                     IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Logans’ Reserve Homeowners’         :
Association                         :
                                    :
           v.                       :
                                    :
Jeffrey McCabe and Jennifer McCabe, :                   No. 820 C.D. 2016
                       Appellants   :

Logans’ Reserve Homeowners’         :
Association                         :
                                    :
           v.                       :
                                    :
Jeffrey McCabe and Jennifer McCabe, :                   No. 821 C.D. 2016
                       Appellants   :                   Argued: December 12, 2016




BEFORE:            HONORABLE RENÉE COHN JUBELIRER, Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE COVEY                                             FILED: January 4, 2017

                   Jeffrey McCabe (Mr. McCabe) and Jennifer McCabe (collectively, the
McCabes) appeal from the York County Common Pleas Court’s (trial court) April 22,
2014, February 17, 2016 and April 15, 2016 orders granting Logans’ Reserve
Homeowners’ Association’s (Association) partial summary judgment motion,
denying the McCabes’ motion for continuance, and denying the McCabes’ post-trial
relief motion. There are three issues1 for this Court’s review: (1) whether the trial
court erred in granting the Association’s partial summary judgment motion; (2)


          1
              In their brief, the McCabes set forth four issues; however, we have combined the first two
issues.
whether the trial court erred in denying the McCabes’ continuance motion; and, (3)
whether the trial court erred in denying the McCabes’ post-trial relief motion (Post-
Trial Motion). After review, we affirm.
              On August 28, 2006, the McCabes purchased real property at 1118
Silver Maple Circle in Seven Valleys, Pennsylvania (the Property). The Property is
located within Logan’s Reserve (the Development), a community owned and
maintained by the Association, and is subject to the Uniform Planned Community
Act (Act)2 and the Association’s Declaration, By-Laws and amendments thereto
(Declaration). The Declaration requires property owners, including the McCabes, to
pay common expense3 assessments to the Association. See Declaration § 9.2.1.
              After the McCabes purchased the Property, the Association assessed
them monthly dues, which they paid. However, in June 2009, the McCabes ceased
paying the dues. On April 8, 2010, the Association instituted an action against the
McCabes in Magisterial District Court. On June 23, 2010, the Magisterial District
Judge entered judgment in the McCabes’ favor. On July 1, 2010, the Association
filed a notice of appeal from the June 23, 2010 judgment. On August 10, 2010, the
Association filed a complaint in the trial court against the McCabes seeking recovery
of their unpaid assessments, as well as late fees and attorneys’ fees. On October 22,
2010, the McCabes filed an answer with new matter and counterclaim explaining that
they stopped paying the assessed dues because the Association had “failed, and
continues to fail to maintain the common area behind [the McCabes’] back lawn (. . .




       2
           68 Pa.C.S. §§ 5101-5414.
       3
           The Declaration defines “[c]ommon [e]xpenses” as “expenditures made by or financial
liabilities of the Association, together with any allocations to reserves.” Declaration § 1.5.2(h),
Reproduced Record (R.R.) at 67a. Section 9.1.1 of the Declaration provides that common expenses
include “[e]xpenses of administration, maintenance, and repair or replacement of the [c]ommon
[e]lements . . . .” Declaration § 9.1.1, R.R. at 82a.
                                                2
Common Area[]).”4 Reproduced Record (R.R.) at 35a. In their new matter, the
McCabes alleged that the Association had not maintained the Common Area since the
McCabes moved into the Property in August 2006, and that the Common Area was
overgrown with weeds and shrubs, thereby causing their lawn and home to be
infested with ticks and other insects, for which they incurred treatment expenses. In
their counterclaim, the McCabes claimed that the Association’s failure to maintain
the Common Area constituted a breach of the Declaration and resulted in the
aforementioned expenses. Accordingly, the McCabes sought reimbursement of the
expenses, plus reimbursement of dues they paid between August 2006 and June 2009.
The Association filed its answer to the new matter and counterclaim on October 22,
2010.
              On November 12, 2013, the Association filed its partial summary
judgment motion alleging that there were no genuine issues of material fact, that the
McCabes had failed to pay their assessed dues and that, as a matter of law, the
McCabes were prohibited from withholding payment of common expense
assessments as self-help to address their dissatisfaction with the Association’s alleged
failure to maintain the Common Area. The Association also sought attorneys’ fees
and costs.    After oral argument, on April 22, 2014, the trial court granted the
Association’s partial summary judgment motion, entered judgment in the
Association’s favor, and awarded attorneys’ fees and costs. The case continued on
the McCabes’ counterclaim.
              The McCabes requested that their counterclaim proceed to arbitration.
At arbitration, the McCabes were awarded $2,711.06 (Arbitrators’ Award). The
McCabes appealed from the Arbitrators’ Award to the trial court on the basis that the
arbitrators did not award attorneys’ fees.

