J-A13034-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

GOURMET’S DELIGHT MUSHROOMS,          :    IN THE SUPERIOR COURT OF
LP,                                   :          PENNSYLVANIA
                                      :
        v.                            :
                                      :
PAUL   D.    KEATING,  SUSAN   S.     :
KEATING, SEAN C. SMITH, MALLORY       :
P. AUSTIN, SARAH BERDOULAY,           :
TROY ST. JOHN, RICHARD A. MASHA,      :
TERESA    R.   MASHA,   JULIE  B.     :
ENGILES, GARY M. MACK, BARBARA        :
L. MACK, WILLIAM D. WALKER,           :
MARGARET W. WALKER, JOSEPH            :
SAMUEL COX, ANNE M. JEAVONS,          :
ERIC G. JEAVONS, PATRICK G.           :
TALWIN, LINDA A. TIBERIA, ROBERT      :
S. REYNOLDS, WENDY L. REYNOLDS,       :
LOUIS F. DONAGHUE, MARIANNE C.        :
DONAGHUE,       CHRISTOPHER   M.      :
WURM, VIRGINIA C. NORTH, JANET        :
A. SMITH, MARY ANN HITCHENS,          :
ARTHUR R. TAYLOR, JR., CYNTHIA L.     :
TAYLOR, ANTHONY L. LAURIA, LINDA      :
S. LAURIA, DANNY MILANO, CARRIE       :
MILANO AND LYNN ARRINGTON             :
                                      :
APPEAL OF: LYNN ARRINGTON             :    No. 3413 EDA 2018

              Appeal from the Order Entered October 26, 2018
              in the Court of Common Pleas of Chester County
                   Civil Division at No(s): 2017-07576-RC

GOURMET’S DELIGHT MUSHROOMS,          :    IN THE SUPERIOR COURT OF
LP,                                   :          PENNSYLVANIA
                                      :
        v.                            :
                                      :
PAUL   D.    KEATING, SUSAN   S.      :
KEATING, SEAN C. SMITH, MALLORY       :
P. AUSTIN, SARAH BERDOULAY,           :
TROY ST. JOHN, RICHARD A. MASHA,      :
TERESA    R.   MASHA,  JULIE  B.      :
J-A13034-19


ENGILES, GARY M. MACK, BARBARA         :
L. MACK, WILLIAM D. WALKER,            :
MARGARET W. WALKER, JOSEPH             :
SAMUEL COX, ANNE M. JEAVONS,           :
ERIC G. JEAVONS, PATRICK G.            :
TALWIN, LINDA A. TIBERIA, ROBERT       :
S. REYNOLDS, WENDY L. REYNOLDS,        :
LOUIS F. DONAGHUE, MARIANNE C.         :
DONAGHUE,     CHRISTOPHER     M.       :
WURM, VIRGINIA C. NORTH, JANET         :
A. SMITH, MARY ANN HITCHENS,           :
ARTHUR R. TAYLOR, JR., CYNTHIA L.      :
TAYLOR, ANTHONY L. LAURIA, LINDA       :
S. LAURIA, DANNY MILANO, CARRIE        :
MILANO AND LYNN ARRINGTON              :
                                       :
APPEAL  OF:    SEAN   C.  SMITH,       :
MALLORY    P.    AUSTIN,  SARAH        :
BERDOULAY,    TROY    ST.  JOHN,       :
ARTHUR TAYLOR, CYNTHIA TAYLOR,         :
RICK MASHA, TERESA MASHA, GARY         :
M. MACK, BARBARA L. MACK,              :
WILLIAM D. WALKER, MARGARET W.         :
WALKER, JOSEPH S. COX, PATRICK         :
G. TALWIN, LINDA A. TIBERIA,           :
ROBERT S. REYNOLDS, WENDY L.           :
REYNOLDS, LOUIS F. DONAGHUE,           :
MARIANNE       C.     DONAGHUE,        :
CHRISTOPHER M. WURM, VIRGINIA          :
C. NORTH, JANET A. SMITH, MARY         :
ANN HITCHENS, ANTHONY L. LAURIA,       :
LINDA S. LAURIA, DANNY MILANO,         :
AND CARRIE MILANO                      :    No. 3436 EDA 2018

              Appeal from the Order Entered October 26, 2018
              in the Court of Common Pleas of Chester County
                   Civil Division at No(s): 2017-07576-RC

BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED AUGUST 16, 2019


* Retired Senior Judge assigned to the Superior Court.

