J-A08009-16

                               2016 PA Super 208

IRENE MCLAFFERTY, MICHAEL ROGALA               IN THE SUPERIOR COURT OF
AND FRED FISHER,                                     PENNSYLVANIA

                        Appellants

                   v.

COUNCIL FOR THE ASSOCIATION OF
OWNERS OF CONDOMINIUM NO. ONE,
INC. A/K/A WASHINGTON MEWS
CONDOMINIUM ASSOCIATION COUNCIL;
COUNCIL MEMBERS: MEGAN OYLER;
ANGELINE SIMONONIS, DONNA IRVIN;
KIRK SCHNECK; JOHN FEDERICO; ALEX
ESCHER; BILL GEFTMAN; EMILY
LERNER; ASSOCIATION OF OWNERS OF
CONDOMINIUM NO. ONE, INC. A/K/A
WASHINGTON MEWS CONDOMINIUM
ASSOCIATION

                                                   No. 1338 EDA 2015


                Appeal from the Order Entered April 8, 2015
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 140303466


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                         FILED SEPTEMBER 12, 2016

     This appeal presents novel questions involving a condominium

governed by the Unit Property Act (“UPA”), former 68 P.S. § 700.101 et seq.

(repealed by 1980, July 2, P.L. 286, No. 82, § 2, effective in 120 days), and

the retroactive application of the Uniform Condominium Act (“UCA”), 68

Pa.C.S. § 3101 et seq. The trial court granted judgment on the pleadings in




* Retired Senior Judge assigned to the Superior Court.
J-A08009-16



favor of the Defendants and dismissed Plaintiffs’ count seeking declaratory

relief.1 After careful review, we reverse and remand for further proceedings.

       Plaintiffs-Appellants are three unit owners in Condominium No. One,

Inc., also known as Washington Mews Condominium (the “Condominium”),

in Philadelphia. Defendants-Appellees are the Association of Owners for the

Condominium (“Association”), the Council for the Association (“Council”),

and the individual members of Council.

       The Condominium was created in 1967 pursuant to the UPA by the

recording of a Declaration of Condominium (“Original Declaration”).       As

required by the UPA, a Council was formed to manage the Condominium

property.      The first Council was entrusted with drafting a Code of

Regulations (the “Code”) that would delineate inter alia the method for

calling meetings of the owners, define a quorum for the transaction of

business, explain the duties of officers, and set forth “the method of

adopting and of amending rules governing the details for the use and

____________________________________________


1
   This order is final and appealable pursuant to former Pa.R.A.P. 341(b)(2)
(rescinded and amended December 14, 2014, effective April 1, 2016 for all
orders entered on or after that date), which permits an appeal from any
order expressly defined as a final order by statute. See In re Order
Amending Rule 311, 341 & 904 of the Pa. Rules of Appellate
Procedure, 2015 Pa. LEXIS 2893, *1 (Pa. Dec. 14, 2015). Title 42 Pa.C.S.
§ 7532 provides that orders granting or denying declaratory relief have the
force and effect of a final judgment.       Nationwide Mut. Ins. Co. v.
Wickett, 763 A.2d 813, (Pa. 2000).



                                           -2-
J-A08009-16



operation of the property and the use of the common elements.” 68 P.S. §

700.303(9). The Code, like the Declaration, was recorded with the Recorder

of Deeds and, as amended, they constitute the governing documents of the

Condominium.2

       In 2012, Council proposed an Amended and Restated Declaration

(“Amended Declaration”). At the annual meeting of the Condominium unit

owners on February 21, 2013, approval of the Amended Declaration was put

to a vote.     The minutes of the meeting reflect that the instrument was




____________________________________________


2
  Although the UPA has been repealed, it continues to govern condominiums
created pursuant to that statute in certain respects. As Comment 3, to §
3102 of the UCA explains, that section adopts a three-step approach to pre-
UCA condominiums.