        4
         Due to a caption error, on December 21, 2010, the McCabes filed an amended answer, new
matter and counterclaim correcting the caption.
                                              3
              On August 31, 2015, the parties’ counsel signed a Certificate of Trial
Readiness (Certificate) declaring to the trial court that the matter was ready for trial.
The Certificate also certified “that all witnesses will be on call and available during
the entire scheduled trial term.” R.R. at 579a. A non-jury trial was scheduled for
February 17, 2016 before Judge Stephen P. Linebaugh (Judge Linebaugh). Judge
Linebaugh held a pretrial conference on October 1, 2015.                    Prior to trial, Judge
Linebaugh conducted a site visit.
              On February 9, 2016, the Association filed its pre-trial brief wherein it
argued the business judgment rule as a defense to the McCabes’ action. On the
evening of February 12, 2016, the McCabes’ witness, former Association President
Howard Asche (Asche), informed the McCabes that he could not attend trial due to a
scheduling conflict. On February 15, 2016, the McCabes filed a First Motion for a
Trial Continuance (Continuance Motion) by first class mail with a certificate of
service dated February 15, 2016.5 Therein, the McCabes explained that Asche was
unavailable and that his testimony was directly relevant to the Association’s business
judgment rule defense.6 The trial court’s Prothonotary’s office time-stamped the

       5
         The McCabes state in their brief to this Court that they “timely filed their [Continuance
Motion] on the next day the York [County] Prothonotary’s office was open, which was February 16,
2016 due to the weekend, a holiday and inclement weather. This was only one (1) day prior to the
date of trial itself, however.” McCabes’ Br. at 12. There is no explanation for the discrepancy
between the February 15, 2016 mailing date, the February 17, 2016 time-stamped date, and the
McCabes’ representation that the Continuance Motion was filed on February 16, 2016.
       6
         Our Supreme Court has explained:

              The business judgment rule insulates an officer or director of a
              corporation from liability for a business decision made in good faith if
              he is not interested in the subject of the business judgment, is
              informed with respect to the subject of the business judgment to the
              extent he reasonably believes to be appropriate under the
              circumstances, and rationally believes that the business judgment is in
              the best interests of the corporation.
Cuker v. Mikalauskas, 692 A.2d 1042, 1045 (Pa. 1997). “[I]f a court makes a preliminary
determination that a business decision was made under proper circumstances, however that concept
                                                 4
Continuance Motion on February 17, 2016. Notwithstanding, the trial was held as
scheduled on February 17, 2016. On the last day of trial, the McCabes renewed their
Continuance Motion, and requested the trial court to keep the record open so they
could obtain Asche’s testimony before the trial court rendered a decision. The trial
court refused the McCabes’ request. In a February 17, 2016 written order, the trial
court denied the Continuance Motion, explaining:


is currently defined, then the business judgment rule prohibits the court from going further and
examining the merits of the underlying business decision. Id. at 1047.
         Although the parties herein argue the business judgment rule, our Superior Court has found
that Section 5303 of the Act

              govern[s] the standard with which we review decisions made by the
              [association’s executive b]oard. This section is stated, in pertinent
              part, as follows:

                      § 5303. Executive board members and officers

                      (a) POWERS AND FIDUCIARY STATUS.--Except
                      as provided in the declaration, in the bylaws, in
                      subsection (b) or in other provisions of this subpart, the
                      executive board may act in all instances on behalf of
                      the association. In the performance of their duties, the
                      officers and members of the executive board shall
                      stand in a fiduciary relation to the association and shall
                      perform their duties, including duties as members of
                      any committee of the board upon which they may
                      serve, in good faith; in a manner they reasonably
                      believe to be in the best interests of the association;
                      and with care, including reasonable inquiry, skill and
                      diligence as a person of ordinary prudence would use
                      under similar circumstances. [ . . . ].

              68 Pa.C.S.[] § 5303. Therefore, [a court] review[s] the actions of the
              [association’s executive b]oard to determine if they acted ‘in good
              faith; in a manner they reasonably believe to be in the best interests of
              the association; and with care, including reasonable inquiry, skill and
              diligence as a person of ordinary prudence would use under similar
              circumstances.’ See 68 Pa.C.S.[] § 5303.

Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675, 683 (Pa. Super. 2007).

