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BIRCHWOOD LAKES COMMUNITY ASSOCIATION v. BETTY COMIS (02/26/82)

filed: February 26, 1982.

BIRCHWOOD LAKES COMMUNITY ASSOCIATION, INC., APPELLANT,
v.
BETTY COMIS, HENRY LICHTE AND ROSE LICHTE, HIS WIFE, JOHN DESHEWSKI AND CONCETTA DESHEWSKI, HIS WIFE, MAE GENBERG, A/K/A MARY GENBERG, STANLEY MATEJEK AND BERNICE MATEJEK, HIS WIFE, LOUIS MENDY AND VIOLA T. MENDY, HIS WIFE, WALTER MCCAGUE AND MARGARET P. MCCAGUE, HIS WIFE, LAWRENCE MCMAHON AND HELEN MCMAHON, HIS WIFE, LEONARD C. RADEMAKER AND BARBARA RADEMAKER, HIS WIFE, ALAN R. TULP, ANNELIESE ZASSODA, JACK SWEETMAN AND EDITH H. SWEETMAN, HIS WIFE, GABRIEL PASSARELLI AND MARIE PASSARELLI, HIS WIFE, MICHAEL MCCAUL AND CATHERINE MCCAUL, HIS WIFE, EVA A. FRODGE, DENNIS WINTERS AND MARGARET WINTERS, HIS WIFE, LEONARD M. TRUBIA, HERBERT ANSTETT AND ELIZABETH ANSTETT, HIS WIFE, JOHN FARLEY AND WINIFRED FARLEY, HIS WIFE, ROBERT BARLETT, BERNARD GUDDAHL AND ROSE GUDDAHL, HIS WIFE, PHILIP LAMENDOLA AND ROSE LAMENDOLA, HIS WIFE, JOHN LEECHAN AND KATHERINE LEECHAN, THOMAS HARNEY AND MARY HARNEY, HIS WIFE, MARGARET JONAS, EMIL SARTORI AND DOLORES SARTORI, HIS WIFE, THOMAS STEFANELLI, CHARLES TALMAGE, GEORGE WILTSHIRE AND ELSIE M. WILTSHIRE, HIS WIFE, JOSEPH J. LORENTZ, JR. AND CATHERINE V. LORENTZ, ROBERT NEWSBAUM AND FRIEDA NEWSBAUM, HIS WIFE, STANLEY J. KASPRZAK AND STELLA KASPRZAK, HIS WIFE, JAD BARGHOUT AND E. LYNN BARGHOUT, HIS WIFE, THOMAS ANGELO AND MABEL ANGELO, HIS WIFE, AND ANTONIO MANZO



No. 1696 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Pike County, at No. 98 March Term, 1977.

COUNSEL

Randolph T. Borden, Hawley, for appellant.

Marshall E. Anders, Stroudsburg, for appellees.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 296 Pa. Super. Page 81]

All-American Realty Company was the developer of Birchwood Lakes, a residential recreational community. Birchwood Lakes Community Association, Inc. (hereafter referred to as the Association) is a non-profit corporation which is the successor in interest to the developer. The Association performs the services essential to the maintenance of the community. To pay for such services the Association assesses and collects "community dues" as its predecessor had done. For the fiscal years of 1975 and 1976 the Association assessed the dues to be $85.00 a year per lot, based on the anticipated expenses of operating the community.

The appellees are thirty-six (36) of an approximate 2,500 property owners within the community. Appellees refused to pay dues in excess of those listed in their deeds, which prompted the current litigation. The lower court found the deeds to be controlling and construed them against the Association. The court sitting en banc, denied Association's exceptions and judgment for appellees was entered. This appeal followed.

The issue presently before this court is whether the covenants contained in appellees' deeds restrict the amount of dues that the Association may assess. Two different provisions were placed in the various deeds, of which both are substantially similar. Accordingly, we will only reprint the first of the two in its entirety.

Each 25' lot and in case of Lake Front Lots, each 20' lot, included in the agreement shall be subject to an annual lien or charge of $10.00 and the Grantee, his, her or their heirs, successors, executors, administrators and assigns agree to pay to the Grantor its successors and assigns the

[ 296 Pa. Super. Page 82]

    sum of Ten ($10.00) Dollars to each of such lots, annually on the first day of May hereafter, for beach privileges, whether the same are exercised or not.*fn1 The title to all land designated as beach is expressly retained by the Grantor. The Grantee, his, her or their heirs, successors, executors, administrators, and assigns further agree that the use of said beaches is subject to approval for the use for membership in Birchwood Lakes Country Club, Inc., hereinafter provided, and in the case of a guest or member of the family, provided they shall first be approved for honorary membership in Birchwood Lakes Country Club, Inc., and to compliance with the rules and regulations from time to time promulgated by the Grantor, its successors and assigns, it being understood that the charge for beach privileges in addition to constituting a lien against each lot included in this agreement, shall constitute a debt which may be collected by suit in any court of competent jurisdiction, and upon the conveyance of any land described herein, successive owner or owners shall, from time of acquiring title, be held to have covenanted and agreed to pay the Grantor, its successors or assigns, all charges, past or future, as provided for in this paragraph. In no event, however, shall the annual lien and charge for Beach Privileges be less than $30.00 per annum.

The second provision is distinguished by its inclusion of the following clauses.

In no event, however, shall the annual lien and charge for Beach Privileges be less than $45.00 per annum or such additional sum as may be determined by the Grantor, its successors and assigns. The failure to pay the annual lien on due date shall give to the Grantor, its successors and assigns, the option of preventing the access and use of the aforementioned ...


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