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Riverwatch Condominium Owners Association v. Restoration Development Corp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


May 29, 2009

RIVERWATCH CONDOMINIUM OWNERS ASSOCIATION, APPELLANT
v.
RESTORATION DEVELOPMENT CORPORATION, COUNTY OF DELAWARE, RECORDER OF DEEDS, AND COUNTY OF DELAWARE, BOARD OF ASSESSMENT

The opinion of the court was delivered by: James R. Kelley, Senior Judge

ORDER

AND NOW, this 20th day of August, 2009, it is ordered that the Opinion filed on May 29, 2009, shall be designated OPINION rather than MEMORANDUM OPINION, and that it shall be reported.

Argued: November 11, 2008

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Riverwatch Condominium Owners Association (Association) appeals the order of the Court of Common Pleas of Delaware County (trial court) granting the summary judgment motion of Restoration Development Corporation (Restoration), affirming Restoration's title to a disputed two-acre parcel of property, and Restoration's right of access to that two-acre parcel across a portion of the Association's property. We affirm.

By deed dated May 4, 1988, Genevieve Caldwell, Executrix of the Estate of Daniel Henuber conveyed a 3.1593-acre parcel of property bordering the Delaware River in Tinicum Township, Delaware County to Riverfront, Inc. (Riverfront). The parcel was purchased for $400,000.00, and the deed was recorded on May 6, 1988 with the Delaware County Office of the Recorder (Recorder) at Volume 570, Page 985. Reproduced Record (RR) at 102-105. The entire parcel was identified as Folio Number 45-00-01775-00 for the payment of property taxes due thereon to the County of Delaware Board of Assessment (Board). Id. at 102.

On March 6, 1991, a Site Plan for condominium development of the parcel was recorded with the Recorder at Plan Book 17, Page 80. Reproduced Record (RR) at 160. The Site Plan shows the construction of 34 units on a 1.089-acre parcel (one-acre parcel) of the property designated as "Phase I" (Riverwatch I). Id. The Site Plan shows an adjoining 2.0703-acre parcel (two-acre parcel) for use as a parking lot and boat slips designated as "Phase II" (Riverwatch II). Id. In addition, the Site Plan shows driveway access to the parking lot on the Riverwatch II two-acre parcel from Carre Avenue across a portion of the Southwest corner of the Riverwatch I one-acre parcel. Id.*fn1

On September 12, 1995, Riverfront filed a Declaration of Condominium (Declaration) with the Recorder at Volume 1398, Page 1178. RR at 114-159. The Declaration was signed by Anthony Grosso as president of Riverfront. Id. at 158. Sections 1.1, 1.2 and 1.3 of the Declaration state the following:

Section 1.1 Declaration of Condominium. [Riverfront] is the owner in fee simple of the property described as Exhibit "A", which is attached hereto and made part hereof which property is located in the Township of Tinicum, Delaware County, Pennsylvania (the "Property"). [Riverfront] hereby submits Phase I of the Property to the provisions of the Pennsylvania Uniform Condominium Act [(PUCA)*fn2,] thereby creating a condominium, which is to be known as RIVERWATCH CONDOMINIUM ([Riverwatch I]). [Riverwatch I] will be developed in two Phases on a portion of a larger property. A legal description of both Phases is attached hereto, made a part hereof and marked as Exhibits "B" and "C". The balance of the larger tract shall initially be organized as a separate condominium known as Riverwatch II Condominium. This property is described in Exhibit "D" and is flexible real estate*fn3 (the "Flexible Real Estate") which may be added to the Condominium under certain conditions set forth herein. Each phase [of the development of Riverwatch I], as well as the flexible real estate is identified on the Plats and Plans which are attached hereto, made a part hereof and marked Exhibit "E" (the "Plats and Plans"). Phase II [of Riverwatch I] is Convertible Real Estate as that term is defined in the [PUCA*fn4 ], and are marked "Convertible Real Estate" on the Plats and Plans.

Section 1.2 Size and Location. The Property consists of a total area of approximately, 1.080 acres more or less, as shown on the Plats and Plans..

Section 1.3 Number of Phases, Buildings and Units in Each Phase. The Condominium will contain 34 Units. Phase I [of Riverwatch I] consists of fourteen (14) Units in one (1) Building. Phase II [of Riverwatch I] will consist of one (1) Building containing twenty (20) additional Units..

