J-A27040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SADDLEWOOD CONDOMINIUM              :           IN THE SUPERIOR COURT OF
ASSOCIATION, INC.,                  :                 PENNSYLVANIA
                                    :
                Appellee            :
                                    :
           v.                       :
                                    :
JOSEPH N. DeNARDO, SHARI DeNARDO :
AND JOSEPH N. DeNARDO, t/d/b/a      :
J.N.D. PROPERTIES, AND              :
SADDLEWOOD HOMEOWNERS               :
ASSOCIATION, INC.                   :
                                    :
APPEAL OF: JOSEPH N. DeNARDO,       :
SHARI DeNARDO AND JOSEPH N.         :
DeNARDO, t/d/b/a J.N.D. PROPERTIES, :
                                    :
                Appellants          :                No. 159 WDA 2014

           Appeal from the Order entered on December 27, 2013
            in the Court of Common Pleas of Allegheny County,
                     Civil Division, No. GD 10-004501

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 14, 2014

     Joseph N. DeNardo, Shari DeNardo and Joseph N. DeNardo, t/d/b/a

J.N.D. Properties (collectively “Appellants”),1 appeal the Order granting in

part the Motion for Summary Judgment filed by Saddlewood Condominium




1
 Saddlewood Homeowners Association, Inc. (“SHA”) is not a party to this
appeal.
J-A27040-14

Association, Inc. (“SCA”).2 We affirm.

      Appellants    developed   the        Saddlewood   Condominium    complex

(“Saddlewood       Condominium”)      in    Allegheny   County,   Pennsylvania.

Appellants also developed a separate planned community of homes, SHA,

near Saddlewood Condominium. Within the parcel of land declared to SHA,

Appellants constructed a recreation area (“Recreation Area”), which includes

an outdoor swimming pool and a clubhouse.

      Appellants, as the declarant, filed and recorded the Declaration of

Condominium of Saddlewood Condominium (“Declaration”), which makes

reference to the Recreation Area, as follows:




2
  In this declaratory judgment action, SCA has moved to quash this appeal,
contending that the trial court’s Order is interlocutory in nature and, hence,
not a final appealable order. Appellee’s Brief at 38-40. Pursuant to
Pa.R.A.P. 341(b)(2), an order is final if “a statute expressly defines it as
final.” Section 7532 of the Declaratory Judgment Act (“DJA”), 42 Pa.C.S.A.
§ 7531 et seq., provides that
     [c]ourts of record, within their respective jurisdictions, shall have
     the power to declare rights, status, and other legal relations
     whether or not further relief is or could be claimed. No action or
     proceeding shall be open to objection on the ground that a
     declaratory judgment or decree is prayed for. The declaration
     may be either affirmative or negative in form and effect, and
     such declarations shall have the force and effect of a final
     judgment or decree.
42 Pa.C.S.A. § 7532. Because the trial court’s Order declared certain rights
of the parties, it has “the force and effect of a final judgment or decree,”
from which an appeal may properly lie. See Nationwide Mutual Ins. Co.
v. Wickett, 763 A.2d 813, 818 (Pa. 2000) (holding that an order issued in a
declaratory judgment action that negatively declared the rights and duties of
the parties constituted a final order).



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J-A27040-14

      Each Unit Owner and each person lawfully residing on the
      developed contiguous real estate is hereby granted a non-
      exclusive perpetual right and easement of access to and
      enjoyment in common with others, including non-unit owners, of
      the amenities and commercial and recreation facilities
      constituting the Recreation Area.

Declaration, at Section 4.1.5.1. Additionally, the Public Offering Statement

(“POS”) for Saddlewood Condominium, while not specifically mentioning the

Recreation Area, indicates that the Saddlewood Condominium unit owners

(“unit owners”) will have “access to a private amenity area with swimming

pool.” Public Offering Statement, at Section 2.4. However, no reference is

made to the Recreation Area in the original Plats and Plan for Saddlewood

Condominium, nor in the seven Supplemental Plats and Plan for Saddlewood

Condominium, all of which were filed and recorded in the Allegheny County

Recorder of Deeds (“collectively Plats and Plan”). Additionally, neither the

Declaration nor POS refer to any fee to be imposed on the unit owners to

use the Recreation Area.