                                                  5
              The [trial court] conducted a pretrial conference in this
              matter on October 1, 2015. At that time, Counsel selected
              the date for the trial and had selected the date for today’s
              date and time.
              The allegation in the motion is that there’s a witness who is
              unavailable because he has meetings in New Jersey relative
              to this appointment, and that is not a sufficient justification
              to continue the trial when a witness could have been made
              available by the moving party.

R.R. at 345a-346a.
              On March 23, 2016, the trial court found in favor of the Association and
against the McCabes on the McCabes’ counterclaim (March 23, 2016 Order). The
McCabes filed the Post-Trial Motion seeking reconsideration, a new trial or other
equitable relief. On April 15, 2016, the trial court denied the McCabe’s Post-Trial
Motion. The McCabes appealed to the Pennsylvania Superior Court. The Superior
Court, sua sponte, transferred the matter to this Court.7
              The McCabes first argue that the trial court erred when it granted the
Association’s partial summary judgment motion.                 The McCabes contend that a
genuine issue of material fact8 remains regarding whether the Association breached
the Declaration, thereby justifying the McCabes’ failure to pay their assessments.
               Section 5314 of the Act provides:

              (a) General rule.--Until the association makes a common
              expense assessment, the declarant shall pay all the expenses
              of the planned community. After any assessment has been
              made by the association, assessments shall be made at least
              annually, based on a budget adopted at least annually by the
       7
          “Appellate review of a trial court’s grant of summary judgment is limited to determining
whether the trial court committed an error of law or abused its discretion. Moreover, summary
judgment may be granted only in cases where it is clear and free from doubt that the moving party is
entitled to judgment as a matter of law.” Bashioum v. Cnty. of Westmoreland, 747 A.2d 441, 442
n.1 (Pa. Cmwlth. 2000) (citation omitted).
        8
          “A material fact is one that directly affects the outcome of the case.” Kenney v. Jeanes
Hosp., 769 A.2d 492, 495 (Pa. Super. 2001) (quoting Kuney v. Benjamin Franklin Clinic, 751 A.2d
662, 664 (Pa. Super. 2000)).
                                                 6
            association. The budgets of the association shall segregate
            limited common expenses from general common expenses
            if and to the extent appropriate.
            (b) Allocation and interest.--Except for assessments under
            subsection (c), all common expenses shall be assessed
            against all the units in accordance with the common
            expense liability allocated to each unit in the case of general
            common expenses and in accordance with subsection (c) in
            the case of special allocation of expenses. Any past[-]due
            assessment or installment thereof shall bear interest at the
            rate established by the association at not more than 15% per
            year.
            (c) Special allocations of expenses.--Except as provided by
            the declaration:
               (1) Any common expense associated with the
               maintenance, repair or replacement of a limited common
               element shall be assessed in equal shares against the units
               to which that limited common element was assigned at
               the time the expense was incurred.
               (2) Any common expense benefiting fewer than all of the
               units shall be assessed exclusively against the units
               benefited.
               (3) The costs of insurance shall be assessed in proportion
               to risk, and the costs of utilities that are separately
               metered to each unit shall be assessed in proportion to
               usage.
               (4) If a common expense is caused by the negligence or
               misconduct of any unit owner, the association may assess
               that expense exclusively against his unit.
68 Pa.C.S. § 5314 (text emphasis added). Section 5315(a) of the Act states:
            The association has a lien on a unit for any assessment
            levied against that unit or fines imposed against its unit
            owner from the time the assessment or fine becomes
            due. The association’s lien may be foreclosed in a like
            manner as a mortgage on real estate. A judicial or other
            sale of the unit in execution of a common element lien or
            any other lien shall not affect the lien of a mortgage on the
            unit, except the mortgage for which the sale is being held, if
            the mortgage is prior to all other liens upon the same
                                          7
             property except those liens identified in [Section 8152(a) of
             the Judicial Code,] 42 Pa.C.S. § 8152(a) (relating to judicial
             sale as affecting lien of mortgage) and liens for planned
             community assessments created under this section. Unless
             the declaration otherwise provides, fees, charges, late
             charges, fines and interest charged under [S]ection
             5302(a)(10), (11) and (12) [of the Act] (relating to power of
             unit owners’ association) and reasonable costs and expenses
             of the association, including legal fees, incurred in
             connection with collection of any sums due to the
             association by the unit owner or enforcement of the
             provisions of the declaration, by[-]laws, rules or regulations
             against the unit owner are enforceable as assessments under
             this section. If an assessment is payable in installments and
             one or more installments are not paid when due, the entire
             outstanding balance of the assessment becomes effective as
             a lien from the due date of the delinquent installment.

