             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lake Wynonah Property                    :
Owners Association,                      :
                                         :
                                         :
                   v.                    :   No. 61 C.D. 2018
                                         :   Argued: December 11, 2018
Jeff Seisler and Dana Seisler,           :
                          Appellants     :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: January 4, 2019


      Jeff Seisler and Dana Seisler (Seislers) appeal from an Order of the Court of
Common Pleas of Schuylkill County (common pleas) that granted summary
judgment in favor of the Lake Wynonah Property Owners Association (Association).
The Seislers assert common pleas erred because there were genuine issues of
material fact that precluded entry of summary judgment. The Seislers also assert
that common pleas abused its discretion in granting summary judgment without
providing them an opportunity to engage in discovery after they obtained counsel.
Upon review of the record, we discern no errors or abuse of discretion. Accordingly,
we affirm.
      This action commenced in February 2015 after the Seislers filed a notice of
appeal from a default judgment entered against them in magisterial district court. In
response to the appeal, the Association filed a complaint in common pleas, seeking
$12,424.96 in delinquent homeowners’ association assessments and other fees and
costs, such as legal fees. (Compl., Wherefore clause, Reproduced Record (R.R.) at
20a-21a.) The Seislers, who were proceeding pro se at the time, filed a letter, which
common pleas treated as an answer. In the letter/answer, the Seislers alleged that
the Association and its management company were negligent in maintaining a dam
in the development, resulting in the increased assessment to cover the cost of repairs.
(R.R. at 43a.) In addition, the Seislers alleged the Association increased dues
without a vote by two-thirds of the members. (Id.) The Seislers disputed owing
legal fees but admitted to owing $4429.42 in past due assessments. (Id. at 44a.)
      Unaware that the Seislers had responded to the complaint, the Association
filed a praecipe for writ of execution, which was ultimately withdrawn by the
Association upon learning that the letter/answer had been filed. (1925(a) Opinion
(Op.) at 2.) Aside from activity related to executing on the judgment, this was the
only activity until August 2017, when the Association filed its motion for summary
judgment, wherein the Association updated the amount due from the Seislers to
$19,668.50, to reflect the incurrence of additional fees and costs. (R.R. at 52a.) The
Seislers, now represented by counsel, filed an answer to the motion, challenging the
amount due, including the reasonableness of the legal fees sought. (Id. at 110a-12a.)
In addition, the Seislers alleged that discovery was necessary to aid in their defense.
(Id. at 112a.)
      On October 10, 2017, common pleas issued the Order granting summary
judgment in the Association’s favor in the amount of $19,668.50. From this Order,



                                          2
the Seislers appealed to the Superior Court, which subsequently transferred the
appeal to this Court by order dated December 7, 2017. In their Statement of Errors
Complained of on Appeal filed pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure, Pa.R.A.P. 1925(b), the Seislers alleged that there were
genuine issues of material fact that were in dispute, such as whether the assessments
for the repairs to a dam were proper and whether the increase in dues was in
accordance with the bylaws. They also disputed the amount alleged due, including
legal fees, and asserted that the motion for summary judgment was premature, as no
discovery had occurred.
         Common pleas, in its opinion issued pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a), noted that the
Seislers relied solely upon the averments in their letter/answer and response to the
motion for summary judgment, which are legally insufficient to preclude the grant
of summary judgment. (Rule 1925(a) Op. at 5 (citing ToDay’s Hous. v. Times
Shamrock Commc’ns, Inc., 21 A.3d 1209, 1213 (Pa. Super. 2011)).) Regarding the
lack of discovery, common pleas found that there was ample time for discovery in
the two and one-half years between the commencement of the action in February
2015, and the motion for summary judgment in August 2017, of which the Seislers
did not avail themselves. (Id. at 5-6.) Furthermore, common pleas noted that the
Seislers’ prior pro se status did not excuse them from seeking discovery, which
would have potentially provided them evidence to support their legal defenses. (Id.
at 6.)
         On appeal, the Seislers argue that genuine issues of material fact exist, which
precluded entry of summary judgment. Specifically, they argue that the affidavit
filed with the motion for summary judgment outlining damages was confusing.



                                            3
They further argue that the amount allegedly owed is in dispute, as they only admit
that $4429.42 is due. They also dispute the amount of legal fees, asserting discovery
is needed to determine the reasonableness of those fees. Because there was no
discovery, the Seislers assert that the motion for summary judgment was premature.
The Seislers urge this Court to reverse common pleas’ Order and remand either for
discovery or an evidentiary hearing.
       The Association responds that under the Uniform Planned Community Act
(Act), 68 Pa. C.S. §§ 5101-5414, the deed restrictions, and the bylaws, the Seislers
are obligated to pay all assessments, late fees, and court costs associated with
collection thereof. Even if the Seislers are dissatisfied with the Association’s
management of the community, the Association claims they cannot resort to self-
help, citing Logans’ Reserve Homeowners’ Association v. McCabe, 152 A.3d 1094
(Pa. Cmwlth. 2017). The Association points out that the Seislers could have asserted
a counterclaim but did not. As for the amount of damages, the Association argues
there is evidence of record to support the award, and the affidavit that the Seislers
complained of as being confusing was withdrawn and a new affidavit correcting the
error in the amount was substituted in its place.1                Related to discovery, the
Association contends that the Seislers could have served discovery at any time but
did not do so. It asks the Court to affirm common pleas’ Order.