                                   -2-
J-A13034-19

      Twenty-eight    neighboring     property    owners    (collectively,   the

Neighbors)1 appeal from the October 26, 2018 order granting summary

judgment in favor of Gourmet’s Delight Mushrooms, LP (Gourmet), and

denying summary judgment to the Neighbors. Specifically, this consolidated

appeal challenges the trial court’s interpretation of certain deed restrictions,

and the determination that the deed restrictions did not apply to Gourmet’s

land development plan. Upon review, we affirm in part, reverse in part, and

remand for proceedings consistent with this memorandum.

Factual Background

      We glean the following background from the record. Gourmet owns a

property in London Grove Township (London Grove Property), on which

Gourmet operates a mushroom-growing business.              In 2005 and 2014,

Gourmet purchased two properties (Benmark Property and Irwin Property,

respectively), which are contiguous to its London Grove Property and located

entirely in Franklin Township, in order to expand its mushroom growing

operations. Gourmet subsequently merged the Franklin Township properties

(collectively, Gourmet Property).

      The Irwin Property is subject to the following deed restriction (Irwin

Restriction), which was recorded in 1951.



1 Default judgments were entered below against Paul D. Keating, Susan S.
Keating, Julie B. Engiles, Anne M. Jeavons, and Eric G. Jeavons. These
individuals were not parties to the motions for summary judgment and are
not parties to this appeal.

                                     -3-
J-A13034-19


     ALSO UNDER AND SUBJECT to the provision that no mushroom
     houses shall be erected or maintained upon the above-described
     premises by said Grantees, their heirs, assigns or occupiers of
     said premises. []

     The Benmark property is subject to a similar deed restriction (Benmark

Restriction), which was recorded in 1955.

     UNDER AND SUBJECT, also, to the restriction that no mushroom
     house shall be erected on the within conveyed premises for a
     period of ninety (90) years. []

Mushroom Growing & Mushroom Houses

     To understand better the issues in this case, we provide the following

background on mushroom growing and mushroom houses. “The evolution of

mushroom houses has been gradual and the result of much trial and error.”

Robert Snetsinger, Mushrooms and Penn State: Past, Present, Future,

BULLETIN 767, May 1970, at 2 (Gourmet’s Memorandum of Law, 7/25/2018,

at Exhibit A). In 1950, standard mushroom houses existed that worked best

for mushroom growing, but variations and modifications also existed at that

time based on new technology. ALBERT M. KLIGMAN, HANDBOOK     OF   MUSHROOM

CULTURE 20-21, 36 (2d ed. 1950) (Neighbors’ Summary Judgment Record,

9/25/2018, at SJ_0167-0168, 0170). By 1970, “[a] typical small mushroom

farm … consist[ed] of ‘double’ mushroom houses, an open composting yard,

and storage areas.”   Snetsinger, supra, at 2 (Gourmet’s Memorandum of

Law, 7/25/2018, at Exhibit A). Regardless of the style of mushroom house,

mushroom growing consists of six steps: (1) Phase I composting, (2) Phase

II composting, (3) spawning, (4) casing, (5) pinning, and (6) cropping.

                                   -4-
J-A13034-19

Daniel J. Royse and Robert B. Beelman, Six Steps to Mushroom Farming,

PENN STATE EXTENSION, 1, https://extension.psu.edu/six-steps-to-mushroom-

farming (SJ_0205).

     “Phase I composting lasts from 6 to 14 days, depending on the nature

of the material at the start and its characteristics at each turn. There is a

strong ammonia odor associated with composting[.]”            Six Steps to

Mushroom Farming, supra, at 5 (SJ_0209). In 1950, Phase I composting

began immediately behind the mushroom house or, less often, under an

open structure known as a shed. KLIGMAN, supra, at 35-36 (SJ_0169-0170).

