Birchwood Lakes Community Ass'n, Inc. v. Comis

CourtSuperior Court of Pennsylvania
Writing for the CourtVAN der VOORT
PartiesBIRCHWOOD 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.
Decision Date26 February 1982

Page 304

442 A.2d 304
296 Pa.Super. 77
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.
Superior Court of Pennsylvania.
Argued Dec. 1, 1980.
Filed Feb. 26, 1982.

Page 306

[296 Pa.Super. 81] Randolph T. Borden, Hawley, for appellant.

Marshall E. Anders, Stroudsburg, for appellees.

Before HESTER, CAVANAUGH and VAN der VOORT, JJ.

VAN der VOORT, Judge:

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. 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. 1 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

Page 307

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 facilities of the said Country Club and the same shall be enforceable by mandatory injunction.

Before actually addressing the merits of the opposing contentions we must first resolve a preliminary matter. [296 Pa.Super. 83] Appellees attempt to frame the provisions in question as restrictive covenants in the hope that a standard of review more favorable to their position will be applied. Appellants also refer to the clause as restrictive covenants. A restrictive covenant may be defined as:

A covenant restricting or regulating the use of real property or the kind, character, and location of buildings or other structures that may be erected thereon, usually created by a condition, covenant, reservation, or exception in a deed, but susceptible of creation by contract not involving transfer of title to land and by implication. 20 Am J2d Cov §§ 165 et seq.

Ballentine's Law Dictionary, 3rd Ed. We fail to see how the above provisions restrict or regulate the use of appellee's property. A review of the cases that appellees rely upon demonstrates the difference between the current covenants and restrictive covenants. Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73, 239 A.2d 800 (1968) involved an easement for light and air. Parker v. Hough, 420 Pa. 7, 215 A.2d 667 (1966) concerned a height restriction. In Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65 (1961), there was a limitation to single family houses. While in Siciliano v. Misler, 399 Pa. 406, 160 A.2d 422 (1960) the covenant prohibited the operation of a supermarket. And in Jones v. Park Lane for Convalescents, Inc., 384 Pa. 268, 120 A.2d 535 (1956) the property was restricted to residential uses. In such situations, the restrictive covenants not being favored in law, will be strictly construed against the grantor.

The present case is more akin to Leh et al. v. Burke, 231 Pa.Superior Ct. 98, 331 A.2d 755 (1974). That case involved deeds which provided for the apportionment of costs if and when an adjoining road...

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34 practice notes
  • Finkel v. WeVeel LLC (In re Atomica Design Grp., Inc.), Case No. 12–17235–AMC
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • August 12, 2016
    ...one party receives an unjust enrichment at the expense of another.” Id. at 999 (quoting Birchwood Lakes Cmty. Ass'n, Inc. v. Comis, ?296 Pa.Super. 77, 442 A.2d 304, 308 (1982) ). Where a contract exists, the parties thereto “are not entitled to the remedies available under a judicially-impo......
  • Gress v. Freedom Mortg. Corp., 1:19-cv-375
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 26, 2019
    ...his complaint originally ... sets forth a cause of action in quasi-contract." Id. (quoting Birchwood Lakes Cmty. Ass'n, Inc. v. Comis , 296 Pa.Super. 77, 442 A.2d 304, 308-309 (1982) ). Plaintiffs, therefore, may plead unjust enrichment in the alternative.III. CONCLUSIONFor the reasons stat......
  • Crown Coal & Coke Co. v. Powhatan Mid-Vol Coal Sales, L.L.C., No. 2:12cv222.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • March 8, 2013
    ...AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super.2001) (citing Birchwood Lakes Community Assoc. v. Comis, 296 Pa.Super. 77, 442 A.2d 304, 308 (1982)). A duty is imposed “not as a result of any agreement, whether express or implied, but in spite of the absence of an ag......
  • Kia v. Imaging Sciences Intern., Inc., Civil Action No. 08-5611
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 20, 2010
    ...exists between the parties. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.Ct.1999); Birchwood Lakes Cmty. Ass'n Inc. v. Comis, 296 Pa.Super. 77, 442 A.2d 304, 309 (1982). Assuming, as we must at this stage, that Kia's work at ISI actually contributed to the increased value of the company......
  • Request a trial to view additional results
34 cases
  • Finkel v. WeVeel LLC (In re Atomica Design Grp., Inc.), Case No. 12–17235–AMC
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • August 12, 2016
    ...one party receives an unjust enrichment at the expense of another.” Id. at 999 (quoting Birchwood Lakes Cmty. Ass'n, Inc. v. Comis, ?296 Pa.Super. 77, 442 A.2d 304, 308 (1982) ). Where a contract exists, the parties thereto “are not entitled to the remedies available under a judicially-impo......
  • Gress v. Freedom Mortg. Corp., 1:19-cv-375
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 26, 2019
    ...his complaint originally ... sets forth a cause of action in quasi-contract." Id. (quoting Birchwood Lakes Cmty. Ass'n, Inc. v. Comis , 296 Pa.Super. 77, 442 A.2d 304, 308-309 (1982) ). Plaintiffs, therefore, may plead unjust enrichment in the alternative.III. CONCLUSIONFor the reasons stat......
  • Crown Coal & Coke Co. v. Powhatan Mid-Vol Coal Sales, L.L.C., No. 2:12cv222.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • March 8, 2013
    ...AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super.2001) (citing Birchwood Lakes Community Assoc. v. Comis, 296 Pa.Super. 77, 442 A.2d 304, 308 (1982)). A duty is imposed “not as a result of any agreement, whether express or implied, but in spite of the absence of an ag......
  • Kia v. Imaging Sciences Intern., Inc., Civil Action No. 08-5611
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 20, 2010
    ...exists between the parties. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.Ct.1999); Birchwood Lakes Cmty. Ass'n Inc. v. Comis, 296 Pa.Super. 77, 442 A.2d 304, 309 (1982). Assuming, as we must at this stage, that Kia's work at ISI actually contributed to the increased value of the company......
  • Request a trial to view additional results

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