           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Briar Hill North Association, Inc.              :
                                                :
               v.                               :   No. 138 C.D. 2018
                                                :   Argued: December 13, 2018
Helen M. Kuzmack, Mary Jo Sanford,              :
Joan K. Keil, Helenann McCloskey,               :
Jeannette K. Murphy, and John A.                :
Kuzmack,                                        :
                        Appellants              :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: January 9, 2019


               Helen M. Kuzmack (Mrs. Kuzmack), along with her children Mary Jo
Sanford, Joan K. Keil, Helenann McCloskey, Jeannette K. Murphy, and John A.
Kuzmack (collectively, Appellants) appeal from an order of the Court of Common
Pleas of Wayne County (trial court), dated December 27, 2017. The trial court
granted summary judgment in part in favor of Briar Hill North Association, Inc.
(Association) and against Appellants.1 For the reasons set forth below, we quash
Appellants’ appeal.

       1
         The trial court’s December 27, 2017 order did not specifically address Appellants’ motion
for summary judgment and merely denied the Association’s motion for summary judgment with
respect to Unjust Enrichment (Count II) and Implied Contract (Count IV). In its 1925(a) opinion,
               The Association is a non-profit corporation that, inter alia, is
responsible for the maintenance of the roads and other common areas of the
development commonly known as Briar Hill North located in Paupack Township,
Wayne County, Pennsylvania, on the north shore of Lake Wallenpaupack.
(Reproduced Record (R.R.) at 91a, 94a.)                      Lakeland Associates, Inc., the
Association’s predecessor, acquired the land that comprises Briar Hill North in 1952
and subsequently recorded a subdivision plan that created each individual lot in Briar
Hill North. (Id. at 31a.) Appellants are the owners of the real property commonly
known as Lots 9 and 10-R in Briar Hill North. (Id. at 227a-29a.) John A. Kuzmack
(Mr. Kuzmack), Mrs. Kuzmack’s late husband, acquired title to Lot 9 by deed dated
September 6, 1957. (Id. at 26a-28a.) Mr. and Mrs. Kuzmack acquired title to
Lot 10-R by deed dated September 27, 1973. (Id. at 29a-30a.) Mr. Kuzmack died
on March 25, 2009, at which time sole title to Lots 9 and 10-R vested in
Mrs. Kuzmack. (Id. at 24a-25a, 227a-28a.) On February 29, 2012, Mrs. Kuzmack
conveyed title to Lots 9 and 10-R from herself to herself and her children—i.e.,
Appellants.
               The 1957 and 1973 deeds by which Mr. and Mrs. Kuzmack acquired
title to Lots 9 and 10-R both contain the same uniform covenants, which, inter alia,
grant the property owner the right to use certain areas of Briar Hill North designated
for common use, including roads, boat docks, and other facilities. (Id. at 27a-28a;
31a.) Such covenants also provide that “[a]ll property owners using such facilities
shall share a proportionate amount of the cost of maintenance” and that “the use and


however, the trial court stated that, “[f]or clarification purposes, this [trial court] denied entering
summary judgment in favor of the Association and granted summary judgment in favor of
[Appellants] on Count II – Unjust Enrichment and Count IV – Implied Contract” of the
Association’s First Amended Complaint. (Trial Ct. Op., Apr. 2, 2018, at 4.)

