J-A11029-18

                                   2018 PA Super 287

    WAG-MYR WOODLANDS                          :   IN THE SUPERIOR COURT OF
    HOMEOWNERS ASSOCIATION, BY                 :        PENNSYLVANIA
    DAVID MORGAN AS TRUSTEE AD                 :
    LITEM                                      :
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :   No. 1247 MDA 2017
                                               :
                                               :
    JOHN L. GUISWITE AND MICHELLE              :
    P. GUISWITE, THOMAS H. JEFFRIES            :
    AND SHIRLEY A. JEFFRIES, JUDY A.           :
    HEIMBACH AND JOAN A. STEARNS,              :
    AS CO-EXECUTRICES OF THE                   :
    ESTATE OF JAMES D. HOLMAN,                 :
    DECEASED, JOAN A. STEARNS,                 :
    GAYLE N. PHILLIPS, BETSY A.                :
    PHILLIPS, JEFFREY A. CORSON,               :
    MARY ANN MCHALE, RONNIE L.                 :
    DEWALT, MELISSA T. DEWALT,                 :
    ANTHONY J. HAYES AND MEREDITH              :
    L. HAYES

             Appeal from the Judgment Entered September 13, 2017
     In the Court of Common Pleas of Clinton County Civil Division at No(s):
                                  954-2016

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

OPINION BY NICHOLS, J.:                                FILED OCTOBER 19, 2018




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A11029-18



       Appellant Wag-Myr Woodlands Homeowners Association,1 by David

Morgan as Trustee ad Litem,2 appeals from the judgment entered in favor of

Appellees John L. and Michelle P. Guiswite, Thomas H. and Shirley A. Jeffries,

Judy A. Heimbach and Joan A. Stearns, as co-executrices of the estate of

James D. Holman, deceased, Joan A. Stearns, Gayle N. and Betsy A. Phillips,

Jeffrey A. Corson, Mary Ann McHale, Ronnie L. and Melissa T. DeWalt, and

Anthony J. and Meredith L. Hayes (collectively, Appellees).3 The judgment

was entered after a nonjury trial at which the trial court determined that

Appellees were not required to pay Appellant to maintain a shared easement


____________________________________________


1 Appellant was formed after Wag-Myr Woodlands, Inc., developed the
community from property purchased from Helen Wagner. During the period
relevant to this appeal, thirty-eight lots, including those owned by Appellees,
were included within the Wag-Myr development.

2 Originally, Appellant did not designate a trustee ad litem in this matter. On
July 25, 2017, the trial court granted a motion filed by Appellant to amend the
caption to include David Morgan as Trustee ad Litem. See Pa.R.C.P. 2152
(providing that an action by an unincorporated association “shall be
prosecuted in the name of a member or members thereof as trustees ad litem
for such association”). We note that Appellees did not object to the lack of a
trustee ad litem at trial or the designation of a trustee ad litem when Appellant
sought to amend the caption. Additionally, we note that a failure to comply
with Rule 2152 is not dispositive when raised for the first time on appeal. See
In re Barlip, 428 A.2d 1058, 1060 (Pa. Cmwlth. 1981) (“It is settled that a
court will not permit an objection concerning compliance with Pa.R.C.P. No.
2152 to be raised for the first time on appeal, and . . . we will not do so
here.”).
3 We adopt the trial court’s nomenclature distinguishing between the Hayes
Appellees and the non-Hayes Appellees. All Appellees other than the Hayes
Appellees have deeds that do not reference the potential formation of a
homeowners’ association (HOA). The Hayes Appellees’ deed, however,
references the future formation of an HOA.

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J-A11029-18



used to access their properties.      The trial court made this determination

because a subdivision map was not admitted into evidence and the court could

not determine whether Appellees were part of a planned residential

community. Appellant claims that Appellees have a common law obligation to

pay for the maintenance of the shared easement. We vacate the judgment

and remand for further proceedings consistent with this opinion.

      The trial court summarized the relevant background to this case as

follows:

      [Wag-Myr Woodlands, Inc.] purchased approximately 700 to 800
      acres of land from Helen Wagner on December 2, 1993.
      [Appellees] obtained their real property as follows:

           a. [Appellees] John L. Guiswite and Michelle P. Guiswite, by
              Deed dated October 1, 2003[,] from [Wag-Myr
              Woodlands, Inc.] recorded in Record Book 2003, Page
              6837[, including an easement from Township Route 415
              to the parcel].

           b. [Appellees] Thomas H. Jeffries and Shirley A. Jeffries, by
              Deed dated February 26, 2002[,] from the Household
              Finance Corporation, recorded as instrument No. 2002-
              01531 and by Deed dated October 27, 2003[,] from
              [Wag-Myr Woodlands, Inc.], recorded as instrument No.
              2003-07498[, including an easement from Township
              Route 415 to the parcel].

           c. [Appellees] Judy A. Heimbach and Joan A. Stearns as Co-
              Executrices of the Estate of James D. Holman, deceased,
              by Deed dated August 4, 1999[,] and recorded in Record
              Book 1046, Page 140, by Deed dated November 3,
              2000[,] from [Wag-Myr Woodlands, Inc.] recorded in
              Record Book 1123, Page 570[,] and by Deed dated July
              17, 2001[,] from [Wag-Myr Woodlands, Inc.], recorded
              as Instrument No. 2001-0374[, all including an easement
              from Township Route 415 to the parcels].



