                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tanglwood North Community                        :
Association                                      :
                                                 :
                v.                               :
                                                 :
Patrice C. Boystak,                              :   2307 C.D. 2014
                   Appellant                     :   Argued: September 14, 2015

BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                    FILED: January 6, 2016

                Patrice Boystak (Boystak) appeals from an order of the Court of
Common Pleas of Pike County (common pleas court) that granted in part and
denied in part Tanglwood North Community Association’s (Association) motion
for summary judgment.1




        1
            The common pleas court granted the Association’s motion for summary judgment in
part:
                [I]nsofar as Defendant [Boystak] is declared in violation of the
                restrictive covenants of [the] . . . Association and is Ordered to
                remove the garage from the 50’ setback right-of-way within 30
                days of the date of service of this Order, and to conform all future
                improvements to Defendant’s [Boystak’s] land to this Order.

Order of the Common Pleas Court, November 21, 2014, at 1. The common pleas court denied
the Association summary judgment in part “without prejudice as to Plaintiff’s [Association’s]
prayer for the charge of a per diem penalty.” Order of the Common Pleas Court at 1.
                                 I. Amended Complaint
              On August 19, 2013, the Association filed an amended complaint and
alleged:
              1.) The . . . Association is a non-profit corporation
              organized and existing within the laws of the
              Commonwealth of Pennsylvania . . . .

              2.) . . . Boystak is an individual with a mailing address of
              P.O. Box 68, Tafton . . . .

              3.) . . . Boystak is the record owner of the property
              situated at Lot 298N, Map 6N, 298 Brianhead Lane,
              Tanglwood North Community Association, Tafton . . . .

              4.) On August 14, 1967, Russell Compton and C. Alvin
              Cosgrove conveyed said property to Tanglwood Lakes,
              Inc. . . . .

              5.) On February 12, 1984, said property was conveyed by
              Tanglwood Lakes, Inc. to Phil L. Boystak and Patrice C.
              Nickerson . . . . [2] (Emphasis added.)

              6.) Said Deed provides that the land is ‘Under and
              Subject to all restrictions set forth in a certain document
              entitled Restrictions Pertaining to Lots in Tanglwood
              Lakes’ . . . .

              7.) On April 1, 1986 . . . [the] Association, Academy
              Insurance Group, Inc., Ammest Realty, Inc. and
              Tanglwood Lakes, Inc. entered into a Comprehensive
              Settlement Agreement . . . .

       2
         Boystak purchased Lot 298, Map 6, Tanglwood Lakes, Inc. from the developer on or
about February 12, 1984. Boystak constructed a home on the lot to be used seasonally. Boystak
relocated full-time to the Pike County home and determined there was a need for more storage
and garage space. In late winter of 2013, Boystak sought permission from the Association to
construct a garage. In late March 2013, Boystak applied for a building permit from Tanglwood’s
Architectural Committee (Committee).



                                              2
8.) Said agreement defines the . . . Association as the
community association of the name representing lot
owners in the development . . . .

9.) . . . [Association] entered into a Settlement Agreement
on the 22nd day of September, 1994, by and through [the]
. . . Association, Tanglwood Lakes, Inc., and John P.
Taylor . . . .

10.) On March 15, 1996, Tanglwood Lakes, Inc.
conveyed the property at issue to [the] Association . . . .
(Emphasis added.)

11.) According to said Deed . . . Boystak is bound by the
restrictive covenants that run with the property.
(Emphasis added.)

12.) The restrictive covenants of [the] Association . . .
specifically state, under Paragraph 13, ‘No part of any
structure shall be erected closer to any side line of the lot
than 15’ nor closer than 30’ to the property line opposite
the line adjacent to a street, nor shall any part of any
structure be erected closer than 50’ from such boundary’
....

13.) The restrictive covenants of . . . [the] Association . . .
specifically state, under Paragraph 3, ‘before
commencing construction of any improvements on the
Lot, and before commencing any alterations or additions
thereto, the lot owner shall obtain the approval of
Tanglwood Lakes, Inc. in writing of the plans and
location of such improvement . . . and the construction or
installation of any such improvements shall be carried
out in strict conformity with such approved plans. Lot
owner will submit detailed plans in duplicate to
Tanglwood Lakes, Inc.’ . . . .