68 Pa.C.S. § 5315(a) (emphasis added).
             The Pennsylvania Superior Court in Rivers Edge Condominium
Association v. Rere, Inc., 568 A.2d 261 (Pa. Super. 1990), was the first appellate
court to address the issue of whether a condominium unit owner can withhold
assessment payments based on an association’s failure to maintain the common areas.
In Rivers Edge, a condominium owner refused to pay assessments to the association
because the owner believed that the association had failed to maintain and repair the
common elements. The owner also claimed that he suffered property damage caused
by water leaks.9 The Superior Court held that the owner’s “action in withholding his
condominium assessments, even assuming that he has suffered the property damage
he alleges, is not justified by the language of the . . . [c]ondominium [b]y-laws, the
statutes of this Commonwealth, or general public policy considerations.” Id. at 263.
             The Rivers Edge Court expounded:

             The [c]ondominium [b]y–[l]aws explicitly require that a
             unit owner continue to pay the condominium assessment

      9
        The governing statute in Rivers Edge was the Uniform Condominium Act, 68 Pa.C.S. §§
3101-3414.
                                            8
even if the owner is not receiving services owed to him, i.e.,
repairs to the common elements. When an individual
purchases a condominium unit . . . , he necessarily accepts
this provision allowing for no exemption from payment of
the assessments. Such a provision benefits all of the unit
owners because if all unit owners continue to pay the
assessments, maintenance and repairs to the common
elements will continue to be possible. A condominium
form of ownership in real estate succeeds, because unit
owners agree to cooperate in the maintenance of
common elements.           When the [property owner]
purchased his [condominium] units . . . , he chose to
accept the benefits and obligations which accompany
this form of real estate ownership. Although no appellate
court in Pennsylvania has addressed the issue of whether
the owner of a condominium unit may withhold
condominium assessments based upon the alleged failure of
the condominium association to maintain common
elements, this issue was addressed by the Court of Common
Pleas of Philadelphia in Society Hill Towers Owners’
Association v. Matthew, 32 Pa. D. & C.3d 244 (1982).
There, a judgment by confession had been entered in favor
of a condominium association against unit owners who had
failed to pay assessments. The unit owners claimed that
they failed to pay the assessments due to the failure of the
[a]ssociation to provide required maintenance services. The
trial court aptly responded to this contention:
      Regarding petitioners’ contention that their
      obligation to pay was dependent upon the
      provision of services, nothing in their deed, the
      Condominium Declaration or Code of
      Regulations supports it. Under the Code of
      Regulations, unit owners are required to pay all
      assessments and have no right to withhold
      payment for alleged nonprovision of services.
      Petitioners should have directed their dispute
      over maintenance services to the condominium
      council rather than unilaterally withholding
      assessments.
Id. at 247-[]48.
We find it significant that nothing in [the Act] supports the
type of self-help action undertaken by the [condominium

                              9
                owner]. Had the Legislature intended to allow owners of
                condominium units to withhold assessments where
                owners believe that their condominium association is not
                performing its obligations properly, we believe the
                Legislature would have explicitly so provided.

Rivers Edge, 568 A.2d at 263 (bold emphasis added).10 Accordingly:

                [N]othing in the [Act] supports the type of self-help action
                undertaken by [the McCabes].            Had the Legislature
                intended to allow owners of [homes subject to homeowners’
                associations] to withhold assessments where owners believe
                that their . . . association is not performing its obligations
                properly, we believe the Legislature would have explicitly
                so provided.

Id. at 263.11

       10
           In Rivers Edge, the by-laws explicitly required “that a unit owner continue to pay the
condominium assessment even if the owner is not receiving services owed to him.” Id. at 263.
Although, there is no similar provision in the Association’s Declaration, we do not find that factor
dispositive, since the other considerations discussed in Rivers Edge also apply here.
        11
           More recently, in Fawn Ridge Estates Homeowners Association v. Carlson (Pa. Cmwlth.,
No. 1462 C.D. 2010, filed July 25, 2011), an unreported opinion, this Court endorsed the Superior
Court’s position in Rivers Edge that withholding assessment payments based on an owner’s alleged
harm is impermissible and applied the same legal analysis to a homeowner’s association. It stated:

                Although [a]ppellants’ ancillary issues allege improprieties and/or
                illegalities of the assessments, such issues are not a defense for
                non-payment and cannot be used to delay payments that are due
                as a matter of law to the [a]ssociation. See generally Locust Lake
                Vill[.] Prop[.] Owners Ass[’n] v. Wengerd, 899 A.2d 1193, 1199 (Pa.
                Cmwlth. 2006) (rejecting the homeowners’ argument that they are not
                liable for the association’s charges); Hess v. Barton Glen Club, Inc.,
                718 A.2d 908, 913 (Pa. Cmwlth. 1998) (concluding that all of the
                owners are responsible for a proportionate share of the costs of
                maintaining all of the association’s common facilities); Spinnler Point
                Colony Ass[’n], Inc. v. Nash, 689 A.2d 1026, 1029 (Pa. Cmwlth.
                1997) (holding that appellants, ‘who have the right to travel the
                development roads and to access the waters of a lake, are obligated to
                pay a proportionate share for repair, upkeep and maintenance of the
                development’s roads, facilities and amenities’); Fogarty v. Hemlock
                Farms C[mty.] Ass[’n], Inc., 685 A.2d 241, 244 (Pa. Cmwlth. 1996)
                (holding that absent language in the deed covenant prohibiting an
                association from levying special assessments for capital
                                                  10
               As a matter of law, the McCabes were required to pay the Association’s
assessments regardless of any alleged inadequacies in the Association’s performance.
Therefore, since any such breach of the Association’s Declaration would not relieve
the McCabes of their obligation to pay their assessments, the question of whether the
Association breached them does not involve a material fact. Thus, the trial court
properly granted the Association’s partial summary judgment motion.12


               improvements, the homeowners may be assessed their proportionate
               costs to construct the new improvements); Meadow Run & Mountain
               Lake Park Ass[’n] v. Berkel, 598 A.2d 1024, 1026 (Pa. Super. 1991)
               (noting that residential communities are ‘analogous to mini-
               governments’ that ‘are dependent on the collection of assessments to
               maintain and provide essential and recreational facilities’ and that,
               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
               association’s ability to impose reasonable assessments to fund the
               maintenance of those facilities); Wrenfield Homeowners Ass[’n], Inc.
               v. DeYoung, 600 A.2d 960, 964 (Pa. Super. 1991) (holding that the
               association’s declaration clearly makes the defaulting homeowner
               liable for assessments plus the cost of collection for the amount in
               default to the association, including attorneys’ fees); Rivers Edge . . .
               (holding that appellant’s action in withholding his condominium
               assessments, even assuming that he has suffered the property damage
               he alleges, is not justified by the language of the By–Laws, the
               statutes of this Commonwealth, or general public policy
               considerations).
Fawn Ridge Estates, slip op. at 6-7 n.8 (emphasis added). Although this Court’s unreported
memorandum opinions may only be cited “for [their] persuasive value,” we find Fawn Ridge
Estates particularly instructive. Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
        12
           The McCabes focus on the contractual nature of their obligation to pay assessments, and
the Association’s purported failure to meet its obligations thereunder. However, the McCabes’ duty
to pay assessments was triggered by their purchase of the Property. The Association’s imposition
of assessments and the McCabes’ obligations were created by the Act, and thus do not arise by
contract.
        The McCabes also claim that despite the provision in Section 5315(a) of the Act stating that
“[t]he [A]ssociation has a lien on a unit for any assessment levied against that unit or fines imposed
against its unit owner from the time the assessment or fine becomes due[,]” an association’s lien
                                                 11
               The McCabes next argue that the trial court erred when it denied their
Continuance Motion. Although the McCabes acknowledge that “[t]he decision to
grant or deny a continuance is exclusively within the discretion of the trial court, and
this Court will not disturb the trial court’s determination in the absence of an apparent
abuse of discretion[,]” they contend that the trial court abused its discretion because
the trial court’s judgment was manifestly unreasonable. McCabes’ Br. at 23 (quoting
Gillespie v. Dep’t of Transp., Bureau of Driver Licensing, 886 A.2d 317 (Pa. Cmwlth
2005)). Specifically, the McCabes assert that the trial court acted unreasonably by
denying their Continuance Motion where their unavailable witness was the sole
individual able to rebuke the Association’s business judgment rule defense.
               The Association responds:

               If the McCabes thought that [] Asche was a crucial trial
               witness, which [the Association] disputes, all they had to do
               was issue a trial subpoena to him or schedule his deposition
               for use at trial. Perhaps [] Asche’s meeting in New Jersey
               was not scheduled until the evening of February 12th,
               although that would seem to be questionable, and again,
               nothing was presented at trial to really explain why [] Asche
               allegedly did not become unavailable until the evening of
               February 12, 2016.

Association’s Br. at 27-28.

