          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jonathan and Abbey Weber, h/w,                :
                      Appellants              :
                                              :      No. 2051 C.D. 2016
               v.                             :      Argued: October 17, 2017
                                              :
Board of Directors of the Laurel Oaks         :
Association and Mid Atlantic                  :
Management                                    :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge (P.)
               HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: November 13, 2017

               In this over-litigated case, Jonathan and Abbey Weber (Homeowners)
ask whether the Court of Common Pleas of Bucks County1 (trial court) erred in
denying their post-trial motions seeking judgment non obstante veredicto (judgment
n.o.v.) or, in the alternative, a new trial after a non-jury verdict in favor of the Laurel
Oaks Homeowners’ Association and its management company, Mid Atlantic
Management (collectively, HOA). At issue is whether the trial court properly
determined the HOA had authority to require Homeowners to remove a mailbox they
installed that was stylized to resemble the Disney character “Tigger” on the ground
that the mailbox violated the HOA’s regulations. Upon review, we affirm.




                                       I. Background


      1
          The Honorable Robert J. Mellon presided.
             Homeowners purchased and reside at the home located at 572 Fawnhill
Drive in Langhorne (the property). The residence is part of the HOA. At all relevant
times, the HOA was governed by a set of guidelines, which include the Declaration
of Covenants, Conditions, and Restrictions of Laurel Oaks (Declaration), the Laurel
Oaks Architectural Guidelines (Guidelines), and the Laurel Oaks Homeowners
Association By-Laws (By-Laws). The guidelines governed, among other things, the
manner in which residents’ properties were to be maintained. The guidelines were
created and enforced by the HOA’s Board of Directors (Board), which consisted of
a group of elected residents.


             Pursuant to the Declaration and Guidelines, residents are required to
obtain approval from the Board to install, construct, or alter “structures” on their
lots. Tr. Ct., Slip Op., 9/30/16, at 2. The “structures” requiring approval to install,
construct, or alter are enumerated in the Declaration and Guidelines and include
decks, fences, permanent play equipment, ledges, pools, storage tanks, accessory
buildings, or any other “structures” on a lot. Id. The Guidelines further state that
any change, addition, or alteration to the exterior of a home or lot must receive
written Board approval before starting any work. The Guidelines also require that
the type, style, and color of the proposed modification match those existing on the
original home. Additionally, proposed modifications must be compatible with the
architectural design character of the community. The Guidelines do not contain
specific regulations regarding mailboxes.


             In August 2012, Homeowners replaced their standard mailbox with a
new mailbox stylized to resemble the Disney character Tigger. Shortly thereafter,



                                          2
the HOA requested that Homeowners remove the mailbox. The HOA determined
the mailbox violated the Guidelines because Homeowners did not apply to the Board
to construct the mailbox on their lot. The HOA also asserted that a mailbox is a
“structure,” requiring Board approval before construction.        Further, the HOA
maintained that Homeowners’ mailbox did not fit within the architectural design of
the community.


             Homeowners refused to remove the mailbox, and they appealed the
HOA’s request to the Board. The Board denied the appeal. The Board concluded
that the right to prohibit the Tigger mailbox was based on its obligation to manage
the community and protect its character and integrity. Homeowners argued that
mailboxes are not set forth in the enumerated list of “structures” in the Guidelines
that require Board approval; therefore, the HOA could not regulate mailboxes.
Homeowners further asserted that “the installation of a new mailbox in the same
location, and of similar size, does not constitute a ‘change or addition’ requiring
approval” under the Guidelines. Id. at 4.


             In April 2014, Homeowners, representing themselves, filed a complaint
against the Laurel Oaks Homeowners’ Association and Mid Atlantic Management,
which set forth eight counts: breach of contract; breach of fiduciary duty; abuse of
discretion; violation of due process; intentional infliction of emotional distress;
negligent infliction of emotional distress; retaliation; and, discrimination. In their
prayer for relief, Homeowners sought, among other things, a “declaration in their
favor and against [the HOA] that the installation of [Homeowners’] mailbox is not




                                            3
against the Guidelines, and as such they are entitled to keep it[.]” Reproduced
Record (R.R.) at 22a.


              The HOA filed preliminary objections to the complaint, which the trial
court, through Judge James M. McMaster, sustained in part. Specifically, the trial
court dismissed the Board as a party to the suit, and it dismissed all of the counts set
forth in Homeowners’ complaint with the exception of Homeowners’ breach of
contract claim. The trial court also struck several paragraphs in Homeowners’
prayer for relief.


              Thereafter, Homeowners filed an amended complaint naming as
additional defendants “John Does 1-5.” R.R. at 150a. The amended complaint set
forth four counts: breach of contract; discrimination; disgorgement; and, equitable
rescission. The HOA again filed preliminary objections. The trial court, through
Judge McMaster, issued an order, which, among other things, dismissed John Does
1-5 as parties and struck the counts for discrimination, disgorgement, and equitable
rescission. The HOA then filed an answer to the amended complaint. Homeowners
also filed a motion for reconsideration of the trial court’s order sustaining, in part,
the HOA’s preliminary objections, which the trial court denied.


              Homeowners subsequently served interrogatories on the Board.
Defendant Mid Atlantic Management served responses to the interrogatories.


