J-A13036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    WINCHESTER CONDOMINIUM                     :   IN THE SUPERIOR COURT OF
    ASSOCIATION                                :         PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH S. AURIA                            :
                                               :      No. 1512 WDA 2017
                       Appellant               :

               Appeal from the Judgment Entered October 5, 2017
               in the Court of Common Pleas of Allegheny County,
                    Civil Division at No(s): No. G.D. 16-012739

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED AUGUST 3, 2018

       Joseph S. Auria (“Auria”) appeals from the Judgment entered against

him and in favor of Winchester Condominium Association (“the Association”).1

We affirm.

       The trial court set forth the facts underlying the instant appeal as

follows:

            [The Association] is responsible for maintaining the common
       elements of the [Condominium], and such expenses are passed

____________________________________________


1 Winchester Condominium Association is the association of unit owners of
Winchester Condominium (“the Condominium”), which was declared in
Allegheny County, Pennsylvania. The Association was created under the terms
and provisions of the Unit Property Act of Pennsylvania (Act of July 3, 1963,
P.L. No. 196). The original Declaration of Condominium (“the Declaration”)
was dated September 13, 1972, and recorded with the Department of Real
Estate of Allegheny County. Since that time, the Declaration and the Code of
Regulation for the Condominium have been amended.
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      through to the unit owners on a percentage of ownership basis in
      the form of monthly fees or special assessments.

            The Association filed this equity action[,] on July 13, 2016[,]
      in an effort to compel [] Auria to complete the replacement of
      certain aluminum wiring within the outlets of his condominium
      unit.   The Association’s insurance underwriter notified the
      Association that it had to mitigate or reduce fire risk at the
      property to maintain reasonable insurance coverage.              The
      insurance underwriter suggested copalum [wiring] installation as
      a safety modification in all of the units in the complex, including
      the common areas, as an appropriate remedial measure.

            The unit [o]wners were all informed through a series of
      notices from the Association of the requirement to replace the
      aluminum wiring in their outlets as a safety issue and in order for
      the Association to maintain reasonable insurance coverage. Each
      and every one of the [u]nit [o]wners at the [] Condominium[]
      completed arrangements to have the work performed, with the
      exception of [Auria].

            Despite having several months to have the work completed,
      [Auria] failed to complete the work. Eventually, after the other
      [u]nit [o]wners had all completed their portion of the work, []
      Auria finally informed the Association [that] he was not going to
      do the work in his unit. In essence, [] Auria believes the work is
      the Association’s responsibility, since it involves common
      elements within the walls of the building.

            By the time [the trial court] heard the case on June 29,
      2016, [Auria] had agreed to perform the work and the only issue
      remaining for [the trial court] to decide was who was responsible
      for paying for the work....[FN]


      [FN]   Said work was completed by [Auria] on July 29, 2017.

Trial Court Opinion, 12/5/17, at 1-2 (footnote in original).

      Following a non-jury trial, the trial court found against Auria and in favor

of the Association. The trial court directed Auria to pay for the copalum wiring

and its installation. Auria filed a Motion for post-trial relief, which the trial

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court denied. After entry of Judgment on the trial court’s verdict, Auria filed

the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      Auria presents the following claim for our review: “Does the contractual

interpretation of the [] Declaration indicate that the copalum wiring behind

the walls of a condominium unit constitute a common element[,] thereby

requiring repair by the [Association], as opposed to the individual owner?”

Brief for Appellant at 5.

      Auria claims that, pursuant to Article Five of the Declaration, “[a]ll

conduits, wires, pipes and utility lines up to the outlets thereof inside the walls

of each unit” are part of the common elements.               Id. at 11 (quoting

Declaration, Art. V(1)(h)). Further, Appellant argues, that same subsection

provides that wiring “up to” the outlet is a common element “because it

includes all ‘appurtenant’ installation to the outlets.” Id. (quoting Declaration,

Art. V(1)(h)). Citing contract law, Auria posits that wires that lead “up to” an

outlet are common elements, “because the wires are attached up to the

electrical receptacle.”     Id. at 12.   Referring to Webster’s Dictionary, Auria

defines a “receptacle” as “an electrical wall outlet designed for use with a

plug.” Id. (citation omitted). According to Auria, the fact that the outlet is

enclosed in a receptacle box does not alter the plain meaning of the words “up

to” the outlet. Id. Auria directs our attention to the testimony of Edward F.

Zehfuss (“Zehfuss”), the president of a real estate management firm


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J-A13036-18


specializing in condominiums, who “admitted that wiring was in a receptacle

box behind the wall and the wiring leads ‘up to’ the outlet plate.” Id. (quoting

N.T., 9/29/17, at 44).

