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December 20, 1991


The opinion of the court was delivered by: McCLURE, District Judge.



This action involves a dispute over the rights and liabilities of the parties relating to the ownership of land within the Wallenpaupack Preserve, Greene Township, Pike County, Pennsylvania. Plaintiff Patrick J. McCormick II initiated this action by filing a complaint on August 5, 1988. By Order dated September 7, 1988, the Honorable William J. Nealon granted plaintiff's request for a temporary restraining order restraining the defendants from "prohibiting access to plaintiff to cross over, use, and enjoy the roads and lanes and other common areas in and about the Wallenpaupack Preserve". On December 29, 1989, defendants Camp Pocono Ridge, Inc. II (Camp II) and Thomas Santay filed an amended answer and counterclaim to McCormick's complaint.

The defendants filed a motion for partial summary judgment on November 21, 1990. On that same date, the plaintiff filed a motion seeking summary judgment on the defendants' amended counterclaim. On April 11, 1991, this court issued an order granting partial summary judgment in favor of the defendants and against the plaintiff with respect to the intentional infliction of emotional distress claim asserted in Count V of the complaint. 760 F. Supp. 1113. That order also stayed this action, because on the record before the court, plaintiff was not clearly established as the legal title-holder to Lot No. 6 and, therefore, may have lacked standing to bring claims related to the property. Plaintiff was given ninety days to establish legal ownership of the property. On July 11, 1991, plaintiff submitted to this court documentation which evidenced, to the court's satisfaction, plaintiff's legal ownership to Lot No. 6. The court will now consider the remaining issues of the parties' motions for summary judgment.


William H. Hough, Jr. established the Wallenpaupack Preserve in the 1920's. Hough and his wife Helen were the common grantors of all lands within the Preserve, including Lot No. 6, which was purchased by the plaintiff's family in 1936.*fn1 The chain of title to Lot No. 6, as set forth in plaintiff's brief in support of his motion for summary judgment,*fn2 is as follows:

  1.  August 31, 1927 — William H. Hough, Jr. and
  Helen E. Hough, his wife, to Charles D.
  2.  December 9, 1930 — Bartholomew to Robert E.
  3.  November 13, 1936 — Lamberton to L.W. and
  Elizabeth F. McCormick, plaintiff's parents.
  4.  November 24, 1964 — L.W. and Elizabeth F.
  McCormick to Patrick J. McCormick.
  5.  January 19, 1967 — Patrick J. and Joan R.
  McCormick to Elizabeth F. McCormick.
  6.  September 1, 1967 — Elizabeth F. and L.W.
  McCormick to E.L.P. Corporation.

E.L.P. Corporation ("E.L.P.") was a closed corporation and its four shares of issued and outstanding stock were owned by the plaintiff, his brother Leo McCormick and his mother Elizabeth McCormick.*fn3 Plaintiff's mother died on November 9, 1975 and E.L.P.'s corporate charter became void and inoperative on March 1, 1981 due to non-payment of franchise taxes.*fn4 On January 1, 1981, plaintiff acquired any and all interest his brother held in E.L.P.

In approximately 1935 or 1936, Russell Low purchased Henry and Helen Hough's remaining interest in the Wallenpaupack Preserve. Lots within the Preserve that were individually owned, including Lot No. 6, were not affected by this transfer of ownership. In 1957, Samuel Santay, the father of defendant Thomas Santay, and Yale Newman acquired Low's interest in the Preserve and converted the property into a youth summer camp. Santay and Newman conveyed their interest in the property to Camp Pocono Ridge, Inc. on October 8, 1965. Twenty-two years later, on October 6, 1987, Camp Pocono Ridge, Inc. conveyed its interest in the Preserve to Camp II. The shares of Camp II are owned exclusively by the defendant Thomas Santay, his wife Edna, and Mel and Jane Wolynez.

The original Hough to Bartholomew deed contains the following relevant restrictions:

  UNDER AND SUBJECT to the following restrictions
  and limitations which are hereby agreed to and
  accepted by the said grantee, for himself, his
  heirs and assigns, as covenants running with the
  land . . .
  FIFTH: That if at any time in the future said
  grantee shall desire to sell said property or any
  portion thereof, he shall first give to the said
  grantors, their heirs and assigns, an option to
  purchase the same at its full market value, and
  only in the event of the failure or refusal of the
  said grantors, their heirs and assigns, to
  exercise said option within a reasonable time
  after notice of such intended sale and the name
  and address of the intended purchasers, have been
  given to him or them, shall any conveyance or sale
  be made to any third person.
  SIXTH: That said restrictions and limitations are
  intended for the benefit and protection of all the
  purchasers of any parts or portions of the land
  conveyed to the said William H. Hough, Jr., by
  said Homer L. Gilpin and wife as hereinabove
  recited, and they are made solely for the
  preservation of said land for ...

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