J. A06012/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


NATURES WAY SPRINGS L.P., IND, AND      :      IN THE SUPERIOR COURT OF
AS A MEMBER OF LEHIGH POINTE            :           PENNSYLVANIA
PROPERTY OWNERS ASSOC. AN UNINC.        :
ASSN.,                                  :
                                        :
                        Appellant       :
                                        :
                  v.                    :
                                        :
C. PANEL HOLDING LLC ET AL,             :
                                        :      No. 1222 MDA 2015

                Appeal from the Judgment Entered July 6, 2015
               In the Court of Common Pleas of Luzerne County
                       Civil Division No(s).: 2011-09037

BEFORE: LAZARUS, J., STABILE ,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                              FILED MAY 25, 2016

     Appellant Nature’s Way Springs L.P., individually and as a member of

Lehigh Pointe Property Owners Association, appeals from the judgment

entered in its declaratory judgment action by the Luzerne County Court of

Common Pleas on July 6, 2015, in favor of Appellees, C. Panel Holding, LLC,

Clarence and Helen S. Peterson, Tamorah P. Murray, Diane M. Jellen, John

McCaffery and Louise F. Hoekstra, James C. Petty and Wallace L. Blore,

Matthew Benzinger, and Northumberland National Bank, as trustee of

Micheal Apfelbaum, SEP-IRA. After careful review, we affirm.

     The trial court set forth the relevant factual and procedural history of

this case in its April 29, 2015 Opinion and we adopt its recitation for

purposes of this Appeal. We summarize as follows.
J.A06012/16


      At issue in this matter is the deterioration of a road and culvert located

in Lehigh Pointe, a primarily residential area, and a “restrictive covenant”

requiring, among other things, the owners of the lots in Lehigh Pointe to

share in the costs of road maintenance equally. Appellant filed a declaratory

judgment action seeking a ruling that Appellees were obligated to share in

the cost of the repair of a roadway traversing the area.         After completing

discovery, Appellant moved for summary judgment. The trial court denied

the motion and the matter proceeded to a bench trial on Appellant’s request

for declaratory relief.   Following the trial, the court denied the relief

Appellant sought, holding that the relevant “restrictive covenant” was

actually an easement, and Appellant’s commercial use of 80,000 pound

vehicles to traverse the shared roadway was an unreasonable use of that

easement. Significantly, the trial court made the following findings of fact:

         1. Lehigh Pointe was originally intended to be a
         residential community, the development of which was to
         take place in phases.

         2. Development     stalled   before   the   first   phase   was
         complete.

         3. No Lehigh Pointe Property Owners Association was ever
         formed.

         4. Pointe Drive was intended for residential traffic.

         5. The Lehigh Pointe property owners’ deeds created a
         reciprocal scheme of easements granting each property
         owner the rights of ingress and egress over Pointe Drive.

         6. [Appellant’s] property was a dominant estate with
         regard to the easement over the Pointe Drive culvert.


                                      -2-
J.A06012/16



         7. A significant portion of the damage to the Pointe Drive
         culvert was caused by the introduction and continuation of
         significant truck traffic to and from the commercial spring.

Trial Ct. Op. at 13.

                                 Issues on Appeal

      Appellant raises the following three issues on appeal:

         1. Are the owners of a jointly held easement, created by
         the filing of a plot plan after approval by a local
         government unit, bound by the “restrictive covenants”
         clearly recited in the plan calling for the property owners to
         “share road maintenance costs equally?”

         2. Even if [ ] Appellant can be held to have exceeded the
         “reasonable scope” of its easement, should it be held to be
         solely responsible to repair the roadway, even though it
         had only come into possession of its property rights in
         2008 whereas the roadway in question was constructed
         many years earlier?

         3. Should summary judgment have been granted requiring
         the owners of the joint easement created in a filed
         subdivision plan to “share road maintenance costs equally”
         where there was no ambiguity in the “restrictive
         covenants” and no restrictions placed on any easement
         holder’s use of the shared easement?

Appellant’s Brief at 4.

                               Legal Analysis

      Our standard of review in a declaratory judgment action is as follows:

         We review the decision of the trial court as we would a
         decree in equity and set aside factual conclusions only
         where they are not supported by adequate evidence. We
         give plenary review, however, to the trial court’s legal
         conclusions.




                                     -3-
J.A06012/16


      In reviewing a declaratory judgment action, we are limited to
      determining whether the trial court clearly abused its discretion
      or committed an error of law.

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.

Jarl Investments, L.P. v. Fleck, 937 A.2d 1113, 1121 (Pa. Super. 2007)

(citations and quotation marks omitted).

