              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dobson Park Management, LLC,            :
general partner of and trading as the   :
Leonard J. Dobson Family Limited        :
Partnership                             :
                                        :   No. 570 C.D. 2018
             v.                         :
                                        :   Argued: December 11, 2018
Property Management, Inc. and           :
Waverly Woods I Condominium             :
Association,                            :
                 Appellants             :



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY
JUDGE McCULLOUGH                                        FILED: February 13, 2019


             Property Management, Inc. and Waverly Woods I Condominium
Association (collectively, Appellants) appeal from the July 18 and December 20, 2017
orders of the Court of Common Pleas of Dauphin County (trial court) granting the
motions for summary judgment and for attorney fees filed by Dobson Park
Management, LLC, general partner of and trading as the Leonard J. Dobson Family
Limited Partnership (Dobson), and entering judgment in favor of Dobson and against
Appellants in the amounts of $3,483.98 and $6,435.00, respectively.
                               Facts and Procedural History
              The underlying facts of this case are not in dispute. On January 21, 2016,
Dobson purchased unit #4613 of Waverly Woods I, A Condominium (Waverly Woods)
at a judicial sheriff’s sale. On March 1, 2016, the Dauphin County Sheriff issued the
deed for this unit to Dobson. Dobson thereafter contracted with Kathryn Harbilas to
sell its interest in unit #4613. Prior to the closing of this sale, Dobson contacted
Appellants in order to obtain all documents required by section 3407 of the Uniform
Condominium Act, 68 Pa.C.S. §3407, which governs the resale of condominium units.
On April 21, 2016, Appellants provided Dobson with a Condominium Resale
Certificate demanding payment of $4,011.98, which represented the allegedly
outstanding balance of unpaid common expenses, late fees, and other special
assessments due with respect to unit #4613. This amount included a charge in the
amount of $2,251.98 for “emergency services rendered on December 30, 2015.” (Trial
court op., July 18, 2017, at 1-2.)
              Dobson and Appellants were unable to resolve the issue of these
outstanding charges prior to Dobson’s scheduled closing with Ms. Harbilas. As a
result, by letter dated May 5, 2016, Dobson advised Appellants that it would pay the
disputed charges under protest, reserving its right to pursue subsequent legal action to
settle the controversy. Specifically, the letter stated that Dobson was making the
payment “UNDER PROTEST AND DISPUTE and WITHOUT PREJUDICE.”1
On May 31, 2016, Dobson paid to Appellants the sum of $4,338.85.2 Shortly thereafter,


       1
        A copy of the letter is attached as Exhibit B to Dobson’s complaint, which is identified as
Item No. 2 in the original record.

       2
         The record is unclear as to why this amount exceeded Appellants’ original demand of
$4,011.98.



                                                2
Dobson filed a complaint with the trial court seeking a declaratory judgment in its favor
in the amount of $3,483.983 plus attorney fees and costs.4 On February 22, 2017,
Dobson filed a motion for summary judgment with the trial court along with a
supporting brief. Appellants did not respond to this motion. However, the trial court
later permitted Appellants to file a response nunc pro tunc, but they did not file a
supportive brief as permitted under Dauphin County Local Rule 1034(a). (Trial court
op., July 18, 2017, at 1-2.)
               Dobson filed a brief in response to Appellants’ nunc pro tunc filing, and
on July 10, 2017, Appellants filed a brief in response to Dobson’s brief. By order dated
July 18, 2017, the trial court granted Dobson’s motion for summary judgment and
entered judgment in favor of Dobson and against Appellants in the amount of
$3,483.98.5 The trial court concluded that Appellants failed to produce evidence to
establish or contest any genuine issue of material fact. The trial court described
Appellants’ nunc pro tunc response to Dobson’s motion for summary judgment as
containing “scant, one-sentence assertions” that “amount to nothing more than general
denials and/or bald allegations, and do not dissuade this Court from finding [Dobson]


       3
         Dobson acknowledged in its complaint that Appellants were entitled to $854.87 and
subtracted this amount from the sum paid on May 31, 2016 ($4,338.85 - $854.87 = $3,483.98).

       4
          Appellants filed an answer with new matter, included as Item No. 17 in the original record,
denying the allegations of the complaint and contending that Appellant Property Management, Inc.
(PMI) was not the property manager at the time of the sheriff’s sale; Dobson failed to identify to
whom it paid the monies at issue; Dobson’s payment under protest had no legal significance; payment
of the disputed sum constituted an accord and satisfaction; and Dobson is not entitled to attorney fees.