               Although it is the policy of the law that parties to an action
               have the benefit of the personal attendance of material
               witnesses whenever reasonably practicable, it lies within the

must be foreclosed in a like manner to a mortgage foreclosure. 68 Pa.C.S. § 5315(a). They further
contend that “[m]ortgage foreclosures still require proof of a contract, the mortgage, and no case
law or statutory authority exempts them from the same rule of prior material breach that applies to
all contracts.” McCabes’ Br. at 22.
        Conversely, Section 5315 of the Act states that “[t]he association’s lien may be foreclosed
in a like manner as a mortgage on real estate.” 68 Pa.C.S. § 5315(a) (emphasis added). Such
language is not mandatory. Further, since the imposition of assessments arises from the Act, proof
of contract is not required. Property ownership subject to the Association is all that is required.
Finally, as previously discussed, the Association’s alleged prior material breach did not relieve the
McCabes of their assessment payment obligations.
                                                 12
             discretion of the trial court to determine, in the light of all
             the circumstances of each case, whether or not a case before
             it should be continued on the ground of absence of material
             witnesses. [See Carey v. Phila. Transp. Co., 237 A.2d 233
             (Pa. 1968); Barner v. Juniata Cnty. Tax Claim Bureau, 522
             A.2d 169 (Pa. Cmwlth. 1987); Williamson v. Phila. Transp.
             Co., 368 A.2d 1292 (Pa. Super. 1976).] In granting a
             continuance based on the absence of a witness, the trial
             court may require a party to show he or she exercised
             due diligence in attempting to secure a witness for trial.
             [See In re Kuzmiak, 845 A.2d 961 (Pa. Cmwlth. 2004); City
             of New Castle v. Uzamere, 829 A.2d 763 (Pa. Cmwlth.
             2003).] A continuance because of the absence of a
             witness will only be granted where it is shown that the
             expected testimony is competent and material and not
             merely cumulative or impeaching, that the testimony is
             credible and would probably affect the outcome of the trial,
             and that due diligence has been exercised to secure the
             witness for trial, including efforts to subpoena the
             absent witness and to take his or her deposition. [See
             Carey; Nikole, Inc. v. Klinger, 603 A.2d 587 (Pa. Super.
             1992); Barner; Kaplan v. Redev. Auth. of City of Phila., 403
             A.2d 201 (Pa. Cmwlth. 1979); Williamson.]

7 STANDARD PA. PRACTICE 2d, “Continuances and Mistrials,” § 38:17 (footnotes
omitted; emphasis added).
             Accordingly, contrary to the McCabes’ assertion, whether the witness
was important or even necessary to the McCabes’ case is not the sole determining
factor in evaluating the reasonableness of the trial court’s disposition but, as argued
by the Association, the McCabes’ conduct must also be considered. Given the late
notice, and the fact that the McCabes failed to subpoena Asche or take his deposition
for use at trial, the McCabes did not exercise due diligence to secure him for trial,
thus the trial court’s denial of the continuance request was not an abuse of discretion,
even if Asche was crucial to their case. Accordingly, we conclude the McCabes’
argument lacks merit.
             Finally, the McCabes contend that the trial court erred when it denied
their Post-Trial Motion because “[t]he [t]rial [c]ourt’s conclusion . . . is simply not
                                           13
supported by the record and is therefore an abuse of discretion to such an extent that
it shocks the conscience.” McCabes’ Br. at 28. Specifically, the McCabes argue that
the trial court ignored the Association’s admission that it had failed to maintain the
Common Area.
            This Court has explained:

            When reviewing a trial court’s denial of a motion for post-
            trial relief, our scope of review is limited to a determination
            of whether the trial court abused its discretion or committed
            an error of law. Additionally, we must review the record in
            a light most favorable to the verdict winner, who is afforded
            the benefit of all reasonable inferences that arise from the
            evidence.

Ellis v. City of Pittsburgh, 703 A.2d 593, 593 (Pa. Cmwlth. 1997) (citation omitted).
            The McCabes testified with respect to the condition of the Property and
the Common Area. Mr. McCabe explained that there is a hill at the rear of their yard.
The rear property line extends approximately 20 feet down the hill.           The hill
continues for approximately another 20 feet. According to Mr. McCabe, there is a
field with a retaining pond approximately 100 feet away, at the bottom of the hill.
Mr. McCabe claimed that the retaining pond and the land adjacent to the rear
Property line became excessively overgrown with weeds and that, although he
informed the Association about his concerns, the Association failed to address them.
He stated that such overgrowth resulted in insects, rodents and snakes. Because the
Association failed to take action, he hired an individual to remove the weeds and
brush. He also testified that he purchased equipment to remove the overgrowth. Mr.
McCabe acknowledged that, for the past two years, the Association has been mowing
the 20-foot portion of Common Area on the hill. Jennifer McCabe confirmed that she
and Mr. McCabe had contacted the Association numerous times about the Common
Area’s condition, that ticks had infested the Property, and that she and Mr. McCabe
had paid for the Common Area’s care.
                                          14
            The Association’s secretary Louis Dimitri (Dimitri) testified:

            [W]e typically develop a plan usually around the beginning
            of the year on what we plan to mow. We develop our
            budget, which we present to the homeowners, and that’s the
            plan we implement throughout the year. And as areas get
            turned over to [the Association by the developer], we add to
            it.

R.R. at 413a. Dimitri described:

            Q. On this mowing plan, does it show that that area would
            be mowed?
            A. No.
            Q. Why was that?
            A. Looking at the dates of this mowing plan, the
            Association -- the [Association’s] executive board [(Board)]
            was transitioned from developer-controlled to homeowner-
            controlled in March of 2012. What that means is that the
            developer held two positions -- two voting positions -- on
            the . . . Board and there was a Homeowner representative.
            In March of 2012. [sic] There were various – there’s a
            benchmark in the [D]eclaration[] when the developer was
            required to transfer over control of the . . . Board and the
            [A]ssociation from their control to the homeowners. So
            looking at the dates here that this was developed for the
            2011 and 2012 time, that this was developed when the
            developer Manekin was under control or in control of the
            Board.

R.R. at 419a-420a. Dimitri further represented:

            A. . . . . Beginning in 2012, once the transition was
            completed, the mowing plan started growing to fit the needs
            of the residents. And in talking with the [Association’s]
            President -- the current President Kim Erskine, who is on
            the [B]oard at the time -- that area behind the McCabe[s’
            Property] was addressed to a certain length, which I believe
            was testified about 20 feet or so.
            Q. Down to the bottom of that bank . . . ?


                                         15
             A. Yes. It’s about 20 feet, give or take, I believe. Yes.
             Q. And beyond that where it levels out, that’s the retention
             pond area that’s under the control of the developers until
             it’s turned over?
             A. Correct. I believe -- and even to this day, I believe that
             they currently come through maybe once a year, sometimes
             twice, to kind of clear out some of the brush, but that is --
             we have usually no knowledge of when they’re going to do
             it or how frequently. We usually find out about it from
             other residents saying somebody was out here, and we
             know it wasn’t us.
             Q. As far as you know, was that maintenance for the
             County regulations or whatever the regulations are for
             storm water management areas or retention ponds, or don’t
             you know?
             A. I don’t know. I do know that the enforcement from what
             I read -- I believe enforcement either begins this year or
             next year. So I don’t know the purpose of clearing them
             out, other than aesthetics maybe.

R.R. at 421a-422a. Dimitri claimed that not all of the Development’s common areas
are mowed.
             In addition, Dimitri explained that part of the area behind the Property is
used for storm water management:

             Q. Now, the area behind the [McCabes’] house down at the
             bottom of the bank, what’s that area in there?
             A. That was part of the storm water or the storm water
             management – it’s still the temporary storm water
             management.
             Q. Technically, who’s in charge of that area at this time?
             A. That is the developer. They are -- the parent company is
             Manekin, but they have set up [a limited liability company],
             which is Logan’s Reserve Development, LLC. I believe
             that’s part of the way they do business for various reasons.



                                          16
            Q. Technically, is that under the control of the []
            Association?
            A. No, not at this time.
            Q. At some point, will it be?
            A. Yes. In talking with the point of contact for the
            developer at Manekin, that will occur once all the
            construction is completed. They will then turn into what is
            known as a permanent storm water management, and then it
            will be the [] Association’s responsibility to maintain it.
            Q. Now, what maintenance is done by the [] Association of
            an area such as that?
            A. In terms of the permanent pond, which are [sic] located .
            . . in the Grand Lake Pond, which is at the bottom of the
            Grand Lake Road . . . . Those at this time -- we will be
            maintaining them this year for the first time since they’ve
            been handed over. We’ve contracted a company called ESI
            to do the maintenance, and they [sic] will be maintaining it
            basically to the environmental and legal requirements that
            we are required to maintain the pond. Because otherwise, if
            we fail to do that, we face substantial fines.
            Q. And what exactly does that consist of? Making sure the
            grates are clear and things like that?
            A. Mowing weeds, clearing out brush around that.
            Basically making it so the ponds can function as intended.
            Q. But at this point, that is the responsibility of whom?
            A. On these two ponds?
            Q. The one behind the McCabe house.
            A. That’s currently the responsibility of the developer.

