        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michaelene H. Pane, Michael F. Pane,    :
and Christina Pane                      :
                                        :
            v.                          : No. 1375 C.D. 2016
                                        : Argued: June 5, 2017
Indian Rocks Property Owners            :
Association, Inc. of Ledgedale,         :
                         Appellant      :

Michaelene H. Pane, Michael F. Pane     :
and Christina Pane,                     :
                       Appellants       :
                                        : No. 1376 C.D. 2016
            v.                          : Argued: June 5, 2017
                                        :
Indian Rocks Property Owners            :
Association, Inc. of Ledgedale          :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                   FILED: July 19, 2017


            Before this Court are the cross appeals of Michaelene H. Pane,
Michael F. Pane and Christina Pane (the Panes) and the Indian Rocks Property
Owners Association, Inc. of Ledgedale (Association) from the April 18, 2016 order
of the Court of Common Pleas of Wayne County (Trial Court). The Association
appeals from the order of the Trial Court to the extent it granted the summary
judgment motion filed by the Panes, denied the Association’s summary judgment
motion and directed the Association to issue an approval for the construction of a
swimming pool on property owned by the Panes in the Indian Rocks development
(Property). The Panes appeal from the Trial Court’s denial of their motion for
sanctions against the Association. For the reasons that follow, we affirm the order
of the Trial Court.
             The following facts are taken from the Panes’ Amended Complaint
and were admitted as true by the Association. The Property consists of three
parcels located at 3 Bear Rock Road within the Bear Tract section of the Indian
Rocks development in Lake Ariel, Wayne County, Pennsylvania.               (Amended
Complaint ¶¶1, 2, 6, 8, Reproduced Record (R.R.) 55a-56a.) A single-family
residence is situated on the Property.        (Id. ¶3, R.R. 56a.)   Francis Pane and
Michaelene Pane purchased the Property by a recorded deed on June 6, 1978 from
Sophie and Paul Woods. (Id. ¶¶10, 14, Ex. A, R.R. 56a-57a, 65a-68a.) This deed
states as follows:

             In addition to the restrictions, covenants, conditions, and
             rights as set forth in previous deeds, the grantees, for
             themselves, their heirs, executors, administrators and
             assigns agree to the following: All property owners in
             this development are required to be members of a
             property owners association which is organized in the
             section of the subdivision in which a property owner’s
             lot(s) is located. Property owners are required to follow
             the rules and regulations promulgated by their property
             owners association.

(Id. Ex. A, R.R. 66a (emphasis added).) Francis Pane died in 1981 and sole
ownership of the Property passed by operation of law to Michaelene Pane as the
surviving spouse. (Id. ¶¶1, 11, R.R. 55a, 57a.) Michaelene Pane remains the
record owner of the Property, and Michael Pane, Michaelene’s son, and his wife,
Christina Pane, currently live on the Property. (Id. ¶¶3, 4, R.R. 56a.)


                                          2
            At the time that Francis and Michaelene Pane purchased the Property
in 1978, the Property was subject to various restrictive covenants recorded on June
1, 1956 by the developer of the Bear Tract section of the Indian Rocks
development. (Id. ¶12, Ex. B, R.R. 57a, 70a-73a.) In 2003, the Board of Directors
of the Association adopted Resolution 2003-12 setting forth rules and regulations
concerning the installation of swimming pools on individual lots. (Id. ¶28, Ex. F,
R.R. 59a, 85a.) The following year, the Board adopted Resolution 2004-8 revising
and amending the rules and regulations concerning pools and specifically
prohibiting in-ground pools. (Id. ¶28, Ex. F, R.R. 59a, 86a-87a.) In 2009, the
Board adopted Resolution 2009-7 repealing Resolutions 2003-12 and 2004-8. (Id.
¶29, R.R. 59a.)
            On June 19, 2015, Michael and Christina Pane, with the authorization
of Michaelene Pane, wrote to the Architectural Control Commission of the
Association stating that they intended to begin construction on an in-ground
fiberglass swimming pool the following month. (Id. ¶18, Ex. D, R.R. 58a, 81a.)
The Association, through its Community Manager, responded on June 24, 2015
stating that the request to build the pool was refused because Association rules and
regulations prohibit the construction of pools on individual lots within the Indian
Rocks development. (Id. ¶¶19, 30, Ex. E, R.R. 58a-59a, 83a.)
            On August 5, 2015, the Panes filed a complaint in the nature of
mandamus in the Trial Court against the Association seeking an order compelling
the Association to approve the construction of the proposed in-ground swimming
pool on the Property.     Following preliminary objections, the Panes filed an
amended complaint omitting the request for mandamus relief and instead
requesting declaratory judgment that the Association was not entitled to prohibit