After the last turning, the compost was moved into the mushroom house to

begin Phase II composting. Id. at 121, 125-26 (SJ_0173, 0176-0177).

     Phase II composting consists of pasteurization to kill insects, pest

fungi, and other pests, as well as conditioning to remove ammonia, in order

to transform the compost into a medium that will promote the growth of

mushrooms.     Six Steps to Mushroom Farming, supra, at 5 (SJ_0209);

KLIGMAN, supra, at 125 (SJ_0176).    Today, Phase II composting occurs in

one of three places: in wooden trays in an environmentally controlled Phase

II room, in beds that are placed directly in the room used for all steps of

mushroom growing, or in an insulated tunnel.        Six Steps to Mushroom

Farming, supra, at 5-6 (SJ_0209-0210).

     The third phase, spawning, is also known as Phase III composting. In

this phase, grain mixes with calcium carbonate, and is then cooked,


                                    -5-
J-A13034-19

sterilized, cooled, and inoculated with mushroom mycelia. Following these

steps, the mixture becomes spawn, which is distributed onto the Phase II

compost in order to seed the compost with mushroom mycelia.          Id. at 9

(SJ_0213); David Meigs Beyer, Ph.D., Basic Procedures for Agaricus

Mushroom         Growing,         PENN       STATE     EXTENSION,        7-9,

https://extension.psu.edu/basic-procedures-for-agaricus-mushroom-growing

(SJ_0188-0190). “In recent years, the use of bulk Phase III compost has

increased in popularity because it allows an increase in the number of crops

a grower can expect from his production rooms.”      Six Steps to Mushroom

Farming, supra, at 10 (SJ_0214).         The spawning phase ends once the

compost is fully-grown with spawn. Id. at 10 (SJ_0214).

     The fourth phase is casing.    “Casing is a top-dressing applied to the

spawn-run compost on which the mushrooms eventually form.” Id.

     The fifth phase is pinning.     During pinning, mushrooms grow from

initials, to pins, to buttons, and ultimately to mushrooms.         Id. at 13

(SJ_0217).    During the final and sixth phase, cropping, mushrooms are

harvested. Id. at 14 (SJ_0218).

Procedural Background

     On August 2, 2017, Gourmet filed a complaint against the Neighbors

seeking a declaratory judgment that the deed restrictions against the

erection or maintenance of mushroom houses on the Gourmet Property did




                                     -6-
J-A13034-19

not apply to its proposed composting facility. The Neighbors filed an answer

and new matter.

     On July 25, 2018, Gourmet moved for summary judgment against the

Neighbors. On September 24, 2018, some neighbors 2 moved for summary

judgment, and filed a brief in support of their motion and in opposition to

Gourmet’s motion.

Gourmet’s Motion for Summary Judgment

     In its motion for summary judgment, Gourmet argued that the deed

restrictions did not apply, as a matter of law, to facilities used solely for

composting.   Gourmet’s Motion for Summary Judgment, 7/25/2018, at 5.

According to Gourmet, the term “mushroom house” as used in the 1950s is

unambiguous and has a clearly established meaning: a “long and narrow

block building with no windows.”      Memorandum of Law in Support of

Gourmet’s Motion for Summary Judgment, 7/25/2018, at 9.            As such,

Gourmet argued that “the proposed composting facility, within which no

mushrooms are grown, cannot violate the prohibition.” Gourmet’s Motion for

Summary Judgment, 7/25/2018, at 5 (unnecessary capitalization altered).



2 Specifically, Sean C. Smith, Mallory P. Austin, Sarah Berdoulay, Troy St.
John, Arthur R. Taylor, Jr., Cynthia Taylor, Rick Masha, Teresa Masha, Gary
M. Mack, Barbara L. Mack, William D. Walker, Margaret W. Walker, Joseph S.
Cox, Patrick G. Talwin, Linda A. Tiberia, Robert S. Reynolds, Wendy L.
Reynolds, Louis F. Donaghue, Marianne C. Donaghue, Christopher M. Wurm,
Virginia C. North, Janet A. Smith, Mary Ann Hitchens, Anthony L. Lauria,
Linda S. Lauria, Danny Milano, and Carrie Milano. Lynn Arrington joined the
other neighbors’ summary judgment motion on October 23, 2018.