14.) . . . Boystak, prior to May 16, 2013 provided a
building permit application . . . . (Emphasis added.)



                              3
15.) Prior to May 16, 2013, the permit application of . . .
Boystak was rejected because the alleged garage . . . was
within the 50’ foot setback from the right-of-way of any
street. (Emphasis added.)

16.) . . . Boystak was informed that the . . . permit
application was denied because the garage as planned to
be erected was within the 50’ foot setback from the right-
of-way of any street. (Emphasis added.)

17.) On May 16, 2013 . . . Boystak . . . began erection of
the garage on [Boystak’s] property within the 50’ foot
setback.

18.) The President of the . . . Association . . . went to the
contractors and indicated . . . that the contractors must
cease and desist from building said garage as the garage
was within the 50’ foot setback.

19.) The subcontractors and contractors of [Boystak]
ignored the President’[s] request and erected the garage
on [Boystak’s] property by the end of May 16, 2013.
(Emphasis added.)

20.) On or about May 17, 2013 . . . [Boystak] forwarded
to the . . . Association a non pro tunc variance [request]. .
. . (Emphasis added.)

21.) . . . Boystak, in direct violation of the restrictive
covenants of the . . . Association and after being orally
told and in writing that the garage could not be placed the
within 50’ foot setback in violation of the restrictive
covenants of the . . . Association, erected said garage.

22.) All of the properties in the . . . Association of which
[Boystak] owns said property have restrictive covenants
which run with the land.

23.) Although . . . Boystak has been informed that
[Boystak] did not obtain the proper building permit,

                             4
                [Boystak] has entered onto the property and erected a
                garage within the 50’ foot setback.

                24.) [Boystak’s] performance of work on the . . . property
                for the erection of a garage without a building permit is a
                clear violation of the restrictive covenants of the . . .
                Association. (Emphasis added.)

                25.) Under the Rules and Regulations of the . . .
                Association . . . ‘The Board does not have authority to
                make exceptions for restrictions which are placed on
                [the] Association . . . properties’ . . . .
                ....
                27.) Permitting the erection of a garage on . . .
                [Boystak’s] property without a building permit causes
                irreparable harm to the . . . Association and all members
                of the . . . Association.

                28.) The issuance of a Permanent Injunction is reasonable
                in order to abate . . . [Boystak’s] wrongful actions.

                29.) The issuance of a Permanent Injunction is reasonable
                as . . . [Boystak’s] garage was erected without the
                issuance of a proper building permit from the . . .
                Association. (Emphasis added.)

Amended Complaint, August 19, 2013, Paragraphs 1-25 and 27-29 at 1-6;
Reproduced Record (R.R.) at 5a-9a.3


                On September 30, 2013, Boystak denied the Association’s allegations
and raised in her new matter the following:
                2. [The Association’s] complaint is barred in that it does
                not possess the requisite power or authority to enforce the
                underlying covenants.
       3
           Page 6 of the Amended Complaint containing Paragraphs 25 and 27-29 is missing from
the R.R.



                                               5
            3. [The Association’s] complaint is barred in that [the
            Association] is not the successor in interest to the original
            developer of the subject development.

            4. [The Association’s] complaint is barred in that [the
            Association] is attempting to enforce the subject
            covenants of Tanglwood Lakes, Inc. (Emphasis added.)

            5. [The Association’s] complaint is barred in that [the
            Association] has not become invested in any enforcement
            capacity of the subject covenants.

            6. [The Association’s] complaint is barred in that [the
            Association] lacks capacity to bring the subject suit, is
            not known as it represents itself, and lacks power to bring
            the subject suit and to specifically sue [Boystak].
            ....
            9. [The Association’s] complaint is barred in that [the
            Association] alleges powers existing only in the original
            developer.
            ....
            11. [The Association’s] complaint is barred in that [the
            Association’s] suit is commenced under the Tanglwood
            Lake’s restrictions in [Boystak’s] deed and not under the
            Association’s Rules and Regulations. (Emphasis added.)
            ....
            15. [The Association’s] complaint is barred in that [the
            Association] is estopped from bringing the instant suit
            because it failed to timely exercise its claim under its
            own rules and regulations. (Emphasis added.)