       1
         The original affidavit showed an outstanding balance of $3804.98, accelerated monthly
assessments of $800, and legal fees of $1362.00. (R.R. at 68a.) The substituted affidavit corrected
the outstanding balance to $17,506.50 and left the amounts for accelerated monthly assessments
and legal fees unchanged. (Supplemental Reproduced Record (S.R.R.) at 13b.) Importantly, both
the original affidavit and substituted affidavit reflected a total due as $19,668.50. (R.R. at 68a;
S.R.R. at 13b.)


                                                4
                   Propriety of Granting Summary Judgment
      We begin with the Seislers’ claim that common pleas erred in granting
summary judgment because genuine issues of material fact existed. “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.” Id. at
1098 n.7 (citation omitted). “Summary judgment is appropriate only when, after
examining the record in the light most favorable to the non-moving party, there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613 (Pa.
Cmwlth. 2006).
       “The moving party bears the burden of proving that there exists no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Allen v. Colautti, 417 A.2d 1303, 1307 (Pa. Cmwlth. 1980). “A
material fact is one that directly affects the outcome of the case.” Logans’ Reserve,
152 A.3d at 1099 n.8 (citation omitted). Once “a moving party proffers evidence
indicating that a certain fact exists, the non-moving party must point to evidence in
the record indicating that a conflict in the evidence warrants review by the fact
finder.” Schell v. Guth, 88 A.3d 1053, 1055-56 (Pa. Cmwlth. 2014). However, Rule
1035.3(a) of the Pennsylvania Rules of Civil Procedure provides that an “adverse
party may not rest upon the mere allegations or denials of the pleadings” when
responding to a summary judgment motion. Pa.R.C.P. No. 1035.3(a); see also Babb
v. Centre Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (“Where the non-
moving party bears the burden of proof on an issue, [they] may not merely rely on
[their] pleadings or answers in order to survive summary judgment.” (citation
omitted)). The “[f]ailure of a non[-]moving party to adduce sufficient evidence on



                                         5
an issue essential to [their] case and on which [they] bear[] the burden of proof
establishes the entitlement of the moving party to judgment as a matter of law.”
Babb, 47 A.3d at 1223 (citation omitted).
       Here, the Association met its burden of establishing that, under the Act and
the Association’s governing documents, the Seislers, as members, were obligated to
pay the assessment, fees, and other costs. In fact, the Seislers do not appear to
dispute that the Act and governing documents allow the Association to charge
assessments, fees, and costs. Rather, they “assert . . . that their obligation to pay
dues and assessments are contingent upon such dues and assessments being properly
and legally adopted in accordance with the applicable governing documents and
statutory and common law.” (Answer to Motion for Summary Judgment ¶ 18, R.R.
at 111a.) The burden, therefore, fell on the Seislers to establish this defense. To do
so, the Seislers did not point to any evidence or provide any affidavits in support of
this proposition. Instead, they simply relied on the allegations set forth in their
letter/answer that the Association mismanaged the community, resulting in an
increased assessment to cover the cost of dam repairs without the required approval
by two-thirds of its members.2 As common pleas found, and the above legal
standards indicate, this is insufficient to defend against summary judgment.
Pa.R.C.P. No. 1035.3(a); Babb, 47 A.3d at 1223.
       The Seislers similarly did not provide evidence to show the amount claimed
by the Association as due and supported by documentation was incorrect. They

       2
         Even if there was evidence that the Association mismanaged the community, the Seislers
still would not have established a genuine issue of material fact to prevent entry of summary
judgment. The Seislers “were required to pay the Association’s assessments regardless of any
alleged inadequacies in the Association’s performance.” Logans’ Reserve, 152 A.3d at 1101-02;
see also Rivers Edge Condo. Ass’n v. Rere, Inc., 568 A.2d 261, 263-64 (Pa. Super. 1990) (holding
unit owner’s remedy for an association’s negligence or breach of contractual duties was to institute
action against the association not withhold dues or assessments).