       First, certain provisions of the [UCA] automatically apply to “old”
       condominiums, but only prospectively, and only in a manner
       which does not invalidate provisions of condominium
       declarations and bylaws valid under “old” law. Second, “old” law
       remains applicable to previously created condominiums where
       not automatically displaced by the [UCA]. Third, owners of “old
       condominiums may amend provisions of their declaration or
       bylaws, even if the amendment would not be permitted by “old”
       law, so long as (a) the amendment is adopted in accordance
       with the procedure required by “old” law and the existing
       declaration and bylaws, and (b) the substance of the
       amendment does not violate this Act [UCA].”

UCA, 68 Pa.C.S. § 3102, Comment 3.




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adopted by fifty-five percent of the ownership,3 and it was subsequently filed

with the Philadelphia Recorder of Deeds.

       On March 31, 2014, the Plaintiffs instituted this action against the

Association, Council, its members, and the various unit owners, challenging

Council’s authority to amend the Original Declaration of Condominium at all,

or in the alternative, to amend it by a simple majority vote.4 They asked the

court to declare that the instant amendment to the Original Declaration was

not permitted for several reasons. They maintained, first, that amendment

was permitted only to change the number of units in the complex or the

owners’ percentage of ownership in the common elements, and only then

with the unanimous agreement of the unit owners.           Furthermore, the

provision of the Code permitting amendment by a majority vote did not

apply to an amendment of the Declaration. Finally, Plaintiffs maintained that

the UCA retroactively applied and required unanimous consent to amend a

declaration that changed the use of the property, or in the alternative,

required a vote of sixty-seven percent of the ownership of the units to

amend other provisions of the declaration.       In any event, according to
____________________________________________


3
 Plaintiffs represent that only 52.98 percent of the unit owners approved the
Amended and Restated Declaration. The discrepancy is irrelevant in light of
our disposition.
4
  Plaintiffs originally sued all of the owners of the Condominium units. On
June 3, 2014, the trial court approved a stipulation that these individuals
were not indispensable parties and dismissed them from the lawsuit.



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Plaintiffs, a simple majority approval of the unit owners was insufficient to

accomplish this amendment of the Original Declaration.

       Plaintiffs’   underlying    opposition    to   the   Amended   and   Restated

Declaration is based on what they contend are significant restrictions upon

the unit owners’ flexibility in the use of their property. Plaintiffs point to the

Amended Declaration’s provisions limiting the rental of units to a five-year

term and authorizing Council to disapprove rentals entirely without a

reasonable basis. They also cite provisions in the Amended Declaration that

permit Council to impose fines, confess judgment and eviction without due

process, record liens against unit owners, and assess fees for pet ownership.

The Amended Declaration, according to Plaintiffs, changed the use of the

property and thus required more than the approval of a simple majority of

owners.5 Plaintiffs also pled claims for breach of the obligation of good faith

and tortious interference with a contractual relationship, although the trial

court sustained preliminary objections to the latter claim and dismissed it.

       Defendants filed an answer and subsequently moved for judgment on

the pleadings. On April 8, 2015, the court granted partial judgment on the

pleadings and struck the count seeking declaratory relief.            The trial court

____________________________________________


5
  The Amended and Restated Declaration expressly revoked application of
the UPA and submitted the Condominium to the provisions of the UCA.
Many of the restrictions Plaintiffs find objectionable are consistent with the
provisions of the UCA.



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concluded that the UCA did not apply retroactively to the process of

amending the Original Declaration.     The court reasoned that although the

vote on the amendment was an event that occurred after the adoption of the

UCA, the sixty-seven percent approval requirement of the UCA, specifically,

68 Pa.C.S. § 3219, would invalidate an existing provision of the old

governing documents, i.e., Article II of the Code, entitled “Voting, Majority

of Owners, Quorum, Proxies,” which the court construed as requiring only

fifty-one percent approval to amend the Declaration. In so holding, the trial

court found that the Code’s fifty-one percent approval provision applied to

amendment of the Declaration, implicitly rejecting Plaintiffs’ position that the

Code’s voting provisions applied only to the Code.