              By letter dated November 25, 2015, the HOA served Homeowners with
notice, pursuant to Bucks County Local Rule *261, of its intent to certify the case as



                                           4
ready for trial within 15 days of the date of the letter. On December 11, 2015, one
day after expiration of the 15-day period provided for by local rule, Homeowners
sent the HOA a letter, by email, stating their objection to the HOA’s certification of
the matter as ready for trial.


             On December 23, 2015, about a week after the HOA filed its praecipe
for trial, Homeowners filed a motion to strike interrogatory responses or compel full
and complete responses. Five days later, Homeowners filed a motion to extend
discovery.


             On March 4, 2016, the case was ordered on the trial list for the civil
trial term in April 2016. Thereafter, the trial court, through Judge McMaster, issued
an order denying Homeowners’ motion to extend discovery. Homeowners filed a
motion for reconsideration. Homeowners also filed a motion seeking to stay the
proceedings pending resolution of the following outstanding motions: (1) a motion
to strike the HOA’s discovery objections and compel full and complete responses;
(2) a motion for reconsideration of the trial court’s order denying Homeowners’
motion to extend discovery; and, (3) a motion to stay the trial pending resolution of
Homeowners’ undecided motions.


             In April 2016, the matter proceeded to a non-jury trial. Homeowners
represented themselves. Upon consideration of the evidence presented, the trial
court entered a verdict in favor of the HOA. It ordered Homeowners to remove the
Tigger mailbox within 30 days.




                                          5
               Homeowners then retained counsel and filed post-trial motions, which
the trial court denied.        Additionally, the trial court issued an order denying
Homeowners’ motion to strike discovery objections and compel full and complete
responses as moot because the matter proceeded to trial, and a non-jury verdict was
entered.


               Homeowners appealed.2 The trial court directed them to file a concise
statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b),
which they did. The trial court then issued an opinion pursuant to Pa. R.A.P.
1925(a).


               In its opinion, the respected trial court explained that through their
1925(b) Statement, Homeowners broadly asserted the trial court erred and abused
its discretion in denying Homeowners’ motions for judgment n.o.v. and a new trial.
Included within these two claims of error, the trial court stated, were over 30
paragraphs raising various sub-issues, many of which were redundant. Despite the
volume of sub-issues, the trial court’s opinion focused on what it deemed the core
issues presented in Homeowners’ 1925(b) Statement, that the trial court erred in
finding that: (1) a mailbox is a “structure” under the Guidelines; (2) the Board had
the authority to regulate mailboxes under the Guidelines; (3) the Tigger mailbox did
not comply with the architectural design of the community; and, (4) the Board did


       2
          Homeowners filed a notice of appeal to the Superior Court, which transferred the appeal
to this Court. Initially, this Court quashed the appeal as premature because Homeowners failed to
comply with this Court’s order directing entry of judgment on the docket below. Homeowners
filed a petition for reconsideration, through which their attorney asserted he did not receive notice
of this Court’s orders. This Court subsequently granted reconsideration and reinstated the notice
of appeal.

                                                 6
not abuse its discretion in determining the Tigger mailbox did not comply with the
architectural design of the community.


            The trial court also noted Homeowners raised several sub-issues
pertaining to the trial court’s rulings on Homeowners’ motions to extend discovery
and the HOA’s preliminary objections to Homeowners’ amended complaint. The
trial court explained Judge McMaster ruled on these filings prior to trial. In
particular, Judge McMaster sustained, in part, the HOA’s preliminary objections to
Homeowners’ amended complaint. Judge McMaster also denied Homeowners’
motion for reconsideration of that order. Additionally, Judge McMaster denied
Homeowners’ motion to extend the discovery period. To the extent Homeowners
challenged these rulings, the trial court stated, the coordinate jurisdiction rule
prevented it from taking action in contravention of any prior orders issued by Judge
McMaster.


            As to the merits, the trial court initially observed that, when an
individual purchases a property within a homeowners association, the homeowner
relinquishes some control over his property. Here, Homeowners own property in
the Laurel Oaks community; therefore, they are bound by the HOA’s By-Laws.


            The trial court first considered whether the HOA had the right to
regulate Homeowners’ Tigger mailbox. The trial court noted that Homeowners
challenged the HOA’s right to regulate mailboxes on two grounds.              First,
Homeowners believed the HOA could not regulate their mailbox because mailboxes
were not specifically addressed in the Guidelines. Additionally, Homeowners



                                         7
argued a mailbox was not a “structure” under the Guidelines. The trial court rejected
both assertions.


               The trial court first explained, although mailboxes were not specifically
mentioned in the Guidelines, the Declaration and Guidelines expressly indicated that
they were illustrative rather than exhaustive. Further, the trial court stated, an
examination of both the plain meaning and the legal definition of the term
“structure,” including definitions found in the Pennsylvania Municipalities Planning
Code3 (MPC) and Black’s Law Dictionary, revealed that a mailbox is a “structure”
as intended by the Declaration and Guidelines despite the absence of a specific
definition of the term “structure” in the Declaration and Guidelines. Also, other
jurisdictions specifically recognize mailboxes as “structures” in a variety of
contexts. Thus, the trial court concluded a mailbox falls within both the ordinary
and legal definitions of a “structure”; as a result, the HOA had authority to regulate
mailboxes under the Declaration and Guidelines.


               In addition, the trial court determined Homeowners’ construction of the
Tigger mailbox represented a change, addition, or alteration to the property, which
required prior approval by the HOA. Homeowners’ construction of the mailbox
without prior approval violated the covenant between the HOA and Homeowners.