                                       -3-
J-A11029-18


          d. [Appellees] Gayle N. Phillips and Betsy A. Phillips by Deed
             dated November 8, 1990[,] from Francis Lee Wagner and
             Helen Wagner, recorded in Deed Book No. 450, Page
             129[, including an easement from Township Route 415
             to the parcel].

          e. [Appellees] Jeffrey A. Corson and Mary Ann McHale by
             Deed dated September 14, 1995[,] from [Wag-Myr
             Woodlands, Inc.], recorded in Deed Book 767, [P]age
             155[, including an easement from Township Route 415
             to the parcel].

          f. [Appellees] Ronnie L. DeWalt and Melissa T. DeWalt by
             Deed dated May 20, 1999[,] from [Wag-Myr Woodlands,
             Inc.], recorded in Deed Book 1029, Page 227[, including
             an easement from Township Route 415 to the parcel].

          g. [Appellees] Anthony J. Hayes and Meredith L. Hayes by
             Deed dated October 27, 2003[,] from [Wag-Myr
             Woodlands, Inc.], recorded as Instrument No. 2003-
             07511[, including an easement from Township Route 415
             to the parcel].

       On August 28, 2012, [Appellant] adopted bylaws which were duly
       recorded in the Office of Recorder of Deeds of Clinton County as
       Instrument No. 2012-3806.         Amended bylaws were later
       adopted[,] which were dated June 27, 2013[,] and recorded as
       Instrument No. 2013-3250 in the Office of Recorder of Deeds of
       Clinton County.

       All [Appellees] already had possession of their properties and were
       utilizing and maintaining a roadway [(Wag-Myr Lane) as the sole
       means of traveling] to and from their properties prior to the
       adoption of [b]ylaws by the HOA. . . . With the exception of [the
       Hayes Appellees], there is no mention in any of the [Appellees’
       d]eeds regarding the HOA existing or ever being formed. [The
       Appellees’ deeds indicate that the owner shall have “a right-of-
       way for ingress, egress and regress . . . from [Township Route
       415]” to the premises over a fifty-foot wide roadway.4] The Hayes
____________________________________________


4 See Clinton Cty. R. Book 450, Page 130; R. Book 767, Page 156; R. Book
1029, Page 227; R. Book 1046, Page 140; R. Book 1123, Page 571;
Instrument Nos. 2003-06837, 2003-07498, and 2003-07511.



                                           -4-
J-A11029-18


        Appellees’ deed does not require them to become part of the HOA
        but indicates that the maintenance on the roadway will be
        maintained by Wag-Myr [Woodlands, Inc. “until such time as a
        Homeowners Association is organized and responsibility for road
        maintenance transferred to the Homeowners Association.”5] That
        statement is not contained in any of the non-Hayes [Appellees’
        d]eeds.

Trial Ct. Op., 7/14/17, at 2-4 (citations omitted).

        After forming as an HOA in 2013, Appellant began to charge a yearly

fee of $300 to its members. The fees were used to maintain and repair the

only common areas in the HOA, which are Wag-Myr Lane and a gate installed

on the roadway in 2004. N.T., 5/24/17, at 89; Compl., 7/26/16, at 12-13.

Appellees were made aware of the $300 per year assessment fee via hand-

delivered letters dated April 17, 2014, and February 26, 2015, and a mailed

letter dated February 5, 2016. See Appellees’ Exs. 31, 36, 43.

        Appellant initiated this action by filing a complaint on July 26, 2016,

asserting that even though Appellees were not members of the HOA, they

were required to pay the HOA’s entire yearly assessment fee of $300 per year

plus interest for the years 2014, 2015, and 2016. Appellant brought its claim

for HOA fees on a common law right to recover for maintenance costs for Wag-

Myr Lane based upon the easement language in each of the Appellees’ deeds.6



____________________________________________


5   See Clinton Cty. Instrument No. 2003-07511.

6Appellant specifically indicated in the Complaint that it was not asserting that
Appellees were obligated to become members of the HOA. Compl., 7/26/16,
at 12.


                                           -5-
J-A11029-18



     The non-Hayes Appellees filed an answer to the complaint, denying

liability because the HOA was formed after they purchased their properties

and the HOA bylaws did not affect them. See Answer to Compl., 8/19/16, at

3-4 (unpaginated). The Hayes Appellees did not file an answer. Appellant did

not file a motion for default or summary judgment.