       5
          In a later opinion dated August 18, 2017, the trial court acknowledged that Appellants filed
a brief on July 10, 2017, but noted that it did not review said brief prior to issuing its opinion because
it had not been entered on the docket. Nevertheless, the trial court stated that the brief did not present
any argument that would have altered its decision. (Trial court op., August 18, 2017, at 2.)



                                                    3
is entitled to summary judgment as a matter of law.” (Trial court op., July 18, 2017, at
6.)
               Further, the trial court, relying on section 3315(b)(2) of the Uniform
Condominium Act, 68 Pa.C.S. §3315(b)(2),6 explained that any unpaid common
expense assessments accrued during the six months prior to Dobson purchasing the
condominium unit should have been cured with the proceeds from the judicial sheriff’s
sale. Because such assessments were not satisfied via these proceeds, the trial court
concluded that the same were divested via the judicial sheriff’s sale and Appellants
were not entitled to the same. The trial court concluded that the same reasoning applied
to the charge in the amount of $2,251.98 for “emergency services rendered.”7 Finally,
the trial court concluded that Dobson, as the prevailing party, was entitled to reasonable
attorney fees and costs pursuant to section 3315(f) of the Uniform Condominium Act,
68 Pa.C.S. §3315(f).8 (Trial court op., July 18, 2017, at 4-6.)
               Appellants filed a motion for reconsideration alleging that the trial court
erred as its order was based on the conclusion that they had not filed a brief in


       6
         Section 3315(b)(2) generally provides that an “association’s lien for assessments shall be
divested by a judicial sale of the unit.” 68 Pa.C.S. §3315(b)(2).

       7
          The trial court noted that Appellants produced an affidavit from Antoinette Black, a property
management professional employed by Appellant PMI, detailing that PMI was not the management
company for Appellant Waverly Woods I Condominium Association at the time of the sheriff’s sale
but became such on March 1, 2016, and reported the assessments and charges on the resale certificate
to Dobson. Black stated that all funds in this case, i.e., the monies paid by Dobson, were deposited
into the account of Appellant Waverly Woods I Condominium Association. The trial court stated
that the fact that PMI was not the property manager at the time of the sheriff’s sale was immaterial
for purposes of Dobson’s motion for summary judgment and did not change the fact that Dobson was
entitled to repayment of the monies paid under protest.

       8
          Section 3315(f) provides that “[a] judgment or decree in any action or suit brought under
this section shall include costs and reasonable attorney’s fees for the prevailing party.” 68 Pa.C.S.
§3315(f).


                                                  4
accordance with Dauphin County Local Rule 1034(a). Appellants also alleged that
their briefs and related filings provided sufficient bases to justify denial of Dobson’s
motion for summary judgment; their briefs cited cases standing for a position opposite
the one cited by Dobson; Dobson could not seek return of the monies voluntarily paid
to them; Dobson cannot, as a matter of law, maintain its cause of action; and there was
no evidence that Appellant PMI received or retained the monies at issue. (Trial court
op., August 18, 2017, at 3-6.)
             By opinion and order dated August 18, 2017, the trial court denied
Appellants’ motion for reconsideration.         With respect to Appellants’ argument
concerning Dauphin County Local Rule 1034(a), the trial court stated that Appellants
focused on a single sentence within a discussion of the factual background in its July
18, 2017 opinion and misapplied the same. The trial court explained that it permitted
Appellants to file a nunc pro tunc response to Dobson’s motion for summary judgment
and they could have filed a supporting brief at that time pursuant to Dauphin County
Local Rule 1034(a) but did not. The trial court noted that Appellants did not file a brief
until after Dobson filed a brief in response to Appellants nunc pro tunc filing. The trial
court described Appellants’ assertion that it filed a brief in response to Dobson’s
motion for summary judgment as “factually inaccurate” and “meritless.”
             Further, the trial court noted that its decision was not premised on
Appellants’ lack of filing a brief, but instead was based on its interpretation of section
3315(b) of the Uniform Condominium Act and related case law. With respect to
Appellants’ remaining assertions, the trial court described the same as “bare assertions”
that “contain no explanation, no legal argument, and no supporting authority.” Finally,
the trial court characterized Appellant PMI’s assertion that it never received or retained