               After determining it was within the HOA’s authority to regulate
mailboxes, the trial court stated the remaining issue was whether the Tigger mailbox
was compatible with the Guidelines. The trial court noted that a homeowners’


      3
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.

                                               8
association may refuse to allow residents to build structures on their properties if
those structures are not consistent with the architectural integrity of the community.


             Here, the trial court determined Homeowners’ Tigger mailbox did not
fall within the HOA’s architectural scheme, and, as a result, under the Declaration
and Guidelines, the HOA appropriately prohibited the mailbox. The trial court
explained that, although it was apparent that the HOA failed to establish meaningful
standards as to what characteristics were within its architectural policies, the
Guidelines were not unlawful. The Guidelines’ architectural policies grant the HOA
broad discretion to determine what violates the architectural design of the
community. Thus, all that was required of the HOA was to present evidence
showing a rational basis for determining the Tigger mailbox did not comply with the
architectural standards of the community, which it did here.


             Further, the trial court stated, the Guidelines require that any proposed
change match the type, style, and color of the original home. Here, Eric Kadish, the
HOA President, testified that the color scheme of the Tigger mailbox was different
than that of the original home.        He explained the mailbox did not match
Homeowners’ home and provided reasons for his opinion. The trial court stated this
testimony constituted sufficient evidence to show Homeowners’ Tigger mailbox
deviated from the architectural design of the community. Therefore, the trial court
concluded the Board had a sufficient basis for finding Homeowners’ Tigger mailbox
did not comply with the architectural design character of the community. As such,
the Board did not abuse its discretion under the Guidelines in disapproving
Homeowners’ mailbox.



                                          9
               For these reasons, the trial court explained, it did not err in entering a
verdict in favor of the HOA and ordering Homeowners to remove the Tigger
mailbox. This matter is now before us for disposition.


                                              II. Issues
               On appeal, Homeowners assert the trial court erred in denying their
post-trial motion seeking judgment n.o.v. where: the trial court ordered Homeowners
to remove their Tigger mailbox despite the fact that the HOA never filed a
counterclaim seeking such relief; and, the trial court erred in finding the HOA
established contractual or other authority to approve or disapprove Homeowners’
mailbox. Homeowners also contend they were denied the opportunity to take
discovery to rebut the alleged existence of such authority.                            Additionally,
Homeowners argue the trial court erred in denying their post-trial motion seeking a
new trial where the verdict was against the weight of the evidence and the judicial
process gave rise to a serious injustice.4




                                         III. Discussion
                                       A. Judgment n.o.v.
                                         1. Contentions


       4
          Although Homeowners state three issues, their brief is primarily comprised of two
sections, one relating to their claims that the trial court erred in failing to grant judgment n.o.v. in
their favor and the other regarding their assertions that the trial court erred in denying their request
for a new trial.

                                                  10
             Homeowners first argue the trial court’s order denying their post-trial
motion seeking judgment n.o.v. warrants reversal because the trial court abused its
discretion and committed errors of law. To that end, Homeowners assert the trial
court’s verdict ordering them to remove the Tigger mailbox within 30 days
constitutes an error of law that prejudiced Homeowners’ interests because the HOA
never filed a counterclaim seeking such relief, nor were Homeowners afforded
notice of any such counterclaim.


             Homeowners further contend the trial court abused its discretion when
it denied their post-trial motion seeking judgment n.o.v. because the trial court’s
verdict is against the weight of the evidence such that no two minds could reasonably
disagree that the verdict should have been rendered for Homeowners. Contrary to
the trial court’s verdict, Homeowners argue, record evidence and the testimony of
Mid Atlantic Management witness Nicole Bray, former Board Member Almando
Carrasquillo, and Board President Eric Kadish, established the HOA lacked
contractual or other authority to approve or disapprove Homeowners’ Tigger
mailbox, impose fines on Homeowners with regard to the mailbox, or require
Homeowners to remove the mailbox.


             Further, contrary to the trial court’s verdict, Homeowners assert, record
evidence and testimony at trial established the HOA arbitrarily and capriciously
determined Homeowners’ Tigger mailbox violated the Guidelines.


             Moreover, Homeowners maintain, the trial court only utilized materials
extrinsic to the four corners of the Declaration, Guidelines, and By-Laws to



                                         11
erroneously infer that mailboxes fall within the ambit of structures erected on
properties within the HOA that are subject to regulation. Homeowners argue the
provisions of Declaration and Guidelines cited by the trial court in support of its
determination that the HOA had authority to regulate Homeowners’ mailbox are
inapposite. Further, they contend, record evidence and testimony rebuts the trial
court’s unfounded conclusions. Thus, Homeowners assert the trial court’s denial of
their post-trial motion seeking judgment n.o.v. warrants reversal. Homeowners
contend, if the trial court considered the testimony and plain language of the
documents referenced above, even in a light most favorable to the HOA, no two
minds could reasonably disagree that the verdict should have been rendered in
Homeowners’ favor.


                                     2. Analysis
             In reviewing the denial of a motion for judgment n.o.v., we must
consider the evidence, together with all favorable inferences drawn therefrom, in a
light most favorable to the verdict winner. Reott v. Asia Trend, Inc., 7 A.3d 830
(Pa. Super. 2010), aff’d, 55 A.3d 1088 (Pa. 2012). We will reverse a trial court’s
denial only when we find an abuse of discretion or an error of law that controlled the
outcome of the case. Id.