      Further, this Court had set forth our standard of review of a decision

rendered following a non-jury trial as follows:

         [W]e recognize that findings of the lower court will not be
         disturbed on appeal absent a clear abuse of discretion or
         error of law. It is equally axiomatic, however, that this
         court is not bound by the trial court’s conclusions of law
         but is free to draw its own inferences and conclusions from
         the facts as established.

Minteer v. Wolfe, 446 A.2d 316, 318 (Pa. Super. 1982) (citations omitted).

      Issue 1

      Appellant first claims that the trial court erred in not requiring that the

owners of the lots in Lehigh Pointe share on a pro rata basis the cost of road

maintenance as required by Restrictive Covenant 6 of the Lehigh Pointe

subdivision plan, recorded in Luzerne County on August 5, 1987.

      Restrictive Covenant 6 states: “All roads in Lehigh Pointe are not to be

dedicated for public use and will be private.       All purchasers of lots will




                                      -4-
J.A06012/16


automatically      become   members         of   Lehigh   Pointe     Property   Owners

Association and will share road maintenance costs equally.” RR at 102a.

     The trial court found that, although listed on the subdivision plan as a

restrictive covenant, the purpose of Restrictive Covenant 6 was 1) to prevent

the roads in Lehigh Pointe from being publically dedicated; 2) to make all

purchasers    of   Lehigh   Pointe   lots    members      of   the   property   owners

association; and 3) to require all purchasers of Lehigh Pointe lots to share

road maintenance costs equally.        Trial Ct. Op. at 9.      The court concluded

that only the prohibition against publicly dedicating the roads in Lehigh

Pointe was truly a restrictive covenant, and the remaining “restrictive

covenants” were actually easements.1 Id. As noted above, the trial court

found that the property owners’ deeds created “a reciprocal scheme of

easements granting each property owner the rights of ingress and egress

over Pointe Drive.” Id. at 13.

     The trial court then determined that the primary issue presented in

this case is the scope of the easement granting the right of way over Pointe

Drive. Id. at 14. The court interpreted the easement grant using the rules

of contract construction, noting that “where the grant of an easement is

unrestricted, the grantee is given such rights as are necessary for the

reasonable and proper enjoyment of the thing granted.” Trial Ct. Op. at 10-


1
  Appellant does not contest the trial court’s finding that many of the
“restrictive covenants” listed on the subdivision plan are easements.



                                        -5-
J.A06012/16


11, (citing Zettlemoyer v. Transcontinental Gas Pipeline Corp, 657 A.2d

920, 924 (Pa. 1995) and Lease v. Doll, 403 A.2d 558 (Pa. 1979)). As our

Supreme Court recognized in Lease, “when the terms of an express grant

are general, ambiguous, and not defined by reference to the circumstances

known to the grantee at the time of the grant . . . the easement may be

used in any manner that is reasonable.” Lease, 403 A.2d at 562.

      Here, the trial court determined that “the language of Lehigh Pointe

property owners’ deeds does not specify the scope of the right of way.” Trial

Ct. Op. at 14.   Accordingly, because there were no explicit restrictions in

Appellant’s easement over Pointe Drive, the court concluded that Appellant

“may use the easement in any reasonable manner.” Id. After considering

the evidence and testimony, and conducting a judicial viewing of Lehigh

Pointe, the trial court concluded that Appellant’s use of Point Drive

"exceed[ed] the reasonable scope of the easement [it] possessed over

Pointe Drive.” Id. at 15.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive and well-reasoned opinion of the trial

court, we conclude that there is no merit to Appellant’s first issue on appeal.

Accordingly, we affirm on the basis of the trial court’s opinion as to

Appellant’s first issue. See id. at 14-16.




                                     -6-
J.A06012/16


Issue 2

     Appellant next avers that the trial court erred by holding Appellant

responsible for its own conduct as well as for that of the prior owners of

Appellant’s commercial lot.2 Appellant contends that it should not be legally

liable for damage caused by parties other than Appellant, and baldly claims

that the trial court erred in concluding that the “‘reasonable use’ of the

easement ran with the land.”       Appellant’s Brief at 34-35.     Appellant

characterizes the trial court’s conclusion as follows: “the court essentially

held that even though [Appellant] only owned its lot since 2008, [Appellant]

would be responsible for the rusting out of the culvert over the twenty plus

years the culvert had been in place.” Id. at 34.