Defendant’s Answer to Plaintiff’s Amended Complaint and New Matter,
September 30, 2013, Paragraphs 2-6, 9, 11, and 15 at 4-6.

                      II. Motion for Summary Judgment

            On June 24, 2014, the Association moved for summary judgment and
asserted:


                                         6
4.) According to said Deed, [Boystak] is bound by the
restrictive covenants that run with the property.
(Emphasis added.)
....
6.) The restrictive covenants of [the] Association . . .
state, under Paragraph 3, ‘before commencing any
construction of any improvements on the Lot, and before
commencing any alterations or additions thereto, the lot
owner shall obtain the approval of Tanglwood Lakes,
Inc. in writing . . . . Lot owner will submit detailed plans
in duplicate to Tanglwood Lakes, Inc. and the permit will
be endorsed on one set of plans and returned to lot
owner, the other set of such plans being retained by
Tanglwood Lakes, Inc.’ . . . . (Emphasis added.)
....
9.) Prior to May 16, 2013, the permit application of . . .
[Boystak] was rejected because the alleged garage that . .
. Boystak requested to be placed on [Boystak’s] property
was within the 50’ foot setback from the right-of-way of
any street. (Emphasis added.)

10.) . . . [Boystak] was informed that . . . [Boystak’s]
permit application was denied . . . . (Emphasis added.)

11.) On May 16, 2013, . . . [Boystak], by and through her
agents . . . and its subcontractors . . . began erection of
the garage on [Boystak’s] property within the 50’ foot
setback.

12.) The President of the . . . Association . . . went to the
contractors and indicated to the contractors that the
contractors must cease and desist from building said
garage as the garage was within the 50’ foot setback . . . .

13.) The subcontractors and contractors of . . . [Boystak]
ignored the President[’s] . . . request and erected the
garage on . . . [Boystak’s] property by the end of May 16,
2013. (Emphasis added.)




                             7
            14.) On or about May 17, 2013 . . . [Boystak] forwarded
            to the . . . Association a nunc pro tunc variance [request].
            . . . (Emphasis added.)
            ....
            17.) Although . . . [Boystak] has been informed that . . .
            [Boystak] did not obtain the proper building permit, . . .
            [Boystak] has entered onto the property and erected a
            garage within 50’ foot setback.

            18.) [Boystak’s] performance of work on [Boystak’s]
            property for the erection of a garage without a building
            permit is a clear violation of the restrictive covenants of
            the . . . Association.

            19.) Under the Rules and Regulations . . . ‘The Board
            does not have the authority to make exceptions for
            restrictions which are placed on . . . [the] Association . . .
            properties due to deed restrictions, covenants, federal,
            state, county, township or municipal laws, health and
            building codes’ . . . . (Emphasis added.)
            ....
            22.) The issuance of a Permanent Injunction is reasonable
            as . . . [Boystak’s] wrongful actions.
            ....
            29.) There are no genuine issues of material fact at issue
            in the above case. (Emphasis added.)

            30. [The Association] is entitled to judgment as a matter
            of law.

Plaintiff’s Motion for Summary Judgment, June 24, 2014, Paragraphs 4, 6, 9-14,
17-19, 22, and 29-30 at 1-6.


            Boystak responded:
            8. Denied as stated. . . . [Boystak] submitted a building
            permit application on or about March 2013, seeking
            permission to construct the subject structure. (Emphasis
            added.)

                                          8
            9. Denied. The . . . [Association] failed to timely respond
            to the subject application. (Emphasis added.)
            ....
            11. . . . [Boystak] did initiate construction of the subject
            structure on or about May 12, 2013, but only after the . . .
            Association failed to timely respond to the application.
            (Emphasis added.)