      SCA is an association of the unit owners of the seventy-two

condominium      units   in   Saddlewood   Condominium.    Pursuant   to   the

Declaration and By-Laws for Saddlewood Condominium, unit owners are

required to pay a monthly assessment to SCA for common expenses

incurred for maintenance of certain “Common Elements.” See Declaration,

at 2; By-Laws, at Section 5.3.1.      The Recreation Area is not part of the

Common Elements of Saddlewood Condominium.            See Stipulation of the

Parties, at 2.   Nevertheless, unit owners are required to pay an additional


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J-A27040-14

monthly fee to SCA of $40.00 per month ($480.00 per year) for access to

the Recreation Area.3 SCA, in turn, pays $34,560.00 per year to Appellants

for access by unit owners to the Recreation Area.

     In 2010, SCA filed a Complaint for Declaratory Judgment, seeking a

declaration that the obligation to pay for access to the Recreation Area is

contractual in nature, and that, accordingly, SCA’s executive board has the

authority to unilaterally terminate the contract for access to the Recreation

Area, leaving SCA (and the unit owners) with no further liability to

Appellants for payment of fees related to the Recreation Area.      Appellants

contested the action, claiming that the unit owners’ right of access to the

Recreation Area was created by easement, rather than by contract, thereby

precluding SCA’s executive board from terminating the unit owners’ right of

access to the Recreation Area and their corresponding obligation to pay the

monthly fee.

     Following a procedural history not relevant to the instant appeal, both

parties filed Motions for Summary Judgment.         The trial court granted, in

part, SCA’s Motion for Summary Judgment, and declared that the unit

owners’ right of access to the Recreation Area was contractual in nature, and


3
  The Recreation Area is also available for use by homeowners in SHA and
tenants in a nearby apartment building, also developed by Appellants.
Homeowners in the SHA and tenants in the apartment building also pay a
similar fee to Appellants for use of the Recreation Area. The unit owners,
homeowners and tenants must pay a separate fee of $50.00 per use to use
the clubhouse.



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J-A27040-14

that, accordingly, SCA’s executive board had the authority to unilaterally

terminate the contract for access to the Recreation Area.4 Appellants filed a

timely Notice of Appeal.

     On appeal, Appellants raise the following issues for our review:

     1. Does the following language in [the] recorded [D]eclaration []
        create a contract or an easement?

        Easement for Use of Recreation Area

           Each Unit Owner and each person lawfully residing
           on the developed contiguous real estate is hereby
           granted a non-exclusive perpetual right and
           easement of access to and enjoyment in common
           with others, including non-unit owners, of the
           amenities and commercial and recreational facilities
           constituting the Recreation Area [].

     2. In creating the above-described easement, was the subjective
        intent of [Appellants] to grant unit owners in [SCA] a
        legitimate, perpetual right of access to the Recreation Area by
        easement?

     3. Is the [t]rial [c]ourt’s ruling on [SCA’s] Motion for Summary
        Judgment based upon incorrect findings of fact?

     4. [Whether] a trial on damages is not an issue properly before
        the trial court [because] the [S]CA made no claim for
        damages in its Complaint [for Declaratory Judgment?]




4
  The trial court indicated that certain unresolved issues remaining in the
case would proceed to trial, including the date on which the contract was
terminated, the disposition of funds in an escrow account into which SCA has
been paying the disputed monthly fees since the inception of this action, and
whether SCA is entitled to be reimbursed for overpayment of fees related to
the use of the Recreation Area. See Trial Court Opinion, 12/27/13, at 1-2
(unnumbered).