      Plaintiffs timely filed the within appeal, and they present two issues for

our review:

      1. Whether      the     lower    court   erred    in   dismissing
         Plaintiffs/Appellants’   Claim   for  Declaratory   Judgment
         regarding Defendants/Appellees’ 2013 amendment of the
         Washington Mews Declaration of Condominium where the
         Original     Declaration      permitted    only   a    limited
         amendment by unanimous consent and where the
         Uniform Condominium Act does not invalidate any
         provision in the Original Declaration or Code or
         Regulations.

      2. Whether the lower court erred in dismissing Plaintiffs’ claim
         for Declaratory Judgment concerning the 2013 amendment of
         Declaration of Condominium without the unanimous consent
         of unit owners where the 2013 Amendment restricts the use
         of individual units and where unanimous consent is needed to
         change the uses to which a unit is restricted pursuant to
         section 3219(d) of the Uniform Condominium Act (UCA), 68

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         Pa.C.S.A. 3101 et. seq. Likewise, did the lower court err in
         finding that the 2013 amendment required only majority
         approval where the UCA requires at least 67% of the unit
         owner votes for some amendments and unanimous consent to
         do what Defendants did with the 2013 amendment to the
         Original Declaration in this case.

Appellants’ brief at 5 (emphasis in original). Succinctly stated, the issue is

whether approval by a simple majority of the unit owners was legally

sufficient   to   adopt   the   2013   Amended   and   Restated   Condominium

Declaration. The answer to that question hinges on whether Code provisions

providing for amendment by a majority of the unit owners apply to this

amendment of the Original Declaration.       For the reasons that follow, we

conclude that they do not.

      Judgment on the pleadings is permitted under Pennsylvania Rule of

Civil Procedure 1034, which provides that "after the pleadings are closed,

but within such time as not to unreasonably delay trial, any party may move

for judgment on the pleadings." Pa.R.C.P. 1034(a). A motion for judgment

on the pleadings is similar to a demurrer. It may be entered when there are

no disputed issues of fact and the moving party is entitled to judgment as a

matter of law.

      Appellate review of an order granting judgment on the pleadings is

plenary and we apply the same standard employed by the trial court. Our

review is confined to the pleadings and relevant documents.          We must

accept as true all well pleaded statements of fact, admissions, and any



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J-A08009-16



documents properly attached to the pleadings presented by the party

against whom the motion is filed, considering only those facts that were

specifically admitted.    Southwestern Energy Prod. Co. v. Forest Res.,

LLC, 83 A.3d 177, 185 (Pa.Super. 2013). We will affirm the grant of such a

motion only when the moving party's right to succeed is certain and the case

is so free from doubt that the trial would clearly be a fruitless exercise. Id.

      Our standard of review in a declaratory judgment action is limited to

determining whether the trial court clearly abused its discretion or

committed an error of law. Pocono Summit Realty, LLC v. Ahmad Amer,

LLC, 52 A.3d 261, 265 (Pa.Super. 2012).           We may not substitute our

judgment for that of the trial court if the court's determination is supported

by the evidence. Id. However, the application of the law is always subject

to our review.   Id.     Where, as here, “the interpretation of a contract is a

matter of law, we need not defer to the trial court's reading of the

Agreement.” Welteroth v. Harvey, 912 A.2d 863, 866 (Pa.Super. 2006).