                                         3
the Panes from building a swimming pool and equitable relief in the form of an
order directing the Association to issue an approval to build the pool.
             On August 11, 2015, the Association filed a complaint in the Trial
Court under a separate docket number; in that complaint, the Association requested
a preliminary injunction against Michaelene Pane in order to prevent the
completion of construction of, or use of, the pool. On that same day, the Trial
Court entered an order issuing the preliminary injunction.
             Following discovery in the case brought by the Panes, the Panes and
the Association filed cross motions for summary judgment. In their motion, the
Panes asserted that there was no language in the deed or restrictive covenants that
would prohibit the Panes from building a swimming pool on their Property and that
there was no resolution banning swimming pools in Indian Rocks that was in effect
in 2015 when the Panes began construction of their pool. The Panes argued that
their use and enjoyment of the Property, including the installation of an in-ground
pool, could not be limited absent a resolution passed in accordance with the
Association’s bylaws.
             The Association argued that the Panes were bound to comply with the
rules and regulations of the Association which act as restrictive covenants running
with the land and that pools were expressly forbidden as of the date the Panes
began construction. As evidence of this pool prohibition, the Association attached
a document to their summary judgment motion entitled “Rules and Regulations”
that states that “[p]ools are prohibited on individual lots.” (Association Summary
Judgment Motion ¶¶11, 13, Ex. A, R.R. 181a, 193a.) This document states that it
was last revised on February 22, 2014 and appears to be a part of the Association’s
handbook. (Id. Ex. A, R.R. 184a.) In addition, the Association introduced an


                                          4
undated copy of the Rules and Regulations of the Association’s Architectural
Control Commission stating that “[i]n ground and above ground pools are NOT
ALLOWED.” (Association Answer to Panes’ Summary Judgment Motion ¶45,
Ex. B, R.R. 299a, 309a.) While the Association admitted that the 2004 resolution
banning in-ground pools was repealed in 2009 and no written resolution banning
pools was in effect in 2015, it asserted that it was the “clear understanding and
intention” of the Board to prohibit pools within Indian Rocks from 2009 forward.
(Id. ¶¶36, 38, 39, R.R. 298a-299a.) In support of this assertion, the Association
submitted affidavits by three Board members who were present at the January 24,
2009 Board of Directors Meeting in which the 2003 and 2004 resolutions setting
forth regulations on pools were repealed; in those affidavits, the Board members
stated that “[i]t was the Boards [sic] clear understanding and intention that once
these resolutions were repealed, there would be no pools allowed in Indian Rocks.”
(Id. Ex. A, R.R. 303a-305a.)
            On April 18, 2016, President Judge Raymond L. Hamill of the Trial
Court entered an opinion and order granting the Panes’ motion for summary
judgment, denying the Association’s motion for summary judgment, directing the
Association to issue an approval for the swimming pool and denying a motion for
sanctions by the Panes.        In the opinion, the Trial Court stated that, while
Resolutions 2003-12 and 2004-8 created rules for installations of pools on property
within the Indian Rocks development, these resolutions were repealed by
Resolution 2009-7. Further, the Trial Court noted that the Association admitted
that there was now no written resolution prohibiting swimming pools on individual
lots. Therefore, the Trial Court concluded that the Association had failed to
demonstrate that swimming pools were prohibited on individual lots in the


                                          5
development and held that there was no genuine issue of material fact. Following
the issuance of the ruling on the summary judgment motions, on June 23, 2016, the
Trial Court entered an order dissolving the injunction enjoining Michaelene Pane
from completing construction and using the pool.
               The Panes and the Association each filed notices of appeal of the Trial
Court’s decision.1 The Trial Court issued a Rule 1925(a) opinion on June 29, 2016
setting forth two reasons to justify its decision to deny the Panes’ motion for
sanctions. First, the Trial Court held that the motion, which was made orally
during argument on the summary judgment motions, did not comply with the
requirements of Rule of Civil Procedure No. 1032.2(a) that motions for sanctions
be made separately from other motions and that the motion includes a description
of the specific conduct that allegedly gives rise to the sanctions. Second, the Trial
Court concluded that the appeal of the denial of the request for sanctions was filed
under the docket number for the Panes’ case for declaratory judgment when it
should have been filed in the action initiated by the Association seeking a
preliminary injunction.
               In its appeal,2 the Association argues that the Trial Court erred by
denying its motion for summary judgment and instead granting summary judgment