R.R. at 417a-419a (emphasis added). On cross-examination, Dimitri was asked:
“Does [the Association] currently define maintenance or maintained to include
homeowners being subject to ticks, bugs and snakes?”        R.R. at 423a.   Dimitri
answered “[n]o.” Id.


                                            17
             Finally, Dimitri responded to the trial court’s questions as follows:

             THE COURT: I just want to know whether or not the Board
             -- since you’ve been on the Board, as far as their [sic]
             discussions and decisions, decide what parts they’re [sic]
             going to maintain and how they’re going to be maintained.
             THE WITNESS: Yes. Certain areas – we get the mowing
             plan. I think this one was revised at the end of the season.
             The current one we have, we revised at the end of the
             season because substantial property was turned over to us.
             So we added to the plan. There’s still new areas that are
             under construction. We don’t know when we’re going to be
             responsible for that, and as that gets turned over, we either
             find out from the developer or from residents that complain.
             And we follow up on it, and we add to it throughout the
             year. We develop a plan. We sent it out for a bid this year
             for a new contractor.         Because the prior one was
             unsatisfactory, and we develop our budget on it, which I
             think is $72,000[.00] this year.
             THE COURT: And does the . . . Board do that as part of its
             duties as the overseeing Board?
             THE WITNESS: Yes.

R.R. at 426a-427a.
             Based on all of the evidence presented at the hearing, the trial court
concluded:

             At the times complained of by the [McCabes,] some of the
             common area elements were still under control of the
             developer and not the [] Association.
             Some of the areas were mowed short, some of the areas
             were longer, and some of the areas are rarely mowed and
             some of the areas are not maintained at all and kept as a
             natural area. This is a decision of the . . . [B]oard of the
             [A]ssociation and not of the individual homeowners.
             Each individual unit owner cannot determine how the
             common element areas are to be maintained so long as they
             are maintained in a reasonable manner. The [McCabes]
             have not met their burden of proof to establish that the

                                           18
             maintenance of the common element area was not in
             accordance with what is required under the [Declaration].
             Determination of the common area elements by the . . .
             [B]oard is pursuant to the [Act]. That [A]ct and the bylaws
             establish the powers of [sic] duties of the . . . [B]oard and it
             is the . . . [B]oard that is to regulate the use, maintenance,
             repair, replacement, and modification of the common
             elements.

March 23, 2016 Order at 2-3.
              The McCabes assert that Dimitri’s acknowledgement that “maintenance
or maintained” does not “include homeowners being subject to ticks, bugs and
snakes” is an admission that the Association failed to meet “the standard of
maintenance it had chosen for itself.” R.R. at 423a; McCabes’ Br. at 29. We
disagree with the McCabes’ interpretation of the aforementioned exchange. The
question was unclear at best, and Dimitri’s response was not an admission that the
Association failed to meet its responsibilities. We decline to interpret the ambiguous
question and answer to mean that the Association concedes that it failed to maintain
common areas any time a homeowner experiences ticks, bugs and/or snakes.
Further, even if the McCabes’ allegations that they were “subject to ticks, bugs, and
snakes” is true, there is no evidence that the Association’s alleged failure to maintain
the Common Area caused an increase in ticks, bugs and snakes. R.R. at 423a.
             Upon review of the record evidence and the trial court’s opinion, we
discern no error of law or abuse of discretion and, thus, affirm the trial court’s order
denying the McCabes’ Post-Trial Motion.
             For all of the above reasons, the trial court’s orders are affirmed.


                                        ___________________________
                                        ANNE E. COVEY, Judge

Judge McCullough did not participate in the decision in this case.


                                           19
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Logans’ Reserve Homeowners’         :
Association                         :
                                    :
           v.                       :
                                    :
Jeffrey McCabe and Jennifer McCabe, :   No. 820 C.D. 2016
                       Appellants   :

Logans’ Reserve Homeowners’         :
Association                         :
                                    :
           v.                       :
                                    :
Jeffrey McCabe and Jennifer McCabe, :   No. 821 C.D. 2016
                       Appellants   :


                                 ORDER


            AND NOW, this 4th day of January, 2017, the York County Common
Pleas Court’s April 22, 2014, February 17, 2016 and April 15, 2016 orders are
affirmed.



                                  ___________________________
                                  ANNE E. COVEY, Judge