Id. at 114.

In turn, Exhibit A of the Declaration contains a metes and bounds description of the Riverwatch I one-acre parcel which is bordered on the Southern side "at the edge of property now or formerly of Riverwatch II Condominium; thence by Riverwatch II Condominium the five following courses and distances.." RR at 115. Exhibit A also states that Riverwatch I is comprised of a parcel "CONTAINING 1.089 Acres of land more or less." Id.*fn5

In addition, Exhibit D of the Declaration contains a metes and bounds description of parcel identified as Riverwatch II in the Declaration which was also designated as a separate condominium in the Declaration. RR at 118. Exhibit D also states that Riverwatch II two-acre parcel is comprised of a parcel "CONTAINING 2.0703 acres of land, more or less." Id.

Moreover, Section 7.1(b) states that, in addition to the easements specifically granted by the PUCA, "[t]he Condominium shall be subject to.

[e]asements for driveways through the Condominium as shown on the Plats and Plans.." RR at 134. Further, Section 7.1(n) states that "[a]ll easements, rights and restrictions described and mentioned in this Declaration are easements appurtenant, running with the land and the improvements thereon.." Id. at 137.

On October 11, 1995, another Site Plan for the first phase of the development of the Riverwatch I one-acre parcel was recorded with the Recorder at Plan Book 18, Page 439. RR at 161. This Site Plan again shows the construction of a total of 34 units on the Riverwatch I one-acre parcel of the property. Id. The Site Plan again shows the adjoining Riverwatch II two-acre parcel for use as parking and boat slips. Id. In addition, the Site Plan again shows driveway access to the parking lot on the Riverwatch II two-acre parcel from Carre Avenue across a portion of the Southwest corner of the Riverwatch I one-acre parcel. Id.

By a deed dated December 17, 1997, Riverfront conveyed the Riverwatch II two-acre parcel of the property to Riverfront Marina, Inc. for the sum of $75,000.00. RR at 106-109.*fn6 The deed was recorded with the Recorder on February 5, 1998 at Volume 1678, Page 346. Id. The Board assigned a tax folio number for the Riverwatch II two-acre parcel separate from the tax folio number for the Riverwatch I one-acre parcel when the deed for the two-acre parcel was recorded. Id. at 13.

By deed dated November 4, 1999, Riverfront Marina conveyed the Riverwatch II two-acre parcel to Restoration for the sum of $65,000.00. Id. at 110-113. This deed was recorded with the Recorder on November 10, 1999 at Volume 1949, Page 2131. Id.

On April 15, 2005, the Association filed an amended complaint in the trial court against Restoration, the Recorder and the Board. RR at 7-14. In Count One of the complaint, the Association instituted an action quiet title against Restoration in which it asked the trial court to declare that it is the true and lawful owner of the Riverwatch II two-acre parcel. Id. at 8-10. In Count Two, the Association instituted an action in ejectment against Restoration in which it asked the trial court to prevent Restoration's continuing trespass on the Riverwatch II two-acre parcel. Id. at 11. In Count Three, the Association instituted an action to quiet title against Restoration in which it asked the trial court to declare that Restoration has no interest across the Southwest corner of the Riverwatch I one-acre parcel to gain access to the Riverwatch II two-acre parcel. Id. at 11-12. In Count Four, the Association instituted an action in mandamus against the Recorder in which it asked the trial court to compel the Recorder to rescind the deed of record which purports to convey ownership of the Riverwatch II two-acre parcel to Restoration. Id. at 12. Finally, in Count Five, the Association instituted an action in mandamus against the Board in which it asked the trial court to compel the Board to eliminate the separate tax folio number that it issued for the Riverwatch II two-acre parcel. Id. at 13. On October 27, 2005, Restoration filed an answer, new matter and counterclaim to the complaint. Id. at 15-31.

On September 6, 2006, Restoration filed a motion for summary judgment, and the Association filed a reply to the motion. On October 12, 2006, the trial court issued an order granting the motion for summary judgment, affirming Restoration's title to the Riverwatch II two-acre parcel, and affirming Restoration's access to that parcel from Carre Avenue across the Southwest corner of the Riverwatch I one-acre parcel. Ultimately, the Association filed an appeal to this Court of the trial court's order denying the Association's motion for reconsideration of its order of October 12, 2006 granting summary judgment.