1
  The cross appeals were initially filed in Superior Court; on July 11, 2016, the Superior Court
ordered the appeals transferred to this Court. By a December 28, 2016 order of this Court, the
appeals were consolidated and the Association was designated appellant pursuant to Rule of
Appellate Procedure 2136.
2
  Because appellate review of a trial court ruling on summary judgment motions entails a
question of law, our standard of review is de novo and our scope of review is plenary. Starling v.
Lake Meade Property Owners Association, Inc., ___ A.3d ___ (Pa., No. 30 MAP 2016, filed
May 25, 2017), slip op. at 19, 2017 WL 2312073 at *9; Pyeritz v. Commonwealth, 32 A.3d 687,
692 (Pa. 2011). Our Supreme Court has explained the standard of review employed by trial
courts reviewing summary judgment motions as follows:
(Footnote continued on next page…)
                                                6
in favor of the Panes and ordering the Association to issue an approval for the
pool. The Association contends that the Panes were bound by the prohibition of
pools in the Rules and Regulations in the Association’s handbook and the
Architectural Control Commission’s Rules and Regulations.                     Furthermore, the
Association argues that the affidavits of its Board members stating that the Board
intended to prohibit pools following the 2009 repeal of the 2003 and 2004
resolutions at least create a genuine issue of material fact as to whether such a
prohibition exists that would defeat summary judgment in favor of the Panes.
                The Association argues that, while restrictions on the use and
enjoyment of land by property owners are generally disfavored, restrictive
covenants are nevertheless legally enforceable. See Vernon Township Volunteer
Fire Department, Inc. v. Connor, 855 A.2d 873, 879 (Pa. 2004). The Association
asserts that the Panes were bound by the 1978 deed from Michaelene Pane and her
late husband’s purchase of the Property, which explicitly stated that the owners
were “required to follow the rules and regulations promulgated by” the
Association. (Amended Complaint, Ex. A, R.R. 66a.) The Association argues that
it was also authorized to enact rules and regulations pursuant to the Uniform
Planned Community Act,3 a statute which governs the creation and management of

(continued…)
     Summary judgment is appropriate only in those cases where the record clearly
     demonstrates that there is no genuine issue of material fact and that the moving party is
     entitled to judgment as a matter of law.... The reviewing court must view the record in the
     light most favorable to the nonmoving party, resolving all doubts as to the existence of a
     genuine issue of material fact against the moving party. When the facts are so clear that
     reasonable minds cannot differ, a trial court may properly enter summary judgment.
Starling, slip op. at 19-20, 2017 WL 2312073 at *9 (quoting Gilbert v. Synagro Central, LLC,
131 A.3d 1, 10 (Pa. 2015)).
3
    68 Pa. C.S. §§ 5101–5414.


                                                 7
planned communities and which specifically authorizes a “unit owners’
association” to “[a]dopt and amend...rules and regulations.”                 68 Pa. C.S. §
5302(a)(1). In addition, the Association cites to our Supreme Court’s decision in
Indian Rocks Property Owners Association, Inc. of Ledgedale v. Glatfelter, 28
A.3d 1261 (Pa. 2011), wherein the Court addressed whether owners of property in
Indian Rocks were exempt from Association rules relating to construction of a
structure based on an exemption for recreational cabins in the Pennsylvania
Construction Code Act.4 In that decision, the Court recognized the Association’s
“broad discretion in determining what can or cannot be built within its community”
and that the Association’s “rules and regulations” act as “protective covenants
running with the land.” Id. at 1262, 1266.
                Upon review, we conclude that the Trial Court’s ruling on the
summary judgment motions was not in error. At issue in this case is not whether
the Association had the authority to limit the right of the Panes to build on their
land. There is no dispute that the Association was permitted to enact rules and
regulations regarding the construction of structures on the parcels within the Indian
Rocks development. Rather, the issue here is whether there existed any duly
enacted prohibition of the building of pools in 2015 when the Panes sought to
install a pool on the Property. While there had existed prohibitions on pools in the
past, the Association repealed those prohibitions in 2009. The Association cites
two sources for a prohibition on the construction of pools in 2015: the Rules and
Regulations in the Association’s handbook and the Rules and Regulations of the
Architectural Control Commission. However, the Association has at no point cited