            12. . . . Although a representative of . . . [the Association]
            appeared at the construction site, no one from Tanglwood
            Lakes, Inc. complained of non-compliance under the
            subject restrictive covenants. (Emphasis added.)
            ....

Defendant’s Answer to Plaintiff’s Motion for Summary Judgment, July 16, 2014,
Paragraphs 8-9 and 11-12 at 2-3.


                    III. Common Pleas Court’s Disposition
            The common pleas court determined:
            Plaintiff [the Association] avers summary judgment is
            appropriate because Defendant [Boystak] is, via the deed
            by which Defendant [Boystak] purchased the Property,
            ‘bound by the restrictive covenants that run with the
            property,’ which covenants prohibit erection of any
            structure ‘closer than 50 [feet] from the right of way for
            any street or road’ . . . .
            ....
            For the foregoing reasons, there is no genuine issue of
            material fact as to the applicability of the subject
            Restrictions to Defendant’s [Boystak’s] property. There
            is also no genuine issue of material fact as to Plaintiff’s
            [the Association’s] right to enforce those Restrictions as
            to Defendant’s [Boystak’s] property, which the record
            clearly demonstrates . . . . (Emphasis added.)
            ....
            Plaintiff [the Association] avers it has no authority to
            make exceptions to restrictions imposed on subject


                                          9
              properties due to, among other things, deed restrictions . .
              . . Thus Plaintiff [the Association] reasons, its failure to
              timely rule, under its own regulation, on Defendant’s
              [Boystak’s] permit application and/or variance, is a moot
              issue, because Plaintiff [the Association] lacks the power
              to grant the relief which Defendant [Boystak] demanded.
              ....
              Plaintiff [the Association] alleged Defendant [Boystak]
              constructed the garage within the setback . . . .
              Defendant [Boystak] admitted the same . . . . The
              undisputed nature of Defendant’s [Boystak’s] permit and
              variance applications, specifically that Defendant
              [Boystak] intended to build a garage within the 50’
              setback area despite applicable deed restrictions,
              precluded Plaintiff’s [the Association’s] approval thereof.
              (Emphasis added.)

              For the foregoing reasons, there is no genuine issue of
              material fact as to Plaintiff’s [the Association’s] lack of
              authority to approve Defendant’s [Boystak’s] permit and
              variance applications, which the record clearly
              demonstrates.[4]




       4
         In regards to the issue of penalties, the common pleas court concluded:
                However, in practice the fine provision itself is unclear.
                Specifically, . . . in the Rules as provided to this Court, a footnote
                inserted after ‘$200 per/day’ which reads ‘Revised-see Minutes of
                the Board of Directors 1-16-05.’ The minutes to which the
                footnote refers are not included in the record at hand. Whether the
                revision established the fine as stated in the Rules submitted to this
                Court is unclear. Thus Plaintiff’s [Association] is DENIED IN
                PART, insofar as Plaintiff’s [Association’s] prayer for relief in the
                form of a per diem penalty in the amount of $200 per day since
                May 16, 2013 is DENIED without prejudice . . . . (Emphasis in
                original.)
Opinion of the Common Pleas Court, November 21, 2014, at 8-9. Our legal staff has pointed out
to this Court that the common pleas court’s order is a final order subject to appeal because it
disposes of all claims between the parties. The order just does not grant all the relief sought.



                                              10
Opinion of the Common Pleas Court at 5-7. The common pleas court granted
summary judgment in favor of the Association.

                                          IV. Issue

              On appeal Boystak argues5 that the common pleas court erred when it
granted the Association’s motion for summary judgment.                Specifically, Boystak
asserts that she filed her application with the Committee on or about March 2013,6
which was acknowledged in the Association’s amended complaint prior to the May
16, 2013, denial of the application.           However, Boystak points out that the
Association cannot document or refute when the application was received or when
it was formally rejected. Boystak infers that the best the Association had done was
to speculate that the application was rejected on or about May 16, 2013.