     Thereafter, the non-Hayes Appellees filed a motion for judgment on the

pleadings or for summary judgment.     At the January 26, 2017 argument,

counsel for the non-Hayes Appellees conceded that they had a duty to pay for

the maintenance of Wag-Myr Lane “[f]or their section.” N.T., 1/26/17, at 10;

see also id. at 6-7. The trial court denied the non-Hayes motion, indicating

that “all [non-Hayes Appellees] have agreed that there is a common law

obligation on behalf of [them] to pay some monies to maintain a right-of-

way.” Order, 1/27/17, at 2 (unpaginated).

     On April 20, 2017, Appellant filed an amended complaint, seeking that

the Hayes Appellees pay the full assessment fee of $300 per year as assessed

and that the non-Hayes Appellees pay an undefined “proportionate share” to

maintain the road. Am. Compl., 4/20/17, at 18. The non-Hayes Appellees

filed an answer to the amended complaint, in which they denied liability for

assessments on the basis that their properties were not part of a planned

residential development. See Answer to First Am. Compl., 4/19/17, at 4, 7




                                   -6-
J-A11029-18



(unpaginated). The Hayes Appellees did not file an answer to the amended

complaint.7

       A non-jury trial proceeded on May 24, 2017, in which HOA members

testified on behalf of Appellant, and several of the non-Hayes Appellees

testified on their own behalf. The pro se Hayes Appellees were present but

neither of them testified.8

       Of relevance to this appeal, David Morgan, the HOA president, testified

to the maintenance and repairs Wag-Myr Lane required, as well as to the fact

that the HOA took ownership of the easement from the developer, Wag-Myr


____________________________________________


7 In their appellate brief, the non-Hayes Appellees refer to a suit filed in
Magisterial District Court prior to the instant action, in which Appellant sought
“back assessments of three hundred dollars ($300.00) per year dating from
the formation of the [HOA].” Non-Hayes Appellees’ Brief at 1. The magisterial
district judge apparently ruled in favor of Appellees and dismissed Appellant’s
action. See id. The record does not reflect any such ruling. Despite the
magisterial district court seemingly ruling in their favor, neither the non-Hayes
Appellees nor the Hayes Appellees have raised the defense of res judicata in
their answers. Accordingly, although we lack knowledge of the details of that
suit, assuming such a defense applied, they presumably waived this defense.
See Hopewell Estates, Inc. v. Kent, 646 A.2d 1192, 1194 (Pa. Super.
1994) (“Res judicata [is an] affirmative defense[] which must be pleaded in
an answer as new matter. A defense not so raised is waived.” (citations
omitted)); see also A.C. Elfman & Sons, Inc. v. Clime, 513 A.2d 488, 490
(Pa. Super. 1986) (noting that “where the doctrine of res judicata is otherwise
applicable, its invocation will not be precluded or impaired because the prior
judgment was entered in an action before a district justice”).

8 The Hayes Appellees were unrepresented at trial but have retained counsel
for this appeal. At trial, the Hayes Appellees participated by asking cross-
examination questions of the various witnesses.




                                           -7-
J-A11029-18



Woodlands, Inc.9       N.T., 5/24/17, at 18.     Mr. Morgan indicated the cost of

repairs to maintain Wag-Myr Lane completed by contractors during the period

from 2014 through 2016. Id. at 20, 26; see also Appellant’s Ex. 2 (outlining

expenses of the HOA for road and gate maintenance from 2014 through

2016); Appellant’s Ex. 5 (providing calculations supporting various measures

to apportion the cost of maintaining the right-of-way based on the actual cost

of repairs and electricity). Mr. Morgan also indicated that electricity for the

gate had to be paid for on a yearly basis and that he and other HOA members

had completed trimming and some repairs on the road to save money. N.T.,

5/24/17, at 19-20.

       An HOA member, Joseph Messinger, also testified on behalf of Appellant.

Mr. Messinger indicated that Appellees were observed using Wag-Myr Lane

beyond the length of their easement to go deeper into the development. Id.

at 58. Non-Hayes Appellees’ counsel stipulated that the non-Hayes Appellees

used Wag-Myr Lane to visit with other Appellees or HOA members. Id. at 59.

       Several non-Hayes Appellees testified that they maintained their

portions of Wag-Myr Lane. See id. at 69 (testimony of John Guiswite), 101,

104 (testimony of Jeffrey Corson).         Many of the Appellees testified that they

plowed their sections of the road when it snowed. See id. at 70-71 (testimony

of John Guiswite), 79 (testimony of Thomas Jeffries), 95-96 (testimony of
____________________________________________


9We state the facts in the light most favorable to the verdict-winner. Wilson
v. Transport Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005).