                                    -7-
J-A13034-19

Gourmet further argued that the deed restrictions were building restrictions,

not use restrictions. Id.

      In support of its interpretation of the deed restrictions, Gourmet

attached to its Memorandum of Law several exhibits, consisting of excerpts

from various books and websites.        See Gourmet’s Memorandum of Law,

7/25/2018, at Exhibits A-E.

Neighbors’ Response & Motion for Summary Judgment

      In response to Gourmet’s motion, and in support of their own motion

for summary judgment, the Neighbors argued that the term “mushroom

house” as used in the 1950s had a different meaning than Gourmet’s

interpretation.    According to the Neighbors, “the term ‘mushroom house’

was understood to encompass the entire mushroom operation, including the

preparation of mushroom compost, which took place both immediately

beside and within the mushroom house and which compost is essential to

growing     mushrooms.”        Neighbors’   Motion   for   Summary   Judgment,

9/24/2018, at 2.

      Contrary to Gourmet’s contention, the Neighbors argued that the deed

restrictions were intended as restrictions on mushroom uses “in and around

mushroom houses, including mushroom growing and the preparation of

mushroom compost,” and not just a restriction on a particular style of

building.    Id. at 3.      The Neighbors maintained that “[t]he mushroom

composting proposed by Gourmet violates the [d]eed [r]estrictions because


                                      -8-
J-A13034-19

the proposed composting is part and parcel of the ‘vertically integrated’

system with Gourmet’s existing mushroom growing operation” on the

London Grove Property. Id. Therefore, the Neighbors sought a declaration

that the deed restrictions prohibit any and all mushroom-growing uses,

including the preparation of mushroom compost, and that the restrictions

prohibit Gourmet from expanding its mushroom operations onto the

Benmark and Irwin Properties. Id. at 4.

        The Neighbors further argued that the “object or purpose of the parties

in restricting ‘mushroom houses’ would be to prevent a mushroom operation

from operating near residential properties” because of “odor, sanitation

issues, water runoff, pests and insects, and the potential devaluation of

nearby residential properties.” Neighbors’ Brief in Opposition to Gourmet’s

Motion for Summary Judgment, 9/24/2018, at 16.

        In support of their interpretation of the deed restrictions, Neighbors

filed of record several documents, including, inter alia, excerpts from various

books    and   websites.     See   Neighbors’   Summary    Judgment    Record,

9/25/2018, at SJ_0163-SJ_0228.

Trial Court Decision

        In granting Gourmet’s motion for summary judgment and denying the

Neighbors’ motion, the trial court found the term “mushroom house”

unambiguous. According to the trial court, a “mushroom house is a thing,

not a process. That thing is a mushroom house, not a composting wharf. …


                                      -9-
J-A13034-19

Since a composting wharf is not a mushroom house, it follows that there is

no prohibition against erecting or maintaining a composting wharf.”       Trial

Court Opinion, 10/26/2018, at 8.      Thus, the trial court granted Gourmet

relief, and held that Gourmet was permitted to construct the proposed

composting facility and perform composting activities on the Gourmet

Property.