                                 -5-
J-A27040-14

Appellants’ Brief at 4 (emphasis in original, capitalization omitted).5

      Our standard of review of the grant of a motion for summary judgment

is well-settled:

      We view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. Only
      where there is no genuine issue as to any material fact and it is
      clear that the moving party is entitled to a judgment as a matter
      of law will summary judgment be entered. Our scope of review
      of a trial court’s order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s
      order will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Phillips v. Lock, 86 A.3d 906, 912 (Pa. Super. 2014) (citation omitted).

Additionally, when the issue centers on the interpretation of an easement,

which concerns a question of law, our scope of review is plenary.          See

Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547,

550 (Pa. Super. 2004).

      In their first issue, Appellants contend that both the language giving

rise to the unit owners’ right of access to the Recreation Area, as well as the

characteristics of the right of access, show that the right is an easement,

rather than a lease or contract. Appellants’ Brief at 20. Appellants assert

that the Declaration grants the unit owners a non-exclusive perpetual right


5
  Appellants did not list their fourth issue in their Statement of the Questions
Involved.    See Pa.R.A.P. 2116(a) (stating that the statement of the
questions involved must state concisely the issues to be resolved).
However, this issue was raised in Appellants’ Concise Statement of Matters
Complained of on Appeal, and is discussed in their Brief. Therefore, we will
address this issue.

                                   -6-
J-A27040-14

of easement of access to the Recreation Area.     Id. at 20-21.   Appellants

claim that the unit owners’ access to the Recreation Area is an easement

appurtenant, which inures to land (here, the individual condominium units)

rather than to persons (as would a contract or lease). Id. at 21. In further

support of their argument, Appellants contend that the unit owners will be

divested of their right of easement if they convey their condominium units.

Id. at 21-22. Appellants assert that an easement given by a condominium

declaration cannot be unilaterally terminated or extinguished, and is not

terminable under the Pennsylvania Uniform Condominium Act (“PUCA”), 68

Pa.C.S.A. §§ 3103-3414. Appellants’ Brief at 22-23.

     Additionally, Appellants contend that, even if the unit owners’ right of

access to the Recreation Area is deemed to be contractual, SCA may not

terminate it because no vote was held among the unit owners. Id. at 25.

Appellants assert that the right of access to the Recreation Area is

referenced in the Declaration as well as in the POS. Id. Appellants point

out that a Projected Budget attached to both the Declaration and the POS

includes a line item reference to a “Land Amenity Fee” in the amount of

$21,600.00, which, Appellants claim, established the monthly fee associated

with the unit owners’ access to the Recreation Area.6       Id.   Appellants

contend that the Declaration can only be amended in accordance with the


6
  The Projected Budget also includes a reference to “private amenities.”
However, neither the “Land Amenity Fee” nor the “private amenities” are
defined or explained anywhere in the Projected Budget, Declaration or POS.

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J-A27040-14

procedures specified in Section 3219(a)(1)(i) of the PUCA, which requires

67% of the unit owners to vote in favor of amending the Declaration.

Appellants’ Brief at 25.   Appellants argue that the Act prohibits a rogue

executive board, such as SCA’s executive board, from attempting to act on

behalf of the unit owners to amend the Declaration. Id. at 25-26 (citing 68

Pa.C.S.A. § 3303(b)).7 Appellants also claim that there has been no vote to

amend the POS, which specifies that the unit owners shall have access to “a

private amenity area with a swimming pool.”         Appellants’ Brief at 26.

Appellants assert that SCA is trying to deprive the unit owners of a vested

property right which is guaranteed to them by the PUCA, the Declaration and

the POS. Id. at 27.

     An easement is a right in the owner of one parcel of land, by reason of

such ownership, to use the land of another for a special purpose not

inconsistent with a general property in the owner. Clements v. Sannuti,

51 A.2d 697, 698 (Pa. 1947) (citation and emphasis omitted).

     Creation of an easement appurtenant is accomplished by
     reserving unto the grantor an easement or right of way over the
     land conveyed, said right of way being intended to benefit other
     lands retained by the grantor. This reservation is conceptually
     fused with the land it benefits and passes with the land if there
     is a subsequent conveyance.