              The Association responds that Boystak had no right to build a garage
within the fifty-foot setback and that her actions were in clear defiance of the
provisions imposed by the restrictive covenant. Last, the Association argues that



       5
          This Court’s review of a common pleas court’s grant of summary judgment is limited to
a determination of whether the common pleas court erred as a matter of law or abused its
discretion. Salerno v. LaBarr, 632 A.2d 1002 (Pa. Cmwlth. 1993). Summary judgment should
only be granted in a clear case and the moving party bears the burden of demonstrating that no
material issue of fact remains. Id. The record must be reviewed in the light most favorable to
the non-moving party. Id.
        6
          In Boystak’s brief in response to the Association’s motion for summary judgment, she
stated: “At or about March 28, 2013, Boystak submitted an un-dated Building Permit
Application (Exhibit G of the Association’s Amended Complaint) to the Association . . . Boystak
proceeded to construct the garage completing the project on May 15, 2013. The denial of the
application was reported at the May 19, 2013, Association meeting.” (Emphasis added.)
Defendant’s Brief in Opposition to Plaintiff’s Motion for Summary Judgment, July 16, 2014, at
1-2; R.R. at 205a-06a.



                                              11
the common pleas court correctly found, as a matter of law, that the Association
lacked authority to make an exception or grant the variance nunc pro tunc.


            Paragraph 13 (Restrictive Covenant) of the Tanglwood North
Community Association provides:
            No part of any structure shall be erected closer to any
            side line of the lot than 15’ nor closer than 30’ to the
            property line opposite the line adjacent to a street, nor
            shall any part of any structure be erected closer than 50’
            from the right of way for any street or road, provided that
            in the event that any boundary line of the lot adjoins the
            Tanglwood Valley Country Golf Club Course no part of
            any structure shall be erected at a point on a site which
            has an elevation less than 4’ higher than the elevation of
            the spillway on the lake on which the lot is situated and
            in no event shall any portion thereof be within fifty feet
            of the lot line facing the lake.

Pike County Deed Book, Volume 245, page 955; R.R. at 27a.


            Section III- Building and Architectural Committee (BAC) of the
Tanglwood North Community Association, Inc. Rules and Regulations provides:
            C. Building Permit Application Process

            1. New Construction and Additions/Major Alterations to
            Existing Buildings

            Members must be in good standing: All obligations to
            the BAC and Tanglwood North Community Association,
            Inc. must be met before a TNCA building permit will be
            issued. (Emphasis added.)

            Before any work can be started, the contractor or the
            member must obtain a building permit application from
            the BAC through the . . . Association office (Paper Birch


                                        12
North). The applicant will at that time be provided with
Tanglwood North BAC Rules and Regulations governing
new construction and building permit application
process. (Emphasis added.)
....
BAC approval of the permit application must occur
before construction can begin. The BAC agrees that the
review and approval, hereunder, shall not be
unreasonably withheld and shall not exceed thirty (30)
days. (Emphasis added.)

Any request for deviation of these rules and regulations
must be submitted as a variance request to TNCA BAC
for approval. See Variance Process.
....
L. VARIANCES

Procedure

Any request to deviate from the rules and regulations
regarding new construction or alterations of land or
previously constructed buildings must be made to the
BAC in writing. The variance request will be forwarded
to the Board with a recommendation to accept or reject
the request for a variance. (Emphasis added.)

Time Constraints

1. The member/contractor must be aware that the BAC
requires a reasonable amount of time to review the
request and make any recommendation. The BAC must
submit their [sic] findings to the Board no later than one
week before the regular Board meeting in order for the
request to be placed on the Board Agenda for the next
meeting. Refer to the BAC Committee for the scheduled
meetings.

2. Upon review of the request for variance, the BAC may
require notification of neighbors to allow for their input.
The BAC will notify the member/contractor of this

                            13
            necessity and send notices by regular mail to the
            neighbors involved as determined by the BAC . . . .

            3. It is the responsibility of the contractor/member to
            ensure the timelines are met when they submit their
            request.

Tanglwood North Community Association, Inc. Rules and Regulations, effective
August 17, 1997, last revision September 21, 2008, Section III C at C-9-10; R.R. at
182a-83a.