     After considering the testimony of the parties’ engineering experts, the

trial court specifically determined that the stresses on Pointe Drive came

from the increased weight and frequency of commercial truck traffic

travelling on it. Trial Ct. Op. at 15. The court recognized that some natural

deterioration of the culvert had occurred, but ultimately determined that

“the culvert would not have failed when it did but for the trucks frequently

passing over it.” Id. The court thus concluded that the actions of Appellant

and its predecessors in interest, in exceeding the reasonable scope of the

easement they possessed over Pointe Drive, caused the need for significant


2
  Appellant’s predecessor also operated 80,000 pound commercial vehicles
over the easement.



                                    -7-
J.A06012/16


repairs to Pointe Drive.    Id.   The court found that Appellant was the

“dominant estate” and, as such, is “obligated to remedy the damage

themselves.” Id. at 16.

      Appellant’s characterization of the court’s ruling is misleading.   In

seeking a declaratory judgment, Appellant sought only a determination that

Appellees must contribute to the past and future costs of repairing and

maintaining Pointe Drive and the culvert under it.   The court denied this

relief, finding that Appellants are “not obligated to contribute to the

construction done on the culvert at issue in this matter.”       Id. at 16.

Contrary to Appellant’s averment, this ruling does not hold Appellant

responsible for damage caused by its predecessors in interest.      In fact,

nothing in the court’s ruling in this declaratory judgment action precludes

Appellant from attempting to obtain remuneration from its predecessors in

interest. Appellant’s second issue lacks merit.

      Issue 3

      Appellant claims in its third issue that the trial court erred in not

granting its Motion for Summary Judgment. Appellant argues that because

it submitted certified copies of the deeds of each of the Appellees and “the

language of the easements and covenants in question [was] clear and

unambiguous,” there were no material facts at issue and the trial court have

enforced the covenants as written at the summary judgment stage.

Appellant’s Brief at 37.



                                    -8-
J.A06012/16


      We review a grant of summary judgment under the following well-

settled standards:

         Pennsylvania law provides that summary judgment may be
         granted only in those cases in which the record clearly
         shows that no genuine issues of material fact exist and
         that the moving party is entitled to judgment as a matter
         of law. The moving party has the burden of proving that no
         genuine issues of material fact exist. In determining
         whether to grant summary judgment, the trial court must
         view the record in the light most favorable to the non-
         moving party and must resolve all doubts as to the
         existence of a genuine issue of material fact against the
         moving party. Thus, summary judgment is proper only
         when the uncontraverted allegations in the pleadings,
         depositions, answers to interrogatories, admissions of
         record, and submitted affidavits demonstrate that no
         genuine issue of material fact exists, and that the moving
         party is entitled to judgment as a matter of law. In sum,
         only when the facts are so clear that reasonable minds
         cannot differ, may a trial court properly enter summary
         judgment.

         On appeal from a grant of summary judgment, we must
         examine the record in a light most favorable to the non-
         moving party. With regard to questions of law, an
         appellate court's scope of review is plenary. The Superior
         Court will reverse a grant of summary judgment only if the
         trial court has committed an error of law or abused its
         discretion. Judicial discretion requires action in conformity
         with law based on the facts and circumstances before the
         trial court after hearing and consideration.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super 2008)

(citation and quotation omitted).

      In response to Appellant’s motion, Appellees noted that there were

many disputed facts concerning the enforceability of Covenant 6 including:

1) whether the property owners had abandoned the restrictive covenant; 2)



                                     -9-
J.A06012/16


whether Appellant overburdened its easement; 3) whether the character of

the neighborhood had changed owing to Appellant’s trucking operations

rendering the covenant unenforceable; 4) whether Appellant knew that there

was no property owners association in existence; 5) whether Appellant knew

that its predecessors in interest had paid for road maintenance needed

because of their trucking operations; 6) whether the road repairs asserted

by Appellant were actually necessary when the road remained passable by

passenger vehicles at the time of the repair; and 7) whether Appellant had

obtained its property for a lower purchase price because Appellant knew it

would be responsible for road maintenance.    Br. in Opp’n to Pl.’s Mot. for

Summ. J., 11/29/12, at 3.

     Appellant’s argument that there were no issues of material fact is

belied by our review of the record, in particular the 287 pages of trial

testimony taken over the course of two days.    At the time that Appellant

filed its Motion for Summary Judgment, the trial court correctly determined

that myriad issues of material fact existed so that entry of summary

judgment in Appellant’s would have been imprudent. The parties presented

those issues of fact at trial where the court heard testimony from lay

persons and experts about, among other things, the character of the

development and the cause of the damage to Pointe Drive.




                                  - 10 -
J.A06012/16


     The trial court did not abuse its discretion in determining that there

were issues of material fact and that Appellant was not entitled to judgment

as a matter of law.

     Judgment affirmed. Case remanded. Jurisdiction relinquished.

     Judge Lazarus joins this Memorandum.