7
 Section 3303(b) provides, in pertinent part: “Limitation on authority. --The
executive board may not act on behalf of the association to amend the
declaration….” 68 Pa.C.S.A. § 3303(b).

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J-A27040-14

Brady v. Yodanza, 425 A.2d 726, 727 (Pa. 1981).                  Generally, to be

effective, an easement must be recorded.        See Amerikohl, 860 A.2d at

549.

       Our review of the record discloses no express easement.         In Forest

Glen Condo. Ass’n. v. Forest Green Commons LP, 900 A.2d 859 (Pa.

Super. 2006), the principal case upon which Appellants rely, the trial court

determined that a recreation area in a condominium complex that was being

used by residents in a neighboring townhome subdivision constituted an

express easement.      However, in Forest Glen Condo. Ass’n., the right of

access to the recreation area was identified in a “Declaration and Agreement

of Easements,” which was executed by both the condominium association

(as grantor) and the partnership owning the townhomes (as grantee), and

was duly recorded prior to the filing of the declaration of condominium. See

id. at 860-61. Our review of the record discloses no written agreement or

express grant by Appellants, as the owners of SHA and the Recreation Area,

of an easement in favor of Saddlewood Condominium pertaining to the

Recreation Area. Nor has any such written agreement or express grant ever

been   filed   or   recorded.   See   Trial   Court   Opinion,    3/11/14,   at   2

(unnumbered) (stating that no easement was recorded). Although both the

Declaration and the POS generally reference the right of unit owners to use

the Recreation Area, neither expressly created an easement. See Assalita

v. Chestnut Ridge Homeowners Ass’n., 866 A.2d 1214, 1219 (Pa.



                                  -9-
J-A27040-14

Cmwlth. 2005) (stating that the declaration of condominium, which made

several references to the easement, did not create the easement in

question).     Accordingly, the trial court did not err by determining that no

express easement was created.8

      Similarly, our review of the record discloses no easement by

implication.    In Assalita, the Commonwealth Court determined that the

easement in question, a pedestrian walkway in a subdivision of homes, was

created by implication through the filed and recorded subdivision plan, which

specified the easement.      See id. at 1219.   Here, the Plats and Plan are

devoid of any reference to the Recreation Area. See id. Accordingly, we

conclude that the trial court did not abuse its discretion in determining that

no easement was created, either expressly or by implication, and that the

unit owners’ right of access to the Recreation Area is contractual in nature.

See Trial Court Opinion, 3/11/14, at 2 (unnumbered) (stating that “there

was no easement recorded on any plan….”).

     In their second issue, Appellants contend that a prior ruling made by

the trial court, that “[SCA’s executive b]oard cannot cancel [the contractual


8
  Based on our conclusion that no express easement was created, we need
not determine the parties’ intent at the time the unit owners’ right of access
to the Recreation Area was created. See Merrill v. Mfgrs. Light and Heat
Co., 185 A.2d 573, 575 (Pa. 1962) (stating that, “[t]o ascertain the nature
of the easement created by an express grant we determine the intention of
the parties ascertained from the language of the instrument. Such intention
is determined by a fair interpretation and construction of the grant and may
be shown by the words employed construed with reference to the attending
circumstances known to the parties at the time the grant was made”).

                                  - 10 -
J-A27040-14

right of access to the Recreation Area] unless it was without a valid purpose

on the part of the declarant,” became the law of the case, which should have

guided the trial court’s adjudication of the parties’ cross-motions for

summary judgment.       Appellants’ Brief at 28 (citing Trial Court Opinion,

9/1/11, at 2). Appellants assert that they had a legitimate, lawful purpose

in structuring the right of access to the Recreation Area, and that the

arrangement is simple, reasonable and fair.          Appellants’ Brief at 30.