      We begin with an examination of the statutes and the Condominium’s

governing documents that are implicated herein.           The UPA defines a

declaration as “the instrument by which the owner of the property submits it

to the provisions of this act as hereinafter provided, and all amendments

thereof.”   68 P.S. § 700.102(6).       It shall set forth “the percentage of

undivided interest in the common elements assigned to each unit,” and that

the percentage “shall not be altered except by recording an amended

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declaration duly executed by all of the unit owners affected thereby.” Id. at

700.202.   Thus, the UPA does not prohibit, and indeed requires in some

circumstances, amendment to the declaration.      In this case, however, the

UPA and the Condominium’s Original Declaration are silent regarding

amendments to the Declaration for other purposes, and neither the statute

nor the Original Declaration delineates the percentage of owner approval

required for the adoption of such amendments.

      The Original Declaration of the Condominium is not contained in the

certified record.     However, the Amended Declaration of June 17, 1969

(hereinafter   “Original   Declaration”),   modifying   and   amending     the

Developer’s Declaration dated February 7, 1967, is available for our review.

The stated purpose of that amendment to the Original Declaration was to

document changes in the architect’s plans and to amend the agreements of

sale with the unit owners to reflect additional undivided interest in the

common elements due to a reduction in the number of units from fifty-five

to fifty-two. It defines the terms, describes the units, and sets forth the new

percentage of undivided interest and commensurate voting rights and pro

rata share of common expenses associated with those units. In addition, it

describes the common units, responsibilities for maintenance, utility bills,

and tax assessment. It also provides that a unit owner cannot sell, lease, or

gift any interest in a unit, except to another unit owner, without the approval

of the Association.

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J-A08009-16



     The     Code   regulates    the    management       and   operation     of   the

Condominium. The UPA provides that the Code may be amended for many

reasons, including, but not limited to, “the method of adopting and of

amending rules governing the details of the use and operation of the

property and the use of the common elements.”                  UPA, 68 P.S. §§

700.102(2) and 700.303(9).            Amendment can be accomplished by a

majority vote of the unit owners at a meeting of the owners who are entitled

to cast a vote. Id. at § 700.302.

     In     accordance   with   the    UPA,   Council   promulgated   a    Code    of

Regulations to govern administration of the Condominium property. It was

amended several times and the changes are noted in footnotes in the later

versions.     The February 15, 1999 version of the Code outlines the

procedures for voting, provides for an Association of Owners, annual and

special meetings, a Council, its election and term, and its duties and powers.

The Code discusses maintenance of common elements, assessment of

common expenses, the establishment of operating reserves, charges against

individual unit owners, and the obligations of the owners to maintain and

repair their own units.     It declares that all units are to be utilized for

residential purposes only, sets forth rules of conduct, and provides that

“Reasonable regulations concerning the use of the Property may be made

and amended from time to time by the Council in the manner provided by

laws.”    Code of Regulations, Article VII, Section 4(4) at 11.            Article IX

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J-A08009-16



provides for amendment to the Code of Regulations by the affirmative vote

of the owners representing a majority of the votes entitled to be cast at a

meeting. Code of Regulations, Article IX, Sections 1 and 2, at 13.

       The controversy herein arises from the approval and adoption of the

Amended and Restated Declaration of Condominium dated March 13, 2013,

by a simple majority of the unit owners. Plaintiffs contend that the Original

Declaration could not be amended, or amended solely in limited instances,

and then only by unanimous consent of the unit owners. They maintain that

the Code provision permitting amendment by the vote of a simple majority

applied solely to amendment of the Code and rules governing the

administration of the Condominium, but not to the Declaration.             Plaintiffs

contend that, in the absence of any provision in the Original Declaration

delineating    the    percentage      necessary    to   approve   these   types   of

amendments, the UCA retroactively governs.               The UCA, specifically 68

Pa.C.S. § 3219,6 requires approval of sixty-seven percent of the unit owners

____________________________________________


6
    § 3219. Amendment of declaration, provides in pertinent part:

       (a)    Number of votes required.