      When reviewing the findings of a court in equity,

      an appellate court’s review “is limited to a determination of
      whether the chancellor committed an error of law or abused his
      discretion. A final decree in equity will not be disturbed unless it
      is unsupported by the evidence or demonstrably capricious.”
      Kepple v. Fairman Drilling Co., 532 Pa. 304, 312, 615 A.2d
      1298, 1302 (1992) (internal quotation marks omitted). Although
      facts found by the chancellor, when supported by competent
      evidence in the record, are binding, no such deference is required
      for conclusions of law, which we review de novo. Id.

T.W. Phillips Gas & Oil Co. v. Jedlicka, 42 A.3d 261, 267 (Pa. 2012).

      The issue before this Court is whether the aluminum wiring, which was

to be replaced with copalum wiring, is part of an “outlet,” and therefore the

responsibility of Auria, or a common element, and therefore the responsibility

of the Association.   Both parties direct our attention to the Declaration as

supporting their interpretation of the term “outlet.”

      Pennsylvania courts have examined condominium declarations under

the umbrella of general contract law.     Wrenfield Homeowners Ass’n v.

DeYoung, 600 A.2d 960, 993 (Pa. Super. 1991); see also MetroClub

Condo. Ass’n v. 201-59 N. Eighth St. Assocs., L.P., 47 A.3d 137, 145 (Pa.

Super. 2012) (stating that, although the condominium association had not

persuaded the Court that the condominium declaration at issue was a




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contract, it would apply contract principles when examining the declaration).

As our Supreme Court has explained,

       when interpreting the language of a contract, th[e] Court’s goal is
       to ascertain the intent of the parties and give it effect. When the
       words of a contract are clear and unambiguous, the intent of the
       parties must be ascertained from the language employed in the
       contract, which shall be given its commonly accepted and plain
       meaning.

TruServ Corp. v. Morgan’s Tool & Supply Co., 39 A.3d 253, 260 (Pa.

Super. 2012).

       When, however, an ambiguity exists, parol evidence is admissible
       to explain or clarify or resolve the ambiguity, irrespective of
       whether the ambiguity is patent, created by the language of the
       instrument, or latent, created by extrinsic or collateral
       circumstances.   A contract is ambiguous if it is reasonably
       susceptible of different constructions and capable of being
       understood in more than one sense.           While unambiguous
       contracts are interpreted by the court as a matter of law,
       ambiguous writings are interpreted by the finder of fact.

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004).

       Article V of the Condominium Declaration states, in relevant part, as

follows:

       Section 1. The common elements[2] consist of:

       (e) Installation of all central service and utilities, including but not
       limited to all water pipes, drain pipes, electrical wires, general
       conduits, flues, chimneys, and the like or otherwise, including
       those within the interior wall within the confines of a unit; but
       exclusive of the outlets thereof into each unit.
____________________________________________


2 The term “common elements,” when used in a condominium’s declaration or
by-laws, is defined by statute as “[a]ll portions of a condominium other than
the units.” 63 Pa.C.S.A. § 3103.


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J-A13036-18



                                       ***

      (h) All conduits, wires, pipes, and utilities lines up to the outlets
      thereof inside the walls of each unit regardless of location,
      and all of the bearing walls, columns, beams, together with all
      elevator equipment and shafts, pipes, ducts, flues, chutes, other
      appurtenant installations and insulations to the outlets regardless
      of location, parking stalls, and manager’s apartment.

Declaration, Art. V, Sec. 1(h) (emphasis and footnote added).

      The Declaration provides no definition of the term “outlet.” Webster’s

Collegiate Dictionary defines the word “outlet” as “a receptacle for the plug of

an electrical device[.]” Meriam-Webster’s Collegiate Dictionary 826 (10th ed.

2003).      The     dictionary   defines   the   term   “receptacle”   as     “one

that receives and contains something: CONTAINER” or “a mounted

female electrical fitting that contains the live parts of the circuit.”

Meriam-Webster’s Collegiate Dictionary 975 (10th ed. 2003). It is not clear

from the dictionary definitions whether the term “outlet” as used in the

Declaration, includes the wiring at issue.       Accordingly, the issue must be

resolved by the trial court, as the trier of fact.

      At trial, the Association presented the testimony of James L. Pace

(“Pace”), a 37-year employee of the Condominium. Pace testified regarding

the copalum installation, and its location with respect to each condominium

unit, as follows:

      [Association’s counsel]:   … [B]ased upon your firsthand
      knowledge and experience, is the copalum installation that was
      done at the [Condominium] located inside the outlets?