                                           -8-
J-A11029-18



Gayle Phillips), 99-100 (testimony of Jeffrey Corson), 107-08 (testimony of

Ronnie DeWalt).    Additionally, Appellee Ronnie DeWalt testified regarding

installation of the gate at the entrance to Wag-Myr Lane. Other than requiring

Appellees to purchase a “clicker” to open the gate, the developer promised

that it would maintain and pay for the gate and that Mr. DeWalt and the other

Appellees “[would not] have to do anything but [purchase and use the

‘clickers’ to open the gate.]” Id. at 107.

      As to the nature of the planned community, Appellee Judy Heimbach

testified that there were no common areas such as ponds, lakes, or anything

other than the road in the Wag-Myr development. Id. at 89. Appellee Gayle

Phillips indicated that he was never informed that a large residential

development would be constructed in the area. Id. at 96. Likewise, Appellee

Jeffrey Corson indicated that he was unaware of any planned residential

development in the area when he purchased his land. Id. at 99.

      At the conclusion of the non-jury trial, the trial court ordered the

represented parties to submit proposed findings of fact and conclusions of law

and permitted the Hayes Appellees to file any documents they deemed

relevant within thirty days. Appellant and the non-Hayes Appellees submitted

proposed findings of fact and conclusions of law, and the Hayes Appellees

submitted a portion of the sales agreement for their property, which included

a clause that the seller would remain responsible for maintaining the roadway.

See Hayes Correspondence, 6/9/17.




                                     -9-
J-A11029-18



       Upon consideration of the parties’ submissions, the trial court entered

an order and opinion in favor of all Appellees, noting that because the court

“[was] unable to determine that [Appellees] are owners of property within the

[Wag-Myr] subdivision,” they could not be assessed by the HOA. Trial Ct. Op.,

7/14/17, at 13. The trial court further noted that the non-Hayes Appellees

       argue that there was no subdivision or planned community.
       Specifically, clearly when [Appellees] Phillips purchased the
       Phillips property in 1990, [Appellees] Phillips were purchasing a
       parcel of land having no clue whether a planned community
       development would occur past that property. This is similar to the
       purchases of [Appellees] Jeffries, Corson and McHale, DeWalts,
       Holman (now Heimbach and Stearns) and Guiswites.

Id. at 11. On this basis, and because a “subdivision map indicating where the

subdivision begins and when it was laid out” was not provided at trial, the trial

court ruled in favor of the non-Hayes Appellees. Id. at 12.

       Appellant filed a post-trial motion, arguing that the trial court erred in

determining that Appellees’ obligation to pay for road maintenance turned on

whether a subdivision plan existed or whether they were within a planned

subdivision. See Mot. for Post-Trial Relief, 7/21/17, at 1-2 (unpaginated).

Appellant sought judgment notwithstanding the verdict or, in the alternative,

a new trial. Id. at 3. The trial court denied the post-trial motion on July 25,

2017.10
____________________________________________


10We note that Appellant did not request a directed verdict orally or in writing
at the close of evidence at trial. Ordinarily, to preserve the right to request
judgment notwithstanding the verdict (JNOV), a party must first request a
binding charge to the jury or move for a directed verdict or compulsory non-



                                          - 10 -
J-A11029-18



       Appellant filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court complied with Pa.R.A.P. 1925(a).

       Appellant raises the following issues for our review:

       1. Whether jurisdiction of this matter is properly vested in the
          Superior Court, rather than the Commonwealth Court.[11]

       2. (With respect to all Appellees): Whether the court below erred
          in determining that the status of properties as part of a
          subdivision was relevant to a determination of the liability of
          those properties at common law for maintenance of a shared
          easement.

       3. (With respect to Appellees Anthony and Meredith Hayes):
          Whether the court below erred in determining that the status
          of a property as part of a subdivision was relevant to a
          determination of the liability of that property for assessment
          costs for maintenance of a right-of-way pursuant to language
          in the deed of record for that property.
____________________________________________


suit. Phelps v. Caperoon, 190 A.3d 1230 (Pa. Super. 2018) (citation
omitted). A motion for a directed verdict is appropriate even in the non-jury
trial context. Id. at 1247. Here, despite Appellant’s failure to move for a
directed verdict or otherwise preserve its right to seek judgment
notwithstanding the verdict, the trial court did not find waiver and instead
addressed the issue. Accordingly, we decline to find waiver. See Capital
Care Corp. v. Hunt, 847 A.2d 75, 84 (Pa. Super. 2004) (declining to find
waiver where a party failed to move for a directed verdict, sought judgment
notwithstanding the verdict in a post-trial motion, and the trial court
addressed the claim as presented in the post-trial motion).
11  This jurisdictional issue arose on appeal. This Court issued a rule to show
cause on September 11, 2017, requiring Appellant to respond regarding why
this appeal should not be transferred to the Commonwealth Court. Appellant
filed a timely response, and this Court issued an order on September 27, 2017,
discharging the rule to show cause and deferring the jurisdictional issue for
this panel’s consideration.




                                          - 11 -
J-A11029-18



Appellant’s Brief, at 1-2.