                                                  2
maintenance of roads and common use facilities” shall be the responsibility of the
property owners. (Id. at 28a, 31a.) Since 2012, when Appellants became the owners
of Lots 9 and 10-R, the Association has invoiced Appellants for their annual
assessments.     The amount of each annual assessment represents Appellants’
proportionate share of the annual costs incurred by the Association to maintain and
preserve the roads and common areas of Briar Hill North. Appellants have failed to
pay the full amount of each annual assessment. Instead, Appellants have only paid
the amount that they estimate to be their proportionate share of seasonal road
maintenance expenses.
               On March 9, 2015, the Association filed its First Amended Complaint
with the trial court, setting forth various causes of action against Appellants and
seeking payment for Appellants’ unpaid assessments, late fees incurred in
connection with such unpaid assessments, and attorneys’ fees incurred by the
Association to collect such unpaid assessments. In defense to the Association’s
claims, Appellants alleged, inter alia, that:   (1) they are not members of the
Association; and (2) they are only obligated to pay their proportionate share of the
Association’s seasonal road maintenance expenses because the only common use
areas in Briar Hill North that they use are the roads and they only use such roads
from the spring through the fall. Following a period of discovery, the Association
and Appellants both filed motions for summary judgment.            By order dated
December 27, 2017, the trial court granted summary judgment in favor of the
Association and against Appellants with respect to the Association’s counts for
Breach of Covenant (Count I), Easement Ownership (Count III), Uniform Planned
Community Act (Count V), and Common Element Ownership and Use (Count VI).
The trial court granted summary judgment in favor of Appellants and against the


                                         3
Association with respect to the Association’s counts for Unjust Enrichment
(Count II) and Implied Contract (Count IV). Appellants appealed the trial court’s
order to this Court.
               On appeal,2 Appellants argue that the trial court committed an error of
law by: (1) granting the Association’s motion for summary judgment and denying
Appellants’ motion for summary judgment with respect to the Association’s breach
of covenant claim because the subject deed covenants obligate Appellants to pay
only their proportionate share of the common use facilities that they actually use, the
only common use facilities that Appellants actually use are the roads, and Appellants
have already paid their proportionate share of the non-winter road maintenance
expenses; (2) granting the Association’s motion for summary judgment and denying
Appellants’ motion for summary judgment with respect to the Association’s
easement ownership and common element ownership and use claims because
Appellants have express agreements in the form of their deed covenants that obligate
them to pay only their proportionate share of the common use facilities that they
actually use and the only common use facilities that they use are the roads on a
seasonal basis; (3) granting the Association’s motion for summary judgment and


       2
          This Court’s review of a trial court’s order granting a motion for summary judgment is
limited to considering whether the trial court erred as a matter of law or abused its discretion.
Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwlth. 2010), overruled on other grounds by Cagey
v. Cmwlth., 179 A.3d 458 (Pa. 2018). A court may grant a motion for summary judgment “only
when there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Bronson v. Horn, 830 A.2d 1092, 1094 (Pa. Cmwlth. 2003), aff’d, 848 A.2d 917
(Pa.), cert. denied, 543 U.S. 944 (2004). “The right to judgment must be clear and free from
doubt.” Id. In reviewing the granting of a motion for summary judgment, this Court must “view
the record in the light most favorable to the non-moving party, and all doubts as to the existence
of a genuine issue of material fact must be resolved against the moving party.” Pappas v. Asbel,
768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002).


                                                4
denying Appellants’ motion for summary judgment with respect to the Association’s
Uniform Planned Community Act (Act)3 claim because the Association does not
qualify as a “unit owners’ association” under the Act, and, even if it did, the
Association cannot assess Appellants for common use expenses that do not benefit
their lots or for expenses relating to the operation of the Association; (4) failing to
conclude that the Association’s claims are barred by the doctrines of consent and
estoppel because, from 1982 through 2008, the Association always billed and
Mr. and Mrs. Kuzmack always paid only for their proportionate share of the seasonal
road maintenance expenses; and (5) failing to conclude that the Association’s claims
are barred by the doctrine of collateral estoppel because a 1981 magisterial district
court judgment against Mr. Kuzmack establishes that the Association can only
collect a proportionate share of seasonal road maintenance expenses from
Appellants.
                Before addressing the merits, however, we must consider whether this
appeal is properly before us.4 Pennsylvania Rule of Appellate Procedure 341(a)
provides that “an appeal may be taken as of right from any final order of a . . . trial
court.”      An order is final if it “disposes of all claims and of all parties.”
Pa. R.A.P. 341(b)(1). Pennsylvania Rules of Civil Procedure Nos. 1035.1 through
1035.5 anticipate that “[p]artial summary judgment, interlocutory in character, may
be rendered on one or more issues of liability, defense or damages.” Note to
Pa. R.C.P. No. 1035.2. An order that grants summary judgment on liability only and


       3
           68 Pa. C.S. §§ 5101-5414.
       4
         By order dated November 16, 2018, this Court ordered the parties to be prepared to
address at argument whether the trial court’s order “constitute[d] a final order pursuant to
Pennsylvania Rule of Appellate Procedure 341 or whether it [was] an interlocutory order such that
the appeal should be quashed.”