Appellants contend that the Recreation Area has been operating at a deficit

for years, the loan for the Recreation Area has not been fully paid, and that

they are receiving no windfall or subsidy.    Id.   Appellants assert that the

trial court erred by determining Appellants’ subjective intent when creating

the unit owners’ right of access to the Recreation Area, as their subjective

intent is a disputed issue of fact that precluded the trial court from granting

summary judgment. Id. at 31, 32.

     Section 3305 of the Act, which permits the termination of certain

agreements by an executive board of a condominium association where such

agreement was entered into by the declarant before the board took office,

provides as follows:

      Termination of contracts and leases of declarant.

      If entered into before the executive board elected by the unit
      owners pursuant to section 3303(e) (relating to executive board
      members and officers) takes office:

      (1)   any management contract, employment contract or lease
            of recreational or parking areas or facilities;


                                 - 11 -
J-A27040-14



      (2)     any other contract or lease to which a declarant or an
              affiliate of a declarant is a party; or

      (3)     any contract or lease that is not bona fide or was
              unconscionable to the unit owners at the time entered into
              under the circumstances then prevailing[.]

68 Pa.C.S.A. § 3305. Section 3305 further states that termination may be

accomplished without penalty “at any time” after the executive board takes

office. Id.

      Here, the Appellants, as the declarant for Saddlewood Condominium,

filed the Declaration. Because the Declaration references the unit owners’

right of access to the Recreation Area, the right of access was created before

SCA’s executive board took office.     Therefore, pursuant to section 3305,

SCA’s executive board was authorized to terminate the contractual right of

access to the Recreation Area if any of the circumstances enumerated in

subsections 3305(1), (2) or (3) were present. Pursuant to subsection (2),

SCA’s executive board was authorized to terminate “any … contract … to

which a declarant … is a party.”      68 Pa.C.S.A. § 3305(2).    Because the

contractual right of access was created by Appellants, as the declarant,

SCA’s executive board was authorized to terminate the contractual right of

access to the Recreation Area. See id. Accordingly, the trial court did not

err in so ruling.




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J-A27040-14

      Having determined that trial court did not abuse its discretion in

granting partial summary judgment in favor of SCA, we need not address

Appellants’ third issue.

      In their final issue, Appellants claim that the trial court erred by

instructing the parties to proceed to trial on damages, when there is no

claim for damages in SCA’s Complaint for Declaratory Judgment. Appellants’

Brief at 35-36.   Appellants contend that SCA has not alleged any legal or

factual basis to collect damages from Appellants.         Id. at 36.      Rather,

Appellants contend, SCA merely asked for a declaration of the rights of the

parties, which it has received, requiring an end to the litigation. Id.

      Appellants failed to raise this issue before the trial court. Therefore,

this issue is waived. See Pa.R.A.P. 302 (providing that “[i]ssues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.”); see also Frey v. Harley Davidson Motor Co., Inc., 734 A.2d 1,

13 (Pa. Super. 1999) (finding appellant’s claim of error in trial court’s award

of attorney’s fees and costs waived for failure to include it in appellant’s post




                                  - 13 -
J-A27040-14

trial motion).9

      Motion to Quash denied. Order affirmed. Case remanded for further

proceedings. Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2014




9
  Even if this issue had not been waived, we would have concluded that it
lacks merit. “The purpose of the [DJA] . . . is to afford relief from
uncertainty and insecurity with respect to legal rights, status and other
relations.” Juban v Schermer, 751 A.2d 1190, 1193 (Pa. Super. 2000)
(citation omitted). The DJA describes the power of courts of record under
the DJA as “the power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed.” Id. (citing 42 Pa.C.S.A.
§ 7532). The legislature has also declared that the DJA is remedial, and is
to be liberally construed. Id. (citing 42 Pa.C.S.A. § 7541). Additionally, the
DJA provides for supplemental judicial relief based on a declaratory
judgment or decree. Id. (citing 42 Pa.C.S.A. § 7538). Therefore, the trial
court was authorized to order supplemental relief based on its grant of
partial summary judgment to SCA.




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