Argued: December 12, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge,
HONORABLE ANNE E. COVEY, Judge, HONORABLE JAMES GARDNER
COLINS, Senior Judge.
E. COVEY, JUDGE
McCabe (Mr. McCabe) and Jennifer McCabe (collectively, the
McCabes) appeal from the York County Common Pleas Court's
(trial court) April 22, 2014, February 17, 2016 and April 15,
2016 orders granting Logans' Reserve Homeowners'
Association's (Association) partial summary judgment
motion, denying the McCabes' motion for continuance, and
denying the McCabes' post-trial relief motion. There are
three issues for this Court's review: (1) whether
the trial court erred in granting the Association's
partial summary judgment motion; (2) whether the trial court
erred in denying the McCabes' continuance motion; and,
(3) whether the trial court erred in denying the McCabes'
post-trial relief motion (Post-Trial Motion). After review,
August 28, 2006, the McCabes purchased real property at 1118
Silver Maple Circle in Seven Valleys, Pennsylvania (the
Property). The Property is located within Logan's Reserve
(the Development), a community owned and maintained by the
Association, and is subject to the Uniform Planned Community
Act (Act) and the Association's Declaration,
By-Laws and amendments thereto (Declaration). The Declaration
requires property owners, including the McCabes, to pay
common expense assessments to the Association.
See Declaration § 9.2.1.
the McCabes purchased the Property, the Association assessed
them monthly dues, which they paid. However, in June 2009,
the McCabes ceased paying the dues. On April 8, 2010, the
Association instituted an action against the McCabes in
Magisterial District Court. On June 23, 2010, the Magisterial
District Judge entered judgment in the McCabes' favor. On
July 1, 2010, the Association filed a notice of appeal from
the June 23, 2010 judgment. On August 10, 2010, the
Association filed a complaint in the trial court against the
McCabes seeking recovery of their unpaid assessments, as well
as late fees and attorneys' fees. On October 22, 2010,
the McCabes filed an answer with new matter and counterclaim
explaining that they stopped paying the assessed dues because
the Association had "failed, and continues to fail to
maintain the common area behind [the McCabes'] back lawn
(. . .Common Area)." Reproduced Record (R.R.) at 35a.
In their new matter, the McCabes alleged that the Association
had not maintained the Common Area since the McCabes moved
into the Property in August 2006, and that the Common Area
was overgrown with weeds and shrubs, thereby causing their
lawn and home to be infested with ticks and other insects,
for which they incurred treatment expenses. In their
counterclaim, the McCabes claimed that the Association's
failure to maintain the Common Area constituted a breach of
the Declaration and resulted in the aforementioned expenses.
Accordingly, the McCabes sought reimbursement of the
expenses, plus reimbursement of dues they paid between August
2006 and June 2009. The Association filed its answer to the
new matter and counterclaim on October 22, 2010.
November 12, 2013, the Association filed its partial summary
judgment motion alleging that there were no genuine issues of
material fact, that the McCabes had failed to pay their
assessed dues and that, as a matter of law, the McCabes were
prohibited from withholding payment of common expense
assessments as self-help to address their dissatisfaction
with the Association's alleged failure to maintain the
Common Area. The Association also sought attorneys' fees
and costs. After oral argument, on April 22, 2014, the trial
court granted the Association's partial summary judgment
motion, entered judgment in the Association's favor, and
awarded attorneys' fees and costs. The case continued on
the McCabes' counterclaim.
McCabes requested that their counterclaim proceed to
arbitration. At arbitration, the McCabes were awarded $2,
711.06 (Arbitrators' Award). The McCabes appealed from
the Arbitrators' Award to the trial court on the basis
that the arbitrators did not award attorneys' fees.