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J-A13036-18


      A. [Pace]: Yes.

      Q. Is this something you personally observed?

      A. Yes.

      Q. Regarding the outlet, if I was to describe the outlet as
      the box in the wall where the plug is inserted, is that what
      we are talking about?

      A. Yes.

N.T., 9/29/17, at 12 (emphasis added). Following cross-examination, the trial

court asked Pace to clarify where the copalum wiring would be located, upon

its installation:

      THE COURT: … As I understand this, when you take off the two
      screws for the plate, or the one screw for the plate, you pull the
      receptacle out into the open, right? –

      THE WITNESS: Right.

      THE COURT: You see they are making a distinction about these
      things?

      THE WITNESS: Right.

      THE COURT: So the receptacle is pulled out of the wall after you
      take the plate off, and ordinarily, with a normal plug there are two
      places where you -- there are two prongs at the top and the
      ground at the bottom; right?

      THE WITNESS: Right.

      THE COURT: And those wires go inside the wall later on, and you
      push it back in, and that all goes inside the wall; right?

      THE COURT: And from that point in time those wires go
      throughout the apartment, or in this case they go throughout the
      office to somewhere along the line where it will attach to some
      sort of a junction box; is that correct?


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J-A13036-18


     THE WITNESS: Yes.

     THE COURT: The work that was done here or asked to be done
     here, was it the areas where the receptacles were, which I just
     described, or was it the wires that went inside the wall and down
     to the junction box?

     THE WITNESS: No, it was just the receptacle.

     THE COURT: So only that area that I described that you pulled
     out of the wall with the three wires; is that right? There are two
     and the ground; correct?

     THE WITNESS: Right.

     THE COURT: … So those are the parts we are talking about? We
     aren’t talking about the ones strung through the walls?

     THE WITNESS: Right.        In order to do this procedure, they want
     aluminum and copper,      and they put it together and crimp it and
     put a protective shield   around it and put it back in the wall. It’s
     like extending the wire   a little bit more.

     THE COURT: I wanted to make sure I understood what we were
     talking about here.

     THE WITNESS: Right.

     THE COURT: And once again, we are talking about that part that
     you pull out of the wall, and not the wires that run throughout the
     building and down to the junction box?

     THE WITNESS: Right, you aren’t talking about none of that.

N.T., 8/29/17, at 15-17.

     Similarly, Zehfuss testified at trial regarding the replacement of the

aluminum wire with copalum wire:

     Q. (Counsel for the Association) The Judge pointed out that when
     this work is performed[,] the outlets are pulled out of the wall; is
     that correct?


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J-A13036-18


      A. (Zehfuss) That’s how they work on it, yes.

      Q. So it’s pulled out of the wall, and it’s inside the unit; is that
      correct?

      A. Yes.

N.T., 8/29/17, at 26-27.

      In its Opinion, the trial court found that the term “outlet” included the

receptacle in which the copalum wiring was to be installed:

      The sole issue in this case involves interpreting the Declaration []
      to determine who is responsible for replacement of the wiring
      within the outlets of [Auria’s] condominium unit. The Declaration
      specifically excludes “the outlets into each unit” from the definition
      of common elements, meaning the outlets are the responsibility
      of the individual condominium owners. The wiring in question is
      within the outlets, which are then placed inside the outlet boxes
      behind the walls of the units. The wiring involves essentially the
      “guts” of the outlet, not the major conduit wiring that runs
      throughout the building behind the walls of the units.

            When the work in question is performed, the outlets are
      pulled out of the walls and inside the units. While it is true that,
      once completed, the outlet is then reinserted into the wall so only
      the plug receptacles are visible, [the trial court] believes the
      Condominium governing documents clearly put the responsibility
      for the outlets on the individual unit owners. This makes sense
      considering the outlets are located solely within [Auria’s] unit and
      are for his sole use and enjoyment, and not in any manner
      common elements.

Trial Court Opinion, 12/5/17, at 2-3.

      Upon review, the trial court’s finding that the copalum wire was to be

replaced inside of the outlet, and that the replacement would not be of wire

that is a common element of the Condominium, is supported by the evidence

of record.   Further, because the replacement involved wiring that is not a


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J-A13036-18


“common element” of the Condominium, the trial court did not err in requiring

Auria to pay the costs of replacing the existing wire with copalum wire.

Accordingly, we affirm the Judgment entered by the trial court.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2018




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