              (1) The declaration, including the plats and plans, may be
              amended only by vote or agreement of unit owners of
              units to which at least:

                     (i) Sixty-seven percent of the votes in
                     the association are allocated;
(Footnote Continued Next Page)


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J-A08009-16




                       _______________________
(Footnote Continued)

                       (ii) any larger majority the declaration
                       specifies; or

                       (iii) a smaller number as specified in
                       the declaration if all of the units are
                       restricted exclusively to nonresidential
                       use.

                              ....

      (d) When unanimous consent required. —

             (1) Except to the extent expressly permitted or
             required by other provisions of this subpart, no
             amendment may create or increase special
             declarant rights, increase the number of units or
             change the boundaries of any unit, the common
             element interest, common expense liability or voting
             strength in the association allocated to a unit, or the
             uses to which any unit is restricted, in the absence
             of unanimous consent of the unit owners.

             (2) As used in this subsection, the term “uses to
             which any unit is restricted” shall not include leasing
             of units.

                       ....

      (f) Corrective amendments. — Except as otherwise provided
      in the declaration, if any amendment to the declaration is
      necessary in the judgment of the executive board to cure any
      ambiguity or to correct or supplement any provision of the
      declaration, including the plats and plans, that is defective,
      missing or inconsistent with any other provision thereof or with
      this subpart, . . . . the executive board may at its discretion
      effect an appropriate corrective amendment without the approval
      of the unit owners or the holders of any liens on all or any part
      of the condominium, upon receipt by the executive board of an
      opinion from independent legal counsel to the effect that the
      proposed amendment is permitted by the terms of this
      subsection.
(Footnote Continued Next Page)


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J-A08009-16



for most amendments, unanimous consent for amendments affecting the

use of the property.

      According to the Defendants, the 2013 Amended and Restated

Declaration was adopted in accordance with applicable law, the UPA, and the

UCA did not apply. They direct our attention to references to amendment in

the UPA and Original Declaration, and the fact that the Declaration had been

twice amended before the enactment of the UCA, as proof that amendment

was contemplated and permitted. Defendants concede that the UPA and the

Original Declaration do not address the percentage of approval required for

the instant amendment, but they assert that the UPA and Code work in

tandem with the Original Declaration and should be construed together.

Since the Code provides for a majority vote of the owners in accordance with

the percentages of ownership assigned in the Declaration to approve an

amendment, Defendants contend that this Code provision also applies to

amendment of the Declaration.

      It is beyond cavil that both the UPA and the Original Declaration

authorize, and in some cases mandate, amendment of the Original

Declaration. Nor have Plaintiffs persuaded us that the legislature intended

to restrict amendment of a declaration to those limited circumstances where

there was a change in the unit owners’ interest requiring unanimous
                       _______________________
(Footnote Continued)

UCA, 68 Pa.C.S. § 3219.



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consent.7    See UPA, 68 P.S. § 700.202.           Furthermore, we agree with the

trial court that both the UPA and the Original Declaration are silent as to the

percentage of the vote required to adopt other types of amendments to the

Declaration. We disagree, however, with the trial court’s conclusion that the

Code provision authorizing its own amendment by a majority of the unit

owners fills that gap.

        The trial court’s finding that amendment to the Original Declaration is

governed by the Code and requires only the approval of a simple majority is

refuted by the Code itself.        In arriving at that conclusion, the trial court

relied upon Article II of the Code.            That provision merely provides that

voting shall be on a percentage basis of ownership, defines a quorum and

what is meant by the term “majority of owners,” and authorizes voting by

proxy.8     It is Article IX, entitled “Amendments to Code of Regulations,”

____________________________________________


7
   Plaintiffs point to the unanimous approval of the 1969 Amended
Declaration as evidence that any amendment of the Declaration required the
consent of all unit owners to be effective. We disagree. Since the purpose
of the 1969 amendment to the Declaration was to reduce the number of
units from fifty-five to fifty-two, thereby altering the percentage of the unit
owners’ undivided interest in the common elements, that amendment was
governed by the express terms of the Original Declaration requiring
unanimous consent to effect any change in the percentage of ownership.
The amendment to the Declaration herein does not affect the percentage of
ownership.
8
    Article II, entitled “Voting, Majority of Owners, Quorum, Proxies” provides:
         Section 1. Voting. Voting shall be on a percentage basis and the
         percentage of the vote to which the owner is entitled is the
(Footnote Continued Next Page)