August 31, 2015, the parties' counsel signed a
Certificate of Trial Readiness (Certificate) declaring to the
trial court that the matter was ready for trial. The
Certificate also certified "that all witnesses will be
on call and available during the entire scheduled trial
term." R.R. at 579a. A non-jury trial was scheduled for
February 17, 2016 before Judge Stephen P. Linebaugh (Judge
Linebaugh). Judge Linebaugh held a pretrial conference on
October 1, 2015. Prior to trial, Judge Linebaugh conducted a
February 9, 2016, the Association filed its pre-trial brief
wherein it argued the business judgment rule as a defense to
the McCabes' action. On the evening of February 12, 2016,
the McCabes' witness, former Association President Howard
Asche (Asche), informed the McCabes that he could not attend
trial due to a scheduling conflict. On February 15, 2016, the
McCabes filed a First Motion for a Trial Continuance
(Continuance Motion) by first class mail with a certificate
of service dated February 15, 2016. Therein, the McCabes
explained that Asche was unavailable and that his testimony
was directly relevant to the Association's business
judgment rule defense. The trial court's Prothonotary's
office time-stamped the Continuance Motion on February 17,
2016. Notwithstanding, the trial was held as scheduled on
February 17, 2016. On the last day of trial, the McCabes
renewed their Continuance Motion, and requested the trial
court to keep the record open so they could obtain
Asche's testimony before the trial court rendered a
decision. The trial court refused the McCabes' request.
In a February 17, 2016 written order, the trial court denied
the Continuance Motion, explaining:
The [trial court] conducted a pretrial conference in this
matter on October 1, 2015. At that time, Counsel selected the
date for the trial and had selected the date for today's
date and time.
The allegation in the motion is that there's a witness
who is unavailable because he has meetings in New Jersey
relative to this appointment, and that is not a sufficient
justification to continue the trial when a witness could have
been made available by the moving party.
R.R. at 345a-346a.
March 23, 2016, the trial court found in favor of the
Association and against the McCabes on the McCabes'
counterclaim (March 23, 2016 Order). The McCabes filed the
Post-Trial Motion seeking reconsideration, a new trial or
other equitable relief. On April 15, 2016, the trial court
denied the McCabe's Post-Trial Motion. The McCabes
appealed to the Pennsylvania Superior Court. The Superior
Court, sua sponte, transferred the matter to this
McCabes first argue that the trial court erred when it
granted the Association's partial summary judgment
motion. The McCabes contend that a genuine issue of material
remains regarding whether the Association breached the
Declaration, thereby justifying the McCabes' failure to
pay their assessments. Section 5314 of the Act provides:
(a) General rule.--Until the association makes a common
expense assessment, the declarant shall pay all the expenses
of the planned community. After any assessment has been made
by the association, assessments shall be made at least
annually, based on a budget adopted at least annually by the
association. The budgets of the association shall segregate
limited common expenses from general common expenses if and
to the extent appropriate.
(b) Allocation and interest.--Except for assessments under
subsection (c), all common expenses shall be assessed against
all the units in accordance with the common expense liability
allocated to each unit in the case of general common expenses
and in accordance with subsection (c) in the case of special
allocation of expenses. Any past[-]due assessment or
installment thereof shall bear interest at the rate
established by the association at not more than 15% per year.
(c) Special allocations of expenses.--Except as provided by
(1) Any common expense associated with the maintenance,
repair or replacement of a limited common element shall be
assessed in equal shares against the units to which that
limited common element was assigned at the time the expense
(2) Any common expense benefiting fewer than all of the units
shall be assessed exclusively against the units benefited.
(3) The costs of insurance shall be assessed in proportion to
risk, and the costs of utilities that are separately metered
to each unit shall be assessed in proportion to usage.
(4) If a common expense is caused by the negligence or
misconduct of any unit owner, the association may assess that
expense exclusively against his unit.
68 Pa.C.S. § 5314 (text emphasis added). Section 5315(a)
of the Act states:
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 a 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 on the unit, except
the mortgage for which the sale is being held, if the
mortgage is prior to all other liens upon the same property
except those liens identified in [Section 8152(a) of the
Judicial Code, ] 42 Pa.C.S. § 8152(a) (relating to
judicial sale as affecting lien of mortgage) and liens for
planned community assessments created under this section.
Unless the declaration otherwise provides, fees, charges,
late charges, fines and interest charged under [S]ection
5302(a)(10), (11) and (12) [of the Act] (relating to power of
unit owners' association) and reasonable costs and
expenses of the association, including legal fees, incurred
in connection with collection of any sums due to the
association by the unit owner or enforcement of the
provisions of the declaration, by[-]laws, 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 are not paid
when due, the entire outstanding balance of the assessment
becomes effective as a lien from the due date of the
68 Pa.C.S. § 5315(a) (emphasis added).
Pennsylvania Superior Court in Rivers Edge Condominium
Association v. Rere, Inc., 568 A.2d 261 (Pa. Super.