            Last, Article XIV of the Architecture and Planning Committee By-
Laws provides:
            Section 1. No building, fence, wall or other structure
            shall be commenced, erected or maintained upon the
            Properties, nor shall any exterior addition to or change or
            alteration therein be made until the plans and
            specifications showing the nature, kind, shape, height,
            materials, and location of the same shall have been
            submitted to and approved in writing as to harmony of
            external design and location in relation to surrounding
            structures and the natural environment by the
            Architecture and Planning Committee composed of three
            (3) or more representatives appointed by the Board. In
            the event said Board, or its designated committee, fail to
            approve or disapprove within thirty (30) days after said
            plans and specifications have been submitted to it, or in
            any event, if no suit to enjoin the addition, alteration, or
            change has been commenced prior to the completion
            thereof, approval will not be required and this Article
            will be deemed to have been fully complied with.
            (Emphasis added.)

Article XIV of the By-Laws (Revised October 2012) at 18; R.R. at 213a.




                                        14
             In Logston v. Penndale, Inc., 576 A.2d 59, 62 (Pa. Super. 1990), our
Pennsylvania Superior Court stated:
             No formal or specific technical language is required to
             set forth a covenant running with the land, nor is it
             required that the covenant be expressed as such . . . .
             Restrictive covenants which restrict the use of property,
             although not favored by the law, are legally enforceable .
             . . . Restrictive covenants are to be strictly construed
             against persons seeking to enforce them and claiming
             benefit thereof and in favor of free, unrestrictive use of
             property . . . . (Citations omitted and emphasis added.)

             A review of the record indicates that there remains a question of
material fact as to when Boystak submitted her application for the building permit.
Boystak stated in her pleadings that the date was “on or about March 20, 2013.”
See Defendant’s Answer to Plaintiff’s Motion for Summary Judgment, Paragraph 8
at 3. Also, the record is devoid as to what date the BAC received Boystak’s
application for a building permit. The Association only admits that “[p]rior to May
16, 2013, the permit application was rejected.”          See Plaintiff’s Amended
Complaint, Paragraph 15 at 4; and Plaintiff’s Motion for Summary Judgment,
Paragraph 9 at 3. Again, there is a question of material fact because pursuant to
Section III C. of the Association’s Rules and Regulations, the BAC must issue a
decision within thirty days of the applicant’s request for a building permit. So,
giving the Association the benefit of the doubt, if Boystak filed her application for
a building permit as late as March 31, 2013, BAC would have thirty days to
respond or until April 30, 2013. Without any evidence to establish if and when the
application was sent and received, there remains a genuine issue of material fact.
Although the Association argues that Boystak’s actions were in clear violation of
the restrictive covenant, the fact remains that the BAC must determine whether to
approve or reject the application for a building permit within thirty days of the


                                         15
request. Because there is a genuine issue of material fact, the common pleas court
erred as a matter of law when it granted summary judgment in favor of the
Association.7


               Accordingly, this Court reverses the common pleas court’s grant of
summary judgment and remands for further proceedings consistent with this
opinion.

                                              ____________________________
                                              BERNARD L. McGINLEY, Judge




       7
          Last, Boystak argues that both parties cite to Section III, L (Variances) of the Rules and
Regulations to support their respective positions. The Association claims that it cannot issue a
variance in conflict with the restrictive covenant. Boystak responds that the Association has
issued at least one prior set-back variance in the past. Boystak submits that this constitutes
another issue of material fact. There is no need to reach the issue of whether the BAC can issue
a variance nunc pro tunc. The central issue is what date the application for a building permit was
filed with BAC and what date BAC received it.



                                                16
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tanglwood North Community                 :
Association                               :
                                          :
             v.                           :
                                          :
Patrice C. Boystak,                       :   2307 C.D. 2014
                   Appellant              :

                                    ORDER

             AND NOW, this 6th day of January, 2016, the order of the Court of
Common Pleas of Pike County in the above-captioned matter is reversed and this
matter is remanded to the common pleas court for further proceedings consistent
with this opinion.

             Jurisdiction relinquished.


                                          ____________________________
                                          BERNARD L. McGINLEY, Judge