Issues on Appeal and Relevant Legal Principles

      This timely-filed appeal followed.3,   4   On appeal, the Neighbors argue

that the trial court (1) misinterpreted the deed restrictions and (2) erred in

concluding Gourmet’s proposed expansion was limited to Phase I composting

outdoors on a composting wharf. Neighbors’ Brief at 3, 26, 40.5 According



3  Both the Neighbors and the trial court complied with Pa.R.A.P. 1925. In
lieu of a separate opinion, the trial court issued a statement relying on its
October 26, 2018 memorandum. Trial Court Opinion, 12/17/2018.
4  “[A]n order denying summary judgment is ordinarily a non-appealable
interlocutory order. However, an order in a declaratory judgment action that
either affirmatively or negatively declares rights, status, and other legal
relations is a final order.” Good v. Frankie & Eddie’s Hanover Inn, LLP,
171 A.3d 792, 794 n.1 (Pa. Super. 2017) (citations and quotation marks
omitted). Thus, this appeal from the trial court order denying the Neighbors’
motion for summary judgment and granting Gourmet’s motion is properly
before us.
5 Because Appellant Arrington filed her own motions and brief, which joined
the other neighbors’ motion for summary judgment, brief in support thereof
and in opposition to Gourmet’s motion for summary judgment, brief on
appeal, and reply brief filed by the remaining Neighbors, when this Court
cites any document filed by the Neighbors, we are referencing those
documents filed on behalf of Sean C. Smith, Mallory P. Austin, Sarah
Berdoulay, Troy St. John, Arthur Taylor, Cynthia Taylor, Rick Masha, Teresa
(Footnote Continued Next Page)

                                    - 10 -
J-A13034-19

to the Neighbors, the term “mushroom house” in the 1950s referred to a

building in which the second through sixth phases of mushroom growing

took place, and immediately beside which the first phase of composting took

place.    Id. at 32-33.        As such, the Neighbors contend that the trial court

erred in concluding that the deed restrictions did not apply to Gourmet’s land

development plan. Id. at 40.

         We begin with the relevant legal principles.           “In a declaratory

judgment action, just as in civil actions generally, summary judgment may

be granted only in those cases in which the record clearly shows that there

are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.” Certain Underwriters at Lloyds v. Hogan,

852 A.2d 352, 354 (Pa. Super. 2004) (citation and quotation marks

omitted).      When reviewing a challenge to an order granting summary

judgment,

         [w]e may reverse if there has been an error of law or an abuse
         of discretion. Our standard of review is de novo, and our scope
         plenary. We 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. Furthermore, [in] evaluating the trial court’s
         decision to enter summary judgment, we focus on the legal
         standard articulated in the summary judgment rule. The rule
         states that where there is no genuine issue of material fact and
(Footnote Continued)   _______________________

Masha, Gary M. Mack, Barbara L. Mack, William D. Walker, Margaret W.
Walker, Joseph S. Cox, Patrick G. Talwin, Linda A. Tiberia, Robert S.
Reynolds, Wendy L. Reynolds, Louis F. Donaghue, Marianne C. Donaghue,
Christopher M. Wurm, Virginia C. North, Janet A. Smith, Mary Ann Hitchens,
Anthony L. Lauria, Linda S. Lauria, Danny Milano, and Carrie Milano.

                                                 - 11 -
J-A13034-19


     the moving party is entitled to relief as a matter of
     law, summary judgment may be entered. Where the nonmoving
     party bears the burden of proof on an issue, he may not merely
     rely   on    his   pleadings    or   answers     in   order   to
     survive summary judgment. Failure of a non-moving party to
     adduce sufficient evidence on an issue essential to his case and
     on which he bears the burden of proof establishes the
     entitlement of the moving party to judgment as a matter of law.

Carlino E. Brandywine, L.P. v. Brandywine Vill. Ass'n, 197 A.3d 1189,

1199-200 (Pa. Super. 2018) (citation omitted).       “[W]e review the trial

court’s denial of summary judgment for an abuse of discretion or error of

law.” Hildebrand v. EQT Prod. Co., 165 A.3d 969, 971 (Pa. Super. 2017)

(citation and quotation marks omitted).

     A trial court’s construction of a deed is a question of law, which
     compels de novo review.

     When interpreting deeds, this Court’s primary objective must be
     to ascertain and effectuate the intent of the parties. When the
     language of the deed is free from ambiguity, the intent of the
     parties must be determined from the language of the deed.
     Conversely, when the language is ambiguous, intent is
     determined by the situation and conduct of the parties,
     surrounding circumstances, the object they had in view and the
     nature of the subject matter. Further, if the language in a deed
     is ambiguous, “then all of the attending circumstances
     existing at the time of the execution of the instrument
     should be considered to aid in determining the apparent object
     of the parties.” Starling v. Lake Meade Prop. Owners Ass'n,
     Inc., [] 162 A.3d 327, 341 ([Pa. ]2017) (citation omitted;
     emphasis in original).