     Judge Stabile files a Concurring Memorandum.


    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2016




                                   - 11 -
                                                                               Circulated 04/18/2016 03:47 PM




   NATURE'S WAY SPRINGS, L.P.,                    : IN THE COURT OF COMMON PLEAS
                                                         OF LUZERNE COUNTY
                          Plaintiff

           vs.                                           CIVIL ACTION - LAW

  CPANEL HOLDINGS, LLC;
  CLARENCE AND HELEN S. PETERSON;:
  T AMORAH P. MURRAY;
  DIANE M. JELLEN;
 JOHN McCAFFERY and LOUISE F.
 HOEKSTRA;
                                                                                           -
                                                                                           ~
                                                                                           c:.n
                                                                                           ~
                                                                                           ~
 JAMES C. PETTY and BLORE L.                                                                N
 WALLACE;                                                                                   \.D

 MATTHEW BENZINGER;                                                                         -0
                                                                                            :J'
 LEHIGH POINTE PARTNERS; and
 NORTiillMBERLAND NATIONAL                                                                  ~
                                                                                            ~
 BANK, as trustee of Michael Apfelbaum                                                         (J1

 SEP-IRA,

                         Defendants             : NO.           9037 of2011



                                          OPINION

         This Opinion arises from a Complaint for Declaratory Judgment filed on July 12,

2011 by Plaintiff Nature's Way Springs, L.P. seeking a declaration that 1) the captioned

Defendants are required to contribute towards past and future repairs performed on a

common roadway and 2) the Defendants, along with Plaintiff, must form and incorporate

the Lehigh Pointe Property Owners Association as contemplated by a subdivision plan

filed in 1987.

        For the reasons that follow, this court finds in favor of the Defendants.




                                      f     EXHIBIT

                                      z      A
                                      '
 FACTUAL BACKGROUND


        The Plan

       This case involves a 209.29-acre tract of land in Foster Township, Pennsylvania,

originally purchased by Boulder Run Corporation in 1985. In 1987, Boulder Run

Corporation submitted a subdivision plan (the "Plan") for the tract of land, calling the

tract the Lehigh Pointe Development ("Lehigh Point"). The Plan contained the following

relevant "General Notes":

   1. Owner of record is Boulder Run Corporation, R.D. 1, Box 1518, White Haven,

      PA 18661.

  2. Total number oflots is 10 plus the remainder of the tract.

  3. Total area being subdivided is 33.43 acres.

  4. Total area remaining is 175.86 acres.·

  5. All lots to be served with individual wells.

  6. All lots to be served with on-lot sewage systems contingent upon the local sewage

     enforcement officer's approval and recommendation.

 7. Five (5) foot contour interval based on 1929 mean sea level datum.

 8. The entire tract is wooded.

 9. The development of the entire tract to take place in phases.

 l 0. A twenty (20) foot wide utility easement, centering on and running parallel with

    all lot, property, and right-of-way lines, shall be provided.




                                          2
               The Plan also specified six numbered restrictive covenants, the last of which
                                                               1
       ("Covenant 6',) is crucial to the present litigation.       Covenant 6 reads as follows:

               "All roads in LEHIGH POINTE are not to be dedicated for public use and

               will be private. All purchasers of lots will automatically become members

               of Lehigh Pointe Property Owners Association and will share road .

              maintenance costs equally."



              The Plan was approved by the Board of Supervisors of Foster Township on June

     9, 1987, and was recorded in Luzerne County on August 5, 1987.



             The Pointe Drive Culvert

             The only means of vehicular access to Lehigh Pointe is via Pointe Drive, a private

     dirt road. Accessible on the west from State Route 940, Pointe Drive runs east for about

    a third of a mile, at which point it splits, with River Drive proceeding east to the ten

    numbered lots and Pointe Drive continuing south to the remainder of the tract. Both

    River Drive and Pointe Drive terminate in dead-ends,

            Approximately a quarter-mile east of State Route 940, shortly before River Drive

    splits off, Pointe Drive passes over a culvert, the eventual deterioration of which is the

    inciting factor in this litigation. The culvert, which was constructed at some point before

    1987, was originally 10 feet in diameter and made of a corrugated metal material. The

1
    The other Restrictive Covenants are:
       1. Wells & Sewage Disposal Systems shall be constructed in accordance with standards set forth by
           The Department of Environmental Resources.
      2. No Mobile Homes will be permitted on any Jot.
      3. All lots shall be kept neat and orderly.
      4. Only licensed pleasure vehicles may be parked or stored on any lot if not garage kept.
      5. Any driveway entrance shall make adequate provision for parallel drainage facilities.