                                            5
the monies at issue as repetitive of its argument that was previously rejected. (Trial
court op., August 18, 2017, at 3-6.)
                 Dobson thereafter filed a motion to set hearing to assess attorney fees.
Counsel for Dobson sought fees totaling $6,435.00, representing 21.45 hours of work
at his standard rate of $300.00 per hour.9 Following hearing and oral argument on
December 20, 2017, the trial court issued an order granting Dobson’s motion and
awarding its counsel reasonable and necessary fees in the amount requested above.
Appellants filed a notice of appeal with the trial court.10 By order dated February 7,
2018, the trial court directed Appellants to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants filed this statement on
February 28, 2018, raising the same issues as set forth in their motion for
reconsideration. By order dated March 1, 2018, the trial court noted that these issues
were adequately addressed in its prior opinions of July 18 and August 18, 2017, and,
therefore, no further opinion would be filed.


                                             Discussion
                 On appeal,11 Appellants reiterate the arguments raised below, namely that
the trial court erred in granting summary judgment where the only factual evidence

       9
           Dobson’s motion is included in the original record at Item No. 45.

       10
          Appellants originally appealed to our Superior Court. However, by order filed March 15,
2018, the Superior Court transferred the matter to this Court.

       11
           On appeal from a trial court’s order granting or denying summary judgment, an appellate
court’s standard of review is de novo and the scope of review is plenary. Seda-Cog Joint Rail
Authority v. Carload Express, Inc., 185 A.3d 1232, 1236 (Pa. Cmwlth. 2018), appeal granted, 2019
Pa. Lexis 407 (Pa. 2019). Summary judgment is properly entered only when, after examining the
record in the light most favorable to the non-moving party, and resolving all doubts as to the existence
of a genuine issue of material fact against the moving party, the moving party is clearly entitled to
judgment as a matter of law. Id.


                                                   6
contradicted Dobson’s claims; Dobson’s protest letter with a notice of intent to reclaim
was insufficient to maintain a cause of action for return of funds paid from one party
to another; Dobson failed to allege or establish that funds were provided to both
Appellants; section 3315 of the Uniform Condominium Act was misapplied; and
Dauphin County Local Rule 1034 was not properly applied.


                                  Factual Evidence
             With respect to this argument in their brief, Appellants merely recite the
standard for granting summary judgment and their argument consists of a single
sentence stating “the trial court granted summary judgment in contradiction to the only
Pennsylvania authority that has addressed the issues related to this case and in
contradiction to the only facts of record that addressed the relevant issues.”
(Appellants’ Amended Brief at 15.) As a result, Dobson contends that any argument
in this regard should be deemed waived as a result of Appellants’ failure to diligently
prosecute the same.
             An issue that is not addressed or developed in the argument section of a
brief may be waived. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued; and shall have at the head of each part-
-in distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.”); Pennsylvania Gaming Control Board v. Unemployment Compensation
Board of Review, 47 A.3d 1262, 1265 (Pa. Cmwlth. 2012) (concluding that failure to
develop an issue in a brief will result in waiver); Watkins v. Unemployment
Compensation Board of Review, 689 A.2d 1019, 1022 (Pa. Cmwlth. 1997) (concluding
that arguments not properly presented in the argument portion of a brief in support of



                                           7
the issue raised in the statement of questions involved are waived). Here, Appellants
fail to cite any relevant authority in support of their position. Additionally, Appellants
failed to reference the pertinent facts to which they point in their brief. Hence, we
agree with Dobson that this argument has been waived by Appellants.


                                     Protest Letter
             Appellants argue that a protest letter with a notice of intent to reclaim was
insufficient to maintain a cause of action for the return of funds paid from one party to
another. We agree.
             Dobson elected to pay the funds to Appellants in order to enable the
closing of its sale of unit #4613 to a third party, from which Dobson presumably
benefitted. In other words, Dobson received a benefit of having paid these funds.
Dobson did not have to remit this payment prior to closing. Instead, Dobson could
have postponed the closing to address the legal issues regarding the outstanding
charges sought by Appellants. Although Dobson might contend that a postponement
of the closing would have resulted in the loss of a sale, the fact remains that its payment
to Appellants was voluntary. As Appellants note in their brief, the law is well-
established that a plaintiff cannot recover monies voluntarily paid. See Peebles v.
Pittsburgh, 101 Pa. 304, 309 (1882) (“Where the payment is voluntary . . . a protest
with notice of an intent to reclaim, is not sufficient to sustain a recovery. The voluntary
character of the payment still remains, notwithstanding the notice, and is fatal to the
action.”); Union Insurance v. City of Allegheny, 101 Pa. 250, 255 (1882) (money paid
under protest does not make the payment involuntary or compulsory); Friedline v.
Somerset Borough, 173 A. 434, 435 (Pa. Super. 1934) (“[A] voluntary payment of
money under a claim of right cannot in general be recovered back.”).