Russo v. Polidoro, 176 A.3d 326, 329 (Pa. Super. 2017) (some citations

and quotation marks omitted).

     “Restrictive covenants[,] which restrict the use of property, although

not favored by the law, are legally enforceable. Restrictive covenants are to

                                   - 12 -
J-A13034-19

be strictly construed against persons seeking to enforce them and claiming

benefit thereof and in favor of the free, unrestricted use of property.”

Logston v. Penndale, Inc., 576 A.2d 59, 62 (Pa. Super. 1990) (citations

omitted).

      Moreover, restrictive covenants are divided into two categories,
      building restrictions and use restrictions. Building restrictions
      are concerned with the physical aspect or external appearance of
      the buildings. Use restrictions involve the purposes for which
      the buildings are used, the nature of their occupancy, and the
      operations conducted therein.

Richman v. Mosites, 704 A.2d 655, 658 (Pa. Super. 1997) (citations and

quotation marks omitted).     Where the restrictive covenant is a building

restriction, “the purposes for which the disputed parcel may be used are

irrelevant.” Id.

      The distinction between a building restriction and a use
      restriction is a “basic rule of construction.” This Court will not
      allow extrinsic evidence of the parties’ intent to contradict the
      express statement contained in the restrictive covenant. “A
      building restriction and a use restriction are wholly independent
      of one another and, … the one is not to be extended so as to
      include the other unless the intention so to do is expressly and
      plainly stated[.]”

Id. at 658-59 (citations omitted).

Analysis

      Upon review of the record, we do not agree with the trial court that

the term “mushroom house,” as used in the 1950s, is unambiguous.

Certainly, a fact-finder could agree with Gourmet’s interpretation of the deed

restrictions and that they do not apply to the proposed land development


                                     - 13 -
J-A13034-19

plan.     However, we conclude that Neighbors have set forth sufficient

evidence, which, if believed, would permit a reasonable fact-finder to

conclude that “mushroom house” was used in the 1950s as a term of art to

describe an indoor facility where five of the six phases of mushroom growing

took place, and beside which composting began.

        In considering whether the deed restriction is a building restriction or

use restriction, we are guided by this Court’s decision in Buck Hill Falls Co.

v. Clifford Press, 791 A.2d 392 (Pa. Super. 2002). In that case, this Court

reviewed separately two restrictions.      The first restriction prohibited the

keeping of poultry.     The second restriction stated that “no barn, stable,

cowshed, [or] chicken house ... shall ... be erected or constructed upon any

part of the hereby granted premises.”          Id. at 398 (quotation marks

omitted). Giving effect to the intention of the parties and the nature of the

subject matter at the time of the restriction, this Court found the definition

of “chicken house” obvious. “The ordinary usage and plain meaning of the

phrase ‘chicken house,’ as well as common sense, require that a structure

built to house chickens or poultry be defined as a ‘chicken house.’” Id.

        Likewise, a reasonable fact-finder here could conclude that the

ordinary usage and plain meaning of “mushroom house” in the 1950s could

not be separated from the use of that building to grow mushrooms.            As

such, any structure built to grow mushrooms could be considered a

“mushroom house,” regardless of its architectural style.       Thus, while the


                                      - 14 -
J-A13034-19

deed restrictions herein reference a structure, a reasonable fact-finder could

conclude that the deed restrictions are actually use restrictions because they

involve “the purposes for which the buildings are used, the nature of their

occupancy, and the operations conducted therein” and not simply the

external appearance of the buildings. Richman, 704 A.2d at 658 (citations

omitted).

      Pursuant to the land development plan, Gourmet’s plans for expansion

on the Benmark and Irwin Properties include the following:

      a[n] 84,150 square foot, three-sided building[,] having a length
      of 510 feet and a width of 165 feet connected to a 45,900
      square foot covered wharf and a 57,540 square foot uncovered
      wharf and a separate 137,700 square foot four-sided building
      having a length of 540 feet and a width of 255 feet[.] …
      Development of the Gourmet Property will permit Gourmet to
      relocate its existing composting activities from the London Grove
      Property to the proposed composting facility and to construct
      additional mushroom growing rooms in the area on the London
      Grove Property vacated by the relocation of Gourmet composting
      activities.