             There are two bases on which judgment n.o.v. can be entered: one, the
movant is entitled to judgment as a matter of law; or two, the evidence is such that
no two reasonable minds could disagree that the outcome should have been rendered
in favor of the movant. Id. With the first, the court reviews the record and concludes
that, even with all factual inferences decided adverse to the movant, the law
nonetheless requires a verdict in his favor. Id. With the second, the court reviews

                                         12
the record and concludes the evidence was such that a verdict for the movant was
beyond peradventure. Id.


             As to questions of law, our scope of review is plenary. Haan v. Wells,
103 A.3d 60 (Pa. Super. 2014). With regard to questions of credibility and weight
accorded the evidence at trial, we will not substitute our judgment for that of the
fact-finder. Id. Thus, “[i]f any basis exists upon which the [court] could have
properly made its award, then we must affirm the trial court’s denial of the motion
for [judgment n.o.v.]. A [judgment n.o.v.] should be entered only in a clear case.”
Id. at 70 (citation omitted).


             Further, “[t]he factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.” Id. (citation omitted).
The trial court may award judgment n.o.v. “only when the [trial court’s] verdict is
so contrary to the evidence as to shock one’s sense of justice. In determining
whether this standard has been met, appellate review is limited to whether the trial
judge’s discretion was properly exercised, and relief will only be granted where the
facts and inferences of record disclose a palpable abuse of discretion.” Id. (citation
omitted). When a fact finder’s verdict is “so opposed to the demonstrative facts that
looking at the verdict, the mind stands baffled, the intellect searches in vain for cause
and effect, and reason rebels against the bizarre and erratic conclusion, it can be said
that the verdict is shocking.” Id. (citation omitted).
             Homeowners first claim that the trial court’s verdict requiring them to
remove the Tigger mailbox within 30 days was erroneous and prejudiced
Homeowners because the HOA did not file a counterclaim seeking such relief, and



                                           13
Homeowners were not afforded notice of any such counterclaim. The trial court did
not specifically address this issue. Nevertheless, through their amended complaint,
Homeowners averred that they “were within their rights as owners of their house to
install a mailbox of their choice, and the [HOA] acted in excess of the authority
vested in [it] by the Guidelines when [it] instructed [Homeowners] to remove their
mailbox and assessed fines because of the installation of the mailbox.” Am. Compl.
at ¶43; R.R. at 157a. Further, in their prayer for relief, Homeowners sought, among
other things: “A declaration in their favor and against [the HOA] that the installation
of [Homeowners’] mailbox is not against the [g]uidelines, and as such they are
entitled to keep it[.]” Am. Compl., Prayer for Relief at ¶1; R.R. at 160a.


               In addition, during his opening statement at trial, Homeowner Jonathan
Weber stated: “We’re going to be asking at the close of our trial for the Court to
allow the mailbox to stay ….” R.R. at 605a. In response, the HOA’s counsel stated
in his opening statement: “[Judge McMaster] … restricted the recovery that
[Homeowners] could receive … [through his ruling on preliminary objections] and
it’s been restricted to a declaration of whether or not the mailbox stays or goes ….”
R.R. at 610a (emphasis added).              Homeowners did not object to the HOA’s
characterization of the appropriate remedy being removal of the mailbox.5 Further,
at the conclusion of the non-jury trial, Homeowners requested that the trial court
“confirm that the mailbox can stay[.]” R.R. at 782a. As a result, we reject
Homeowners’ claim that the trial court erred in ordering them to remove the Tigger
       5
          While Homeowners offered an objection, it related to the HOA’s counsel’s claim that the
only relief sought by Homeowners that remained viable as a result of Judge McMaster’s ruling on
preliminary objections was “whether or not the mailbox stays or goes and the declaration of
whether or not the fines can be levied or he’s relieved of the responsibility of paying those fines.”
R.R. at 610a. Homeowners attempted to assert that additional aspects of their prayer for relief
remained viable after Judge McMaster’s ruling.

                                                14
mailbox absent a counterclaim filed by the HOA on the ground they received no
notice of such a claim.


             Next, as to the merits of this dispute, the trial court explained:

                    The fact that the [Declaration and Guidelines] do
             not specifically mention mailboxes does not bar [the
             HOA] from regulating mailboxes.                [Homeowners]
             correctly pointed out that the Guidelines’ enumerated list
             of [items] that required prior approval did not include the
             term ‘mailbox.’ However, the Guidelines explicitly state
             that the list is not limited to the enumerated items. Instead,
             the Guidelines indicate that they ‘do not intend to list all
             of the [restricted items], but to elaborate and clarify some
             of these restrictions.’ [R.R. at 97a.] As the list is not
             exhaustive, the absence of the term ‘mailbox’ in no way
             excludes mailboxes from [the HOA’s] jurisdiction.

                    [The HOA] had the right to regulate mailboxes
             because the term ‘mailbox’ fits the ordinary and legal
             definitions of ‘structure.’ … When the words of a contract
             are not defined, the words shall be interpreted by their
             ordinary meaning. The [MPC] defines ‘structure’ as ‘any
             man-made object having an ascertainable stationary
             location on or in land … whether or not affixed to the
             land.’ [Section 107 of the MPC, 53 P.S. §10107.] Black’s
             Law Dictionary defines a ‘structure’ as ‘[a]ny
             construction, production or, piece of work, artificially
             built up or composed of parts purposefully joined
             together[.]’ [BLACK’S LAW DICTIONARY 1464 (8th ed.
             2004).] Further, other jurisdictions have specifically
             recognized mailboxes as a ‘structure’ in a variety of legal
             contexts.