On appeal, this Court noted that, in the amended complaint, the Association had instituted both actions to quiet title and in ejectment against Restoration, and that the material issue of fact of who was in possession of the Riverwatch II two-acre parcel was in dispute. See Riverwatch Condominium Owners Association v. Restoration Development Corporation, 931 A.2d 133, 138-139 (Pa. Cmwlth. 2007). Relying upon the Pennsylvania Supreme Court's opinion in Siskos v. Britz, 567 Pa. 689, 790 A.2d 1000 (2000), this Court determined:

[I]t is clear that the trial court erred in granting Restoration's motion for summary judgment, and denying the Association's motion for summary judgment where. the fact of the possession of the relevant parcel of property is in dispute. Moreover, and more importantly, in such a situation, the trial court is required to make the initial determination of which party is in possession of the property because "[a] determination of possession is a jurisdictional prerequisite to a ruling on the merits pursuant to either [Rule 1061](b)(1) or (b)(2) [of the Pennsylvania Rules of Civil Procedure]." [Siskos, 567 Pa.] at 701, 790 A.2d at 1008. Thus, the trial court's order in the case sub judice must be vacated, and the matter must be remanded to the trial court to proceed in accordance with the dictates of the Pennsylvania Supreme Court as set forth in Sisko.

Riverwatch Condominium Owners Association, 931 A.2d at 141. Accordingly, this Court issued an order vacating the trial court's order and remanding the matter to that court for further proceedings. Id.

On January 11, 2008, the Association and Restoration entered into a Stipulation in which it was agreed that "[b]oth at the time this matter was commenced by [the Association] and presently, [Restoration was] in possession of the disputed Two-Acre Parcel of land.." RR at 33. In addition, the parties agreed that "[the Association]'s Count I for Quiet Title is hereby withdrawn and the dispute regarding title to the Two Acre Parcel will proceed under. Restoration's Counterclaim for Quiet Title pursuant to Pa.R.Civ.P. 1061(b)(1), confirming [the Association]'s Count II Action in Ejectment." Id.*fn7

On March 27, 2008, Restoration filed a motion for summary judgment, and a memorandum of law in support thereof. On April 14, 2008, the Association filed an answer to Restoration's motion, a counter motion for partial summary judgment, and a brief in support thereof as well.

On May 9, 2008, the trial court issued the instant order granting Restoration's motion for summary judgment, affirming Restoration's title to the disputed Riverwatch II two-acre parcel of property, and affirming Restoration's right of access to that parcel across the Southwest corner of the Riverwatch I one-acre parcel.*fn8 The Association then filed the instant notice of appeal from the trial court's order.*fn9

In this appeal, the Association claims that the trial court erred in granting Restoration's motion for summary judgment because: (1) Restoration was never conveyed valid title to the Riverwatch II two-acre parcel; (2) the disputed Riverwatch II two-acre parcel was conveyed to the Association based upon a number of the Declarant's acts and omissions; and (3) the court erred in granting Restoration a right of access to the Riverwatch II two-acre parcel across the Southwest corner of the Riverwatch I one-acre parcel.*fn10

The Association first claims that the trial court erred in granting Restoration's motion for summary judgment because Restoration was never conveyed valid title to the Riverwatch II two-acre parcel. More specifically, the Association contends that Restoration was never conveyed valid title to the Riverwatch II two-acre parcel because it was never formally subdivided from the original 3.1593-acre parcel as required by the Tinicum Township Subdivision Ordinance*fn11 and the MPC.*fn12 In support of this assertion, the Association cites to Section 1 of the Act of May 28, 1895, P.L. 124, as amended, 21 P.S. § 399*fn13, which prohibits the sale of parcels of property prior to the recording of their subdivision. In addition, the Association asserts that the deed conveying title to Restoration refers to a 1996 Site Plan that does not exist and, as a result, Restoration was aware of its invalid title.

However, as noted above, the parties agreed in the trial court that "[t]he dispute regarding title to the Two Acre Parcel will proceed under. Restoration's Counterclaim for Quiet Title pursuant to Pa.R.Civ.P. 1061(b)(1), confirming [the Association]'s Count II Action in Ejectment." RR at 33. With respect to actions in ejectment, the Superior Court has noted the following:

The plaintiffs' burden in an action of ejectment at law is clear; they must establish the right to immediate exclusive possession. Recovery can be had only on the strength of their own title, not the weakness of defendant's title. The crux of an ejectment action, therefore, rests with the plaintiffs' ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.