1990), was the first appellate court to address the issue of
whether a condominium unit owner can withhold assessment
payments based on an association's failure to maintain
the common areas. In Rivers Edge, a condominium
owner refused to pay assessments to the association because
the owner believed that the association had failed to
maintain and repair the common elements. The owner also
claimed that he suffered property damage caused by water
leaks. The Superior Court held that the
owner's "action in withholding his condominium
assessments, even assuming that he has suffered the property
damage he alleges, is not justified by the language of the .
. . [c]ondominium [b]y-laws, the statutes of this
Commonwealth, or general public policy considerations."
Id. at 263.
Rivers Edge Court expounded:
The [c]ondominium [b]y-[l]aws explicitly require that a unit
owner continue to pay the condominium assessment even if the
owner is not receiving services owed to him, i.e.,
repairs to the common elements. When an individual purchases
a condominium unit . . ., he necessarily accepts this
provision allowing for no exemption from payment of the
assessments. Such a provision benefits all of the unit owners
because if all unit owners continue to pay the assessments,
maintenance and repairs to the common elements will continue
to be possible. A condominium form of ownership in real
estate succeeds, because unit owners agree to cooperate in
the maintenance of common elements. When the [property owner]
purchased his [condominium] units . . ., he chose to accept
the benefits and obligations which accompany this form of
real estate ownership. Although no appellate court in
Pennsylvania has addressed the issue of whether the owner of
a condominium unit may withhold condominium assessments based
upon the alleged failure of the condominium association to
maintain common elements, this issue was addressed by the
Court of Common Pleas of Philadelphia in Society Hill
Towers Owners' Association v. Matthew, 32 Pa. D.
& C.3d 244 (1982). There, a judgment by confession had
been entered in favor of a condominium association against
unit owners who had failed to pay assessments. The unit
owners claimed that they failed to pay the assessments due to
the failure of the [a]ssociation to provide required
maintenance services. The trial court aptly responded to this
Regarding petitioners' contention that their obligation
to pay was dependent upon the provision of services, nothing
in their deed, the Condominium Declaration or Code of
Regulations supports it. Under the Code of Regulations, unit
owners are required to pay all assessments and have no right
to withhold payment for alleged nonprovision of services.
Petitioners should have directed their dispute over
maintenance services to the condominium council rather than
unilaterally withholding assessments.
Id. at 247-48.
We find it significant that nothing in [the Act] supports the
type of self-help action undertaken by the [condominium
owner]. Had the Legislature intended to allow owners of
condominium units to withhold assessments where owners
believe that their condominium association is not performing
its obligations properly, we believe the Legislature would
have explicitly so provided.
Rivers Edge, 568 A.2d at 263 (bold emphasis
[N]othing in the [Act] supports the type of self-help action
undertaken by [the McCabes]. Had the Legislature intended to
allow owners of [homes subject to homeowners'
associations] to withhold assessments where owners believe
that their . . . association is not performing its
obligations properly, we believe the Legislature would have
explicitly so provided.
Id. at 263.
matter of law, the McCabes were required to pay the
Association's assessments regardless of any alleged
inadequacies in the Association's performance. Therefore,
since any such breach of the Association's Declaration
would not relieve the McCabes of their obligation to pay
their assessments, the question of whether the Association
breached them does not involve a material fact. Thus, the
trial court properly granted the Association's partial
summary judgment motion.
McCabes next argue that the trial court erred when it denied
their Continuance Motion. Although the McCabes acknowledge
that "[t]he decision to grant or deny a continuance is
exclusively within the discretion of the trial court, and
this Court will not disturb the trial court's
determination in the absence of an apparent abuse of
discretion[, ]" they contend that the trial court abused
its discretion because the trial court's judgment was
manifestly unreasonable. McCabes' Br. at 23 (quoting
Gillespie v. Dep't of Transp., Bureau of Driver
Licensing, 886 A.2d 317 (Pa. Cmwlth 2005)).
Specifically, the McCabes assert that the trial court acted