                   Here, in establishing the right to regulate mailboxes,
             [the HOA] concluded that a mailbox is a ‘structure,’ and
             thus subject to the Guidelines. … [T]he [Declaration]
             hold[s] that [it] may regulate any ‘structure’ on a
             ‘property.’    [Section 13.01(r) of the Declaration.]
             [Homeowners], however, insisted that a mailbox is not a


                                          15
‘structure.’ The term ‘structure’ is not defined anywhere
within the [Declaration or Guidelines] and so the ordinary
meaning and legal definitions apply. … [A] mailbox fits
both ordinary and legal definitions of a ‘structure.’ As a
mailbox fits the definition of ‘structure,’ mailboxes are
therefore within [the HOA’s] control, pursuant to the
[Declaration and Guidelines].

       [The HOA] may regulate the ‘Tigger’ mailbox
because it can be considered a change, addition, and/or
alteration to [Homeowners’] property. … Section [2] of
Guidelines explicitly states:

      ‘Any change or addition to the exterior of the home
      or lot must have the prior written approval of the
      [Board] before starting or committing to any work.’

      Additionally, Section [3] further states that:

      ‘All requests must be made in writing … [t]he
      request should include a plot plan and project plans
      showing the nature, kind, shape, height, materials,
      finish, colors and location of the [o]wner’s proposed
      changes or additions to the [l]ot or [d]welling.’

       Here, [Homeowners’] construction of the ‘Tigger’
mailbox without prior approval violated the covenant
between [Homeowners] and [the HOA]. The mailbox
represented a change, addition, or alteration to the exterior
of the property.        Initially, [Homeowners] had an
acceptable mailbox in place.           [Homeowners] then
removed their mailbox and installed the ‘Tigger’ mailbox.
This replacement may be viewed as (i) a change of
mailboxes, (ii) an addition of a new mailbox, or (iii) an
alteration of the former mailbox. … Such an alteration, as
set forth in the Guidelines, requires approval by the Board
prior to construction.          [Homeowners] themselves
described the size of their former mailbox as ‘similar’ to
the ‘Tigger’ mailbox, necessarily implying that the
mailboxes are not the same. There has thus been a change
or alteration to the original mailbox and [Homeowners]
acknowledged this alteration. Such an alteration, as set
forth in the Guidelines, requires approval by the Board

                             16
prior to construction. Through this analysis, the ‘Tigger’
mailbox is unquestionably subject to [HOA] regulation
and required approval before its construction. …

      The Court having determined that it was within [the
HOA’s] discretion to regulate the ‘Tigger’ mailbox, the
remaining issue is whether the ‘Tigger’ mailbox is
compatible with [the] Guidelines. …

       Here, [Homeowners’] ‘Tigger’ mailbox did not
correspond with the architectural scheme of [the HOA]
and thus, under the Guidelines, [the HOA] acted
appropriately in prohibiting the mailbox. Although it is
apparent that [the HOA] has failed to establish meaningful
standards as to what characteristics are within the
architectural policies, the Guidelines are not unlawful.
The architectural policies of the Guidelines clearly grant
[the HOA] broad discretion to determine what violates the
architectural design of the community. Thus, all that was
required of [the HOA] was to present evidence showing a
rational basis for determining that the ‘Tigger’ mailbox
did not comply with the architectural standards of the
community.

       Furthermore, as previously stated, the Guidelines
require that any proposed changes match the type, style,
and color of the original home. Specifically, the
Guidelines state that the ‘color of the proposed exterior
materials shall match those existing on the original home
or be compatible with the architectural design of the
community.’ Eric Kadish, the president of [the HOA],
presented evidence that the color scheme of the ‘Tigger’
mailbox was different than that of the original home. …
[Kadish] further testified to why [Homeowners’] mailbox
did not meet the architectural standards of the
community[.] Such testimony is sufficient evidence that
[Homeowners’] ‘Tigger’ mailbox deviates from the
architectural design of [the HOA]. Therefore, the Board
had a sufficient basis for finding that [Homeowners’]
‘Tigger’ mailbox did not comply with the architectural
design character of the community of Laurel Oaks.
Accordingly, the Board did not abuse its discretion granted


                            17
               under the Guidelines in disapproving [Homeowners’]
               mailbox.

Tr. Ct., Slip Op., at 7-12 (underlined emphasis added) (footnotes omitted). Contrary
to Homeowners’ assertions, we discern no error in the trial court’s analysis.


               To that end, Article XIII of the Declaration, titled “Use Restrictions,”
states, in relevant part:

               (r) no owner shall be permitted to erect, install, construct
               or alter any sheds, decks, fences, permanent play
               equipment, ledges, underground pools, tents (other than
               temporary tents) storage tanks or accessory buildings or
               structures on the property without the prior written
               approval of the [Board] and/or the Architectural Review
               Committee, which approvals shall be obtained in
               accordance with the procedures set forth in Article XIV
               below and in accordance with all applicable provisions of
               this [D]eclaration, the [By-Laws] and any rules and
               regulations promulgated by the [Board].
R.R. at 74a (emphasis added). In turn, Article XIV of the Declaration, titled
“Architectural Review as to Owners’ Lots and Dwellings,” states, as relevant:

               In order to comply with Section 13.01(r) each [o]wner
               shall submit … to the President of the [HOA] or the
               chairman of the Architectural Review Committee, plans
               and specifications showing the nature, kind, shape, height,
               materials, finish, colors and location of the [o]wner’s
               proposed changes, alterations or additions to the [l]ot or
               [d]welling. … The committee shall review the plans to
               determine whether they are harmonious and compatible
               with the [l]ots and [d]wellings in the [c]ommunity.