                                                    3
   culvert, the top of which was located approximately 18 feet below the surface of Pointe

   Drive, allowed a smal1 creek to pass beneath the road. In order to reach any of the

   structures that have been built in Lehigh Pointe, one must drive over the culvert,



           Conveyance of Deeds

           It is agreed that each of the parties in this case can trace the ownership of their

  respective parcels back to the Boulder Run Corporation. The chains of title for the

  following parties are relevant:



                  Plaintiff Natures Way Springs, L.P.

         Plaintiff attained title to its 75 acre lot by conveyance from Group Mountain

 Springs via deed dated August 29, 2008. Group Mountain Springs had owned the lot

 from July 10, 2002 to August 29, 2008. Prior to this, the lot was owned by Tulpehocken

 Spring Water Company, Inc. ("Tulpehocken") (October 12, 1999 to July 10, 2002) and

 Boulder Run Corporation (October 8, 1985 to October 12, 1999). Language in each deed

 in this chain of title subjects the property to the "benefits, privileges, easements,

exceptions, reservations, restrictions, covenants, terms and conditions contained in prior

deeds in the chain of title."



                Defendant Lehigh Pointe Partners

        Defendant Lehigh Point Partners attained title to its 101 acre lot by conveyance

from Darlene and Gregory S. Ladner via deed dated November 17, 1999. The Ladners

had owned the lot from October 14, 1998 to November 17, 1999. Prior to this, the lot




                                               4
   was owned by Russel Minerals (Pennsylvania), Inc. (September 21, 1989 to October 14,

    1998), First Penn Land Company, Inc. (September 15, 1988 to September 21, 1989) and

   Boulder Run Corporation (October 8, 1985 to September 15, 1988).



                  Other Defendants

          The other Defendants in this case are owners of the 10 numbered lots designated

  in the Plan. Each of these Defendants' deeds specifies which numbered lot described,

  referencing the Plan directly.



                 Language of the Deeds

         Each deed contains roughly the same language regarding the use of the roads in

 Lehigh Pointe, including Pointe Drive:

        SUBJECT to and including a right-of-way unto Boulder Run Corporation

        and any grantees of Boulder Run Corporation presently of record, its

        successors and assigns, over the fifty (50) foot right-of-ways as shown on

        the plot plan of Lehigh Pointe, Sections II and III, designated as Laurel

        Drive, Butte Drive and Pointe Drive.



       Use of the Properties/Development of the Tract

       Following the approval of the Plan in 1987, development of Lehigh Pointe

proceeded inconsistently. Houses were constructed on some, but not all, of the ten

numbered lots, and the remaining 175.86 acres remained unoccupied until 1999, when

Tulpehocken purchased the 75 acre lot. Shortly thereafter, Tulpehocken developed a




                                            5
      commercial spring on the lot, and began removing water from underground. The spring

      operation continues to this day.

             As part of the spring operation, tanker trucks began driving the length of Pointe

      Drive to reach the spring and remove water from the site. Testimony at trial showed that

     Tulpehocken and each of its successors in interest, including Plaintiff, performed some

     work on the surface of the roadway at their own expense to keep it passable by trucks, but

     the frequency and extent of this work was not established.

            From the approval of the Plan until 2011, no Lehigh Pointe property owner made

     any attempt to convene, organize, or otherwise utilize the Lehigh Pointe Property Owners

     Association as was contemplated in Covenant 6.



            Failure of the Culvert

            In April 2011, while performing maintenance work on the road surface, Plaintiff

    noticed deterioration of the culvert and the road passing over it. A hole approximately 3

    feet in diameter had formed on the roadway, and quickly widened to 20 feet in diameter

    following storms. In order to reduce the load on the culvert and prevent further

    deterioration, Plaintiff removed all but approximately three of the twenty feet of cover

    above the culvert.

           Shortly after the hole was discovered, Plaintiff undertook emergency temporary

repairs.2 On June 7, 2011, after the temporary repairs were complete, Plaintiff sent each

owner of Lehigh Pointe property a letter stating that:



2
  Plaintiff characterizes these repairs as being necessary to keep the road passable to vehicular traffic;
Defendants state that cars could still pass over the culvert and that the repairs were only necessary to keep
the road passable by trucks.


                                                      6
                  Due to the deterioration of the culvert, Plaintiff had undertaken emergency

                  repairs, the cost of which amounted to $45,480.1 O;

                  Although no Property Owners Association had been officially formed or

                  convened, each property owner was a member of the Association pursuant to

                 Covenant 6, and thus each property owner was required to cover a portion of

                 the cost of these repairs; and

                 Due to the nature of the damage to the culvert, further permanent repair to the

                 road would be necessary in the near future.