                                            8
             Dobson’s previous reliance on Naumberg v. Home Unity Savings and
Loan Association, 26 Pa. D. & C.2d 147 (C.P. Bucks 1961), for support was misplaced.
As Appellants indicate, in Naumberg, a plaintiff made a payment, without prejudice,
to a creditor, whereupon the creditor marked a court docket satisfied and removed a
judgment. The plaintiff thereafter filed suit seeking a return of part of this payment.
Appellants state that the common pleas court in that case dismissed the plaintiff’s
action because a notation of protest/without prejudice had no legal significance and cite
to the following holding of the common pleas court:

             A voluntary payment of money under a claim of right cannot,
             in general, be recovered back. There must be compulsion,
             actual, present and potential, in inducing the payment by
             force of process available for instant seizure of person or
             property. The element of coercion being essential, mere
             protest or notice will not change the character of the payment
             from voluntary to involuntary or confer of itself a right of
             recovery.
Id. at 150. In the present case, Dobson failed to allege or argue compulsion and,
therefore, there is no basis upon which to distinguish Naumberg from this case.
             In addition, Dobson’s previous reliance on In re: Bell, 25 A.2d 344 (Pa.
1942), is likewise misplaced. Dobson relies on the following passage from In re: Bell:

             The phrase “without prejudice” ordinarily imports the
             contemplation of further proceedings . . . . “The words
             ‘without prejudice’ import into any transaction that the
             parties have agreed that as between themselves the receipt of
             money by one and its payment by the other shall not of
             themselves have any legal effect on the rights of the parties,
             but they shall be open to settlement by legal controversy as
             if the money had not been paid.
25 A.2d at 350. However, Appellants point out that said case involved a common pleas
court order that had been issued without prejudice and not a payment by a private party.
As Appellants properly note, a private party lacks the power of a court to reserve further

                                            9
proceedings. Moreover, Dobson’s reliance on the cases of PNC Bank, National
Association v. Balsamo, 634 A.2d 645 (Pa. Super. 1993), and Law v. Mackie, 95 A.2d
656 (Pa. 1953), is also misplaced.        In PNC Bank, the focus was on whether
consideration was exchanged following a dispute as to the amount due and Law merely
recognized that a payment subject to a bona fide dispute could create an accord and
satisfaction, provided consideration existed. The facts of these cases clearly distinguish
them from the case sub judice.


                                  Payment of Funds
             Appellants next argue that the affidavit of Black established that Appellant
PMI received and retained no money from Dobson and that Dobson failed to plead any
facts or introduce evidence that it had. Appellants note that Dobson’s complaint merely
stated that it paid the funds but did not state to whom these funds were paid, which
Appellants allege is insufficient to obtain summary judgment, especially in light of a
contradictory affidavit. However, there is no dispute that Appellant PMI became
property manager for Waverly Woods on March 1, 2016, and that Appellant PMI was
property manager at the time the resale certificate was issued, when the protest letter
was sent, and when the disputed funds were paid. Further, Black’s affidavit appears to
confirm that payment was made to Appellant PMI by virtue of her acknowledgement
that all funds in this case were deposited into the account of Waverly Woods. In other
words, the payment was made from Dobson to Appellant PMI, with the latter
depositing the funds into the account of Waverly Woods.




                                           10
                 Section 3315 of the Uniform Condominium Act
            Appellants argue that the trial court misapplied section 3315 of the
Uniform Condominium Act with respect to lien divestiture.
            Section 3315 of the Uniform Condominium Act states as follows:

            (a) General rule. -- 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 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 thereon, except the mortgage for
                which the sale is being held, if the mortgage is or shall
                be prior to all other liens upon the same property except
                those liens identified in 42 Pa.C.S. § 8152(a) (relating to
                judicial sale as affecting lien of mortgage) and liens for
                condominium assessments created under this section.
                Unless the declaration otherwise provides, fees, charges,
                late charges, fines and interest charged pursuant to
                section 3302(a)(10), (11) and (12) (relating to powers of
                unit owners’ association) and reasonable costs and
                expenses of the association, including legal fees,
                incurred in connection with collection of any sums due
                the association by the unit owner or enforcement of the
                provisions of the declaration, bylaws, 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 is
                not paid when due, the entire outstanding balance of the
                assessment becomes effective as a lien from the due date
                of the delinquent installment.