R.R. at 75a.


               In addition, the Guidelines state, in pertinent part:


                                            18
                     GENERAL REVIEW GUIDELINES

                                      ****

            2. Any change or addition to the exterior of the home or
            lot must have the prior written approval of the [Board]
            before starting or committing to any work. Examples of
            items requiring prior approval include decks, patios,
            screen rooms and additions, in-ground pools, windows and
            skylights, fences, trees, plants, fountains, sheds, playsets,
            etc.

            3. All requests must be made in writing[.] … The request
            should include a plot plan and project plans showing the
            nature, kind, shape, height, materials, finish, colors and
            location of the [o]wner’s proposed changes or additions to
            the [l]ot or [d]welling.

            4. Any addition or exterior alteration to an existing home
            or lot shall follow the same design character of the original
            home. The type, style and color of proposed exterior
            materials should match those existing on the original home
            and be compatible with the architectural design character
            of the community.

                                      ****

            10. If work commences prior to the approval of any
            alteration or improvement, the Board may levy a
            penalty fine against an owner’s account and may
            request that the alteration or improvement be changed
            to meet the current standards approved by the Board.
            The procedures for levying such a fine can be found in
            the Laurel Oaks Rules and Regulations Enforcement
            Procedure Resolution.

R.R. at 95a-96a (underlined emphasis added).


            Here, although the Declaration does not expressly reference mailboxes,
it broadly states that no owner is permitted to erect, install, construct or alter


                                         19
structures on the property without prior written approval of the Board and/or the
Architectural Review Committee. R.R. at 74a. Although not expressly defined in
the Declaration, a mailbox clearly falls within the plain meaning of the term
“structure.” See BLACK’S LAW DICTIONARY 1464 (8th ed. 2004) (“Any construction,
production, or piece of work artificially built up or composed of parts purposefully
joined together[.]”); see also MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1163
(10th ed. 1993) (“something … that is constructed”). Therefore, Board and/or
Architectural Review Committee approval was required before Homeowners altered
their existing mailbox and installed the Tigger mailbox. Homeowners did not obtain
such approval here.


             Further, while Homeowners assert the trial court erred in utilizing
outside sources, such as the MPC, Black’s Law Dictionary and cases from other
jurisdictions for guidance in defining the undefined term “structure,” we discern no
error in that regard. To that end, “[w]hen interpreting a contract, a court should
afford undefined terms their ordinary meaning.” Moore v. Dep’t of Transp., Bureau
of Motor Vehicles, 19 A.3d 1200, 1206 (Pa. Cmwlth. 2011) (citing Kripp v. Kripp,
849 A.2d 1159 (Pa. 2004); Pines Plaza Bowling, Inc. v. Rossview, Inc., 145 A.2d
672 (Pa. 1958) (using dictionary definition to ascertain plain meaning of contract
language)). Indeed, “[i]t is well-established principle that words in a contract are to
be construed in their natural, plain, and ordinary sense … and we may inform our
understanding of these terms by considering their dictionary definitions.” True R.R.
Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324, 339 (Pa. Super. 2016),
appeal denied, ___ A.3d ___ (Pa., Nos. 30-34 MAL 2017, filed May 23, 2017)
(quoting Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 108 (Pa.



                                          20
1999); Telecomm. Network Design v. Brethren Mut. Ins. Co., 5 A.3d 331 (Pa. Super.
2010) (internal quotation omitted)). This includes the use of definitions in sources
such as Black’s Law Dictionary. Moore.


             In addition, as set forth above, the Guidelines state that any change to a
lot must have prior written Board approval before starting or committing to any
work. R.R. at 95a. The Guidelines set forth examples of items requiring approval,
and they indicate, through the use of the term “etc.” that the list is not exhaustive.
Id. The Guidelines also require that any alteration to an existing lot follow the same
design character of the original home. R.R. at 96a. Further, the type, style, and color
of proposed exterior materials should match those existing on the original home and
be compatible with the architectural design character of the community. R.R. at 96a.
The Guidelines also state that if work begins prior to approval of any alteration, the
Board may levy a fine against an owner and request that the owner change the
alteration to meet current standards approved by the Board. Id.


             Here, the trial court determined Homeowners’ removal of their existing
mailbox and installation of the Tigger mailbox constituted a change that required
prior Board approval. Further, the trial court credited the HOA Board President’s
testimony that the Tigger mailbox Homeowners installed did not follow the same
design character of the original home and did not match the type, style, and color
existing on Homeowners’ original home. Tr. Ct., Slip Op., at 11-12. The record
supports the trial court’s determinations. R.R. at 730a-33a, 738a-39a.




                                          21
             Consequently, no error is apparent in the trial court’s denial of
Homeowners’ post-trial motion seeking judgment n.o.v.


                                    B. New Trial
                                   1. Contentions
             Alternatively, Homeowners argue, the trial court’s denial of their post-
trial motion seeking a new trial warrants reversal because, for the same reasons set
forth above regarding their entitlement to judgment n.o.v., the trial court’s verdict
was against the weight of the evidence.