     The letter requested that each property owner pay a pro rata share of the $45,480. 10

     corresponding to the portion (by acreage) of Lehigh Pointe belonging to that property

     owner.'

            A subsequent inspection of the culvert by Jim Hendricks, P.E., who later served

    as a trial expert for Plaintiff, revealed significant deterioration. The top of the culvert

    was bent and buckled at places, such that the diameter of certain areas of the culvert was

    reduced from 9 feet to less than 7 feet. The bottom of the culvert had rusted in multiple

    spots, and in places the sides of the culvert had rotated downward and curved into the

    culvert. Hendricks concluded that the culvert was at risk of catastrophic failure at any

    time.




3
 The proposed breakdown of payments was as follows: I. cPanel Holding LLC: 6.43 acres, 3.07% of
original parcel, $1,397.82 pro rata share; 2. Clarence & Helen Peterson: 10.00, 4.78%, $2,173.90; 3.
Tamarah P. Murray: 3.01, 1.44%, $654.34; 4. Diane M. Jellen: 3.97, 1.90%, $863.04; 5. John McCaffiey &
LouiseF. Hoekstra: 1.94, .93%, $421.74; 6. Victor Capo: 3.88, 1.85%, $843.48; 7. James C. Petty &
WallaceL. Blore: l.94, .93%, $421.74; 8. Matthew Benzinger: 2.00, .96%, $434.78; 9. Lehigh Point
Partners: 100, 47.80%, $21,738.97; 10. Nature's Way Springs: 76.04, 36.35%, $16,530.31.


                                                  7
       PROCEDURAL HISTORY

              On July 12, 2011, a little over a month after Plaintiff sent the letter to the other

      Lehigh Pointe property owners, Plaintiff filed a Declaratory Judgment Action seeking to

      have the court declare Covenant 6 valid and applicable; in particular, Plaintiff wished to

      require Defendants to contribute to the cost of past and future repairs to the road and to

      participate in the formation of the Lehigh Pointe Property Owners Association. Plaintiff

     also sought costs and fees associated with the litigation.

             Following the resolution of preliminary objections, separate Answers to the

     Declaratory Judgment Action were filed by the following groups of Defendants:

                cPanel Holdings, LLC, Helen S. Peterson, John McCaffery, Louise F.

                Hoekstra, Matthew Benzinger, Lehigh Pointe Partners, and Northumberland

                National Bank as trustee of Michael Apfelbaum SEP-IRA;

               Tamorah P. Murray; and

               Diane M. Jellen.

    No Answer was filed by Defendants James C. Petty and Wallace L. Blore," and a default

    judgment was entered against these Defendants on June 13, 2012.5

           As litigation was ongoing, Plaintiff solicited bids for permanent repairs to the

 road and culvert. On November 12, 2013, Plaintiff sent the other Lehigh Pointe property

owners a letter informing them that construction was to begin within 60 days. On




4
  Wallace L. Blore was incorrectly identified as Blore L. Wallace in the caption of this case and on most of
the related documents.
5
  Defendants Petty and Blore submitted to Plaintiff the amount Plaintiff identified as their pro rata share,
but this payment was not received until after they had been named as Parties to the action. Defendants
Petty and Blore testified that they paid their share because they believed that it was fair for them to
contribute to the payments and that a property owners association should be formed,


                                                     8
      January 3, 2014, Plaintiff sent another letter to the property owners, advising that the

      ongoing construction was estimated to cost a total of $183,928.

              The matter was set for a non-jury trial, the first phase of which commenced on

      January 12, 2015. This first phase was held strictly to determine if Plaintiff was entitled

      to declaratory judgment, and any discussion of damages was to be held at a later date if

     necessary. Because this court finds in favor of the Defendants, no further proceedings are

     required.



     RELEVANT LAW

             A survey of Pennsylvania case law reveals no situation extremely similar to the

    case at hand. This case raises fairly complex issues that implicate the law of covenants

    (restrictive and otherwise), easements, property owners' associations, and general

    equitable principles. This section will discuss these areas of the law in tum.6



            Covenants

            Although Covenant 6 is listed on the Plan as a "Restrictive Covenant," and the

    Parties treat it as such, it really purports to accomplish three things, only one of which is

"restrictive": 1) prevent the roads in Lehigh Pointe from being publicly dedicated; 2)

make all purchasers of Lehigh Pointe lots members of the Property Owners Association;

and 3) require all purchasers of Lehigh Pointe lots to share road maintenance costs

equally. As such, both the laws of restrictive covenants and of other real covenants are

relevant to the case at hand.