Doman v. Brogan, 592 A.2d 104, 108 (Pa. Cmwlth. 1991) (citations omitted).

Thus, in order to survive summary judgment*fn14 in the case sub judice, it was the Association's initial burden to establish prima facie title to the disputed Riverwatch II two-acre parcel, and its title could not be based solely upon the purported weakness of Restoration's title. Id.*fn15 As a result, the Association's reliance on the purported weakness of Restoration's title to the disputed Riverwatch II two-acre parcel is not dispositive in our determination of whether or not the trial court erred in granting Restoration's motion for summary judgment, and the Association's allegation of error in this regard is patently without merit.

The Association next claims that the trial court erred in granting Restoration's motion for summary judgment because the disputed Riverwatch II two-acre parcel was conveyed to the Association based upon a number of the Declarant's acts and omissions. More specifically, the Association claims*fn16 that title was conveyed because: (1) ambiguities regarding the Declarant's reservation of his rights to the flexible real estate in Section 15.2 of the Declaration of Condominium must be construed against the Declarant and in the Association's favor; (2) there was no convertible real estate shown on the recorded Site Plans as required by Section 3210 of the PUCA, 68 Pa.C.S. § 3210*fn17; (3) the Declarant failed to provide a statement in the Declaration of Condominium regarding the disposition of flexible real estate that is not added to the condominium as required by Section 3206 of the PUCA, 68 Pa.C.S. § 3206*fn18; and (4) the Declarant conveyed the flexible real estate to the Association when the Declaration of Condominium was filed based on his failure to formally subdivide the Riverwatch II two-acre parcel.*fn19 *fn20 *fn21

With respect to interpreting the provisions of the Declaration of Condominium, this Court has stated the following, in pertinent part:

The fundamental rule in construing a contract is to ascertain and give effect to the intention of the parties. The intention of the parties must be ascertained from the document itself, if its terms are clear and unambiguous. A contract is ambiguous if it is reasonably susceptible of different interpretations and capable of being understood in more than one sense. A determination of whether a contract is ambiguous is a question of law.

Mayflower Square Condominium Association v. KMALM, Inc., 724 A.2d 389, 394 (Pa. Cmwlth. 1999). See also Article XVII of the Declaration of Condominium, RR at 156 ("The provisions of this Declaration shall be liberally construed in order to effectuate Declarant's desire to create a uniform plan for development and operation of condominium project.."); Article XVIII of the Declaration of Condominium, RR at 156-158 ("The provisions of this Declaration shall be deemed independent and severable, and the invalidity or unenforceability of any provision or portion thereof shall not affect the validity or enforceability of any other provision or portion thereof unless the deletion of such invalid or unenforceable provision shall destroy the uniform plan for development and operation of the condominium project which this Declaration is intended to create.").

As noted above, Section 1.2 of the Declaration explicitly designated "1.080 acres more or less" as the total area of the Riverwatch I Condominium. RR at 114. In addition, Section 1.1 explicitly designated "[t]he balance of the larger tract", i.e. the Riverwatch II two-acre parcel, "as a separate condominium.." Id. These provisions are explicitly confirmed by the metes and bounds description in Exhibit A, which states that the Riverwatch I one-acre parcel is bordered on the Southern side "at the edge of property now or formerly of Riverwatch II Condominium; thence by Riverwatch II Condominium the five following courses and distances.." Id. at 115. The description is likewise confirmed by the Site Plan that was recorded on March 6, 1991 and made part of the Declaration under Section 1.1, and by the Site Plan that was recorded on October 11, 1995. See Id. at 160, 161. Moreover, Section 3.1 of the Declaration explicitly states that "[t]he Plats and Plans show the location and dimensions of the land, buildings and improvements comprising the Property, and the location of the Units and certain of the Common Elements and Limited Common Elements." Id. at 127. Thus, under the clear and unambiguous provisions of the Declaration and the recorded Site Plans, the Riverwatch II two-acre parcel was explicitly a separate and distinct condominium from the Riverwatch I Condominium that was established by the Declaration and that was to be conveyed to the unit owners.