             In addition, Homeowners assert they are entitled to a new trial where
the trial court abused its discretion and erred as a matter of law when it: sustained
the HOA’s preliminary objections; denied Homeowners’ motion to extend
discovery; and, failed to rule on Homeowners’ motion to strike the HOA’s discovery
objections and compel more specific responses prior to trial. Homeowners contend
the trial court’s decisions constitute reversible error because they effectively
precluded Homeowners from obtaining evidence to support the merits of their claims
against the HOA at trial; however, the trial court based its ruling in part on
Homeowners’ failure to provide that evidence for the trial court’s consideration.


             Finally, Homeowners argue, the trial court’s denial of their request to
sequester witnesses was an abuse of discretion that prejudiced Homeowners’
interests and further establishes that the trial court’s denial of Homeowners’ post-
trial motion for a new trial warrants reversal.




                                          22
             To that end, Homeowners assert the trial court’s denial of their request
to sequester defense witnesses constituted an abuse of discretion that prejudiced
Homeowners because the witnesses, including Board President Eric Kadish, a non-
party, remained present and heard the testimony of Mid Atlantic Management
representative Nicole Bray. Homeowners contend Kadish’s exposure to Bray’s
testimony prejudiced Homeowners by allowing Kadish the opportunity to consider
Bray’s statements as to issues such as: the scope of the Board’s authority to approve
or disapprove mailboxes; the basis for the Board’s decision to disapprove
Homeowners’ mailbox; and, the Board’s considerations in disapproving
Homeowners’ mailbox. Homeowners maintain Kadish’s ability to consider Bray’s
testimony on these issues before he testified allowed him to shape his testimony in
accordance with Bray’s testimony to bolster the HOA’s position.              Because
Homeowners were not permitted to depose either witness, they assert, they were
unable to present the trial court with potentially contradictory testimony that may
have been obtained in the absence of Kadish hearing Bray’s testimony.


                                     2. Analysis
             In responding to a request for a new trial, a trial court must follow a
two-step process. Daddona v. Thind, 891 A.2d 786 (Pa. Cmwlth. 2006). First, it
must decide whether one or more mistakes occurred at trial. Id. Second, if the court
concludes a mistake occurred, it must determine whether the mistake was a sufficient
basis for granting a new trial. Id. The harmless error doctrine underlies every
decision to grant or deny a new trial. Id. A new trial is not warranted merely because
some irregularity occurred during the trial or another trial judge would rule
differently; the moving party must show prejudice resulting from the mistake. Id.



                                         23
             As an appellate court, to review the two-step process of the trial court
for granting a new trial, we also employ a two prong analysis. Id. First, we examine
the decision of the trial court that a mistake occurred. In so doing, we must apply
the appropriate standard of review. Id. If the alleged mistake involved an error of
law, we must scrutinize for legal error. Id. If, on the other hand, the alleged mistake
involved a discretionary act, we must review for an abuse of discretion. Id. If there
were no mistakes at trial, we must affirm a decision by the trial court to deny a new
trial as the trial court cannot order a new trial where no error of law or abuse of
discretion occurred. Id.


             Further, a new trial based on weight of the evidence issues will not be
granted unless the verdict is so contrary to the evidence as to shock one’s sense of
justice; a mere conflict in testimony will not suffice as grounds for a new trial. Elliott
v. Ionta, 869 A.2d 502, 504 (Pa. Super. 2005) (citation omitted). Upon review, the
test is not whether this Court would have reached the same result on the evidence
presented, but rather after due consideration of the evidence found credible by the
fact-finder, and viewing the evidence in the light most favorable to the verdict
winner, whether the court could reasonably reach its conclusion. Id. “It is not the
role of an appellate court to pass on the credibility of witnesses or to act as the trier
of fact, and an appellate court will not substitute its judgement [sic] for that of the
fact-finder.” Vattimo v. Eaborn Truck Serv., Inc., 777 A.2d 1163, 1165 (Pa. Super.
2001).




                                           24
             Here, as explained in greater detail above, the record supports the trial
court’s determinations; therefore, contrary to Homeowners’ repeated assertions, the
trial court’s verdict is not against the weight of the evidence.


             Nevertheless, Homeowners argue they are entitled to a new trial based
on various alleged errors that occurred prior to trial. In particular, they contend the
trial court erred in: sustaining, in part, the HOA’s preliminary objections; denying
Homeowners’ motion to extend discovery; and, failing to rule on Homeowners’
motion to strike the HOA’s discovery objections and compel more specific
responses before trial. With the exception of the trial court’s denial of their request
for sequestration of witnesses, discussed below, Homeowners offer no assertion that
any mistakes occurred at trial.
             Further, as to the pre-trial rulings challenged by Homeowners, despite
their conclusory assertions, Homeowners offer no explanation as to how the trial
court’s ruling on preliminary objections was erroneous or how this ruling impacted
the trial. Additionally, in their main brief, Homeowners provide no explanation as
to how the trial court erred in denying their motion to extend discovery and failing
to rule on their motion to strike the HOA’s discovery objections and compel more
specific responses before trial.