                                               5
leaves open the issue of damages is interlocutory in nature. Newill v. Piccolomini,
323 A.2d 40, 41 (Pa. Super. 1974) (holding that order granting summary judgment
on liability only is interlocutory, and, therefore, appeal from such order must be
quashed); see also Inselberg v. Emp’rs Mut. Cos., 435 A.2d 1290, 1291
(Pa. Super. 1981) (holding that appeal from order granting summary judgment on
liability only was premature and must be quashed). While the Superior Court
decided Newill and Inselberg prior to both the 1996 amendments to the Pennsylvania
Rules of Civil Procedure, which, inter alia, created new Rules 1035.1
through 1035.5 to replace former Rule 1035, and the 1992 amendments to the
Pennsylvania Rules of Appellate Procedure, which, inter alia, amended the
definition of a final order under Pennsylvania Rule of Appellate Procedure 341, the
holdings are still applicable today. Orders that do not dispose of all claims—i.e.,
that address less than all of the parties’ claims or that address claims of liability but
not damages associated with such claims—are interlocutory in nature and not final
and are, therefore, not immediately appealable. See Pa. R.A.P. 341.
             Here, the trial court’s December 27, 2017 order only addresses the issue
of liability and does not award damages to the Association for Appellants’ unpaid
assessments, the late fees incurred in connection with such unpaid assessments, or
the attorneys’ fees incurred by the Association to collect such unpaid assessments.
In fact, in its accompanying opinion, the trial court specifically stated:
             [W]e find that there are no genuine issues of any material
             fact in dispute and the Association is entitled to judgment
             as a matter of law. The Association is statutorily
             authorized by the [Act] to assess [Appellants], as property
             owners in the Briar Hill North community, for use and
             maintenance of common areas. However, we are only
             addressing whether or not summary judgment is
             warranted in this case and an assessment of damages may
             be addressed by the parties in subsequent proceedings.
                                           6
(Trial Ct. Op., Dec. 27, 2017, at 19 (emphasis added).) Because the trial court only
addressed the issue of liability and did not award damages in connection with the
Association’s claims, it is clear that the trial court’s order was interlocutory and not
immediately appealable as a final order under Pennsylvania Rule of Appellate
Procedure 341.5
               Accordingly, we quash Appellants’ appeal.




                                                  P. KEVIN BROBSON, Judge




       5
          We note that Appellants did not file a motion with the trial court requesting that the trial
court amend its December 27, 2017 order to set forth the statement required by 42 Pa. C.S. § 702(b)
(relating to interlocutory appeals by permission) and thereafter seek permission from this Court to
appeal the trial court’s December 27, 2017 order as permitted by Pennsylvania Rule of Appellate
Procedure 1311(b).

                                                  7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Briar Hill North Association, Inc.     :
                                       :
             v.                        :   No. 138 C.D. 2018
                                       :
Helen M. Kuzmack, Mary Jo Sanford,     :
Joan K. Keil, Helenann McCloskey,      :
Jeannette K. Murphy, and John A.       :
Kuzmack,                               :
                        Appellants     :


                                     ORDER


             AND NOW, this 9th day of January, 2019, Appellants Helen M.
Kuzmack, Mary Jo Sanford, Joan K. Keil, Helenann McCloskey, Jeannette K.
Murphy, and John A. Kuzmack’s appeal is hereby QUASHED, because the order of
the Court of Common Pleas of Wayne County, dated December 27, 2017, is not a
final order under Pennsylvania Rule of Appellate Procedure 341.




                                       P. KEVIN BROBSON, Judge