        In its first issue, Appellant asserts that a transfer of this appeal to the

Commonwealth Court would be improper. Id. at 6. Appellant argues that, as

an unincorporated association, it is not subject to the exclusive grant of

jurisdiction to the Commonwealth Court that is contained in 42 Pa.C.S. §

762(a)(5).12 Id. at 6-7.

        Additionally, Appellant contends that the Commonwealth Court lacks

jurisdiction over this matter because its theory of recovery “is not based upon

its status as a homeowners’ association, but rather upon the duty of

beneficiaries of a common law easement to contribute to the maintenance

thereof.” Id. at 7-8. (citing Reed v. Allegheny Cty., 199 A. 187 (Pa. 1938);

Borgel v. Hoffman, 280 A.2d 608, 610 (Pa. Super. 1971) (en banc)).

Further, as to the Hayes Appellees, Appellant’s “theory of recovery is based

upon [the Hayes Appellees’] obligation to pay road maintenance assessments

because of the noticing language in their deed.” Id. at 8 (citing Meadow Run

& Mountain Lake Park Ass’n v. Berkel, 598 A.2d 1024, 1025 (Pa. Super.

1991)).

        By statute, this Court has jurisdiction regarding appeals from final

orders of the courts of common pleas, except when jurisdiction is vested in

the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. The

jurisdiction of the Commonwealth Court regarding appeals from final orders

____________________________________________


12   Section 762(a)(5) is reproduced below.

                                          - 12 -
J-A11029-18



of the common pleas courts is limited by statute.              42 Pa.C.S. § 762.       Of

relevance to this appeal, the Commonwealth Court has “exclusive jurisdiction

of appeals from final orders of the courts of common pleas” in

        (i) All actions or proceedings relating to corporations not-for-profit
        arising under Title 15 (relating to corporations and unincorporated
        associations) or where is drawn in question the application,
        interpretation or enforcement of any provision of the Constitution,
        treaties or laws of the United States, or the Constitution of
        Pennsylvania or any statute, regulating in any such case the
        corporate affairs of any corporation not-for-profit subject to Title
        15 or the affairs of the members, security holders, directors,
        officers, employees or agents thereof, as such.

        (ii) All actions or proceedings otherwise involving the corporate
        affairs of any corporation not-for-profit subject to Title 15 or the
        affairs of the members, security holders, directors, officers, or
        employees or agents thereof, as such.

42 Pa.C.S. § 762(a)(5).

        Section 762(a)(5) provides for limited jurisdiction of the Commonwealth

Court    for   certain   actions    involving      “corporations    not-for-profit.”   A

“corporation not-for-profit” is defined as “[a] domestic or foreign corporation

not incorporated for a purpose or purposes involving pecuniary profit,

incidental or otherwise, whether or not it is a cooperative corporation.” 15

Pa.C.S. § 102.

        Instantly,   Appellant     correctly    notes   that   as   an   unincorporated

association, it is not a “corporation not-for-profit.” Thus, Section 762(a)(5)

does not vest exclusive jurisdiction over this appeal in the Commonwealth

Court. Moreover, none of the Appellees has objected to the Superior Court

retaining jurisdiction. See Benner v. Silvis, 950 A.2d 990, 993 (Pa. Super.


                                          - 13 -
J-A11029-18



2008) (indicating that although, as an eminent domain matter, the appeal was

within the exclusive jurisdiction of the Commonwealth Court, this Court

retained jurisdiction since neither party objected).    Accordingly, we have

proper jurisdiction over this appeal.

      We address Appellant’s remaining issues in terms of the non-Hayes

Appellees followed by the Hayes Appellees.

      Appellant asserts that the trial court erred in finding that the non-Hayes

Appellees were not liable for expenses to maintain the right-of-way based

upon “the [lack of] existence of a subdivision plan.” Appellant’s Brief at 8.

Appellant contends that the non-Hayes Appellees “are liable at common law

for a proportionate share of the costs of maintenance of a shared easement”

because they “have notice [of the easement] in their respective deeds.” Id.

at 11. In support, Appellant relies on Spinnler Point Colony Ass’n, Inc. v.

Nash, 689 A.2d 1026 (Pa. Cmwlth. 1997).

      Appellant further argues that all non-Hayes Appellees conceded at

summary judgment that they are liable for maintenance of “their sections” of

Wag-Myr Lane. Appellant argues that this concession constitutes the law of

the case. Appellant’s Brief at 8.