Nevertheless, the Association argues that the Riverwatch II two-acre parcel was conveyed to it when the Declaration of Condominium was filed due to the foregoing enumerated deficiencies. However, this claim ignores the clear and unambiguous language of the Declaration establishing the Riverwatch I Condominium, and it is based upon the premise that ambiguities in the Declaration establishing the Riverwatch I Condominium somehow affect the title to the property comprising the separate and distinct Riverwatch II Condominium. Even if it is assumed, as the Association contends, that the Declarant failed to adequately set forth the "flexible real estate" for the Riverwatch I Condominium in the Declaration or in the recorded Site Plans establishing that condominium, and that he failed to reserve any rights in the Riverwatch I Condominium's "flexible real estate" in any of those documents, the Association utterly fails to set forth how these purported deficiencies affect title to the two-acre parcel comprising the separate and distinct Riverwatch II Condominium.*fn22 In short, the Association's allegations of error in this regard are patently without merit.

Finally, the Association claims that the trial court erred in granting Restoration's motion for summary judgment because the court erred in granting a Restoration a right of access to the Riverwatch II two-acre parcel across the Southwest corner of the Association's Riverwatch I one-acre parcel. However, as noted above, Section 7.1(b) of the Declaration states that, in addition to the easements specifically granted by the PUCA, "[t]he Condominium shall be subject to. [e]asements for driveways through the Condominium as shown on the Plats and Plans.." RR at 134. In addition, Section 7.1(n) of the Declaration states that "[a]ll easements, rights and restrictions described and mentioned in this Declaration are easements appurtenant, running with the land and the improvements thereon.." Id. at 137. Further, both the Site Plan that was recorded on March 6, 1991 and made part of the Declaration under Section 1.1, and the Site Plan that was recorded on October 11, 1995, show driveway access to the parking lot on the Riverwatch II two-acre parcel from Carre Avenue across a portion of the Southwest corner of the Riverwatch I one-acre parcel. See RR at 160, 161.*fn23

An "easement" is a non-possessory interest in the land in the possession of another that entitles its holder to a limited use of the land in which the interest exists. In re Condemnation Proceeding by South Whitehall Township Authority, 940 A.2d 624 (Pa. Cmwlth. 2008). As the Pennsylvania Supreme Court has noted:

Existence of a servient tenement for the beneficial use of a dominant tenement is a prerequisite to the creation of an easement appurtenant. Creation of an easement appurtenant is accomplished by reserving unto the grantor an easement or right of way over the land conveyed, said right of way being intended to benefit other lands retained by the grantor. This reservation is conceptually fused with the land it benefits and passes with the land if there is a subsequent conveyance. An expressly created easement appurtenant can conceivably last forever.

Brady v. Yodanza, 493 Pa. 186, 189, 425 A.2d 726, 727 (1981) (citation and footnote omitted). In addition, the court noted that "[m]any cases recognize that where an easement is annexed as an appurtenance to land by an express or implied grant or reservation (here, an express reservation),. it passes with a transfer of the land although not specifically mentioned in the transfer.. [T]he easement passes by operation of law.." Id. at 190-191, 425 A.2d at 728 (citations omitted). See also Restatement (Third) of Property, Servitudes § 5.1 cmt. b (2000) ("Appurtenant interests pass automatically. Under the rule stated in this section, no instrument of transfer is necessary to pass servitude benefits and burdens to successors to the benefited or burdened property interests: they pass automatically on transfer of the property to which they are appurtenant. The Statute of Frauds does not require that an appurtenant servitude be mentioned in the instrument of transfer.").

As indicated above, in the Declaration of Condominium and the recorded Site Plans, the Declarant expressly reserved an appurtenant easement for access to the Riverwatch II two-acre parcel by a driveway across the Southwest corner of the Riverwatch I one-acre parcel. That easement was subsequently conveyed to Restoration as part of the dominant tenement by operation of law. Brady. As a result, the trial court did not err in recognizing Restoration's right of access to the Riverwatch II two-acre parcel across a portion of the Riverwatch I one-acre parcel, and the Association's allegation of error in this regard is likewise without merit.

Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, this 29th day of May, 2009, the order of the Court of Common Pleas of Delaware County, dated May 9, 2008 at No. 05-002019, is AFFIRMED.

JAMES R. KELLEY, Senior Judge


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