4
    Act of Nov. 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101–7210.1103.


                                                8
any resolution or any other official action by the Board that adopted the rules and
regulations banning pools.     Unlike other rules in the Association’s handbook
related to the construction and use of structures on Indian Rocks properties, such as
the rules related to fences, exterior work, hot tubs and outdoor furnaces, the rule
banning pools does not state the Board resolution that established the rule.
(Association Summary Judgment Motion Ex. A, R.R. 190a-193a.) Indeed, the
Association admitted in its answer to the Panes’ summary judgment motion that no
written resolution existed that would ban pools following the Board’s adoption of
Resolution 2009-7, which repealed the two prior resolutions regulating the
installation of pools. (Association Answer to Panes’ Summary Judgment Motion
¶¶36, 38, 39, R.R. 298a-299a.)
             Furthermore, the Association’s argument that the Board had the “clear
understanding and intention” to ban pools following the 2009 repeal of Resolutions
2003-12 and 2004-8 does not establish a restriction that would prevent Indian
Rocks property owners from building a pool. (Id. ¶¶36, 38, 39, Ex. A, R.R. 298a-
299a, 303a-305a.) “Because land use restrictions are not favored in the law, they
are to be strictly construed, and ‘nothing will be deemed a violation of such a
restriction that is not in plain disregard of its express words....’” Vernon Township,
855 A.2d at 879 (quoting Jones v. Park Lane for Convalescents, Inc., 120 A.2d
535, 537 (Pa. 1956)). Whatever understanding and intention the Board members
had following the 2009 repeal of the restrictions on pools, it was not an official
action of the Board that could constrain the Panes’ use and enjoyment of their
Property.
             The Association argues that the Trial Court, by stating in its opinion
that the Association “has failed to adduce sufficient evidence on whether


                                          9
swimming pools are prohibited on individual lots” (Apr. 18, 2016 Opinion and
Order at 2), improperly placed the burden on the Association to produce evidence
of a rule prohibiting swimming pools when the Panes, not the Association, bore the
burden of proof to show that no genuine issue of material fact existed that pools
were permitted in the Indian Rocks development. While it is true that the party
moving for summary judgment bears the burden to demonstrate that there is no
genuine issue of material fact, see Burke v. City of Bethlehem, 10 A.3d 377, 379
n.4 (Pa. Cmwlth. 2010), Rule of Civil Procedure 1035.3(a) requires that “the
adverse party may not rest upon the mere allegations or denials of the pleadings.”
Pa. R.C.P. No. 1035.3(a). Rather, the adverse party must identify in its response
issues of fact from evidence in the record controverting the moving party’s
assertions, credibility issues in the testimony of the witnesses relied on by the
moving party or evidence in the record essential to the cause of action or defense
which the moving party maintains was not produced. Pa. R.C.P. No. 1035.3(a)(1)-
(2). As the Trial Court pointed out, the Association here failed to cite to any
evidence in the record that there existed a covenant or official action by the Board
to prohibit pools as of the date when the Panes sought permission to build their
pool. Accordingly, the Trial Court did not err in granting the summary judgment
motion filed by the Panes, denying the Association’s summary judgment motion
and ordering that the Association issue an approval for construction of a pool on
the Property.
            In their appeal, the Panes argue that they were entitled to an award of
sanctions pursuant to Rule of Civil Procedure 1023.1 based on allegations in the
Association’s complaint seeking a preliminary injunction that it had adopted a rule