      The non-Hayes Appellees assert that although they are “supposed to

maintain the right of way[,] they have no obligation to pay any assessments

to someone whose interest in the property was created well after the creation

of their easement.” Non-Hayes Appellees’ Brief at 2. Accordingly, rather than

pay the HOA a “formulaic” assessment, the non-Hayes Appellees assert that

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they are responsible only for the maintenance and repair of the portion of

Wag-Myr Lane that directly abuts their land. Id. at 8 (citing Borgel, 280 A.2d

at 610). The non-Hayes Appellees also contend that they cannot be required

to pay the HOA an assessment because their deeds do not contain a covenant

requiring the owner to pay his proportionate part of the expense of

maintaining Wag-Myr Lane. Id. at 9 (citing Mscisz v. Russell, 487 A.2d 839,

841 (Pa. Super. 1984)).       The non-Hayes Appellees also cite to Deep

Meadows Civic Ass’n v. Trusello, 140 A.3d 60 (Pa. Cmwlth. 2016), in

support of their position.

      Our standard of review is as follows:

      A JNOV can be entered upon two bases: (1) where the movant is
      entitled to judgment as a matter of law; and/or, (2) the evidence
      was such that no two reasonable minds could disagree that the
      verdict should have been rendered for the movant.              When
      reviewing a trial court’s denial of a motion for JNOV, we must
      consider all of the evidence admitted to decide if there was
      sufficient competent evidence to sustain the verdict. In so doing,
      we must also view this evidence in the light most favorable to the
      verdict winner, giving the victorious party the benefit of every
      reasonable inference arising from the evidence and rejecting all
      unfavorable testimony and inference. Concerning any questions
      of law, our scope of review is plenary. Concerning questions of
      credibility and weight accorded the evidence at trial, we will not
      substitute our judgment for that of the finder of fact. If 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 JNOV.
      A JNOV should be entered only in a clear case.

      Our review of the trial court’s denial of a new trial is limited to
      determining whether the trial court acted capriciously, abused its
      discretion, or committed an error of law that controlled the
      outcome of the case. In making this determination, we must
      consider whether, viewing the evidence in the light most favorable
      to the verdict winner, a new trial would produce a different verdict.


                                     - 15 -
J-A11029-18


      Consequently, if there is any support in the record for the trial
      court’s decision to deny a new trial, that decision must be
      affirmed.

Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1147-48 (Pa. Super.

2013) (citation omitted). “A trial court’s construction of a deed is a question

of law, which compels de novo review.” Russo v. Polidoro, 176 A.3d 326,

329 (Pa. Super. 2017) (citation omitted).

      Regarding easements, regardless of their location, “[o]rdinarily the

owner of a servient estate is under no obligation to make repairs; the duty is

upon the one who enjoys the easement to keep it in proper condition.” Reed,

199 A. at 189. In Borgel, the Court resolved the tension between the general

rule and the issue of liability under the factual circumstances of a driveway

owned and used by multiple adjacent property owners:

      While we recognize the general rule, as already stated, regarding
      the obligation of a dominant tenant to keep in repair an easement
      which is used and enjoyed for the dominant estate alone, it must
      be recognized that this general rule is simply an application of the
      broader rule that the duty of repair should fall where reason,
      convenience, and equity require it to fall. Where, as in this case,
      an easement in a driveway is owned and utilized by many abutting
      property owners, it would be most unreasonable, inconvenient
      and inequitable to hold each dominant tenant liable for a defect in
      the driveway no matter how far removed from that dominant
      owner’s property. It would be equally unreasonable, inconvenient
      and inequitable to hold only those dominant owners whose
      properties are close to the defect liable therefor, since we would
      then have to answer the question, “How close is close?” And, if
      we were to say that those dominant tenants making the most use
      of the driveway at the place of the defect should be liable therefor,
      we would be faced with difficult evidentiary issues as to amount
      of use and presented with the important legal question of how
      much use should impose liability. It is our conclusion that the
      most reasonable, expedient and equitable rule is to require each


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J-A11029-18


      of the owners to be responsible for the maintenance and repair of
      only that portion of the driveway abutting or located on his own
      land.

Borgel, 280 A.2d at 610.      Borgel, however, did not involve a property

association.

      Where a property association exists, the “beneficial users of the common

areas of [a] development[] are responsible for the cost of maintenance of such

facilities.” Berkel, 598 A.2d at 1027. Even when an individual’s “chain of

title makes no reference to a property owners[’] association,” the individual

must pay his or her “proportionate share for repair, upkeep and maintenance”

of the easements to which he or she has rights to enjoy in a residential

development. Spinnler Point, 689 A.2d at 1028-29.

      In Spinnler Point, which Appellant relies on for support, the

homeowners’ chain of title did not refer to a property owners’ association. Id.

at 1028.   The homeowners argued that they were not obligated to join a

property association that formed in their residential development or required

to pay its annual assessments. Id. The homeowners’ deed provided that they

had the right to travel over property association roads and to access a lake.

Id. at 1027.      The Commonwealth Court held that even though the

homeowners conceded liability for the assessments, they “[c]learly, pursuant

to their deed, have the right to enjoy the easements. Therefore, [they] must

pay the costs of maintenance.”     Id. at 1029.    The Court summarized its

holding as follows: “a property owner who purchases property in a private

residential development who has the right to travel the development roads


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and to access the waters of a lake is obligated to pay a proportionate share

for repair, upkeep and maintenance of the development’s roads, facilities and

amenities.” Id.