6 In addition to these areas of law, Defendants raise additional legal issues such as the statute of frauds, the
doctrine of I aches, and the statute of limitations. Because we find that these issues do not apply to the case
at hand, we decline to discuss them here.


                                                       9
          The interpretation of covenants in deeds is necessarily guided by principles of

  contract law. See, e.g., In re Mather's Estate, 189 A.2d 586, 589 (Pa. 1963);

  Baumgardner v. Stuckey, 735 A.2d 1272, 1274 (Pa. Super. 1999). As in other forms of

  contractual interpretation, when dealing with covenants "[i]t is fundamental that the

  intent of the parties governs and that such intent must be ascertained from the entire

 instrument. ... " Mishkin v. Temple Beth El of Lancaster, 239 A.2d 800, 803 (Pa. 1968)

 (citing Mather's Estate). Such intent is ascertained "by examining the language of the

 covenant in light of the subject matter thereof, the apparent purpose of the parties and the

 conditions surrounding execution of the covenant." Gey v. Beck, 568 A.2d 672, 675 (Pa.

 Super. 1990).



        Easements·

       As is the case with covenants, "[iJt is well established that the same rules of

construction that apply to contracts are applicable in the construction of easement

grants.'' Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657 A.2d 920, 924 (Pa.

1995). Zettlemoyer succinctly states these rules:

       In ascertaining the scope of an easement [when not ambiguously

       specified), the intention of the parties must be advanced. "Such intention

       [ of the parties] is determined by a fair interpretation and construction of

      the grant and may be shown by the words employed construed with

      reference to the attending circumstances known to the parties at the time

      the grant was made." Where the grant of an easement is unrestricted, the




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           grantee is given such rights as are necessary for the reasonable and proper

           enjoyment of the thing granted.

   Id., internal citations omitted. Similar principles are described in Lease v. Doll:

          In ascertaining the scope of an easement created by express grant, the

          intention of the parties to the grant must be advanced .... Moreover, when

          the terms of an express grant of an easement are general, ambiguous, and

          not defined by reference to the circumstances known to the grantee at the

          time of the grant, the express easement is to be construed in favor of the

         grantee, and the easement may be used in any manner that is reasonable.

  Lease v. Doll, 403 A.2d 558, 562-63 (Pa. 1979).

         In general, "where an easement is used and enjoyed for the benefit of a dominant

 estate, it is the owner of the dominant estate who is under obligation to keep the easement

 in good repair; and he may be liable to third persons if he fails to keep the right of way in

 a proper state of repair," Mscisz v. Russel, 487 A.2d 839, 840 (Pa. Super. 1984). "The

 owner of a dominant estate may not exercise the rights granted to him or her without

 regard to the rights of the servient owner." Purdy v. Zaver, 580 A.2d 1127, 1131 (Pa.

 Super. 1990).



       Property Owners Association

       There is relatively little case law describing the common law creation of property

owners associations. In 1996, Pennsylvania enacted the Uniform Planned Community

Act (the "UPCA", 68 Pa. C.S.A. § 5101 et seq.), which codified the creation and

maintenance of planned communities; only some of the UPCA's provisions apply



                                             11
      retroactively. 68 Pa. C.S.A. § 5102. In particular, Section 5301 of the UPCA, regarding

      the organization of unit owners' associations, only applies to communities created after

      the enactment of the UPCA. 7

              Property owners associations generally have the authority to collect fees for the

      maintenance of roads and common areas, regardless of the existence of a written

     agreement with individual property owners. See Meadow Run and Mountain Lake Park

     Ass'n v. Berkel, 598 A.2d 1024, 1026 (Pa. Super. 1991). The UPCA's provisions

     regarding assessments for common expenses do apply to planned communities created

     before 1996, though "only with respect to events and circumstances occurring after

     [2004] and [as long as they] do not invalidate specific provisions contained in existing

    provisions of the declaration, bylaws or plats and plans" of such communities. 68 Pa.

    C.S.A. § 5102(b.l)(l). Under the UPCA, "Except as provided by the declaration [that

    created the planned community] ... 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.A. § 5314(c)(4).




7
  Although not binding, it is worth noting that Section 5301 of the UPCA, regarding the organization of
unit onwers' associations, states that "[a] unit owners' association shall be organized no later than the date
the first unit in the planned community is conveyed to a person other than a successor declarant... The
association shall be organized as a profit or nonprofit corporation or as an unincorporated association." In
the present case, the first effort made by any party to organize a Lehigh Pointe Property Owners
Association took place more than twenty years after the first conveyance of lots.


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   FINDINGS OF FACT/DISCUSSION




   1. Lehigh Pointe was originally intended to be a residential community, the

   development of which was to take place in phases.