                                                 6
again attempt to rely on their denial in the letter/answer that anything more than
$4429.42 was owed. This general denial does not meet the standard required to
oppose summary judgment. Pa.R.C.P. No. 1035.3(a); Babb, 47 A.3d at 1223. To
the extent the Seislers claim the affidavit filed in support of the Association’s motion
for summary judgment was confusing and, thus, insufficient to support entry of
summary judgment, we disagree. As the record reflects, the Association substituted
a corrected affidavit upon detecting the error in the original affidavit. In addition to
the affidavit, the Association appended a spreadsheet reflecting all debits and credits
to the Seislers’ account. (R.R. at 71a-74a.) These documents support the entry of
summary judgment, especially in light of the lack of any evidence to the contrary.
Furthermore, regarding the reasonableness of legal fees, an “appellant must set forth
some facts, beyond bald assertions, to support [their] argument [that] the attorney’s
fees were unreasonable.” Citicorp Mortg., Inc. v. Morrisville Hampton Vill. Realty
Ltd. P’ship, 662 A.2d 1120, 1123 (Pa. Super. 1995).
      In short, while the Association set forth evidence to support its claims, the
Seislers did not bring forth any evidence to support their defenses. Their opposition
to the summary judgment motion was based entirely on bald assertions or general
denials made in either their letter/answer or their answer to the motion for summary
judgment. Because mere allegations or denials are insufficient as a matter of law,
common pleas did not err in granting summary judgment against the Seislers.
Pa.R.C.P. No. 1035.3(a); Babb, 47 A.3d at 1223.


                          Propriety of Denying Discovery
      This leads us to the Seislers’ second argument: that discovery was necessary
in order for them to present evidence to support their defenses, and common pleas



                                           7
abused its discretion in denying them the opportunity to engage in discovery. The
Seislers contend discovery was necessary for them to challenge the amount due.
Because they had just retained counsel when the summary judgment motion was
filed, the Seislers argue they should have been afforded an opportunity to seek
discovery before the motion for summary judgment was decided.
      We review the denial of a request to conduct discovery to determine whether
common pleas abused its discretion. Kerns v. Methodist Hosp., 574 A.2d 1068, 1073
(Pa. Super. 1990). A “trial court has broad discretion to take such action as it deems
appropriate to insure prompt and adequate discovery.” Id. (emphasis in original).
“Although parties must be given reasonable time to complete discovery before a trial
court entertains any motion for summary judgment, the party seeking discovery is
under an obligation to seek discovery in a timely fashion.” Reeves v. Middletown
Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. Super. 2004). In Reeves, the Superior
Court was faced with a similar issue as that posed here.3 The Superior Court stated:
“Where ample time for discovery has passed, the party seeking discovery (and
opposing summary judgment) is under an obligation to show that the information
sought was material to their case and that they proceeded with due diligence in their
attempt to extend the discovery period.” Id.
      In that case, a motion for summary judgment was filed two years after the suit
was initiated and one year after the start of discovery, which was completed seven
months earlier. The latest discovery request was filed after the motion for summary
judgment was filed. The Superior Court found that “[o]ther than several bald
statements that the information sought was ‘arguably germane’ to her causes of

      3
         Although not binding on this Court, a Superior Court decision can be cited for its
persuasive value. Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth.
2018). Because Reeves involves analogous facts, we find it persuasive.


                                            8
action, [a]ppellant makes no meaningful argument to this Court as to the materiality
of the information sought.” Id. Nor did the appellant make any showing of her
efforts to obtain the information sought. Id. As a result, the Superior Court found
the trial court did not abuse its discretion in ruling on the motion for summary
judgment. Id.
      Here, a reasonable period of time for discovery had expired. The Seislers
initiated this action in common pleas when it appealed the magisterial district court
decision in early 2015. The Association promptly filed its complaint. Aside from
filing their letter/answer in May 2015, the Seislers took no further action of any sort
until after the Association filed its motion for summary judgment in late August
2017. The Seislers had more than two and a half years to seek discovery to aid in
their defense but did not do so. Furthermore, the Seislers have not demonstrated the
materiality of the requested discovery or that they proceeded in a timely manner with
respect to the discovery sought. Id. As for materiality, like the appellant in Reeves,
the Seislers make a bald assertion of materiality, which is insufficient. Furthermore,
how the Association managed or mismanaged the community is of no relevance to
this matter. This Court has held that alleged inadequacies in an association’s
performance of its duties does not excuse a property owner from paying the
association’s dues and assessments. Logans’ Reserve, 152 A.3d at 1101-02; Rivers
Edge Condo. Ass’n v. Rere, Inc., 568 A.2d 261, 263-64 (Pa. Super. 1990). Moreover,
as described above, the Seislers did not proceed in a timely manner with requesting
discovery. The Seislers argue they were pro se and did not obtain counsel until the
summary judgment motion. However, this does not excuse their lack of diligence.
“[I]t is axiomatic that a party seeking to represent [themselves] assumes the risk that




                                          9
[their] lack of legal knowledge might prove to be [their] undoing.” Commonwealth
v. Geatti, 35 A.3d 798, 800 (Pa. Cmwlth. 2011).
      In summary, we find no errors or abuse of discretion in common pleas’ grant
of summary judgment or refusal to allow discovery. Accordingly, we affirm.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                       10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lake Wynonah Property                    :
Owners Association,                      :
                                         :
                                         :
                  v.                     :   No. 61 C.D. 2018
                                         :
Jeff Seisler and Dana Seisler,           :
                          Appellants     :

                                   ORDER


      NOW, January 4, 2019, the Order of Court of Common Pleas of Schuylkill
County, entered in the above-captioned matter, is AFFIRMED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
