Appellants’ obligations under the Covenants. As


       Section 5302(a)(2) of the Act permits “the association” to “collect assessments for
       7

common expenses from unit owners.” Section 5302(a)(2) is retroactive. 68 Pa. C.S. § 5102(b).

                                            16
we have said, the factual issue of use is in genuine dispute between the parties.
Summary judgment was, therefore, not supported by the Act with respect to
Count V, and the trial court erred in so concluding. Moreover, because of this
genuine factual dispute, the trial court did not err in denying Appellants’ summary
judgment motion with respect to Count V.
                             B. Affirmative Defenses
      Notwithstanding the above analysis, the trial court’s grant of summary
judgment in favor of the Association was premature, because the trial court never
addressed Appellants’ affirmative defenses of consent and estoppel and collateral
estoppel. Specifically, Appellants argue that the trial court erred in failing to
conclude that the Association’s claims are barred by the doctrines of consent and
estoppel because, from 1982 through 2008, the Association always billed—and
Mr. and Mrs. Kuzmack always paid—only for their proportionate share of nonwinter
road maintenance costs. Appellants also argue that the trial court erred in failing to
conclude that the Association’s claims are barred by the doctrine of collateral
estoppel, because a 1981 magisterial district court judgment against Mr. Kuzmack
establishes that the Association can only collect a proportionate share of nonwinter
road maintenance costs from Appellants. The trial court failed to consider whether
Appellants’ affirmative defenses in any way precluded the Association from
prevailing on its claims.    Consideration of those affirmative defenses was a
prerequisite to entering summary judgment on behalf of the Association.
                                C. Attorney’s Fees
      As to Appellants’ argument that the trial court’s award of attorney’s fees was
excessive and unreasonable, due to the above rulings, any award of attorney’s fees




                                         17
is premature. Thus, we must strike the trial court’s award of attorney’s fees at this
stage of the proceedings.
                                IV. CONCLUSION
      Pursuant to the foregoing analysis, Appellants are entitled to prevail as a
matter of law with respect to Counts III and VI of the Complaint. The resolution of
Counts I and V of the Complaint, however, involves genuine issues of material fact
with regard not only to the causes of action but also, in all likelihood, with regard to
Appellants’ affirmative defenses. Thus, the trial court erred in granting summary
judgment in favor of the Association with respect to Counts I, III, V, and VI of the
Complaint. Additionally, the trial court erred in denying summary judgment in favor
of Appellants with respect to Counts III and VI of the Complaint but did not err in
denying summary judgment in favor of Appellants with respect to Counts I and V
of the Complaint. Accordingly, we will affirm in part, reverse in part, and remand
this matter to the trial court for further proceedings on the remaining counts of the
Complaint—i.e., Counts I and V. We will also strike as premature the trial court’s
award of attorney’s fees.




                                           P. KEVIN BROBSON, Judge




                                          18
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Briar Hill North Association, Inc.        :
                                          :
             v.                           :   No. 934 C.D. 2019
                                          :
Joan K. Keil, Individually and in         :
Her Capacity as the Executrix of          :
the Estate of Helen M. Kuzmack,           :
Mary Jo Sanford, Helenann                 :
McCloskey, Jeannette K. Murphy,           :
and John A. Kuzmack,                      :
                          Appellants      :


                                     ORDER


             AND NOW, this 20th day of July, 2020, the order of the Court of
Common Pleas of Wayne County (trial court), dated June 13, 2019, is AFFIRMED,
in part, and REVERSED, in part. The trial court’s order is AFFIRMED to the extent
that it denied summary judgment in favor of Appellants as to Counts I and V, and it
is REVERSED to the extent that it denied summary judgment in favor of Appellants
on Counts III and VI and to the extent that it granted summary judgment in favor of
Briar Hill North Association, Inc. with respect to Counts I, III, V, and VI. Further,
the trial court’s award of attorney’s fees is STRICKEN without prejudice. This
matter is REMANDED to the trial court for proceedings consistent with the attached
opinion.
             Jurisdiction relinquished.




                                          P. KEVIN BROBSON, Judge