  2. Development stalled before the first phase was complete.




  3. No Lehigh Pointe Property Owners Association was ever formed.



 4. Pointe Drive was intended for residential traffic.



 5. The Lehigh Pointe property owners' deeds created a reciprocal scheme of

 easements granting each property owner the rights of ingress and egress over Pointe

Drive.



6. Plaintif Ps property was a dominant estate with regard to the easement over the

Pointe Drive culvert.



7. A significant portion of the damage to the Pointe Drive culvert was caused by the

introduction and continuation of significant truck traffic to and from the

commercial spring.




                                         13
                The primary issue in this case comes down to the scope of Plaintiff's right-of-way

       over Pointe Drive. In looking both at the easement granting the right-of-way- and the

      associated Covenant 6 - general principles of contract construction must apply.

               Plaintiff has argued that it in fact holds a servient estate over Pointe Drive, as

      evidenced by the language in Plaintiff's deed reserving a right of way for Boulder Run

      Corporation and its successors and assigns. This language, though, doesn't grant Plaintiff

      a property interest; what this language, which is present in each property owner's deed,

      appears to accomplish is to guarantee that each property owner will have the right to use

     all portions of the roads, regardless of which parcel the road passes through.

              We note that the right-of-way language in the Lehigh Pointe property owners'

     deeds does not specify the scope of the right of way. Thus, under Zettlemoyer and Lease,

     the intention of the parties that created the easement - as informed by a reading of the

     whole document, which in this case consists of not only the deeds but the Plan - must be

    ascertained. Zettlemoyer, 657 A.2d at 924; Lease, 403 A.2d at 562-63. As there are no

    explicit restrictions in Plaintiffs easement over Pointe Drive, the Plaintiff may use the

    easement in a reasonable manner.

             An inspection of the Plan, along with the testimony elicited at trial, suggests that

    Lehigh Pointe was originally intended to be a large residential community. The Plan

    splits one area of the lot into 10 numbered lots, and notes that "future development" will

    occur. There were plans for a "pedestrian nature walk." The restrictive covenants and

general notes address issues that would be common in residential communities.8

However, not even the first phase of residential development was completed as planned,


8
    General Notes 5, 6, 8, 9 and 10 suggest a residential character, as do each of the Restrictive Covenants.


                                                        14
   and Lehigh Pointe remained a large> wooded tract with a scattering of houses until 1999 >

   when the commercial spring began.

           When Plaintiffs predecessors in interest began introducing truck traffic to Pointe

  Drive, the residential character of Lehigh Pointe was changed, and Pointe Drive - a

  relatively small dirt road - was subjected to new stresses. After careful consideration of

  the evidence presented, including each Party's expert testimony and a judicial viewing of

  Lehigh Pointe, this Court finds that a significant portion of the damage to the culvert was

  caused by the increased weight and frequency of traffic on Pointe Drive and is therefore

 directly attributable to Plaintiff and its predecessors in interest. Although it is clear that

 some natural deterioration of the culvert had occurred, the damage to the culvert would

 not have been nearly as significant had there only been residential traffic, and the culvert

 would not have failed when it did but for the trucks frequently passing over it.

 Ultimately, the need for significant repairs was caused by Plaintiff and its predecessors in

 interest exceeding the reasonable scope of the easement they possessed over Pointe

 Drive, and thus, as the dominant estate, it is the responsibility of Plaintiff to repair the

damage caused.

        It is worth noting further that the Court finds that no Lehigh Pointe Property

Owners Association was ever formed. This Court can find no case law directly stating

that such an association can be created simply by a covenant in a subdivision plan

without any further action from any party. Although Plaintiff claims that the Property .

Owners Association was simply not to be organized until it was needed, this Court can

find no reason to allow the intended association to be created after 24 years of not only

inactivity but literal nonexistence. The Lehigh Pointe Property Owners Association was



                                               15
  simply another piece of the Plan that was not developed as intended, and thus the

  property owners of Lehigh Pointe cannot be reasonably expected to have acted as though

  the association exists.

         Regardless of the existence of the Property Owners Association, however, the

 matter is decided by the evidence which showed that Plaintiff and its predecessors in

 interest exceeded the scope of the easement, thereby causing deterioration, and are

 therefore obligated, as the dominant estate, to remedy the damage themselves.



 CONCLUSION

        For the reasons stated above, this court finds in favor of the Defendants, and holds

that the Defendants are not obligated to contribute to the construction done on the culvert

at issue in this matter. An Order to this effect is attached as page 17.



       The Prothonotary is directed to enter this Opinion and the attached Order of

record, and mail a copy to all counsel ofrecord, pursuant to Pa. R.C.P 236.




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