            (b) Priority of lien.

                  (1) General rule. -- A lien under this section
                  is prior to all other liens and encumbrances on a
                  unit. . . .




                                          11
                     (2) Limited       nondivestiture.       -- The
                     association’s lien for assessments shall be
                     divested by a judicial sale of the unit:

                            (i)    As to unpaid common
                                   expense assessments made
                                   under section 3314(b)
                                   (relating to assessments for
                                   common expenses) that
                                   come due during the six
                                   months          immediately
                                   preceding the date of a
                                   judicial sale of a unit in an
                                   action to enforce collection
                                   of a lien against a unit by a
                                   judicial sale, only to the
                                   extent that the six months’
                                   unpaid assessments are paid
                                   out of the proceeds of the
                                   sale.
68 Pa.C.S. §3315(a), (b)(1)-(2)(i).
              Dobson argues that the trial court properly interpreted this section as
requiring any unpaid common expense assessments accrued during the six months prior
to Dobson purchasing the condominium unit to be paid from the proceeds from the
judicial sheriff’s sale and that the failure to do so resulted in a divestiture of Appellants’
lien. We disagree with this interpretation by the trial court.
              There is no dispute that Appellants are entitled to a lien for unpaid
common expense assessments that became due during the six months immediately
preceding the judicial sale of unit #4613, i.e., the six months prior to January 21, 2016,
the date of the sale, in accordance with section 3315(b)(1). There is also no dispute
that Appellants’ lien could have been divested by the judicial sale to Dobson in
accordance with section 3315(b)(2). However, section 3315(b)(2)(i) contains language
restricting such a divestiture to a specific situation, i.e., when the assessments are



                                             12
actually paid from the proceeds of the judicial sale. Such an interpretation is the only
logical interpretation of this section, and one that serves the interests of both Dobson
and Appellants. This interpretation protects Dobson by precluding Appellants from
pursuing a double recovery of such assessments after they have been paid, as well as
protecting Appellants’ right to collect these proceeds via alternative means when, as
here, the assessments have not been paid from the proceeds of the judicial sale.12


                              Dauphin County Local Rule 1034
               Finally, Appellants argue that the trial court erred in granting summary
judgment on the basis that they failed to comply with Dauphin County Local Rule
1034(a). However, as the trial court explained in its August 18, 2017 opinion, Local
Rule 1034(a) did not serve as the basis for its decision. Hence, we need not further
address this argument.


                                            Conclusion
               Appellants have waived any argument relating to factual evidence by
failing to properly address and develop this argument in their brief. Dobson’s voluntary
payment of monies to Appellants, even under protest and without prejudice, was
insufficient to permit recovery of the same. Contrary to Appellants’ contention, the
affidavit of Black does not establish that Appellant PMI received and retained no
monies from Dobson. The trial court erred in its interpretation of section 3315 of the


       12
          In the course of this argument, Appellants also averred that an award of attorney fees to
Dobson was in error and inconsistent with section 5315(g) of the Uniform Condominium Act, 68
Pa.C.S. §5315(g), since the trial court never granted Dobson the relief it initially requested, i.e., a
declaratory judgment. Section 5315(g) also provides that such attorney fees are awarded to the
prevailing party. In light of our conclusion above, the trial court’s grant of summary judgment was
improper and, hence, Dobson is no longer a prevailing party entitled to attorney fees.


                                                 13
Uniform Condominium Act. In light of the above, the trial court’s grant of summary
judgment in favor of Dobson was in error. Consequently, the trial court’s award of
attorney fees to Dobson as the prevailing party was likewise in error.
             Accordingly, the orders of the trial court are reversed, and the matter is
remanded to the trial court for further proceedings.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          14
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dobson Park Management, LLC,              :
general partner of and trading as the     :
Leonard J. Dobson Family Limited          :
Partnership                               :
                                          :    No. 570 C.D. 2018
             v.                           :
                                          :
Property Management, Inc. and             :
Waverly Woods I Condominium               :
Association,                              :
                 Appellants               :


                                        ORDER


             AND NOW, this 13th day of February, 2019, the orders of the Court of
Common Pleas of Dauphin County, dated July 18 and December 20, 2017, are
hereby reversed, and the matter is remanded to the trial court for further proceedings.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