      The non-Hayes Appellees rely on Borgel, in which a pedestrian fell and

was injured on a driveway running between two rows of houses over which

each of the owners of the houses had an easement. Borgel, 280 A.2d at 608-

09. The pedestrian sued the owners of the property abutting the portion of

the driveway where her injury occurred for negligence.      Id. at 608.    The

owners sought to join several other nearby owners as additional defendants.

Id. The additional defendants successfully moved for summary judgment on

several grounds, including that “the supposed duty of the additional

defendants to maintain and control the driveway arose from their Deeds; and

that no such duty or obligation is expressed or implied in their Deeds.” Id. at

609. The owners appealed and raised the following issue:

      Where the defendants own an easement over a driveway, a
      portion of which abuts or is located on their property, and a user
      contends negligence in their maintenance and repair of that
      portion of the driveway, are the other owners of properties
      abutting the driveway, who also enjoy an easement therein,
      responsible, either solely or jointly with the defendants, in the
      absence of any express covenant, for the repair and maintenance
      of that portion of the driveway so abutting or located on
      defendants’ property?

Id. Based on the reasoning set forth above, the Court held that the additional

defendants could be held liable because, as quoted supra, “the most

reasonable, expedient and equitable rule is to require each of the owners to


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be responsible for the maintenance and repair of only that portion of the

driveway abutting or located on his own land.” Id. at 610.

        For further support, the non-Hayes Appellees point to Mscisz, another

negligence case, in which a covenant in several homeowners’ deeds imposed

an “equal duty to maintain the private driveway” that served their properties

by paying an equal share for its upkeep. Mscisz, 487 A.2d at 841.

        In Trusello, on which the non-Hayes Appellees also rely, the

Commonwealth Court affirmed the trial court’s decision, following a bench

trial, that the homeowner could not be assessed fees by an HOA for the

maintenance of a common area, including an open space. Trusello, 140 A.3d

at 69. The homeowner’s deed contained no reference to an HOA, and he “had

neither actual nor constructive notice that [his property] was subject to a

homeowner’s association.” Id. at 68-69 (citation omitted). The homeowner’s

deed, however, did not include any right or privilege to use any common

property. Id. at 68.

        Instantly, as in Spinnler Point, the non-Hayes Appellees’ deeds did not

refer to an HOA and also included the right to the use of an easement.13 As

Appellant argues, this alone obligates the non-Hayes Appellees to pay a

“proportionate share” of the maintenance costs for Wag-Myr Lane. Spinnler

Point, 689 A.2d at 1029; see also Reed, 199 A. at 189. Pursuant to the

common law in Borgel and Reed, whether the Appellees knew they were
____________________________________________


13   We note that the deeds do not mention a gate.


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J-A11029-18



buying property that would later be part of a residential development is not

dispositive, because under the facts of this case, their properties undisputedly

benefit from the easement. See Borgel, 280 A.2d at 610; Reed, 199 A. at

189.

       Further, the facts of Trusello are distinguishable from the non-Hayes

Appellees’ situation because in Trusello the homeowner’s deed did not include

an easement permitting him the privilege of using any common property. See

Trusello, 140 A.3d at 68.

       Moreover, the non-Hayes Appellees conceded at the summary judgment

stage of the proceedings that they owed money to maintain “their sections”

of Wag-Myr Lane.14 See N.T., 1/26/17, at 6-7, 10; Order, 1/27/17, at 2.

Thus, for these reasons, the trial court erred.15

       The non-Hayes Appellees object to making payment for “their sections”

to the HOA. As such, we note that the HOA is the successor in interest to

Wag-Myr Woodlands, Inc., the original owner of the property and the grantor

of the easement in question.           See N.T. 5/24/17, at 18; see generally
____________________________________________


14While Appellant asserts that counsel’s statement at the summary judgment
stage was binding on the trial court under the law of the case doctrine, we
note that counsel’s statement was an admission. It is well-settled that counsel
may bind a client by making an admission. Cf. Lee v. Safeguard Mut. Ins.
Co., 549 A.2d 927, 934 (Pa. Super. 1988) (concluding counsel bound his client
with an admission during trial).

15 It is undisputed that the deeds in this matter do not contain a clause
indicating an “equal duty” to maintain Wag-Myr Lane. However, the lack of
such a clause has no bearing on whether the non-Hayes Appellees owe a
“proportionate share” for road maintenance. See Borgel, 280 A.2d at 610.


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Birchwood Lakes Cmty. Ass’n, Inc. v. Comis, 442 A.2d 304, 306 (Pa.

Super. 1982) (referring to the property owners’ association that performed

the “services essential to the maintenance of the community” as the

“successor in interest to the developer”). Accordingly, the HOA is the servient

owner to which Appellees are required to pay their “proportionate share” for

the maintenance of Wag-Myr Lane.