             Nevertheless, in their reply brief, Homeowners assert the denial of their
motions prevented them from obtaining the following items during discovery:
depositions of HOA Board members; the names of Mid Atlantic Management
personnel with knowledge of the relevant facts other than Nicole Bray; clarification
of the specific terms the HOA used in response to Homeowners’ interrogatories;



                                          25
and, documents, materials, or witnesses with information as to the times, dates,
locations and attendees of meetings in which Homeowners’ property was discussed.
Despite these assertions, Homeowners offer no clear explanation as to how their
purported inability to discover these items impacted the trial.


              Moreover, after the trial court issued its ruling on the HOA’s
preliminary objections to Homeowners’ amended complaint, Homeowners waited
approximately 10 months to initiate discovery by serving interrogatories on the
HOA. R.R. at 269a. The HOA answered the interrogatories. R.R. at 290a. About
a month later, the HOA served Homeowners with a notice, pursuant to Bucks County
Local Rule *261(b), indicating its intent to certify the case as ready for trial. R.R.
at 317a. At that point, Homeowners had 15 days to object to the certification and
identify the discovery they wished to conduct. B.C.R.P. No. *261(b). Homeowners
did not object within 15 days, and the HOA filed a certification for trial in December
2015, about 20 months after Homeowners filed suit. R.R. at 256a.


              After the HOA filed its praecipe certifying the case for trial,
Homeowners filed a motion to strike the HOA’s discovery responses and compel
full and complete responses. R.R. at 260a. Shortly thereafter, Homeowners filed a
motion to extend the discovery period. R.R. at 303a. The trial court denied
Homeowners’ motion to extend the discovery period. R.R. at 393a. 6 This is not
surprising in light of the fact that Homeowners did not indicate their intention to
pursue discovery within 15 days of the HOA’s notice indicating its intent to certify
       6
         Homeowners filed an application for reconsideration, which was apparently denied by
operation of law.




                                            26
the matter for trial as required by Bucks County Local Rule *261(b).7 Homeowners
assert the trial court should have excused their untimely objection to the HOA’s
notice of intent to certify the case for trial, which they submitted one day after the
expiration of the 15-day period to object. In support, they rely on Pa. R.C.P. No.
126, which allows a trial court to disregard procedural errors that do not substantially
affect the rights of the parties. However, this Rule is discretionary with the trial
court. Thus, while the trial court may ignore procedural noncompliance, it is not
required to do so. See Pa. R.C.P. No. 126; Anderson v. Centennial Homes, Inc., 594
A.2d 737 (Pa. Super. 1991).


              Further, in their motion to extend the discovery period, Homeowners
offered no explanation as to why they waited approximately nine months after the
close of the pleadings to initiate discovery nor did they clearly specify what
discovery was necessary prior to trial or how they would suffer prejudice if the
discovery period was not extended. R.R. at 303a-05a. Under these circumstances,
no abuse of discretion is apparent in the trial court’s denial of Homeowners’ motion
to extend the discovery period.


              In addition, as to Homeowners’ motion to strike the HOA’s discovery
responses and compel full and complete responses, Homeowners did not file this
motion until after the case was certified for trial. As such, no error is apparent in the
trial court’s dismissal of this motion as moot after trial. In any event, Homeowners
offer no explanation as to how this ruling warrants a new trial.

       7
          “The application, construction, and interpretation of local rules of court are matters
primarily to be determined by the trial court promulgating the rule, and this Court will only
interfere where the trial court commits an abuse of discretion.” Reaves v. Knauer, 979 A.2d 404,
414 (Pa. Cmwlth. 2009) (citation omitted).

                                              27
                As a final issue, Homeowners maintain the trial court erred in denying
their motion for sequestration of the HOA’s witnesses at trial.8 “[T]he decision to
sequester witnesses is left to the discretion of the trial judge and will be reversed
only for an abuse of discretion.” Koller Concrete, Inc. v. Tube City IMS, LLC, 115
A.3d 312, 318 (Pa. Super. 2015). “A request for sequestration of a witness or
witnesses should be specific and should be supported by some reason or reasons
demonstrating that the interests of [j]ustice require it.” Id.


                Here, our review of the trial transcript reveals Homeowners offered no
specific reasons in support of their request for sequestration. R.R. at 599a-600a. As
such, we discern no abuse of discretion in the trial court’s denial of that request.
Koller Concrete.




       8
           Pennsylvania Rule of Evidence 615, which governs sequestration of witnesses states:

                At a party’s request the court may order witnesses sequestered so
                that they cannot learn of other witnesses’ testimony. Or the court
                may do so on its own. But this rule does not authorize sequestering:

                (a) a party who is a natural person;
                (b) an officer or employee of a party that is not a natural person
                (including the Commonwealth) after being designated as the party’s
                representative by its attorney;

                (c) a person whose presence a party shows to be essential to
                presenting the party’s claim or defense; or

                (d) a person authorized by statute or rule to be present.

Pa.R.E. 615.

                                                 28
            This litigation would have benefited from more adult attention early on.
In default of that, however, we have carefully reviewed the many issues put before
us. Based on the foregoing, we affirm.




                                      ROBERT SIMPSON, Judge




                                         29
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jonathan and Abbey Weber, h/w,           :
                      Appellants         :
                                         :   No. 2051 C.D. 2016
            v.                           :
                                         :
Board of Directors of the Laurel Oaks    :
Association and Mid Atlantic             :
Management                               :


                                   ORDER

            AND NOW, this 13th day of November, 2017, the order of the Court of
Common Pleas of Bucks County is AFFIRMED.




                                        ROBERT SIMPSON, Judge