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which governs the percentage of votes required to amend the Code.                It

provides that “no amendment or change of the provisions of this Code shall

be effective unless it is adopted at a meeting of the unit owners by the

affirmative vote of at least those unit owners who represent a majority of

the votes entitled to be cast at that meeting.” Code of Regulations, Article

IX, Section 1, at 13 (emphasis added).              Thus, by its express terms, the

Code’s amendment provisions apply only to the Code, not to the Declaration.

Even if we read the UPA, the Original Declaration, and the Code of

Regulations together, as Defendants urge us to do, the statute and

documents are silent as to the percentage of votes necessary to amend the

Original Declaration, except in the instance where unanimous consent is

required to amend the Declaration due to a change in the ownership interest
                       _______________________
(Footnote Continued)

      percentage of ownership in the Common Elements assigned to
      the Unit or Units in the Declaration.

      Section 2. Majority of Owners. As used in this Code, the term
      “majority of owners” shall mean those owners holding 51% of
      the votes in accordance with the percentages assigned in the
      Declaration.

      Section 3. Quorum. Except as otherwise provided in this Code,
      the presence in person or by proxy of a “majority of owners” as
      defined in Section 2 of this Article shall constitute a quorum.

      Section 4. Proxies. Votes may be cast in person or by proxy.
      Proxies must be filed with the Secretary before the appointed
      time of each meeting.

Code of Regulations, Article II, at 1-2.



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of the unit owners. Thus, we find that the trial court erred in concluding that

the Code’s majority vote provision is applicable to and validates the instant

amendment of the Declaration.

       Plaintiffs contend that the amendment of the Declaration is governed

by the UCA.      They direct our attention to 68 Pa.C.S. § 3102 (a.1) of the

UCA, which operates to render certain sections of the UCA retroactively

applicable to condominiums created prior to the UCA.            Section 3219,

amendment of declaration, is one of the provisions made retroactive, and it

“shall apply to all condominiums created in this Commonwealth before the

effective date of this subsection” when two criteria are met: 1) when the

events and circumstances occur after the effective date of the UCA; and 2)

the UCA provision does not invalidate existing provisions of the declaration,

code of regulations, bylaws or declaration plan of those condominiums.” 68

Pa.C.S. § 3102(A.1)(1).

       Plaintiffs contend that the amendment herein occurred after the

passage of the UCA, thus satisfying the first prong. Section 3219 requires at

least a vote of sixty-seven percent of the unit owners to approve the

amendment, but it demands 100% where the amendment inter alia

increases “the uses to which any unit is restricted.” 9   Plaintiffs assert that
____________________________________________


9
  The UCA, 68 Pa.C.S. § 3219. Amendment of declaration, provides in
pertinent part:
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      (b)    Number of votes required.

             (1) The declaration, including the plats and plans, may be
             amended only by vote or agreement of unit owners of
             units to which at least:

                       (i) Sixty-seven percent of the votes in
                       the association are allocated;

                       (ii) any larger majority the declaration
                       specifies; or

                       (iii) a smaller number as specified in
                       the declaration if all of the units are
                       restricted exclusively to nonresidential
                       use.

                              ....

      (d) When unanimous consent required. —

             (1) Except to the extent expressly permitted or
             required by other provisions of this subpart, no
             amendment may create or increase special
             declarant rights, increase the number of units or
             change the boundaries of any unit, the common
             element interest, common expense liability or voting
             strength in the association allocated to a unit, or the
             uses to which any unit is restricted, in the absence
             of unanimous consent of the unit owners.