       Thus, even viewing the record in the light most favorable to the verdict-

winner, Grossi, 79 A.3d at 1147-48, we conclude that the trial court erred,

and we vacate the judgment. We order the trial court to enter judgment in

favor of Appellant after the court, on remand, calculates a “proportionate

share” of the Wag-Myr Lane maintenance costs for each of the non-Hayes

Appellees. Such maintenance costs shall exclude gate costs, since the gate

was not part of the easement granted within each deed.16

       Finally, regarding the Hayes Appellees, Appellant asserts that the trial

court erred in finding that they were liable for expenses to maintain the right-

of-way based upon “the [lack of] existence of a subdivision plan.” Appellant’s

Brief at 8.    Appellant asserts that the Hayes Appellees “are subject to the

same principle of common-law liability as the other [Appellees] on the basis

that their property benefits from a shared easement[. T]hey are also liable
____________________________________________


16 Cf. Kelso Woods Ass’n, Inc. v. Swanson, 753 A.2d 894, 898 (Pa.
Cmwlth. 2000) (upholding trial court’s determination that where a lot outside
an association received its water through the association and water comprised
approximately thirty percent of the association’s expenses, it was inequitable
to charge a fee of approximately ninety percent of the association’s base
member fee, but a charge of one-half the base rate was equitable).

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J-A11029-18



on the additional basis that their deed expressly mentions the formation of a

homeowners’ association to maintain the right-of-way.” Id. at 21.

      The trial court noted that Hayes Appellees’s deed “do[es] not reflect that

[this parcel was] part of any subdivision.” Trial Ct. Op, 7/14/17, at 9. On this

basis, and because a “subdivision map indicating where the subdivision begins

and when it was laid out” was not provided at trial, the trial court ruled in

favor of the Hayes Appellees. Id. at 12.

      The Hayes Appellees argue that their deed addressed road maintenance

and stated that “Appellant, not Appellee Hayes, would be fully responsible for

it.” Hayes Appellees’ Brief at 4. The Hayes Appellees also assert that there

was “no clear notice of any obligation to join [the HOA] or share in its

assessments.” Id.

      We note the facts of Berkel in reference to the Hayes Appellees. Berkel

was a lot owner in a development with a property owners’ association that

initially “relied upon the voluntary contributions of the lot owners for the

maintenance expenses of the common areas.” Berkel, 598 A.2d at 1025.

The property owners’ association eventually instituted an annual assessment

for all lot owners for their share of the association’s dams and road.      Id.

Berkel did not pay the assessment and contended that the association lacked

the authority to require payment of any assessment because, while his deed

referenced the association, it did not expressly authorize assessments:

      In the event of the formation or incorporation of an association of
      the lot owners on above mentioned plot of Mountain and Meadow
      Run Lakes, the occupants of the above described premises shall

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J-A11029-18


     be bound by such rules and regulations concerning the use of
     Mountain and Meadow Run Lakes as to boating, bathing, ice
     skating and fishing, as may be duly formulated and adopted by
     such association or incorporation.

Id. at 1025-26 (quoting deed). Following an appeal from a bench trial and

verdict in the association’s favor, this Court held that because Berkel was a

beneficial user of the common areas of the development, including the dams

and roads,

     absent an express agreement prohibiting assessments, when an
     association of property owners in a private development is
     referred to in the chain of title and has the authority to regulate
     each property owner’s use of common facilities, inherent in that
     authority is the ability to impose reasonable assessments on the
     property owners to fund the maintenance of those facilities.

Id. at 1027.

     Instantly, the pertinent language of the Hayes deed follows:

     16. Covenant regarding private road:

        A. Access to the hereinabove described premises is provided
        by a private road;

        B. Access is not subject to municipal maintenance; and

        C. Neither the Planning Commission nor the municipality
        shall be responsible for any road construction, maintenance,
        or improvement at any time in the future.

     All access to the premises herein conveyed is provided by a fifty
     (50) foot private road (Wag-Myr Lane) and that access is not
     subject to municipal maintenance. The Grantor as developer shall
     be responsible for road maintenance until such time as a
     Homeowners Association is organized and responsibility for road
     maintenance transferred to the Homeowners Association.

Deed Between Wag-Myr Woodlands, Inc. and Anthony J. Hayes and Meredith

L. Hayes, 10/27/03, at ¶ 16.

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      Here, similar to the lot owner and deed language in Berkel, the Hayes

Appellees were put on notice that an HOA would eventually come into

existence. See Berkel, 598 A.2d at 1027. Because the Hayes Appellees had

notice of a future HOA and because the HOA has the authority to impose

assessments, the Hayes Appellees are obligated to pay the assessed

maintenance fees for Wag-Myr Lane. See id. Therefore, no calculation of a

proportionate share is required for the Hayes Appellees since they are required

to pay the maintenance fees as assessed.

      Judgment vacated.     Case remanded with instructions.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2018




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