                                        10
prohibiting pools on individual lots within the Indian Rocks development.5 Rule
1023.1 requires that every pleading or motion be signed by an attorney or
unrepresented party and that the signature “constitutes a certificate” that “to the
best of that person’s knowledge, information and belief, formed after an inquiry
reasonable under the circumstances,...the factual allegations have evidentiary
support or, if specifically so identified, are likely to have evidentiary support after
a reasonable opportunity for further investigation or discovery.” Pa. R.C.P. No.
1023.1(b), (c)(3). The Explanatory Comment to Rule 1023.1 further explains that,
while an allegation without evidentiary support is not necessarily frivolous and
“this rule is not intended to chill an attorney’s enthusiasm or creativity in pursuing
factual or legal theories,” once “evidentiary support is not obtained after a
reasonable opportunity for further investigation or discovery, the party has a duty
under the rule not to persist with that contention.”             Pa. R.C.P. No. 1023.1,
Explanatory Comment.         The Panes assert that the Association was unable to
present any documentary support during discovery of any Board resolution
prohibiting pools and never withdrew its complaint or notified the Trial Court that
its allegations that served as the basis for the preliminary injunction were
unfounded. According to the Panes, it was only during oral argument on April 6,
2016, nearly eight months after the preliminary injunction complaint was filed on
August 11, 2015, that the Association conceded that no resolution was in effect
prohibiting pools at the time the Panes requested permission to begin building a
pool.


5
 A ruling on a motion for sanctions is reviewed to determine whether the trial court committed
an abuse of discretion. Pa. R.C.P. No. 1023.1, Note, Explanatory Comment; Dean v. Dean, 98
A.3d 637, 644 (Pa. Super. 2014).


                                             11
               We affirm the Trial Court’s denial of the Panes’ motion for sanctions.
As the Trial Court stated in its June 29, 2016 opinion, the Panes filed this appeal
under the docket number for their action seeking a declaratory judgment and
equitable relief rather than under the docket number given to the Association’s
action seeking a preliminary injunction.             Although this Court may permit an
appellant to correct a docket number on a notice of appeal, see Guy M. Cooper,
Inc. v. East Penn School District, 894 A.2d 179, 181-82 (Pa. Cmwlth. 2006)
(Simpson, J.), the Panes have undertaken no effort to amend their notice of appeal.
Furthermore, because the appeal was filed under the wrong docket number, the
complaint that purportedly contains the false allegations does not appear in the
record certified from the Trial Court. This Court is prohibited from reviewing
documents outside the record certified by the lower court. City of Pittsburgh
Commission on Human Relations v. DeFelice, 782 A.2d 586, 593 n.10 (Pa.
Cmwlth. 2001).
               The Panes’ motion for sanctions also did not comply with the “safe
harbor” requirement of Rule of Civil Procedure 1023.2. Rule 1023.2 mandates that
the party moving for sanctions include a certification with their motion that they
served written notice and demand on the party or counsel who verified the pleading
at issue that each false allegation be corrected or withdrawn and that the moving
party then provided the other party 28 days to withdraw the allegations or correct
the record before filing the motion for sanctions. Pa. R.C.P. No. 1023.2(b). The
Panes’ motion for sanctions was made orally during argument on the summary
judgment motions6 and the Panes did not file a certification affirming that a notice

6
  “[W]e’re entitled to dissolution of the injunction, plus we want to forfeit the [$2,000] they paid
in the court [as a bond for the preliminary injunction], I want an award of attorney’s fees because
(Footnote continued on next page…)
                                                12
and demand was served on the Association requesting the withdrawal of the
allegations or the correction of the record.
               Accordingly, the order of the Trial Court is affirmed.

                                              ____________________________________
                                              JAMES GARDNER COLINS, Senior Judge




(continued…)
[the resolution prohibiting pools] was never there. Ya know, they verified it, the client verified it
and it didn’t exist, so we’ve been chasing our tails for eight months. My clients have been
spending time and money for nothing.” (Apr. 6, 2016 Argument Transcript at 7, R.R. 337a.)


                                                13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michaelene H. Pane, Michael F. Pane,     :
and Christina Pane                       :
                                         :
            v.                           : No. 1375 C.D. 2016
                                         :
Indian Rocks Property Owners             :
Association, Inc. of Ledgedale,          :
                         Appellant       :

Michaelene H. Pane, Michael F. Pane      :
and Christina Pane,                      :
                       Appellants        :
                                         : No. 1376 C.D. 2016
            v.                           :
                                         :
Indian Rocks Property Owners             :
Association, Inc. of Ledgedale           :


                                     ORDER


            AND NOW, this 19th day of July, 2017, the order of the Court of
Common Pleas of Wayne County in the above-captioned matter is affirmed.


                                       ____________________________________
                                       JAMES GARDNER COLINS, Senior Judge