Trial Court Opinion, 10/26/2018, at 5-6 (unnecessary capitalization altered).

      According to Gourmet, the composting facility will be used solely for

composting and include “a flat concrete turning wharf.”      Gourmet’s Motion

for Summary Judgment, 7/25/2018, at 5. The facility itself will not involve

any mushroom growing, but will include, in addition to the composting

wharf, storage of raw materials and areas designated for spray irrigation of

stormwater. Id.; Memorandum of Law in Support of Gourmet’s Motion for

Summary Judgment, 7/25/2018, at 2-3.


                                    - 15 -
J-A13034-19

      On the other hand, Neighbors argue that Gourmet’s land development

plan indicates it will use the Gourmet Property specifically for Phases I, II,

and III composting. Neighbors’ Brief in Opposition to Gourmet’s Motion for

Summary Judgment, 9/24/2018, at 8. As indicated supra, Phases II and III

composting took place within the standard “mushroom house” structure

used in the 1950s. Additionally, based upon a letter written by Gourmet’s

counsel, Gourmet has indicated that the proposed composting facility for the

Gourmet Property “will include a designated area to be used for mushroom

growing.”       Letter, 8/13/2014, at 1 (unnumbered) (Neighbors’ Summary

Judgment Record, 9/25/2018, at SJ_0159). Moreover, the Neighbors argue

that Gourmet’s earlier attempts to have the Neighbors release the properties

from the deed restrictions demonstrate a belief on Gourmet’s behalf that its

intended use of the Gourmet Property is not permitted under the deed

restrictions.     Neighbors’ Brief in Opposition to Gourmet’s Motion for

Summary     Judgment,     9/24/2018,    at      19-20;   see   also,   e.g.,   Letter,

3/21/2005 (SJ_0145) (requesting release of restriction in order to build

office building, and proposing in exchange a new restriction against

commercial composting).

      Based upon the foregoing, we conclude that the competing definitions

of “mushroom house,” as well as the uncertainty in the record as to what

specific mushroom-growing phases Gourmet plans to pursue on the Gourmet

Property, evidence a dispute of material fact.           Our Supreme Court has


                                       - 16 -
J-A13034-19

emphasized “that it is not [a] court’s function upon summary judgment to

decide issues of fact, but only to decide whether there is an issue of fact to

be tried.” Fine v. Checcio, 870 A.2d 850, 862 (Pa. 2005) (citing Pa.R.C.P.

1035.2(1)).   Accordingly, we hold that the trial court erred in granting

summary judgment to Gourmet.            See Selective Way Ins. Co. v.

Hospitality Group Servs., Inc., 119 A.3d 1035, 1051 (Pa. Super. 2015)

(en banc) (reversing grant of summary judgment in declaratory judgment

action where there was an issue of fact to be decided by the trial court).

Conclusion

      Because there is enough evidence in the record, which, if believed,

would permit a reasonable fact-finder to conclude that the deed restrictions

prohibit mushroom growing, and that the deed restrictions would apply to

Gourmet’s proposed land development plan for the restricted properties.

Thus, we hold that there is a dispute of material fact as to what “mushroom

house” means and whether the deed restrictions apply to Gourmet’s

proposed land development plan.      Accordingly, we affirm6 the trial court’s

order denying the Neighbors’ motion for summary judgment, reverse the

trial court’s order granting Gourmet’s motion, and remand for proceedings

consistent with this memorandum.



6 “To the extent that our reasoning differs from that of the trial court, … we
may uphold a decision of the trial court if there is any proper basis for the
result reached[.].” Generation Mortg. Co. v. Nguyen, 138 A.3d 646, 651
n.4 (Pa. Super. 2016) (citation and quotation marks omitted).

                                    - 17 -
J-A13034-19

     Order affirmed in part and reversed in part.      Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




                                  - 18 -