             (2) As used in this subsection, the term “uses to
             which any unit is restricted” shall not include leasing
             of units.

                       ....

      (f) Corrective amendments. — Except as otherwise provided
      in the declaration, if any amendment to the declaration is
      necessary in the judgment of the executive board to cure any
      ambiguity or to correct or supplement any provision of the
      declaration, including the plats and plans, that is defective,
      missing or inconsistent with any other provision thereof or with
(Footnote Continued Next Page)


                                           - 17 -
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the application of this section would not invalidate any of the provisions in

the UPA, the Original Declaration, or the Code, as the UPA and the governing

documents are silent as to the percentage of approval required to amend the

Original Declaration in these circumstances.

      Defendants counter that application of the UCA’s requirement that

sixty-seven percent of the unit owners approve an amendment to the

declaration contravenes the provisions of the governing documents, i.e., the

Code, which permits amendment by a simple majority. In support of their

position, Defendants direct our attention to the Uniform Planned Community

Act (“UPCA”), 68 Pa.C.S. § 5101, effective in 1997, and cases decided under

that statute. They maintain that it is an analog to the UCA and contains an

identical provision regarding amendment that has been construed to permit

amendment as long as it is adopted in accordance with the procedures

required by the old law and its substance does not violate the new law. 68

Pa.C.S. § 5102(b). They contend that the unit owners of the Condominium

herein were permitted to adopt the Amended and Restated Declaration
                       _______________________
(Footnote Continued)

      this subpart, . . . . the executive board may at its discretion
      effect an appropriate corrective amendment without the approval
      of the unit owners or the holders of any liens on all or any part
      of the condominium, upon receipt by the executive board of an
      opinion from independent legal counsel to the effect that the
      proposed amendment is permitted by the terms of this
      subsection.

68 Pa.C.S.§ 3219.



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because it was adopted in accordance with the procedure required by “old”

law, i.e., the Code’s majority approval provision, and the substance of the

amendment did not violate the UCA.                    They direct our attention to

Cumberland Dev. & Mktg. Inc. v. Lake Adventure Community Assn,

Inc., 44 Pa. D & C 4th 118 (Pike Co. 1998), where the court held that the

UPCA’s    provision     for   amendment        of   the   declaration   did   not   apply

retroactively as it was in conflict with the procedure set forth in the original

development for its amendment.

       Herein, in contrast to Cumberland Dev., supra, although the Original

Declaration permits amendment, it is silent as to the percentage required for

approval of an amendment in the circumstances herein.                   Since we have

already concluded that the Code’s majority approval provision does not

apply to amendment of the Declaration on the facts herein, there are no

procedures to follow under the “old law.” Hence, the UCA’s § 3219 sixty-

seven percent approval requirement does not invalidate any existing

provisions of the old law.         Absent a conflict with the original governing

documents, the UCA governs, and approval by a simple majority of the unit

owners was insufficient to amend the Declaration.10

____________________________________________


10
   Our review of the Amended and Restated Declaration reveals that it
sought to remove the Condominium from the UPA and subject it to the
provisions of the UCA, although the parties do not characterize it as such.
The UCA provides the manner in which this can be accomplished without
(Footnote Continued Next Page)


                                          - 19 -
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      Order granting judgment on the pleadings reversed. Case remanded

for further proceedings consistent herewith. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




                       _______________________
(Footnote Continued)

terminating the condominium status of the property or affecting liens or
encumbrances on the property. It requires approval of “sixty-seven percent
of the persons whose actions would have been required to effect a removal
of the property from the Unit Property Act pursuant to section 601 thereof.”
68 Pa.C.S. § 3102(b).      Section 601 of the UPA requires approval of
revocation by “all the unit owners and by the holders of all mortgages,
judgements or other liens affecting the units.” UPA, 68 P.S. § 700.601. The
approval by a simple majority of the unit owners would not suffice to
accomplish this either.



                                           - 20 -
